Mr & Mrs A Mangaliji (19 012 054)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 08 Mar 2021

The Ombudsman's final decision:

Summary: The Care Provider’s contract is not in line with the Competition and Markets Authorities (CMA) guidance about fair contract terms. The Care Provider has agreed to review its contract to ensure it is in line with CMA guidance and to apologise to Mr C for the uncertainty caused by its actions.

The complaint

  1. For confidentiality I refer to the complainant as Mr C, and his mother, as Mrs D.
  2. Mr C complains on behalf of Mrs D about residential care services provided by Devonshire Dementia Care, the “Care Provider”. His complaints are the Care Provider:-
      1. failed to properly explain and justify an increase in care costs;
      2. inappropriately gave notice to Mrs D;
      3. lacked empathy and compassion when corresponding with Mr C and the decisions it made about Mrs D, a vulnerable person;
      4. failed to provide information to a prospective care home.
  3. Mr C says because of these failures his mother, who has dementia, was unnecessarily forced to move care home. He says the Care Provider’s actions have also caused him and his family undue stress.

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The Ombudsman’s role and powers

  1. We investigate complaints about adult social care providers. If there has been fault, we consider whether it has caused an injustice and, if it has, we may suggest a remedy. (Local Government Act 1974, sections 34H(3) and (4), as amended)
  2. 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)
  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)

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How I considered this complaint

  1. I read Mr C’s complaint and looked at information he provided. Based on this information enquiries were made of the Care Provider. I considered its response. I took into account:-
    • The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
    • Competition and Markets Authorities (CMA) guidance - Care homes: short guide to consumer rights for residents;
    • the Care Provider’s contract.
  2. I sent Mr C and the Care Provider a draft decision statement for comments. Following the comments made I obtained health records. Mr C and the Care Provider then had an opportunity to comment on a second draft decision. I have considered the comments made by both parties before reaching a final decision.

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What I found

Background information

  1. Mrs D has dementia and physical health problems which include diabetes. Mrs D entered the care home in 2017, her weekly fee was £950. In 2018 this rose to £981.

What happened

  1. When Mrs D entered the care home district nurses visited daily to administer diabetes medication. After training, carers managed this on their own. During this period records show that Mrs D was at risk of hyperglycaemia. This is when blood sugar levels are too high.
  2. In July 2019 the Care Provider wrote to Mr C advising of a weekly fee increase of 15% to £1150. It said,
  3. “”We are trying to keep the fees as low as possible, however this increase reflects the rising costs we face to run the Devonshire due to Brexit, the increased costs of living, hiring and keeping good staff and the National Minimum Wage Increase”.
  4. The letter offered to meet with Mr C to discuss the “increase, care and services provided”. Mr C did not agree with the fee increase. He met the Care Provider and there was an exchange of letters about the disputed fee. The letters from the Care Provider gave further justification for the increase. It included:-
    • the signed contract allowed an increase in fees;
    • the standard rate for new residents was £1400 a week, higher than Mrs D’s fees;
    • Mrs D’s need for more care. The Care Provider said it based the increase on a “time and motion study”. This recorded what carers did and how long it took them. The Care Provider said Mrs D’s weekly support had increased from 3.16 to 8.89 hours. It said the fees should therefore increase by £525 a week, however it was only increasing the fees by £169;
    • the competitive price reflected the room, individual care needs, and the specialist care provided.
  5. Mr C was unhappy at the suggestion in one of the letters that Mrs D could move if he did not agree with the fee increase. He felt this was threatening. The Care Provider also confused him by saying Mrs D’s care needs had reduced but her fees increased. The Care Provider apologised for sounding threatening but said its comments were in response to Mr C saying he would look at alternative care homes.
  6. CQC considered the fee increase and took no further action.
  7. On 4 December 2019, the Care Provider gave notice to Mrs D. It said it could no longer meet Mrs D’s needs as her diabetes had become uncontrollable and she needed nursing care.
  8. Mr C says at the time he felt pressured to find another care home. He asked the Care Provider to show some leniency as his daughter was in hospital and his time restricted. He says the Care Provider failed to show compassion. The Care Provider says it had no knowledge about the family situation at the time, but an email provided by Mr C shows it was aware of Mr C’s family difficulties.
  9. Mr C also complains the Care Provider failed to give important information to a prospective care home, which resulted in Mrs D losing a place.
  10. Mr C says the Care Provider gave notice to his mother because of the complaints he raised about the increase in care fees. He believes this was unfair and harmful to Mrs D who thought she had a home for life.
  11. In response to a draft of this statement the Care Provider says:-
    • Mr C’s contract allowed for an increase within a price range, so he was on notice that fees might go up within a price bracket;
    • Mr C was told about his mother’s increased needs;
    • it is reasonable to keep to a six monthly review of fees because of the unpredictability of dementia and the potential for a rapid deterioration;
    • it took no action to enforce the arrears that accrued from the additional charge;
    • the fee was lower than that for new residents entering the care home;
    • Mrs D’s health needs deteriorated to an extent where she needed the provision of nursing staff. This view was supported by different NHS staff including the GP, 111 service, pharmacy and ambulance staff. The Care provider gave Mrs D notice on this basis;
    • Mrs D has moved to a nursing home which can provide the level of medical care Mrs D needs;
    • the relationship between it and Mr C had deteriorated and dialogue with Mr C had become difficult;
    • it acted considerately. It provided additional time for Mr C to locate alternative accommodation, it sought advice and provided care to Mrs D even though her needs had increased considerably.

