The Ombudsman's final decision:
Summary: Mr X, a solicitor, complained Hamilton Care Limited (the care provider) failed to provide him with relevant financial records for the fees and invoices his client, Ms F, paid between 2013 and 2019 when she lived with the care provider as a self-funding resident. The care provider was at fault. The care provider failed to keep and provide copies of Ms F’s financial records which is breach of the fundamental care standards. It leaves uncertainty over whether Ms F has paid the correct care fees during this period. The care provider should apologise to Mr X and pay him £150 to recognise the time and trouble spent pursuing this complaint. It should also provide him with all the financial information it holds on file for Ms F.
- Mr X complained on behalf of Ms F in his role as deputy for her property and affairs. Mr X complained Hamilton Care Limited (the care provider) failed to provide him with relevant financial records for fees and invoices paid by Ms F between 2013 and 2019 while she lived with the care provider as a self-funding resident. Mr X said the care provider failed to adequately respond to his complaint about the matter.
- Mr X said the matter is causing him uncertainty over whether Ms F paid the correct fees during that period.
The Ombudsman’s role and powers
- 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)
- We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. (section 26A or 34C, Local Government Act 1974)
- If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(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)
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.
How I considered this complaint
- I spoke to Mr X about his complaint and considered information he provided.
- I wrote to the care provider with my enquiry letter. However, it failed to respond.
- Mr X and the care provider had an opportunity to comment on my draft decision. I considered comments before I made a final decision.
What I found
Relevant law and guidance
- The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers, inspects care services to assess if they meet the fundamental standards of care and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
- 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 CQC has issued guidance on how to meet the fundamental standards below which care must never fall.
- Regulation 16 is about receiving and acting on complaints. It says care providers must have systems in place for assessing, investigating and responding to complaints in a timely manner.
- Regulation 17 is about good governance. It says care providers should maintain an accurate, complete and contemporaneous record in respect of each service user. It says care providers must maintain securely records in relation to the management of regulated activity.
- The Government website states limited companies must keep records for six years from the end of the last financial year they relate to.
- Ms F lived at The Lodge care home (the care home) which is part of Hamilton Care Limited as a self-funding resident between 2013 and 2019. In 2019 Ms F no longer had enough funds to pay for the care herself. At this point the Council started to pay for it. Mr X is complaining about the period between 2013 and 2019 when Ms F was a self-funding resident.
- Mr X is a solicitor. In 2020 the Court of Protection appointed Mr X as Ms F’s deputy for her property and financial affairs as Ms F no longer had the mental capacity to manage them herself.
- Mr X wrote to the care provider during 2020 and requested copies of the invoices and fees Ms F had paid during the period she was a self-funding resident. Mr X said he wanted the information so he could check Ms F’s bank accounts to ensure she had paid the correct fees. Mr X said he requested the information from the care provider on 13 occasions, but it failed to provide any invoices or financial records. Mr X said this leaves uncertainty over whether Ms F paid the correct fees and on what basis she paid them.
- Mr X raised a formal complaint with the care provider in October 2020; however, he said it failed to respond. Therefore, he complained to us in January 2021.
Our enquiries with the care provider
- Following Mr X’s complaint to us we wrote to the care provider in February 2021 asking it to provide a response to Mr X’s complaint. The care provider said it had provided relevant documents to Mr X. Therefore, we asked it to provide all its correspondence with Mr X along with the financial records and accounts it held for Ms F. Despite chasing it for a response between March and May 2021 it failed to respond to us.
- We then wrote to the care provider with a formal enquiry letter in May 2021 asking the care provider to provide us with copies of Ms F’s accounts. We chased the care provider for a response in June and July 2021 however it failed to respond.
- We then wrote to the care provider in July 2021 with our draft decision. We asked the care provider to provide its comments in response to our findings and recommendations, however it again failed to respond.
- The care provider had a legal duty to respond to our enquiry letter. It is disappointing it failed to do so or provide us with an explanation why it failed to respond to Mr X or provide him with Ms F’s financial records. It is further disappointing that failed to respond to our draft decision.
- The care provider failed to provide Mr X with relevant financial information about the fees Ms F paid it between 2013 and 2019, despite several requests for the same from us. Therefore, I conclude that the care provider does not hold this information. Accounting and finances are a regulated activity and in line with Government guidelines, companies should keep relevant records for six years. This means the care provider should have all records of fees and invoices paid by Ms F since at least 2015. This care provider has failed to keep appropriate, secure records of Ms F’s finances which is a breach of regulation 17 of the fundamental standards and is fault.
- The care provider failed to respond to Mr X’s complaint about the matter and has failed to provide us with an explanation or evidence to the contrary. That was fault and a breach of regulation 16 of the fundamental standards.
- The care provider should within one month of the final decision:
- write to Mr X and apologise and pay him £150 to recognise the uncertainty and time and trouble caused by its failure to respond to his requests for Ms F’s invoices and financial records and for failing to respond to his complaint about the matter.
- provide Mr X with all of the financial information it holds for Ms F including all invoices paid by Ms F since 2013 and records of the weekly fees charged to Ms F since 2013.
- I have completed my investigation. I found fault and I have made recommendations to remedy the injustice caused by that fault.
Investigator's decision on behalf of the Ombudsman