Welcome to the Spring/Summer 2024 edition of Hempsons’ Social Care Newsbrief. We are delighted to continue to support all providers, large and small, working within one of the most, if not the most, challenging sectors in the UK.

CQC’s new single assessment framework (SAF) is now live and we wait with baited breath to see how new reports are going to look and the impact on the sector. I have been getting my head into the detail as I’m presenting a number of training sessions on the SAF, including at the Care England Annual Conference in March. One of the most common calls we receive on our free social care advice line is from providers who have had a less than ideal CQC inspection, so I’m trying to remain upbeat and positive that the new approach will be more transparent and there will be greater consistency of approach across the country. Time will tell!

This issue comprises articles across a range of themes including the CQC, inquests and how to deal with vexatious families as well as an update on some recent employment law cases related to COVID-19 and their implications on disability discrimination, mask and personal protective equipment (PPE) requirements, and whistleblowing.

Premises can be the biggest liability both in terms of capital expenditure and inherent liabilities and we have included an article that looks at ways in which you can limit your exposure to expensive repairs and dilapidations and avoid any unwanted surprises – regardless of whether you intend to own freehold or leasehold.

We are delighted to have an exclusive interview with Louise Bestwick, chief executive of Bradford Care Association and one of the founding partners of the new Yorkshire and the Humber Care Association Alliance. Louise has done great work in Bradford bringing providers together and supporting them, particularly through the challenging times of COVID-19 and her role alongside other local leaders is certain to ensure that the YHCAA will be an essential vehicle for providers up and down the county to have a stronger voice nationally to ensure social care becomes a government priority. Hempsons is delighted to be working with the Alliance and all its partners.

Finally, for the third year in a row Hempsons were delighted to win the ‘Legal & Professional & Business Services’ category at the Care Sector Supplier Awards in November 2023. Having won the award for the last two years, it’s great to get a hat trick!

I hope there is something for everyone in this edition and please get in touch if you have any questions or comments.

Philippa Doyle

Partner and head of social care

A new CQC fundamental standard: Visiting and accompanying in care homes, hospitals and hospices

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2023 introduce us to a new fundamental standard of care with effect from 6 April 2024 – Regulation 9A is entitled “Visiting and accompanying in care homes, hospitals and hospices”

It applies to all providers delivering a CQC regulated activity in a care home, hospital or hospice, and provides that unless there are exceptional circumstances, service users whose care or treatment involves an overnight stay or the provision of accommodation, must be facilitated to receive visits; must not be discouraged from taking visits away from the care home, and if their care and treatment doesn’t involve an overnight stay, must be enabled to be accompanied by a family member, friend or person providing support.

Specifically, a provider needs to ensure that visits are appropriate, meet service user’s needs and so far as practicable reflect their preferences; that in relation to being supported to go out, action or precautions are put in place in a proportionate way to facilitate visits and trips out; that when making arrangements or taking decisions due regard is had to care and treatment plans and that relevant people are involved in any decision making.

Nothing requires someone to be taken out or a visit to take place without the person’s consent or where it would not be in their best interests or would be contrary to a Court or Tribunal order.

The practical effect of this new regulation, for the vast majority of services, should simply mean a continuation of what they are doing, but there are a handful of services around the country, post pandemic, who still have very strict restrictions in place that may not always be in the best interests of the people the service supports.

By making the requirement to support visiting, and support trips out, a regulatory requirement, CQC will now be in a position to take action if a provider is failing in this area.

For more information or to receive detailed training on the CQC Fundamental Standards contact our social care team.

Watch our latest CQC webinar

Philippa Doyle

Partner and head of social care

Fundamental standards of care training

Improve the lives of the people you support and tick some CQC boxes too…

We have established bespoke training packages to ensure you are operating in accordance with the fundamental standards of care.

As a provider, registered manager, or member of care staff operating a regulated activity, you must ensure your care and service operates in accordance with the fundamental standards set out in the Health and Social Care Act 2008 (Regulated Activities) Regulations

When CQC inspects your service, they will speak to all staff and assess their understanding of these fundamental standards. It is therefore critical that all staff are clear about what their responsibilities are.

