Home' Australian Ageing Agenda : AAA Jan-Feb 2014 Contents We are frequently asked to
provide advice in relation
to security of tenure
particularly, we are often
asked to advise what action a provider
can take to protect its staff and other
residents where a resident who does not
have a cognitive impairment behaves in a
way that places the wellbeing and safety
of staff or other residents at risk.
In this article we explain the security
of tenure provisions that are contained
in the User Rights Principles (Principles)
of the Aged Care Act 1997 (Act) and
make some suggestions for your resident
agreements and processes to ensure you
are compliant with the provisions and
have processes in place to minimise your
risk of non-compliance when asking a
resident to leave. We have also provided
some suggestions to manage those
instances where it is the resident's family
that is creating problems for the provider
rather than the resident.
The security of tenure provisions are
intended to provide aged care residents
with high levels of certainty. Aged care
providers have an obligation to act
reasonably in the provision of a safe and
secure environment for their residents and
their employees and to provide appropriate
levels of care for their residents.
A provider can only ask a resident to
leave if there is a basis for them to do so
under the Principles namely:
• the facility is closing;
• the service no longer provides care and
accommodation relevant to the resident's
long-term care needs and the provider
has not agreed to provide that care;
• the resident no longer needs the care
provided through a residential service;
• the resident has not paid any agreed fee
to the approved provider within
42 days after the day when it is
payable for a reason within the
care recipient's control;
• the resident has intentionally
caused serious damage to the
facility or has intentionally
caused serious injury to an
employee of the approved
provider or to another
• the resident is away on leave
for more than seven days for a
reason other than as permitted by the Act.
The provisions are complex and onerous.
On their face, they make it a practical
impossibility for an aged care provider to
require that a resident leave their facility,
regardless of the behaviour of that resident
because the provider cannot ask the
resident to leave "until suitable alternative
accommodation is available that meets the
care recipient's long-term needs."
The Commonwealth Department of
Health issued an alert on these provisions
earlier this year which was not accurate.
The alert stated that a provider has
an obligation to identify and "secure"
suitable alternative accommodation, but
this is not an accurate description of the
requirements of the legislation.
The Act provides that a provider
can ask a resident to leave (in certain
defined circumstances) provided "suitable
alternative accommodation is available".
While it is the provider's responsibility
to ensure that suitable alternative
accommodation is available, (affordable to
the resident and suitable to their long-
term assessed care needs) a provider does
not have to "secure" a place for a resident
and the place that is available does not
necessarily have to be acceptable to the
resident who is being asked to leave.
The provisions should reasonably
enable an aged care provider to require a
resident to leave their facility if
the resident (for a reason within
their control) behaves in an
inappropriate way that places
the staff and other residents of a
facility at risk.
We are not suggesting that a
provider should be able to ask a
resident to leave if the behaviour
is due to a resident's cognitive
impairment (unless the provider
is no longer able to care for that
resident and has not promised to
do so) but when a resident with no cognitive
impairment acts in a way that places staff
and other residents at risk, surely a provider
should reasonably be able to ask that
resident to leave their facility.
The security of tenure provisions
do not allow a provider to terminate
the agreement in these circumstances.
However, a provider can lawfully terminate
an agreement on contractual grounds
and ask a resident to leave in these
circumstances, provided the resident
agreement has the appropriate provisions.
In Willoughby Retirement Community
Association v Frey (2007), the Supreme
Court of New South Wales held that while
the purpose of the security of tenure
provisions is to establish when a provider
can ask or require a resident to leave a
facility, a resident agreement can also be
terminated for the breach of a substantial
or fundamental term of the agreement,
just like any other contract.
The court found, however, that if even
in those cases where there has been a
breach of the agreement that entitles the
provider to terminate the contract, the
provider can only give a valid notice to
terminate if the provider has followed the
procedural requirements set out in the
security of tenure provisions.
Accordingly, a provider can require a
resident to leave the facility when:
Julie McStay outlines what providers
can do when residents and families are
behaving badly and need to leave.
is hard to do
30 | JANUARY -- FEBRUARY 2014 | AAA
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