What should have happened

Increase in care fees

  1. The Care Provider’s contract says,
  2. “The fees for the Dementia Care range from £950 to £1250 per week depending on the Resident's level of Dementia, their behaviour patterns, and care needs…..fees are reviewed 6 monthly…
  3. Should the condition of the Resident deteriorate requiring additional care and attention, it would necessitate an immediate increase in fees. PLEASE NOTE the progression of some forms of Dementia can be sudden. We will review the care needs and break down the cost of any increase in care needs for you.”
  4. CMA guidance specifically aimed at care homes says,
  5. “4.41 Fee increase terms need to be treated with great care, in particular so that they do not allow you to increase your fees arbitrarily. To ensure compliance with consumer law, your fee variation terms must set out clearly the circumstances in which the resident’s fees may change and the method of calculating the change. This should enable residents and their representatives to foresee, on the basis of clear, objective and intelligible criteria, the changes that may be made and evaluate the practical implications for them, before entering the contract. In addition, we consider that general fee reviews should be limited to once a year (e.g. 1 January).”
  6. It also says at “4.52 To ensure compliance with the law, you should be able to evidence and justify a decision to increase fees due to a change in care needs (for example, through the use of recognised accredited dependency tools) and any increase must be reasonable and proportionate to the resident’s needs. Where you anticipate or assess that a resident’s needs have changed (e.g. through informal or responsive monitoring), you should engage in meaningful and transparent consultation with them and their representatives and give them advance written notice (e.g. 28 days) before implementing a change in fees (including the reasons), so they can challenge your decision or avoid the increase if they wish.
  7. 4.53 Where there are disputes, or you anticipate a dispute, you should liaise with relevant independent professionals (e.g. a multidisciplinary team) to support your decision…..”

Is there fault causing injustice?

  1. I consider the Care Provider’s contract is not in line with CMA guidance. There is no independent benchmark about how it will calculate fee increases. Although the Care Provider says it only reviews contracts yearly, its contract allows for six monthly reviews. This is too frequent and fails to provide enough certainty for residents about their fees.
  2. The first letter from the Care Provider did not provide enough detail about how it arrived at a 15% increase in care fees. It also did not specifically say a change in Mrs D's care needs contributed to the increase. I consider this is fault.
  3. The Care Provider offered to meet with Mr C to discuss the fee increase which was good practice. During the meeting, and afterwards the Care Provider focused the fee increase on a change in Mrs D’s needs not the general increase in the care home’s running costs.
  4. The information provided by the Care Provider was also in parts unclear. The Care Provider did not initially provide Mr C with information from the time and motion study which it later used to justify the fee increase.
  5. I do not dispute the Care Provider’s reasons for the increase in care costs, however it should have provided clear information to Mr C about how it calculated this increase whether this be from a time and motion study or care formula.
  6. As a result Mr C was confused and frustrated. He had to take time and trouble in communicating with the Care Provider for clarification.