We provide bespoke training packages aimed at enshrining an understanding of how the fundamental standards of care apply to the everyday practice of your staff, and encouraging them to reflect upon how the care they provide sits within the framework and where improvements can be made.

Our training packages

We offer two training packages, catered specifically to either registered managers or front line staff.

Fundamental standards of care training for registered managers

We offer half day training sessions in small groups for senior management teams and registered managers. These sessions are designed to focus on:

Reg 9 – Person centred care
Reg 10 – Dignity and respect
Reg 11 – Need for consent
Reg 12 – Safe care and treatment
Reg 13 – Safeguarding
Reg 14 – Meeting nutritional and hydration needs
Reg 15 – Premises and equipment
Reg 16 – Complaints
Reg 17 – Good governance
Reg 18 – Staffing
Reg 19 – Fit and proper persons employed
Reg 20 – Duty of Candour
Reg 20A – Display of performance assessments

Fundamental standards of care training for front line staff

We offer two hour training sessions for front line staff, covering most of the above topics.

These sessions are designed to provide front line staff with a more practical approach to understanding their regulatory responsibilities in their day-to-day practice.

Find out more and register your interest, or get in touch with us to discuss your requirements.

Philippa Doyle

Partner and head of social care

Guidance for when a social care provider is called to an inquest

As we are all aware, deaths do unfortunately occur in social care settings and instances arise when social care providers are required to participate in the Coronial process and attend an inquest – the inquisitorial investigation into the circumstances of a death. Social care providers may be requested to assist HM Coroner with an inquest investigation by providing statements or oral evidence at a hearing. A Coroner has powers to compel the disclosure of any documentation, (including statements, investigation, care records, CCTV, training records) where information may assist the investigation.

Evidence may be required to provide chronological details of the care of an individual, details of a specific incident or event or a response to concerns raised in respect of care provided in the period prior to death.

Similarly, a Coroner will summons a witness to attend an inquest to provide oral evidence, where it is their view that they can assist with addressing the key questions of who, when, where and how an individual came by their death. Witnesses may include senior managers and care workers.

What are the common issues for social care providers at inquests?

The scope of any inquest investigation may vary and will be dependent on the particular circumstances. A social care provider may be required to provide evidence for an inquest as part of a wider inquiry which may include acute hospital trusts, community and secondary care or external organisations and agencies. A social care provider may then be required to play a small part in the inquest process, the evidence provided is however no less important.

Alternatively, the care provided to an individual in a social care setting may be crucial to establishing the cause of death and providing context for a death. In these instances, the evidence provided by a social care provider will be central to establishing the circumstances by which an individual died.

A Coroner’s investigation is concerned with the circumstances of death and this can include a particular incident, the presentation and care management of an individual prior to death or an investigation of particular concerns. Issues considered during the course of an inquest, particularly relevant to social care providers, can (and often have) included a consideration of the overall quality of care prior to death, staffing levels, training and supervision, communication and care planning, assessment and management of risks including in particular the management of falls risk, nutrition pressure sores, medication errors or incidents of abuse or neglect. Often central to an examination of these issues is the importance of clear and accurate record keeping, robust policies and procedures and appropriate training.

A Coroner has a duty to issue a Prevention of Future Death Report/Regulation 28 Report in circumstances where there is a concern that a risk of a future death may arise. This may relate to any issue that is evident during the investigation, causative or not. This duty emphasises the need to investigate and implement any learning following a death. An inquest will often consider the findings of any internal investigation. Providers should be clear that actions that have been undertaken to address any issues identified in
an internal investigation to ensure that the risk of a Regulation 28 report is mitigated.

Social care providers should be aware that these reports are published and shared with CQC. CQC may, of course, also attend an inquest and any concerns may then prompt further CQC inspections or enforcement action.

What do you need to consider?

