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The Retirement Living Code of Conduct - how do I comply and what's in it for my village?

The Retirement Living Code of Conduct (the Code) has been operational for almost 12 months, however many village operators are yet to subscribe. In this article, Stuart Lowe examines the benefits of subscribing to the Code, what it entails and the particular consequences for Queensland retirement villages that do not subscribe.

What is the Retirement Living Code of Conduct?

The Code is a nation-wide, voluntary industry code of conduct for “retirement communities”. While this can include various forms of seniors housing in a community environment, the Code is particularly directed to retirement villages. 

The Code is a joint initiative developed by Leading Age Services Australia and the Property Council of Australia's Retirement Living Committee. Following its launch in December 2018 and an initial transitional stage, the Code commenced operation on 1 January 2020.

The Code seeks to provide a robust quality framework for the operation of Australia's retirement communities, focusing on areas such as:

  • fairness in marketing and sales practices;
  • maintaining good relationships with residents and stakeholders;
  • transparent processes when residents move out; and
  • improving the handling of complaints and resolving disputes.

The Code is intended to co-exist with applicable legislation. Operators’ legal obligations are not replaced or restricted by the Code.

Click here to view the Code.

What are the benefits of subscribing to the Code?

There are a number of benefits to village operators who subscribe to the Code.

A competitive edge

The Code seeks to give assurance to seniors and their families that a village operator has committed to standards consistent with providing a trustworthy and high quality service. Compliant villages are listed on a publicly available Code Register. Accordingly, being a Code subscriber represents marketing capital.

Village accreditation

Although the Code is a voluntary industry code, compliance with the Code is one of the criteria to obtain or maintain accreditation under the new Australian Retirement Village Accreditation Scheme (ARVAS). Any organisation wishing to apply for accreditation under ARVAS must be an active subscriber to the Code.

Queensland residential services legislation

From 1 September 2022, being a Code subscriber (and accredited under ARVAS) will take on additional importance for Queensland retirement village operators.

The main legislation governing Queensland retirement villages is the Retirement Villages Act 1999. However, many operators may not be aware that they also potentially fall within the scope of the Residential Services (Accreditation) Act 2002 (RSA Act).

Briefly, the RSA Act creates a separate system of registration and accreditation, intended to govern boarding houses, hostels and similar residential complexes. However, its scope is broad enough to potentially also cover retirement villages, particularly where residents occupy units that are not self-contained, or receive a food service or personal care service.

This could mean that a retirement village is required to become registered and accredited under (and comply with) two different regulatory regimes – a situation operators would no doubt be eager to avoid.

Fortunately, an exemption is available to avoid this duplication. If a retirement village is accredited with a body recognised for that purpose by the Queensland Department of Housing and Public Works (DHPW), the village does not need to comply with the RSA Act.

It is intended that, in due course, DHPW will recognise ARVAS for this purpose. However, as ARVAS is a relatively new accreditation scheme, it is still being evaluated by DHPW and adopted by industry. To allow more time for this to occur, all Queensland retirement villages are currently exempt from the RSA Act until 1 September 2022 (this date was recently extended from 1 September 2020). 

However, from that date, Queensland retirement villages that would otherwise be caught by the RSA Act will only be exempt if they are accredited under ARVAS (and, therefore, also subscribe to the Code).

What do Code signatories commit to?

The Code requires signatories to comply with a number of commitments. Broadly, these commitments fall into three categories:

Transactional documents

The Code requires particular information to be given to residents and prospective residents, some of which is in addition to operators’ existing statutory obligations.

Examples include:

  • advising that the operator is a Code signatory in “legal documents” issued to residents and potential residents;
  • advising residents of their options for referring complaints under the Code (in addition to their other contractual and statutory avenues);
  • where possible, practical and reasonable, providing incoming residents with information about any charges payable to third parties and their indicative costs;
  • advising incoming residents if the operator has an ownership interest in any other firm involved in operating the village, or if it receives a commission from third party suppliers relating to services paid for by residents;
  • encouraging all potential residents to seek independent legal advice in a language they understand and to share this information with family members and trusted advisors;
  • providing information on the village’s operating budget with the contract; and
  • ensuring new contracts are clear about the differences between reinstatement works and upgrade works, and who is responsible for these costs (note: “upgrade works” are potentially different to “renovation work” as defined under Queensland legislation).

In some cases, the Code is specific in requiring this information be included in the operator’s contractual documents. In other cases, the Code leaves it to the operator to decide whether to include the additional information in its contract or disclosure templates, or to present it separately. Typically, the decision comes back to what is operationally simpler for staff. For example, where information changes regularly, it may be easier to present that information separately, providing this is accompanied by a robust procedure manual to ensure it is not overlooked.

For operators with good quality contractual and disclosure templates, the amendments required by the Code may be relatively minor. Operators using templates that are in need of improvement may require more extensive changes to comply with the Code.

Policies and procedures

The Code requires signatories to maintain a number of internal policies and procedures, including:

  • handling complaints and resolving disputes (in compliance with the requirements of the Code);
  • the frequency and conduct of meetings with residents, and their right to consultation;
  • accessing residents’ homes;
  • privacy policy;
  • how the operator engages with the residents committee and how the operator will present matters requiring resident consent;
  • consulting and responding to resident or consumer associations;
  • staff management, including inducting new staff and contractors;
  • workplace health and safety;
  • general safety and security, electrical safety, fire safety and emergency management; and
  • property management, including maintenance and capital expenditure.

Operational requirements

The Code also requires signatories to comply with a number of other operational matters, including:

  • making a copy of the Code available on the operator’s website, with hard copies also available to residents free of charge upon request;
  • ensuring sales and marketing information is comprehensive and accurate;
  • providing new residents with a full orientation to their unit and the community;
  • conducting an annual survey, inviting feedback from residents; and
  • clearly communicating with departing residents or their representatives regarding the moving out process, including works to the unit, the resale process, relevant costs and expected timing of each part of the process.

What else is involved?

The Code also involves the following:

  • a system of annual self-certification (however, signatories also pursuing accreditation through ARVAS will be independently audited on adherence to the Code as part of that accreditation);
  • a provisional registration option, allowing signatories six to twelve months to become fully compliant (the Code Administrator will work with them to achieve compliance during this period);
  • audits by the Code Administrator;
  • an initial application fee and annual subscription fee;
  • signatories receive supporting materials, including marketing collateral to promote their adoption of the Code;
  • oversight by an independent review panel;
  • a complaint-management framework; and
  • sanctions where breaches of the Code occur.

How we can help

Based on Mullins’ extensive retirement village expertise and industry experience, we can assist operators by:

  • checking the extent to which your transactional templates already comply with the Code and drafting any required changes;
  • making recommendations regarding how additional required information should be presented to prospective residents - in the contractual or disclosure documents, or separately;
  • preparing or updating internal policies or procedures; and
  • otherwise advising on operational Code compliance issues.

If you have any questions in relation to the above, or any other retirement village issues, please contact Stuart Lowe on 07 3224 0355.

Article written by Stuart Lowe (Partner).

"The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication."