Common Care Home Negligence Claims
The Duty of Care — Legal Framework
- Common law duty of care — care homes owe a common law duty of care to residents that is analogous to (but distinct from) the clinical negligence duty owed by NHS providers. The Bolam test applies to clinical decisions made by nursing staff. Non-clinical care failures (inadequate staffing, unsafe premises, failure to report concerns) are assessed by a general negligence standard.
- Care Act 2014 — local authorities have statutory duties to assess care needs (s.9), arrange care provision (s.18), and investigate safeguarding concerns (s.42). A care home must comply with the CQC's Fundamental Standards of Quality and Safety (Health and Social Care Act 2008 (Regulated Activities) Regulations 2014).
- Human Rights Act 1998 — where the care home is publicly funded (state-arranged care), Article 2 (right to life) and Article 3 (prohibition of inhuman or degrading treatment) may be engaged, providing additional grounds for challenge where care failures are severe.
Frequently Asked Questions
Can I bring a claim on behalf of a care home resident who lacks mental capacity?
Yes. Where a resident lacks mental capacity under the Mental Capacity Act 2005, a family member or professional can bring the claim as "litigation friend" on their behalf. The test for mental capacity is decision-specific and time-specific — a person may have capacity to make some decisions but not others. A solicitor advises on whether a litigation friend is required in your family's circumstances and guides you through the process of appointing one and instructing the claim.
The care home says pressure sores are inevitable in elderly people — is that correct?
No — this is a common but incorrect defence. NICE guidelines (Pressure ulcers: prevention and management, CG179) are clear that Grade 3 and Grade 4 pressure ulcers are almost always avoidable with proper nursing care — appropriate repositioning schedules (at least 2-hourly), pressure-redistributing mattresses, skin inspection, adequate nutrition and hydration, and incontinence management. A care home claiming that pressure ulcers are "inevitable" is contradicted by the clinical guidance. An independent nursing expert advises on whether the specific care provided met the NICE standard.
Can I access the care home's records?
Yes — if you hold a lasting power of attorney for the resident (health and welfare), or if you are the resident's next of kin and the resident lacks capacity, you can request the care records under GDPR. Records must be provided within one month. A solicitor sends a formal records request on your behalf and, where records are delayed or incomplete, applies pressure through the pre-action protocol. Where records appear to have been altered or destroyed, this itself is evidence of negligence.
If the resident has died, can the family still claim?
Yes. Claims can be brought after death both as an estate claim under the Law Reform (Miscellaneous Provisions) Act 1934 (for losses suffered by the deceased before death — pain, suffering, care costs) and, if the death was caused by the negligence, as a fatal accident claim under the Fatal Accidents Act 1976 for dependants. A Coroner's inquest may be held where the circumstances of death in a care setting are unclear — a solicitor can represent the family at the inquest and use the evidence gathered to support the civil claim.
Should I report to the CQC or local authority safeguarding team?
Yes — both, if appropriate. A CQC report triggers a regulatory inspection and can result in enforcement action, suspension of the home's registration, or closure. A local authority safeguarding referral under the Care Act 2014 triggers a s.42 enquiry. Neither process is a substitute for a civil compensation claim — only the civil claim compensates the individual resident or their family. A solicitor advises on managing the regulatory processes alongside the civil claim, ensuring that any statements or evidence are handled in a way that supports, rather than undermines, the compensation claim.