Care providers should consider what support is required for staff (whether management or care staff) in preparing witnesses statements and to provide oral evidence at inquest hearings. If your organisation is requested to provide evidence and/or attend an inquest, consider seeking legal advice at an early stage, this will enable identification of potential risks and criticisms, management of disclosure and any associated regulatory or criminal proceedings, to ensure that appropriate representation is provided through the legal process.

Five top tips for social care providers

  • seek advice and support at an early stage
  • consider whether insurance provision for legal support for inquest is available
  • ensure staff provide contemporaneous accounts of incident/death and continue to ensure disclosure of any documentation is appropriately managed
  • do not underestimate the impact that participation in an inquest may have on staff, ensure staff are appropriately supported throughout the process -from collating written statements and evidence to attendance at an inquest to provide oral evidence
  • ensure that any learning from an incident is fully investigated and addressed

Liz Stokes


Top tips for managing vexatious families

We are seeing an increase in cases where tensions between providers and the families of service users are escalating to disputes and even placement failures. We set out below our top tips for managing these difficult situations.

It is, as ever, best to catch potential disputes early to diffuse them if possible:

  • be transparent
  • involve family members/friends in discussions around the care of their loved ones
  • listen to and act on criticism
  • train staff on how to respond to concerns

However, there will be circumstances where these measures fail to improve the situation, and a family member may become violent/aggressive or requires a disproportionate amount of staff time in responding to emails/phone calls. In these cases, we suggest additional measures as follows:

  • establish reasonable boundaries as to the timing and location of visits, the frequency of calls/emails and behaviour. A care home is private property and visitors are present only by way of the owner’s licence
  • agree a Contract of Expectations with the family including:
    • one spokesperson for the family
    • dedicated staff member(s) to lead on communication with the family when complaints/queries will be communicated and how – eg limited emails per week to a dedicated email address except as regards emergency issues (with a careful definition of what constitutes an emergency issue)
    • how these will be responded to, within what timeframe and by whom
  • follow your own policies and processes. If you do not have policies which deal with violence and/or aggression towards staff and vexatious complainants then consider establishing them as they provide a useful framework for dealing with these situations

A provider has the mammoth task of balancing the care of the service-user, the expectations of family members and the wellbeing of its staff. There will be times when the behaviours of family members threaten that careful balance. The aim of the measures above is to redress that balance. However, if this is not possible, adherence to these steps will stand you in good stead in the event of any legal or regulatory action.

Helen Claridge


Client spotlight -
Louise Bestwick,
chief executive,
Bradford Care Association

At a time of so many challenges social care providers can benefit from working together – and perhaps nowhere is that better illustrated than in Bradford, where the Bradford Care Association (BCA) has not only drawn the city’s disparate providers together but has ensured they have a voice in decisions affecting their future.

Louise Bestwick, chief executive of the Association since 2019, has been the driving force behind much of this. The Association is now working closely with the local authority and with the West Yorkshire Integrated Care System/board and its local integrated care partnership.

It’s a programme of work which started pre-pandemic but has accelerated since then. “Over the last 10 years we have established a more structured approach to supporting the care sector, working more collaboratively with the local authority and other system partners,” says Louise, who is also still involved in her family’s care home in Bradford. “We want to ensure that the provider perspective is heard and understood so we can implement the necessary changes and developments to support the care sector.”

Louise sits on the partnership leadership executive for the local integrated care partnership – Bradford District and Craven Health and Care Partnership. “We are very fortunate in Bradford that our LA & ICB recognise and support the important role of the care sector in the health & care system. This is not something that is widely replicated throughout the country,” she says. This includes being involved in system-wide pressure calls, for example, and gives a chance for the care sector’s concerns, suggestions and solutions to be aired.

And that can include bringing a note of realism to what is being asked of the sector – with numerous missives from the Department of Health and Social Care and NHS England which can be challenging for the predominantly small organisations to implement, especially when they involve extensive staff training.

“It is really important we advocate for the sector,” she says. “Quite often they don’t realise the full implications of policy suggestions on the sector and its workforce.”

