Summary: Mr B complained on behalf of Mr G that the Care Provider charged Mr G’s late mother, Mrs D, excessive fees for her domiciliary care. Mr B said the Care Provider entered into an unsigned contract with Mrs D and it did not make her aware of the terms and conditions of the contract including the cancellation provisions. Mr B also complained about how the Care Provider had pursued Mrs D’s care fees payment with Mr G which caused him distress. There was no evidence injustice was caused to Mr G by the actions of the Care Provider.

The complaint

1. Mr B complained on behalf of Mr G, the son of Mrs D who has passed away. Mr B is the Attorney and Executor of Mrs D’s estate.
2. Mr B complained the Domiciliary Care Provider:

• charged Mrs D excessively for her care fees from April 2019 to June 2019
• entered into an unsigned contract with Mrs D with no evidence it made her aware of the terms of the contract including the cancellation provisions
• failed to notify Mrs D and/or Mr G (her son) of the care fees invoices it raised while Mrs D was in hospital
• was aggressive and pressurised Mr G to pay Mrs D’s care fees while she was ill and on the day she passed away.

3. Mr B said the Care Provider’s error with how it handled Mrs D’s care charges caused Mr G significant distress. Mr B also said due to the unresolved matter, he was unable to discharge his duties as an Attorney and Executor of Mrs D’s estate.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I discussed the complaint with Mr B and considered the information he provided. I considered the Care Provider’s response to my enquiries.
7. I sent Mr B and the Care Provider a copy of my draft decision and considered all comments received prior to reaching a final decision.

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What I found

8. 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 has issued guidance on how to meet these standards.
9. The Care Quality Commission (Registration) Regulations 2009: Regulation 19 require providers to give timely and accurate information about the cost of their care and treatment to people who use services. To meet this regulation, providers must make written information available about the 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.
10. The Mental Capacity Act 2005 states a person must be assumed to have capacity unless it is established that they lack capacity.

What happened

11. This chronology includes key events in this case and does not cover everything that happened.
12. In March 2019, the Domiciliary Care Provider completed a care assessment for Mrs D. She was deemed to have capacity under the Mental Capacity Act 2005 and the Care Provider discussed Mrs D’s care plan and contract with her and Mr G.
13. In April 2019, the Care Provider started providing care for Mrs D. Four days after Mrs D’s care commenced, she fell and was admitted to hospital. The following day, Mr G informed the Care Provider Mrs D would be staying in the hospital until further notice. The Care Provider verbally explained to Mr G, her space would be retained at a rate of 50% of her care fees. The Care Provider continued to raise invoices for Mrs D’s care fees at the 50% rate whilst she was in hospital.
14. In May 2019, Mr B said while Mrs D was in hospital, she was made subject to a safeguarding order because she was deemed vulnerable with no capacity. Mr G contacted the Care Provider on 16 May 2019 to cancel Mrs D’s care. During the call, the Care Provider reminded Mr G of its two-week full payment cancellation cost.
15. At the end of June 2019, Mrs D moved into a care home. In July 2019, in his capacity as Mrs D’s attorney, Mr B disputed why the Care Provider carried on charging Mrs D for her care while she was in hospital. He also raised concerns about the Care Provider entering into an unsigned contract with Mrs D. The Care Provider accepted the contract was unsigned but explained its legal position was that a copy of the contract was left with Mrs D at her property and she was deemed to have accepted the terms of the contract the day her care started.
16. Mr B requested a detailed statement with all Mrs D’s outstanding payments and a copy of her contract including the terms and cancellation provisions. It appeared from the available evidence, the Care Provider had posted Mrs D’s outstanding invoices to her home address. Mr B questioned why the Care Provider had sent invoices to Mrs D’s address when it knew she was in hospital and was subsequently moved to a care home. It was not until October 2019, the Care Provider sent copies of all outstanding invoices to Mr B.
17. In December 2019, Mrs D passed away. The Care Provider charged Mrs D’s estate for payment of her outstanding care fees. Mr B, as the executor of Mrs D’s estate, formally made a complaint to the Care Provider in April 2020. He complained about its unsigned contract with Mrs D. He said there was no evidence it made her or Mr G aware of the contract terms and the cancellation provisions. He also complained the Care Provider continued to raise invoices for Mrs D’s care when she was in hospital and failed to notify her and Mr G of the outstanding invoices at the time. He said the Care Provider put undue pressure on Mr G to make payments for his mother’s care fees. As a result, Mr G made Mrs D sign a cheque to pay some of her care fees when she lacked capacity.
18. Mr B believes standard practice is for care providers to charge at most two full days care cost following clients’ hospital admissions. He explained the amount paid by Mr G in May 2019 therefore, covered the four days care it provided Mrs D in April 2019, the day she was admitted to hospital and two full days care cost after her hospital admission. The Care Provider disagreed.
19. In response to Mr B’s complaint, the Care Provider confirmed in March 2019, a month before Mrs D’s care started, it completed her assessment. At the time Mrs D was deemed to have capacity under the Mental Capacity Act 2005. It explained Mrs D’s contract was discussed with her and Mr G. It says the contract was unsigned by Mrs D because Mr G had instructed the Care provider staff to put the unsigned contract in a file.
20. The Care Provider said Mr G was aware of his mother’s outstanding care fees because all invoices were emailed to him every two weeks from when she went into hospital. The Care Provider said it followed its policies correctly. Although the contract was not signed, the terms of the contract were clear and it was deemed to have been accepted by Mrs D when it commenced her care in April 2019.
21. Mr B remained dissatisfied and he made a complaint to the Ombudsman.

Analysis

The Care Provider allegedly charged Mrs D excessively for her care fees from April 2019 to June 2019

22. In response to my enquiries, the Care Provider supplied the breakdown of Mrs D’s care charges from April 2019 to May 2019. It also confirmed the outstanding balance of Mrs D’s care fees as £1,145.99.
23. The Care Provider charged Mrs D the full care costs for the first four days and for the first two visits the day she fell. Evidence shows the Care Provider informed Mr G of its 50% retention fees when Mrs D was in hospital and its two-week cancellation fees. The Care Provider started applying the 50% retention rate from the date Mrs D was admitted to hospital. It continued to charge the 50% rate for the two-week notice period from the date Mr G cancelled Mrs D’s contract.
24. The retention and cancellation provisions were clearly stated in Mrs D’s contract; “if I go into hospital ….my charges will be reduced to 50% to ensure the Provider secure the time slot we agreed”. And “on cancellation of the whole service the Provider will charge full rates for two weeks whether I received my calls or not.” I cannot be critical of the Care Provider for applying these charges and therefore, I do not find fault.

The Care Provider entered into an unsigned contract with Mrs D with no evidence it made her aware of the terms of the unsigned contract including the cancellation provisions

25. Guidance by the Care Quality Commission (CQC), Fundamental Standards, explains people must receive a copy of the contract and they must agree to the terms before their care and support begins.
26. Mrs D’s contract stated “this agreement shall be deemed to be made on the date when it is signed by the Provider, or when the Service commenced…”. Although, Mrs D’s contract was unsigned, she accepted the terms and conditions of the contract when she agreed for the Care Provider to commence her care in April 2019.
27. While it is best practice for both parties in a contract to sign the agreement, in this case, it was sufficient the Care Provider gave a copy of Mrs D’s contract to her on the day her care started. This is in accordance with the CQC guidance. It is unknown why Mr G asked the Care Provider staff to put Mrs D’s contract away in a file unsigned. But there is no evidence to suggest either Mrs D or Mr G objected to the contract terms. Mrs D was deemed to have capacity at the time the contract was agreed in April 2019. Although it would be best practice for the Care Provider to have ensured Mrs D signed her contract, I do not find fault which caused Mr G injustice.

Failure to notify Mrs D and/or Mr G of the care fees invoices it raised while Mrs D was in hospital

28. It appears from the available evidence, the Care Provider posted Mrs D’s outstanding invoices to her home address. This was in line with the terms of Mrs D’s contract. However, given the Care Provider was aware Mrs D was in hospital and subsequently discharged to a care home, it should have satisfied itself the invoices had been received.
29. Evidence also shows the Care Provider sent emails to Mr G notifying him of Mrs D’s care fees. In May 2019 Mr G made a payment to the Care Provider for part of Mrs D’s outstanding care fees. In one of Mr B’s contacts with the Care Provider in July 2019, he disputed one of the invoices raised at the end of April 2019 while Mrs D was in hospital. This indicates both Mr G and Mr B were aware of and received the invoices regardless of where or how they had been sent. I do not therefore consider there is evidence of any fault causing injustice to Mr G.

The Care Provider was allegedly aggressive towards and pressurised Mr G to pay Mrs D’s care fees while she was ill and on the day she passed away

30. In response to my enquiries, the Care Provider confirmed it did not consider it was aggressive towards Mr G or anyone while it pursued Mrs D’s outstanding care fees.
31. There was no documentary evidence of calls made between the Care Provider and Mr G. Mr G may have perceived the contact as aggressive but the Care Provider denies this was the case. The emails I have seen between Mr B and the Care Provider disputing Mrs D’s care fees become heated in parts but I do not consider they are aggressive.
32. I cannot on the balance of probabilities, reach a finding on Mr B’s allegation the Care Provider was aggressive and put undue pressure on Mr G to pay his mother’s care fees when she was ill and on the day she passed away.
33. The Care Provider has confirmed Mrs D’s care fees of £1,145.99 remain outstanding.

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Final decision

34. I find no injustice was caused to Mr G by the actions of the Care Provider.

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Investigator's decision on behalf of the Ombudsman