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Aged Care and Retirement Law – How a Pragmatic Approach Is Needed When Dealing With Disputes Between Operators and Residents

Disputes

In New South Wales, there are currently an estimated 653 retirement villages run by around 267 operators. According to data obtained from the Fair Trading’s Inquiry into the NSW Retirement Village Sector Report, retirement villages in NSW and the ACT are “home to over 55,000 residents with an average age on entry of 75 years, and an average resident age of 80 years”.

Currently, retirement villages are regulated by the state government in which they operate, as well as the Retirement Villages Act 1999 (the Act) and the Retirement Villages Regulation 2009 (the Regulations), which is administered by the Department of Fair Trading. The aged care sector, on the other hand, is regulated by the Australian Federal Government under the Commonwealth Aged Care Act 1997.

Current dispute resolution methods

In NSW, residents of a retirement village have three ways they can deal with disputes:

  • Through the retirement village’s internal dispute resolution process
  • Through the NSW Fair Trading complaint process
  • Through the Consumer and Commercial Division of NCAT

The internal policies of most retirement villages will encourage residents to be involved in mediation or resolution directly with village management. However, if they are not satisfied with the result, they can escalate the matter to NCAT. At any time, your residents may also reach out to Fair Trading, and seek independent advice from specialist services such as the SRF (Supported Residential Facilities).

For elderly persons receiving residential or home care, their rights are protected under the Charter of Aged Care Rights. Aged care recipients are also encouraged to solve disputes directly with the care provider, however are able to submit a report to the Aged Care Quality and Safety Commission.

Issues with aged care

Australia’s aged care sector currently faces a high level of scrutiny with regular reports of the quality of aged care and retirement services. In both aged care and retirement surveys, residents cited operator responsiveness as a key concern.

For example, in the Fair Trading’s Inquiry into the NSW Retirement Village Sector Report:

  • 66% of respondents stated that they are aware of the dispute resolution processes.
  • However, of that 66%, 60% expressed concerns with how disputes are managed and resolved.

Comments from residents included criticisms that “the operator and management have simply ignored our correspondence”, and that villages are “very slow to respond to complaints”.

The report also found that on average, Fair Trading receives 81 complaints per year regarding retirement villages. In the last financial year, the Retirement Village Legal Advocacy Team dealt with 346 instances of legal advice, 75 instances of minor legal assistance, and 150 enquiries for legal information.  The Retirement Village Residents Association made 29 referrals to legal practitioners, and 11 to Fair Trading. NCAT further received 54 applications to determine village issues. Considering there are only around 653 retirement villages within the state, these numbers are not insubstantial.

Similarly, a report from the Royal Commission into Aged Care Quality and Safety found that the Aged Care Complaints Commissioner received 5779 formal complaints in 2017-18 (an increase of 23% from the previous financial year).

Taking a proactive and pragmatic approach to dispute resolution

With the close scrutiny and highly litigious nature of retirement and aged care living, providers and operators need to be more proactive than ever.  For this reason, the Royal Commission and Fair Trading both recommend operators take a hands-on approach to dealing with disputes. This includes:

  • Having a transparent complaints handling process which is clearly explained to all residents
  • Mediation as a mandatory step before NCAT reporting, and adversarial litigation (which could cause further stress and harm to your resident)
  • Increased engagement from Residents Committees
  • Implementation of “open door” policies
  • Clear wording on initial contracts, with resources for independent legal advice.

The Retirement Living Code of Conduct (a joint initiative between the Retirement Living Council and Leading Age Services Australia) was also introduced in December 2018, and will take full effect from 1 January 2020.

The team at AV Lawyers have long been recognised as one of the leading law firms in NSW specialising in retirement villages and aged care law. For the past 15 years, we have authored legal updates for operators, provided keynote speakers at industry conferences, and been an active voice to parliamentarians regardings matters of concern to this industry.

Our experience, combined with our pragmatic and hands-on approach, means you will receive instant and tailored advice which will help protect from future litigation. Get in touch with our team today to discuss any concerns you may have.