Who cares … Arcare?

Who cares … Arcare? Aged care providers still charging for services never provided, regulator hiding

Some aged care providers are a law unto themselves. Although Australian Consumer Law makes it illegal for a business to accept payment for products and services that are not supplied, some aged care businesses wilfully break the law. Residents in these aged care homes are charged for services they do not use.

Residents may be charged for services such as an internet connection, irrespective of whether they use the internet. Teetotallers may also be charged for wine with dinner. Rather than protect residents from this financial abuse, the Minister for Aged Care and the national regulator of aged care services continue to turn a blind eye.

According to legislation, additional services can only be charged if the resident “receives direct benefit or has the capacity to take up or make use of the services”. Aged care providers must not only regularly review a resident’s ability to derive a benefit from the additional care or services but also itemise these additional services in a monthly statement.

When Mr and Mrs Jones entered an Arcare residential facility, the contract included an Additional Services fees of $20 per person per day. So what did this buy them? A choice of menu for lunch and dinner; a selection of wine and beer with dinner; weekly hot cooked breakfast; exclusive use of the private dining room; weekly pre dinner drinks; weekly high tea; daily newspaper in communal areas; wireless internet in your private suite; exercise classes; Foxtel, and local small group outings. Other items listed in the agreement, included, a welcome gift on arrival, exclusive use of private dining room and two meals for family and friends on first day. So residents had to pay for their own welcome gift – seriously?

When Mr and Mrs Jones’ daughter questioned paying an extra $140 each per week, Arcare agreed to reduce the fee to $70 per week, on the condition that Foxtel was removed from each room.  Was Arcare charging her parents $10 per day to access Foxtel?

Each month Arcare provided an invoice. This invoice included ‘daily care fees’, ‘means tested fees’ and ‘additional services’. However, these ‘additional services’ were not itemised – so there was no way of knowing which of these ‘additional services’ Mr or Mrs Jones had used. Did they have wine for dinner or attend an exercise class?

When the daughter realised that Mr and Mrs Jones were not using any of the additional services, she asked to have the fee abolished. However, Arcare refused. So, the daughter made a formal complaint to the aged care regulator – Aged Care Quality and Safety Commission (ACQSC).

Eight months after her initial complaint, and after numerous follow up emails, the daughter was advised that ACQSC had not been able to resolve the complaint.

The daughter did not give up. She contacted ACCC, the Commonwealth Ombudsman and the Office of the Australian Information Commissioner and Older Persons Advocacy Network – all to no avail. She then went back to ACQSC. Surely it was their job to ensure aged care providers acted lawfully.

Her persistence paid off. Fourteen months after her initial complaint, ACQSC issued a ‘Notice of Intention to Give Directions (Notice)’ to Arcare. According to this Notice Arcare:

  • charged an additional services fee for a bundled package but did not provide an itemised cost for each service;
  • had no review process to assess a consumer’s capacity to benefit from the additional services provided; and
  • included care and services in a package of services already required to be provided under the Quality of Care Principles 2014 (e.g. a communal newspaper, a choice of meals at lunch and dinner, exercise classes and bus outings).

In response to the Notice, Arcare proposed a range of actions it would take. However, these actions were not sufficient to address the complaint. So ACQSC issued Directions to Arcare. These Directions outlined the actions Arcare was required to undertake (including necessary timeframes) in order to meet its responsibilities under the Aged Care Act 1997. Arcare was required to:

  • take action to provide an itemised list (including costs) for each element of its bundled package of additional fees;
  • provide accurate information about the availability and access arrangements for the included care and services;
  • only charge for additional care and services where care recipients are able to derive a benefit from them;
  • cease charging for items that should be provided under the Quality of Care Principles 2014; and
  • provide refunds where they have charged additional fees unlawfully.

Arcare challenged the Directions Order in the Federal Court. It soon became clear that ACQSC was no match for Arcare’s lawyers. After a year of legal shenanigans, ACQSC advised the daughter to negotiate directly with Arcare for compensation. However, the daughter was not fighting only for her parents. She was fighting for all Arcare residents who are charged for services they do not use.

Arcare continues to charge additional fees irrespective of whether residents use these services. They also do not provide an itemised list (including costs) for each service (see recent invoice).

Although the aged care regulator is fully aware that Arcare and other aged care providers are not acting in accordance with aged care legislation, ACQSC has washed its hands. ACQSC simply does not have the power to enforce residents’ legal rights. What is the point of the government introducing a new Aged Care Act without a strong regulator with the power to enforce legislation?

In 2018, Regis and Japara were forced to repay residents millions of dollars that had been charged to clients under the guise of an ‘asset refurbishment fee’. The ‘asset refurbishment fee’ that was declared illegal by the Federal Court. It’s well past time for Anika Wells, Minister for Aged Care, to step up and declare it illegal for aged care providers to charge residents for services that they are not receiving in an aged care home.

Letter to PM

1 August, 2022

Dear Prime Minister,

Thank you for your determination to reform the aged care system. We welcome most of the changes incorporated within the Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 (“the Aged Care Reform Bill”).  

However, it beggars belief that the Albanese government remains committed to Schedule 9.

Schedule 9 provides immunity to aged care providers who comply with the Quality of Care Principles under the Aged Care Act, 1997.  Yet these principles haven’t even been written!

