Summary: Mrs X complains about the actions of a care home. She says the care home did not consult with her before it gave notice on her mother’s placement and did not tell her it would charge the full care fees if possessions were left in her mother’s room. She also complains about charges made regarding some sundry items. The Ombudsman finds fault with the care home for not consulting with Mrs X, not providing information about its charges, and for not keeping accurate records. We have made recommendations.

The complaint

1. Mrs X complains about the actions of a care home. She says:
• The care home did not consult with her, or her sister, before it gave notice on her mother’s placement.
• The care home did not tell her it would charge the full care fees if possessions were left in her mother’s room. She says if she had known, she would have removed the items.
• The care home has charged from some sundry items which it has never charged for before.
2. Mrs X says this has caused her an injustice as she has paid for care which her mother did not receive.

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The Ombudsman’s role and powers

3. 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)
4. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

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How I considered this complaint

6. I spoke with Mrs X and considered the information she provided.
7. I made enquiries with the care home and considered the information it provided.
8. I sent a draft decision to Mrs X and the care home and considered their comments.
9. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I found

Health and Social Care Act 2008 (Regulated Activities) Regulations 2014

10. This sets 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.
11. Regulation 17 is about good governance. To meet this regulation, providers must have effective governance, including assurance and auditing systems or processes.
12. Providers must securely maintain accurate, complete and detailed records in respect of each person using the service.

Care Quality Commissions (Registration) Regulations 2009

13. Regulation 19 is about fees. It notes that providers should give timely and accurate information about the cost of their case and treatment to people who use services.
14. To meet this regulation, providers must make written information available about any fees, contracts and terms and conditions, where people are paying either in full or in part for the cost of their care, treatment and support.

Competition and Markets Authority (CMA) guidance

15. The CMA published guidance in November 2018 on helping care homes comply with their consumer law obligations. We consider that guidance useful and relevant for care homes.
16. It notes where the service is ended prematurely by any party, the resident should receive a pro-rata refund of any prepayments they have made beyond the notice period. (4.9(d))
17. It also highlights that where a care home’s terms allow them to end the contract on short notice, this is likely to infringe on consumer law. This is because the resident (who may be vulnerable) may not have enough time and opportunity to arrange for suitable alternative accommodation. (4.96)
18. Therefore, even in cases of very serious breaches of contract or harmful behaviour, care providers should always provide residents with at least 28 days’ written notice of termination. (4.98)
19. Care providers should not ask a resident to leave the care home without first consulting them and their representatives. The reasons for the consultation should be fully discussed, along with possible solutions, before any final decision is made. (4.100)
20. Where the contract ends through no fault of the resident, the resident will receive a pro-rata refund of any prepayments to ensure they are not paying for services not yet supplied. If there are any conditions attached to it (empty room) the care home should tell the family in a timely manner. (4.103(j))

Care home’s service user contract

21. The service user contract sets out the rights and responsibilities of the care home and the service user.
22. The contract covers the procedure for ending the agreement. It notes the home can end the agreement by giving 24 hours written notice in exceptional cases where the service user’s behaviour is materially detrimental to the safety and welfare of other services users.
23. It also notes the care home will not ask a service user to leave the home until every effort has been made to resolve the difficulties with the service user and/or their representative. The consultation process must also be completed.
24. Where notice is served following the consultation process, the service user will be entitled to leave the home without financial penalty.

What happened

25. Mrs X’s mother, Mrs Y, lived in a care home.
26. In September 2019, Mrs Y’s care home gave verbal notice to Mrs X that it could not continue to care for Mrs Y. Mrs X said the care home provided notice without first consulting her, or her sister.
27. The care home said it consulted with professionals but did not provide evidence it completed the consultation process with Mrs Y and Mrs X.
28. Mrs X said the care home told it was giving notice because Mrs Y’s behaviour was detrimental to the safety and welfare of other service users. Mrs X said the care home asked her to move Mrs Y as soon as possible. The care home confirmed it did not provide any written notice, only verbal.
29. Mrs Y left the care home near the end of October 2019. Mrs X had paid in advance for the care home’s services up to the end of October 2019. Mrs X said the care home told her there would be no financial penalty and so expected a refund for the week overpayment.
30. Mrs X also questioned the charges for some sundry items. She said the care home provided some petty cash vouchers but they were not transparent and so it was unclear if the care home had bought the items for Mrs Y.
31. The care home said it did not refund Mrs X as Mrs Y had left possessions in her room until the beginning of November 2019. The care home explained this meant it could not use the room as it did not have any storage facility for Mrs Y’s possessions.
32. In response to our enquiries, the care home also said it did not have copies of the receipts for the sundry items. It said it had mutual trust with residents and families and so it did not need to keep copies of receipts. The care home said it bought the items for Mrs Y as she needed them, and it was in her best interest.
33. Mrs Y died in December 2019.