Almost two years ago the BCA employed a workforce lead, Rachael Ross, who can also raise the concerns of the sector with partners, and works with other partners to bring funded projects and workforce improvement initiatives to Bradford. Louise sees getting the workforce needs of the social care sector into the future workforce plans of the local authority and the local NHS as crucial.

While she does not want local recruitment to be undermined, at the moment international recruitment has an important part to play. “International recruitment is an element of the solution,” she says. “But it is not the only solution.”

Working with other provider associations in the region (via the Yorkshire and the Humber Care Association Alliance), alongside the Association of Directors for Adult Social Services, has led to a £1.38m package of support for international recruitment.

One area being explored is whether an existing relationship between the West Yorkshire ICS and the Indian state of Kerala – which has focused on recruiting doctors and nurses previously – could be extended to include social care staff. A pilot scheme is being worked up with ICS funding which would see tailored training offered to potential recruits.

In the long term, Louise would like to see parity for social care staff with their counterparts such as NHS healthcare assistants – who are typically paid more than those working in the social care sector and also benefit from NHS pensions.

“We are a million miles away from that at the moment. But we are working with colleagues from the West Yorkshire ICB and local authorities to see whether the real living wage can be implemented for the care sector workforce as the next step to achieving parity” she comments. In 2021, the West Yorkshire Health and Care Partnership agreed a £12m package to support staff working for care providers. This enabled the April 2022 increase in the national living wage to be paid several months early at a time when the care sector was struggling to recruit. Louise described it at the time as “an important first step on the journey towards equity and parity with the NHS.”

“Many public sector employers pay their staff at least the living wage but don’t fund their commissioned care providers and other suppliers to enable them to pay it too,” she says.

And she suggests that roles could change in the future with more tasks traditionally carried out by NHS staff delegated to social care workers. “Additional training and the acquisition of new skills may be needed,” she says, but could then offer new career opportunities for staff. “It’s not without its challenges but I would be really happy to support my staff’s career progression in the health & care sector to begin working with us in social care and then progress into nursing or social work, with them returning to social care as their careers progress further perhaps into leadership roles,” she says. She is already working with local universities to offer placements to students from related disciplines and often takes international students who need a part-time job to fund their living costs.

But the sector’s workforce problems are not just at entry level. She is concerned about registered managers, many of whom are over 50. Often small providers have little succession planning for this vital role and there is limited continued professional development for those who step up to this demanding role. “There is not the training and development needed in place, there is no CPD pathway and little support for them, despite them carrying such a burden of responsibility on their shoulders,” she says.

She wants to develop a registered manager and deputy manager leadership and development programme with networking opportunities to support existing and aspiring managers.

But none of the problems are unique to Bradford, she says, and she works closely with other local care associations as part of Yorkshire and the Humber Care Association Alliance and is keen to share and adopt good practice over a wider area – “We pinch with pride and work collectively to support the development of new initiatives in the sector,” she jokes.

The BCA has looked proactively at quality issues offering quality workshops for registered managers and other leaders to look at some of the aspects of quality regulation. “Providers quite often have an overload of information and requirements,” she says. “We are very keen that whatever we do we provide tools, resources, templates ready to lift and shift into their organisations and adapt as necessary.” This can include subjects such as managing distressed behaviour in residents living with dementia and medication management.

The BCA has worked with Hempsons for many years and Hempsons is now a platinum partner with BCA, with benefits including: offering members access to a free legal advice line; social care webinars; and training around the fundamental standards of care. This is important for ensuring the quality of care that residents receive but also for Care Quality Commission inspections. “Hempsons have really helped us in terms of that,” says Louise. “And they are also supporting us with the implementation of the new CQC assessment framework and what that means for providers and all the other changes that will be required as a result. As a registered manager you need that clarity of information.”

Find out more about Bradford Care Association:

Workforce Update

Cut staff sick days by managing them

In August 2023, ACAS (Advisory, Conciliation, and Arbitration Service) released new and updated guidance on managing sickness absence. The aim of this change in guidance is to try, through better management, to reduce some of the costs caused by employee sickness absence. The guidance has a particular focus on small business owners and employers, including charities and social enterprises, dealing with a variety of sickness related absences.

