In November 2018, the UK’s Competition Markets Authority (CMA) issued guidance around consumer law specifically concerning care home providers for elderly people over the age of 65.
In November 2018, the UK’s Competition Markets Authority (CMA) issued guidance around consumer law specifically concerning care home providers for elderly people over the age of 65. The guidance tries to steer care home operators away from contractual terms that are not compliant with the Consumer Rights Act 2015 (CRA).
Whilst the CRA came about as a vehicle to implement a European Union directive, any operators under the impression that Brexit will let them off the hook are gravely mistaken. On issuing its guidance the CMA committed to conducting a compliance review in November 2019 to assess the CRA compliance of operators and the progress made since the publication of its advice. The CRA is statute of England and Wales and will remain in force for the foreseeable future, Brexit or Remain, deal or no deal.
The CMA and other enforcers, such as Trading Standards Services and the Care Quality Commission, may take action against care homes that do not comply with consumer law. As recent as September 2019, our experience is that the significant majority of operators have not implemented adequate changes to achieve compliance, with many having cherry-picked the obligations that they are willing to express in their contracts with residents and others ignoring or seemingly being unaware of the guidance altogether.
Common pitfalls for which the CMA gives clear guidance on how to avoid are:
In the buoyant market of mergers and acquisitions in the elderly care sector, this presents a risk for buyers that, until now, has never taken such a degree of prominence in their due diligence investigations. Failure to comply with consumer law can have significant financial implications as well as reputational damage, with the CMA already requiring repayment of certain fees by a number of high profile providers deemed in breach and having the power to take court action against the non-compliant.
At almost 150 pages, it would be unwise of us to attempt to summarise the entire CMA guidance here. That said, regular areas of non-compliance have become apparent over the past 12 months and it is important for a buyer to remedy these issues on completion. Contract terms which are found to be unfair will be unenforceable against a resident and any money paid as a result may be recoverable and residents may also seek compensation so buyers would be wise to identify whether they need indemnity cover under the acquisition document as early in the process as possible.
Through assisting clients with their internal compliance audits, bringing existing contractual terms with residents and up-front materials into line with the CRA and expertly carrying out due diligence on acquisition targets, we have a wealth of experience in working with businesses to ensure that they, and any potential part of their group in the future, are CRA compliant and following the CMA guidance. Feel free to contact Clare Auty or Joel Nixon to discuss your needs.
The BMA is advising all NHS / HSCNI consultants to ensure extra-contractual work is paid at the BMA minimum recommended rate and to decline offers of extra-contractual work that doesn't value them appropriately.
NHS England has published (October 2022) new guidance - Assuring and supporting complex change: Statutory transactions, including mergers and acquisitions.
NHS England has issued an updated (publication 11 October 2022) suite of Complex Change guidance about how it will assure and support proposals for complex change that are reportable to it. New and (where it is still in force) existing Complex Change guidance are as follows.
Created at the end of the Brexit transition period, Retained EU Law is a category of domestic law that consists of EU-derived legislation retained in our domestic legal framework by the European Union (Withdrawal) Act 2018. This was never intended to be a permanent arrangement as parliament promised to deal with retained EU law through the Retained EU Law (Revocation and Reform) Bill (the “Bill”).
It is clear that the digital landscape, often termed cyberspace, is a man-made environment, in which human behaviour dominates and where technology both influences and aids our role in it — through the internet, telecoms and networked computer systems, which are often interdependent. The extent to which any organisation is potentially vulnerable to cyber-attack depends on how well these elements are aligned.
In Mogane v Bradford Teaching Hospitals NHS Foundation Trust the Employment Appeal Tribunal (EAT) considered whether it was fair to dismiss a nurse as redundant on the basis that that her fixed-term contract was due to expire before that of her colleague.
Three months on from the commencement of the new statutory Integrated Care Systems (ICS) Anja Beriro and Gerrard Hanratty reflect on the main themes and issues that have come from the new relationship between local government and health.
The majority of people do not feel the need to embellish their CV to get that coveted position and move on up the career ladder. Their worthiness and benefit to the hiring organisation are easily demonstrated through the recruitment process – application, psychometric testing, selection day or interview.
On Saturday 15 October a wave of light swept the internet when thousands of people flooded social media with pictures of candles to remember the babies that they have lost. This event signifies the end of Baby Loss Awareness Week which aims to break the silence that is associated with baby loss in pregnancy and infancy.
The Coronavirus Act 2020 allowed any registered medical practitioner to sign a medical certificate of cause of death (“MCCD”), even if the deceased was not attended to during his or her last illness and not seen after death, provided that the medical practitioner could state the cause of death to the best of their knowledge and belief.
In our latest Shared Insights session, Focus on Emergency Medicine, chaired by Jennifer Fagin and Amelia Newbold, we were pleased to be joined by: Dr Alex Crowe, Deputy Director Incentive Schemes & Academic Partnerships, NHS Resolution and Consultant Nephrologist and Miss Susie Hewitt MBE, Consultant in Emergency Medicine, University Hospitals of Derby and Burton NHS Foundation Trust.
Browne Jacobson has been ranked as a Top Tier law firm in 25 key practice areas in Legal 500 UK 2023, the independent directory of comparative law firm performance. The firm also continues to underpin its status as one of the leading law firms in the East Midlands region with 16 Tier 1 rankings.
On 7 July this year, NHS England published its statutory guidance for Integrated Care Boards (ICBs) and with it set out the ICBs’ role and responsibilities and how they should collaborate, interact and carry out their anti-fraud, bribery and corruption functions in concert with NHS England.
The Chancellor’s recent mini-budget provided a significant announcement for business as it was confirmed that the off-payroll working rules (known as “IR35”) put in place for public and private sector businesses from 2017 and 2021 will be scrapped from April 2023.
This case provides a reminder to contracting authorities that whilst the bar for an award of damages in procurement cases is high, following the Supreme Court ruling in Energy Solutions EU Ltd v Nuclear Decommissioning Authority [2017] 1 WLR 1373, it is not insurmountable when a contracting authority has acted with disregard to the Public Contracts Regulations 2015 (PCRs). There is also further guidance as to the use of frameworks
Welcome to our August edition of Public Matters, our monthly round-up of legal updates, news and insights for the public sector.