Giving notice

What happened

  1. Following the fee increase letter the relationship between Mr C and the Care Provider worsened. Each party blames the other for acting unreasonably.
  2. Mrs D had a hospital admission in October 2019. On 2 November, a record says management and staff felt there was a change in Mrs D’s medical needs, and she needed nursing care. This was re-enforced by an out of hours medical service which said Mrs D needed 24 hour nursing care because of her unpredictable blood sugar levels.
  3. The Care Provider gave notice to Mrs D on 4 December 2019 because Mrs D needed nursing care. The Care Provider’s reasons were:-
    • Mrs D went from being hyperglycaemic to hypoglycaemic (low blood sugar levels) and the care home could not administer a glucose injection;
    • Increased use of 111 and the GP;
    • Doctor from out of hours suggestion that Mrs D needed a nursing home;
    • Increased risk of choking and more vigilance needed at mealtimes.
  4. Between 2 November and 10 January the care home contacted:-
    • 111 twice for advice;
    • Ambulance service once;
    • the GP four times;
    • family to encourage Mrs D to eat.
  5. During the same period it took additional preventative hypoglycaemic action, by giving food or drink.

What should have happened

  1. The Care Provider’s contract says at paragraph 15;
  2. “enlist the support of the National Health Service as necessary to enable the Residents to remain in the home in the event of illness, should the Resident so wish and unless the Resident’s G.P. recommends alternative arrangements”
  3. CMA guidance says at 4.103
  4. “Before asking the resident to leave the home, you help them to understand that a problem has arisen, put in place ways of meeting their needs and consult with them, their representatives and any other relevant independent professionals (for example, on how to manage periods of stress and distress to prevent similar incidents reoccurring). This is especially relevant for dementia patients, who may not be in full control of their actions….”
  5. “4.102 Where you intimidate, exploit or pressurise residents or their representatives into leaving the home, this will be unfair under consumer law. Examples of infringements of consumer law in this context include:
  6. Threatening or asking a resident to leave in reprisal for them making a complaint (for example, by falsely claiming that you can no longer meet their care needs).”

Is there fault causing injustice?

  1. There was clearly a change in Mrs D’s health and care needs which the Care Provider managed. There is however a lack of recording to evidence the actions of the Care Provider. This includes a failure to :-
    • complete a risk assessment and action plan to address the change in Mrs D’s diabetes;
    • properly record the liaison with other health professionals about how the care home could/should manage the change in Mrs D’s diabetes;
    • consult with Mrs D’s family about what measures could be taken within the care home to enable her to remain.
  2. While I understand Mr C considers the Care Provider should have acted more compassionately given his family circumstances, I am unable to say Mrs D could have remained at the care home. This is because health records and opinion show that Mrs D’s needs were becoming beyond the scope of a residential home and she required a nursing home.
  3. There is dispute about whether a care home refused to accept Mrs D because the Care Provider did not provide certain information. I do not intend to investigate this further, as even if I were to find fault, I would be unable to say the care home would have offered Mrs D a place.
  4. Mr C says the Care Provider acted in retaliation to his complaints. I am unable to evidence that this was the case. This is because Mrs D had a serious condition and the Care Provider had valid concerns about its ability to meet Mrs D’s needs.

Agreed action

  1. I consider the Care Provider’s actions caused Mr C injustice. The Care Provider has agreed to take the following actions to remedy the complaint:-
      1. apologise to Mr C for failing to initially provide clear transparent reasons for the fee increase and his time and trouble in having to obtain this information;
      2. review contract terms so they are in line with current CMA guidance and provide a transparent basis for fee increases.
  2. The Care Provider should complete (a) within one month of the final decision and (b) within three months of the final decision.

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Final decision

  1. I consider there was fault by the Care Provider which caused Mr C injustice. I consider the agreed actions above are appropriate to remedy the complaint. I have now completed my investigation and closed the complaint on this basis.
  2. As I have found fault in the actions of the Care Provider under the information sharing agreement between the Local Government and Social Care Ombudsman and CQC, I will share this decision with CQC.

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Investigator's decision on behalf of the Ombudsman

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