This new guidance will require employers to review their sickness absence policies and procedures in order to ensure they are up to date and show best practice.

The new guidance covers:

  • Holiday entitlement and sick pay
  • Proof of sickness and fit notes
  • COVID advice
  • Time needed off for parents and or dependants
  • Time off work for bereavement
  • Supporting disabled people at work
  • Returning to work after an absence
  • Producing absence policies
  • Keeping records and reducing sickness absence
  • Absence trigger points

Below are some elements of the new guidance in further detail that we feel are of particular interest to charities and social enterprises.

Recording and monitoring of sickness absence

Charities and social enterprises will already have processes in place to record employee sickness absences. Any sickness absence that lasts longer than 21 days is usually counted as long term sick leave. The last day of sickness is the day the employee returns to work rather than the day before. It is worth noting that sickness absence is viewed as continuous and so weekends and bank holidays factor into the calculation of how many days are taken.

It is important that records of sickness absence are up to date and accurate. This information is useful in and of itself, as it can help employers keep track of the variety of absences their employees take, rather than looking at collated stats which can be misleading. It also assists in avoiding errors such as noting pregnancy absence as sickness absence. Further to this, it is easier to see if an underlying medical condition is the cause of a repeated absence, as well as looking at the at the most commonly used reasons for absence to consider ways of trying to help reduce them.


From the eighth day of sickness absence a medical certificate is required for the absence to be authorised. Until that point only self-certification is required.

Certification can be managed well with efficient processes and communication with staff so they understand the requirement to provide certification on the eighth day of sickness absence. It is important to make clear that weekends, bank holidays and non-working days need to factor into the calculation of when medical certification is needed.

Long-term sickness absence

Long-term sickness can be a complex issue and it is a key area to handle appropriately and sensitively. It can be a high-risk area for Employment Tribunal claims if mismanaged, and it is always best to seek advice from HR when managing a long-term sickness absence.

When an employee has been on sickness absence for longer than 21 days, it is helpful for the relevant manager to liaise with the employee about keeping in touch on a regular basis. It is recommended this is done every fortnight, either via a phone call or by email.

Further to this it is important for there to be a more formal meeting, either online or via telephone, once a month in addition to the regular keeping in touch. This meeting will review the sickness absence and look at how to help enable the employee to return to work. For these meetings it would be useful to refer the employee to an occupational health specialist, in order to get advice and any recommendations on what adjustments could be made, to help facilitate a return to work. The employee may be accompanied to these meetings with either a trade union representative or a colleague and HR should also be involved throughout this process.

While an employee is absent due to sickness it is important to keep them informed of any significant developments within the charity to ensure they feel included and part of the team. This can include promotions and job opportunities as well as any restructures and it is important that the employee knows that they are able to engage with any changes that may affect them.

Return to work meeting

Regardless of the length of a sickness absence, when an employee returns to work it is important to have a return-to-work meeting with them. This meeting can be an informal discussion between an employee and their line manager. This is important as part of your duty of care to the employee in ensuring that they feel ready to return to work and any required adjustments have been noted and actioned. It can also be helpful to see if there are any general ways to help reduce levels of sickness absence by reminding the employee of any relevant wellbeing initiatives that are available and seeing if any personal targets can be implemented.

Absence trigger points

The guidance also explores the issue of absence trigger points for when an employee has taken a large amount of sick days or there is a high number of “random” sick days. Although there are no legal reviews about how these absences are to be reviewed, the guidance recommends using a review points system that looks at the number of absences within a certain period of time and the length of these absences.

If an employer does choose to use this system it needs to be carefully set out in their absence policy so that employees are aware of it. The guidance stresses that review points should not be used automatically to punish employees and that it is important to communicate and work with the employees to try and find a solution and a way forward.

Absence reviews are recommended as a way of looking at the cause of the absences as well as checking in with an employee.