Analysis

34. The CMA guidance notes that care providers should not ask a resident to leave the care home without first consulting them and their representatives. The care home’s service user contracts mirrors this.
35. However, there is no evidence to show the care home did consult with Mrs Y, or her representatives, before it gave notice. Mrs X says the care home did not consult with her. Therefore, on balance, I am of the view the care home did not consult with Mrs X before it gave notice. This is fault.
36. I consider this fault caused both Mrs Y and Mrs X an injustice because they both lost the opportunity to work with the care home to try and resolve the problem. This lost opportunity has also caused uncertainty for Mrs X because I cannot say what might have happened if she had the opportunity to discuss and resolve the problems.
37. The Care Quality Commission (Registration) Regulations 2009 outlines that care providers must make written information available about any fees, contracts, and terms and conditions. The CMA guidance also states that where a contact ends through no fault of the resident, the resident should receive a pro-rata refund to ensure they do not pay for services not yet supplied. If there are any conditions attached to it, such as an empty room, the care home should tell the family promptly.
38. There is no evidence the care home told Mrs X that it would charge the full care fees if Mrs Y’s room was not empty. Further, there is no information set out in the service user contract to highlight these charges. This is not in line with Regulation 19 of the Care Quality Commission (Registration) Regulations 2009 or CMA guidance. This is fault.
39. I consider the fault has caused Mrs X an injustice. This is because Mrs X has paid the care home for services not received by Mrs Y.
40. The care home could not provide evidence it bought the sundry items for Mrs Y. There is also no evidence Mrs Y, or Mrs X, asked the care home to buy the items. The care home said it did not need to keep receipts due to the trusted relationship it had with its residents. This is not good practice and not in line with regulation 17 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.
41. I find fault with the care home for failing to keep accurate records of the sundry items it said it bought for Mrs Y. I consider the fault caused Mrs X an injustice because the care home has charged her for the sundry items, but it is not clear if the items were bought and used for Mrs Y.
42. Finally, there is fault with the care home’s service user contract. This is because the contract notes the care home can end the agreement by giving 24 hours written notice in exceptional cases.
43. However, the CMA guidance notes that where a care provider’s terms allow it to end the contract on short notice, it is likely to infringe on consumer law. It highlights that even in cases of very serious breaches of contract or harmful behaviour, care providers should always provide residents with at least 28 days written notice.
44. I do not consider the fault caused Mrs X or Mrs Y an injustice but consider the fault could cause an injustice to the other residents of the care home and to the public. This is because the terms of the care home’s contract are not in line with CMA guidance and is likely to infringe on consumer law.

Agreed action

45. To remedy the injustice caused by the faults identified, the care home has agreed to complete the following:
• Apologise to Mrs X for the faults identified.
• Refund Mrs Y’s estate the care fees charged for the last week of October 2019.
• Waive, or refund, the charges for the sundry items to Mrs Y’s estate.
46. The care home should complete the above within four weeks of the final decision.
• Review its service user contract to ensure it complies with Regulation 19 of the Care Quality Commission (Registration) Regulations 2009 and CMA guidance. The care home should consider removing the paragraph which states the care home can end the contract by giving 24 hours written notice. It should also review the section on fees to ensure there is accurate information regarding the charges for leaving possessions in a room.
• Review the charges applied at the end of tenancies over the last 12 months. The care home should refund any charges applied where items were left in a service user’s room. It should send a letter to the service user to explain the reasons for the refund.
47. The care home will complete the above within eight weeks of the final decision.
48. The care home will provide the Ombudsman with a copy of its final service user contract. If after reviewing the contract, the care home does not feel any amendments are needed, it should explain its reasons why.
49. The care home will also provide the Ombudsman with a copy of its review of the charges applied at the end of tenancies over the last 12 months. If there are refunds to be made, it will provide evidence of the refund and letter sent to the affected service user.

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Final decision

50. I find fault with the care home for not consulting with Mrs Y or Mrs X before giving notice, for not providing information about its charges when possessions are left in a room, and for not keeping accurate records. These faults caused Mrs X an injustice. I also find fault with the care home’s service user contract. This fault did not cause Mrs X an injustice but may cause an injustice to the public.

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Investigator's decision on behalf of the Ombudsman