What is Security of tenure?

Security of tenure in aged care refers to a resident's legal right to remain in their aged care home and provides protections against being asked to leave without reason and due process.

Essentially, once a person is permanently living in a residential aged care home, their place is secure, and they should be able to stay there for as long as the provider is able to care for them. This principle aims to ensure continuity, dignity, and peace of mind for residents, making the aged care facility their long-term home.

In jurisdictions like Australia (where the concept is clearly defined in the Aged Care Act 1997 and related Principles), a provider can only ask or require a resident to leave in specific, limited circumstances.

Key Aspects of Security of Tenure (Residential Aged Care):

• Permanent Residence: It grants the resident the right to consider the facility their home for the long term, even as their care needs change (this is often called "ageing in place").
• Limited Grounds for Exit: A resident can only be asked to leave if one of the legislated reasons applies. These reasons often include:
  • The facility is closing.
  • The provider can no longer provide accommodation and care suitable for the resident's long-term needs.
  • The resident no longer needs the care provided by a residential service.
  • The resident has not paid an agreed fee for a specified period (e.g., 42 days) for a reason within their control.
  • The resident has intentionally caused serious damage to the facility or serious injury to staff or another resident.
  • The resident has been absent from the facility for a continuous period without a permitted reason (e.g., 7 days).
• Process and Notice: Even when a valid reason exists, the provider must follow a strict process, which typically requires:
  • Giving the resident written notice (e.g., at least 14 days) that includes the reasons for the decision.
  • Ensuring that suitable, affordable alternative accommodation that meets the resident's long-term care needs is available before the resident is required to leave.
  • Providing a care needs assessment by an aged care assessment team or independent health professionals.

In short, security of tenure is a fundamental protection that prevents residents from being arbitrarily evicted or transferred from their home in a residential aged care facility.

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Frequently Asked Questions

1. What exactly is Security of Tenure in Aged Care?

Answer: Security of Tenure is a legal principle that ensures a person who has permanently moved into a government-funded residential aged care facility can consider it their home and has the right to continue living there for as long as they need care. It provides strong protections against being asked to leave without a valid reason and without a formal, legally defined process.

2. Can an aged care home ask a resident to leave?

Answer: Yes, but only under very specific and limited legal conditions. The provider cannot arbitrarily ask a resident to leave. They must have a valid reason outlined in the governing legislation (such as the Aged Care Act 1997 in Australia) and must follow a rigorous process.

3. What are the legal grounds for an aged care provider to ask a resident to leave?

Answer: The provider can only ask a permanent resident to leave if one of the following reasons applies:

• The aged care service is closing down.
• The provider can no longer provide suitable accommodation and care for the resident's long-term needs, and has not agreed to provide that care.
• An aged care assessor determines the resident no longer needs the care provided through a residential service.
• The resident has not paid an agreed fee within 42 days of the due date, for a reason within their control.
• The resident has intentionally caused serious damage to the facility or serious injury to a staff member or another resident.
• The resident is away from the facility for a continuous period of at least seven days for a reason that is not permitted (e.g., unauthorised leave).

4. What is the process the provider must follow before a resident can be moved?

Answer: The provider must follow a strict multi-step process:

1. Assessment: If the reason relates to changing care needs (e.g., they can no longer meet them), the provider must have the resident's long-term needs assessed by an Aged Care Assessment Team (ACAT/ACAS) or at least two medical or health professionals. One of these professionals must be independent of the provider and chosen by the resident.
2. Suitable Alternative: The provider must not take any action to make the resident leave until suitable, affordable alternative accommodation is available that meets the resident's long-term care needs.
3. Written Notice: The provider must give the resident at least 14 days' written notice before they are required to leave, clearly stating the reason, the date of departure, and the resident's rights.

5. Does Security of Tenure still apply if a resident's care needs become very complex (e.g., challenging behaviour)?

Answer: Yes. Security of Tenure continues to apply even if a resident's care needs increase or they develop challenging behaviours. The provider is generally expected to age residents in place and must make every effort, including seeking expert advice, to manage complex needs. Asking a resident to leave is considered a last resort. They must still prove, via the formal assessment process, that they absolutely cannot meet the resident's long-term needs.

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