It is important to review carefully each employee’s individual situation when reviewing absences, for example an employee with a disability who requires absences for appointments is likely to reach an absence review point faster than an employee who does not. Being mindful about an employee’s circumstances when reviewing absences and showing flexibility are simple ways of managing absences effectively and sensitively and avoiding allegations of discrimination.

Sickness and absence because of long COVID

A complication of the pandemic has been the emergence of long covid which can cause fluctuating symptoms that last for a long time after the infection. As this is a condition which is still being researched and understood in its management, it is important that employers are aware that the effects of long COVID can come and go and therefore sickness absence can fluctuate.

It vital that employers communicate with the affected employee and engage properly with occupational health to assist with arrangements to help enable support for the employee.


The key theme in this guidance is encouraging employers to use absence information to help manage employee leave effectively and to ensure best practice.

There is also a heavy emphasis on the need for effective communication and flexibility when managing employee sickness absence and to take advice from HR and occupational health when needed. These need to be the primary points of any updated policies and procedures in response to this new guidance.

Maternity leave, adoption leave and shared parental leave update

The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 are due to come into force on 6th April 2024.

The regulations extend statutory protections from redundancy to pregnant women and new parents who have recently returned from maternity, adoption, or shared parental leave.

The extensions now cover pregnancy and a period after return to work.

The key points of the regulations are:

  • workers taking this kind of leave must be offered any suitable alternative employment in a redundancy situation
  • the protection is for 18 months from either the expected week of childbirth or the placement for adoption
  • the protected period can be changed in certain circumstances
  • these new protections will apply to pregnancies disclosed to the employer on or after 6 April 2024, and any maternity, adoption and shared parental leave ending on or after 6 April 2024

The eligibility criteria for the special protection are as follows:

  • Pregnant women: the protection during pregnancy begins as soon as the employee informs their employer of the pregnancy
  • New parents: the extended protection covers new parents who have recently returned from any period of maternity or adoption
  • Shared parental leave: the new protection also applies to employees taking at least six weeks of shared parental leave

Employers will need to update their family-friendly policies and redundancy processes to ensure compliance with the extended statutory protection.

Employers will be required to provide suitable alternative vacancies to employees on relevant leave in the event of a redundancy process, and this will need to be factored into any redundancy procedure taking place after 6 April 2024. Employers need to be aware of the new potential risk of claims if they fail to offer the required protection.

Henrietta Donnelly


Timeline for the Government’s new five-point package of measures for the immigration system

The key dates for the new immigration system are:

The minimum salary to increase for the skilled worker visa from 4 April 2024:

To be eligible for a skilled worker visa, the applicant must have a job offer that meets the minimum salary requirement of £38,700 per year.

The Health and Care visa holders will crucially remain exempt from this increase.

From 11 March 2024, care workers will be unable to bring dependents with them if they come to work in the UK:

These changes will not affect NHS staff.

It is worth noting that for individuals on other visas wishing to sponsor dependents to join them in the UK, the minimum income threshold is increasing in stages from £18,600 to £29,000, to ultimately around £38,700, which will come into effect from April 2024.

From 11 March 2023, care homes will have to be regulated by the CQC if they want to be able to sponsor skilled workers:

This measure is designed to reduce abuse of the sponsorship system and will prevent fake “care home businesses” offering sponsorship to migrants on false pretences.

In addition, migrant workers undertaking activities that are regulated by the CQC will be able to be sponsored to these activities by care providers in England.

Immigration salary list to replace shortage occupation list:

A new immigration salary list will replace the shortage occupation list. The new list will not feature the 20% going rate salary discount for shortage occupations but will retain a general threshold discount. The initial changes to this list are expected to come in April 2024.

The Government has confirmed since the announcement of this five-point plan that the new rules are “not retrospective” and will apply for new visas and future renewals and extensions. Therefore these new rules concern those with limited leave to remain in the UK, who will need to renew their visas and who do not meet the new requirements.

If you have any concerns about any of the issues covered in this article, please get in touch with our dedicated employment and social care law experts.

Henrietta Donnelly


Premises: mitigating liability for repairs and dilapidations

Premises can be the biggest liability both in terms of capital expenditure and inherent liabilities. This article looks at ways in which you can limit your exposure to expensive repairs and dilapidations and avoid any unwanted surprises – regardless of whether you intend to own freehold or leasehold.

What are dilapidations?

Dilapidations is a term generally used to describe the elements of disrepair to property. In more specific terms when looking at leasehold property, this term goes further to look at any breaches of the tenant covenants in the lease insofar as the condition of the property is concerned. This may include:

  • Obligation to first put the property into repair – to the extent it isn’t at the date of the lease. The standard of repair in a lease is often ‘to put the property in good and substantial repair’. This is a high standard and can be expensive – particularly if you are liable to repair the structure.
  • Obligation to reinstate any works carried out by the tenant during the term of the lease. Note, if you are taking an assignment of an existing lease, this could include any works carried out by any previous tenant and could be expensive if looking at reinstating lifts, stairways and mezzanine floors, for example.
  • Obligation to lay new flooring at the end of the lease. This is a common requirement in modern commercial leases and can be an unnecessary expense.
  • Obligation to comply with statutory requirements. This could include works required to the property to comply with legislation (for example relating o accessibility or sustainability) or could relate to regulatory obligations including holding a fire risk assessment, asbestos report and management plan and dealing with any remedial actions in those reports.

How to limit your exposure

This will depend on whether the property you are acquiring is freehold or leasehold.

Freehold property

If your property is freehold, a structural survey will assist in determining whether there are any items of disrepair which need addressing or looking into further. You may agree any one or a combination of the following with the seller:

  1. The seller to carry out any remedial and/or reinstatement works prior to you acquiring the property.
  2. The seller agreeing to carry out the remedial works to your satisfaction during an agreed period post completion. This would avoid any delays in completing the transaction, but we would advise holding back a proportion of any sale proceeds (referred to as a ‘retention’) until those works have been completed and you are satisfied with them.
  3. You agree with the seller to reduce the purchase price to reflect the cost of any potential repairs/reinstatement works and/or any reduction in the valuation of the property as a result.

Leasehold property

If the property is leasehold, you will first need to understand and obtain advice upon the standard of repair you are being asked to undertake or inherit from the seller and/or landlord. This could be:

  • FRI – Full Repairing and Insuring lease. This requires you as tenant under the lease, to be responsible for repair of the whole of the property (whether a direct obligation in the lease or via a service charge).
  • IRI – Internal Repair and Insuring lease. This requires you to be responsible for the internal non-structural repair of the property only. Because of the limited repair obligation, be mindful that this type of lease may result in a higher rent.

You can limit your exposure by considering any one or a combination of the following:

  • Requesting concessions in the lease which limits your repair obligation. This could include:a) a schedule of condition from the landlord. This would mean that you would only be liable to hand the property back to the landlord in ‘no worse condition’ than the property was in at the start of the lease.b) you could also carve out any ‘big ticket’ items such as the roof – particularly if it is not in good condition to start with.c) you could request a cap on any service charge.d) with a newly built property, you could request a carve out of inherent liabilities under the lease and/or obtain warranties from the relevant contractors.

This may be a viable option if you are taking a new lease. However, where an existing lease is being assigned, this would require a re-negotiation of the lease with the landlord – who is unlikely to agree to water down the standard of repair it currently has the benefit of – unless they are getting something back in return, for example, a longer lease term or an existing break is being waived.

  • Obtain a schedule of dilapidations from a local surveyor. You will need to provide the surveyor with a copy of the lease, together with any ancillary documents such as licence for alterations. The surveyor will determine the existing dilapidations liability under the lease – taking into consideration the standard of repair required by the lease, any reinstatement obligations and any breaches of the tenant covenants in the lease. You then have the same options as with freehold property in terms of negotiating a solution with the seller (see points 1-3 above). Bear in mind that a schedule of dilapidations is not conclusive but an aid for negotiations with the seller.
  • Agree with the landlord to waive any obligations to reinstate works carried out either by you as part of any fit out works when taking a new lease, or by any previous tenant when taking an assignment of an existing lease. Reinstatement obligations are often overlooked and can prove an unwanted surprise at the end of the lease if not addressed sooner.

