Jorada Limited (19 003 612)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 18 Dec 2019

The Ombudsman's final decision:

Summary: The Care Provider is not at fault for charging for a notice period. It has however failed to operate its complaints procedure properly and invoice correctly. The Care Provider has agreed to apologise to the complainant and remind employees about the complaints process.

The complaint

  1. The complainant, whom I refer to as Mr C, represents his mother, whom I refer to as Mrs C. Mr C complains that the Care Provider charged for a period, when his father was in hospital, and after verbal notice was served on the Care Provider. Mr C says the Care Provider failed to respond properly to correspondence and lacked compassion. Mr C has found this upsetting and believes the Care provider has over charged for services. Mr C wants the Care Provider to reduce the outstanding invoice.

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The Ombudsman’s role and powers

  1. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
  2. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
  3. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
  4. If we are satisfied with a care provider’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I spoke with Mr C on the telephone and read information he sent. I made enquiries of the Care Provider and considered its response. I sent a draft decision to both parties for their comments. I considered their comments.

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What I found

What should have happened

  1. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. I have used the Care Quality Commission (Registration) Regulations 2009 when considering this complaint. I have referred to these as the “Regulations”.
  2. Regulation 19 says care providers must give people written information about the terms and conditions of their care, treatment or support, including the expected costs and the requirement to pay for their care, treatment and support.
  3. Regulation 16 says care providers must have a complaints system. Care providers should investigate any complaint received and take any necessary and proportionate action to respond to any failures identified as a result of the investigation.
  4. The Care Provider’s Terms and Conditions says;
  5. “7.6 Cancellation Charges. If you cancel a care visit less than 28 days in advance, we will be entitled to charge all or a proportion of the Fees payable for the cancelled visit, on a sliding scale, set out in Schedule 2. We will try to minimise costs where practicable and provide a reasoned breakdown of any cancellation charges
  6. Customers going into hospital or respite care can pay a retainer fee to keep their place …… open. This will ensure that they are still connected to us and, when they come back, their calls and Care Workers will carry on as before.”
  7. “11.1 Notice of Cancellation within the 14 day Cooling-off Period. if [sic] you change your mind for any reason, you are entitled to cancel the Agreement within the 14 day Cooling-off Period. To do so, you must tell us by giving us notice in the form set out in SCHEDULE 1, a copy of which is always in our Care Plans.”
  8. “12.1 Termination by the Company or Customer on 28 Days Written Signed Notice. Either you or we can terminate the Agreement at any time by giving not less than 28 days’ written and signed notice to the other.”
  9. The Care Provider’s current complaints procedure effective from 2 July 2019 says it will acknowledge complaints in writing within two working days. It will include details about the investigation and when the complainant will know the outcome. It says that complainants should expect to receive a report within 15 days of the complaint with an extension of up to 28 days. It also says that it will update the complainant on a weekly basis. The complaints process provides the Local Government and Social Care Ombudsman (LGSCO) as a further avenue of complaint after a complainant has exhausted the Care Provider’s complaints process.
  10. The Care Provider says the same process was in force at the time of the complaint.

What happened?

  1. In September 2018 Mrs C entered into a contract with the Care Provider on behalf of her husband for home support services. Mrs C signed to say she received and agreed to, the terms and conditions of business and the complaints procedure. This also included information about a 14 day “cooling off” or cancellation period.
  2. The email trail shows that in January 2019 Mr C’s father went into hospital. Over the next few weeks Mrs C and her daughter kept in contact with the Care Provider about potential discharge dates. The Care Provider says it made no charges during this period.
  3. On 8 March Mrs C told the Care Provider her husband was going into a nursing home. The Care Provider charged until 5 April to include a 28 day notice period.
  4. On 17 April Mr C rang the Care Provider raising concerns that payment was due for the notice period and that he was still receiving invoices. Mr C asked for a signed copy of the contract and terms and conditions. The Care Provider did not have an email address and did not respond.
  5. Mr C emailed the Care Provider on 1 May with a letter of complaint. He reiterated his concerns and queried why his father was charged for a period in March when he was still in hospital.
  6. He sent a further email on 17 May to chase a response. It appears from internal emails, that the Care Provider had not acknowledged the complaints as it did not check the email address Mr C used, on a regular basis. On 20 May the Care Provider decided it was unable to speak with Mr C as it did not have Mrs C’s consent.
  7. Mr C found out about the Care Provider’s decision the next day when he visited their offices. Later that day the Care Provider contacted Mr C to say that it would not reduce the outstanding charges as there was a 28 day notice of a termination in the contract; and fees were due for this period. It also told Mr C that the LGSCO does not consider complaints about privately funded care.
  8. In Mr C’s complaint to us he says the Care Provider should show some compassion and leniency towards his parents’ situation. He says his mother signed the contract when she was very stressed and needed urgent care and did not fully appreciate what she was signing. Mr C says the Care Provider gave conflicting advice about whether written notice was needed. He says the Care Provider did not tell Mrs C about the notice period until after she notified it that his father would not be returning home.

Was there fault causing injustice?

Notice period

  1. I find no fault in the Care Provider applying the 28 day notice period. Paragraph 12.1 of the terms and conditions requires a 28 day notice period. Mrs C received a copy of the terms and conditions.
  2. Mr C says the Care provider did not remind his mother of the notice period and it should treat Mrs C leniently because of the difficult circumstances she was in when she signed the contract. He feels the Care Provider should apply the sliding scale for the cancellation of a service instead of the notice period for the termination of a service.
  3. While I recognise the stress of caring I cannot criticise the Care Provider. There is nothing to suggest the Care Provider should have questioned Mrs C’s ability to understand the implications of what she was signing. The terms and conditions also allow for a cooling off period which gave Mrs C an opportunity to get advice either from family or an advocate about what she was signing.

Invoices

  1. Mr C says the Care Provider charged for a period when his father was in hospital. These dates are within the notice period and therefore I find no fault in the Care Provider charging for them.
  2. The Care Provider is however at fault for charging for 6 and 7 April, two days after the notice period had ended. This has resulted in the overcharging of Mrs C.

Complaint handling

  1. The Care Provider is at fault for not following its complaints process. Mr C contacted the Care Provider several times before the Care Provider formerly acknowledged and provided him with a response. The Care Provider also provided conflicting information about whether it could speak with Mr C as it did not have consent from Mrs C.
  2. The Care Provider wrongly advised Mr C that he could not escalate his complaint to the LGSCO. As a result of these failures Mr C has had time and trouble in progressing his complaint.

Agreed action

  1. I have found fault in the actions of the Care Provider. The Care Provider has agreed to take the following to remedy the complaint:-
      1. apoloigse to Mrs C and Mr C about the incorrect invoice and the failures that I have identified in the complaints process;
      2. remind staff about the Care Provider’s complaints procedure and the steps workers should take when dealing with a complaint;
      3. remind staff that complainants can escalate their complaints to the LGSCO.
  2. In response to the draft decision the Care Provider has refunded charges paid for 6 and 7 April.
  3. The Care Provider should complete the remaining actions within a month of the final decision.

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Final decision

  1. I have found fault causing injustice in the actions of the Care Provider. I have closed the investigation based on the agreed action above.
  2. As I have found fault in the complaint handling, I will also send a copy of my final decision to CQC.

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Investigator's decision on behalf of the Ombudsman

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