Furthermore, Schedule 9 is unjust and discriminatory. It provides immunity for providers and their staff for some of the most objectionable aspects of aged care – the use of restrictive practices without having obtained lawful consent. Such practices, which include chemical restraint, physical restraint and seclusion, attracted the most ire from the Aged Care Royal Commissioners.

Schedule 9 denies older people who live in residential aged care – a vulnerable cohort of people – the same legal protections given to all other Australians.

The Bill before Parliament purports to being within the bounds of the Royal Commission’s recommendations and the Commonwealth’s responses to those recommendations. Yet the Royal Commission made no recommendation that providers and their staff should have immunity.

Some “consumer” organisations which are funded by the government have indicated support for Schedule 9. However, we are a coalition of independent advocates and elder/aged care lawyers who speak without fear of losing government funding and are able to voice our legitimate and strongly held opposition to Schedule 9.

It has been claimed that legislative differences among states and territories present a risk to aged care providers because of the uncertainty and difficulty in identifying who has the lawful authority to consent to restrictive practices.

The Albanese government, like the Morrison government, simply adopted the solution put forward by the aged care providers – immunity against civil or criminal action.

By giving providers immunity against criminal charges and civil claims if the provider complies with the restrictive practices’ obligations in the still to be written Quality of Care Principles, Schedule 9 subordinates the common law to regulations made under the Aged Care Act (i.e. Quality of Care Principles).

It is an extraordinary overreach of Constitutional powers for the federal government to grant aged care providers immunity from key legislation enacted by states and territories. This includes immunity from consumer law, the common law crimes of unlawful restraint, assault and battery and writs of habeas corpus.

Offering immunity to commercial businesses is unprecedented. Many providers are private ‘for-profit’ – including publicly listed – companies (Estia, Regis) and multinationals (Bupa, Opal).

Schedule 9 also breaches Australia’s obligations under the International Covenant On Civil And Political Rights and the Optional Protocol and Optional Protocol to the Convention Against Torture that Australia has signed.

We put forward a workable solution: an offer of an indemnity rather than immunity. The number of recorded court cases arising from unlawful restrictive practices in aged care over the past 25 years could be as little as six (and not all were a success for the complainant). Given that residents and their families have rarely taken legal action – despite the well-documented track record over decades of neglect, poor treatment and abuse – the willingness of government to protect approved aged care providers is staggering.

There are many examples of similar indemnity schemes – most recently that offered by the Morrison government for health practitioners in that event that people receiving COVID-19 vaccines experience serious adverse events.

People who have been abused should always have access to their common law rights, regardless of where the abuse occurred.  

Do you really want your government to be remembered as the one that stripped many older Australians of their fundamental legal and human rights? Surely you don’t want to be the government that took such unprecedented action simply to protect the profits of aged care providers, many of whom are multinationals, over the rights of vulnerable Australians.

Yours sincerely,

Dr Sarah Russell – Director, Aged Care Matters


Rodney Lewis – Solicitor – Elderlaw, Author – Elder Law in Australia

Frank Ward OAM – Resident, Harbourside Haven Village

Elizabeth Minter – Aged Care Matters

Catherine Henry – Solicitor, Australian Lawyers Alliance

Professor Wendy Lacey – Executive Dean, Faculty of Business, Government & Law, University of Canberra

Funding is not the problem

HeraldSun 4 April 2022

I have spent six years trying to improve the aged care system on behalf of older people and families. This has been done as an unpaid advocate with no government funding.

The aged care system is broken. Numerous inquiries, including a royal commission, have revealed evidence of poor care, negligence, neglect, abuse and assault.

We know what needs to be done. The solution to the crisis starts with transparency and accountability. 

I have become a stuck record in my calls for the federal government to demand transparency from the aged care providers in return for the billions of taxpayers’ dollars they get each year – some $125 billion over the next five years.

Take the latest example. The May 2021 budget gave providers an extra $10 a day per resident to improve the quality of the meals. Some $460 million has already been spent, with an estimated $700 million to be spent this financial year. And what do providers have to do in return? Simply give an undertaking that they will report to government on a quarterly basis what they spend on food.

The royal commissioners had warned that aged care providers have a long history of not spending extra government money on what they are supposed to. So why give them a further $700 million without directly tying this money to food?

Many residents have told me they are still being served unappetising food. It seems many providers have not used this extra money on what they were supposed to.

The Aged Care Minister Greg Hunt and Minister for Aged Care Services Richard Colbeck claim that “the Morrison Government has achieved significant reform across the five pillars of its five-year plan to deliver respect, care and dignity for every senior Australian”.

“We responded to the (Aged Care royal commissioners’) recommendations and are now implementing this once-in-a-generation reform that puts senior Australians first,” Minister Hunt said.

Seriously? There has been practically no progress on most of the recommendations one year after the royal commissioners released their final report.

Labor has proposed some measures to improve aged care in Australia. However so much more is needed to solve the crisis in aged care.

The failure of successive governments to respond meaningfully to the crisis in aged care has prompted me to put my hand up to replace the Aged Care Minister in his seat of Flinders. After years of advocating from the sidelines, it is clear aged care needs a strong advocate in parliament. 

Dr Sarah Russell is the Voices endorsed Independent Candidate.