It is worth bearing in mind that if you are entering into a new lease, or if an existing lease is being assigned, the landlord will be entitled to carry out a schedule of dilapidations at the end of the lease. This is referred to as a ‘terminal schedule of dilapidations’. You will generally be responsible for the cost of preparing that schedule and for any items in it. The above considerations help to limit the cost of those terminal dilapidations and we would also suggest taking advice from a property lawyer and/or surveyor experienced in advising on dilapidations liability to advise upon and negotiate its contents.

Irrespective of how the property is held or the standard of repair required, the starting point is to instruct your professional advisers to review the property position at an early stage so you can look to address and consider the best way forward.

Lisa Davison


How current instability may impact the sale and purchase of care homes

The COVID-19 pandemic posed many challenges for care home providers, who now face an unstable economy with the cost of living, energy bills and bank loans increasing. Care homes are typically resilient in times of economic crisis; and an ageing population means there is a strong supply and demand, ensuring a continuing robust market for those looking to acquire a care home. However, the current economic uncertainty is still likely to create challenges during the buying and selling process. With these challenges in mind, what should buyers and sellers look out for?

Challenges when buying a care home

Those looking to buy their first care home or expand their existing portfolio will most likely need financial assistance from the bank. As we are all aware from the news, fluctuating interest rates means bank loans are unpredictable, and the cost of borrowing has increased. Potential buyers should be vigilant and do their research; it’s important to carefully consider the options available and to pay close attention to the small print, including the duration of the loan, the interest rates (and whether they’re fixed or variable), and whether there are any early repayment fees.

Another important element to consider is any existing contractual arrangements the home you are buying has with energy providers. Don’t leave it until after you take over to check whether you are able to switch; you may find that you’re contractually bound to a supplier that doesn’t provide the best value for money. Again, due diligence is essential if you want to make your business a success and avoid any surprises when it’s too late.

Challenges when selling a care home

The current uncertainty in the market unfortunately means more challenges for those selling a care home than those buying. Buyers are more likely to be extra cautious and bargain harder for a better deal, meaning you may need to accept a lower price than would be ideal, if you’re looking for an easy sale.

Another common issue arising from risk averse buyers is the ‘earn-out’ method; the buyer pays a large portion of the total cost upfront but withholds the remaining portion until the revenue of the home is either maintained or increases after the sale. This is a sensible way to reduce the risk of buying a failing business from the perspective of the buyer but poses obvious issues for the seller. If you do agree to an earn-out sale structure, it’s important to ensure that any provisions are laid out clearly in the contract and that you are well protected with any necessary clauses.

Whether you’re looking at buying or selling a care home, seeking legal advice early ensures that the process is as smooth as possible and that you’re well protected from any potential nasty surprises. Our dedicated team of corporate commercial law experts specialise in acting for social care providers and can give you the guidance and support you need throughout the buying/selling process.

Ross Clark


Social care advice line

Hempsons is experienced in advising on all elements of law and regulation that impact on the social care sector.

Our expertise:

  • charity law
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Hempsons’ social care advice line is open between 9am and 5pm, Monday to Friday.

Our team of experts offer providers 30 minutes’ free legal advice*.

Call 01423 724056 quoting ‘social care advice line’ or email socialcare@hempsons.co.uk

*non-partner organisations are eligible for 20 minutes free advice

The Hempsons team

Health and social care advisory
(including mental health and inquests)

Philippa Doyle

Partner and head of social care

Helen Claridge


Liz Stokes


Stephen Evans


Rachael Hawkin


Jolena Bullivant-Clark


Rosie Hamson



Martin Cheyne


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Henrietta Donnelly


Corporate Commercial

Ross Clark


Michael Rourke


Sam Stone


Charities and social enterprise

Ian Hempseed

Head of charities and social enterprise