Summary: the care provider acted in accordance with the contract terms and its actions did not cause injustice to Mrs A.

The complaint

1. Mr X (as I shall call him) complains the care provider should not have charged the full period of notice when his mother decided not to return to the home because of the circumstances surrounding the home’s temporary closure due to Covid 19.

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The Ombudsman’s role and powers

2. 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. If they have caused an injustice we may suggest a remedy (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)

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How I considered this complaint

3. I considered all the information provided by Mr X and the care provider. Both Mr X and the care provider had the opportunity to comment on an earlier draft of this statement before I reached a final decision.

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What I found

Relevant law and guidance

4. 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.
5. Regulation 19 says: “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.”
6. In May 2020 the government issued guidance on responsible contractual behaviour in the light of the Covid 19 pandemic. It said, “parties to contracts should act responsibly and fairly, support the response to Covid-19 and protect jobs and the economy”. In particular it said, “responsible and fair behaviour is strongly encouraged in relation to the following:

(a) requesting, and giving, relief for impaired performance, including in respect

of the time for delivery and completion, the nature and scope of goods,

works and services, the making of payments and the operation of payment

and performance mechanisms;…..

(d) requesting, and making, payment under the contract;”

7. The contract which Mrs A held with the care provider said, “If you wish to terminate this Agreement you must provide us with at least 28 days written notice to the registered manager. In the event you do not provide such notice for whatever reason we reserve the right to charge you the Fees in respect of the notice period whether or not you require us to provide you with the Services during that time”. It also said, “In the event that you vacate the Home permanently for whatever reason and in circumstances where notice has not or cannot be given, we reserve the right to charge you the Fees in respect of the notice period”.

What happened

8. Mrs A was resident in the care home, Hyperion House, from September 2020 onwards. Her son Mr X holds power of attorney for her.
9. On 23 December Hyperion House had to close temporarily because so many staff were affected by Covid 19 that it was not possible to provide a suitable care service.
10. The care provider says neither the local council nor the local NHS trust could help with staffing the home. Residents were transferred to another nearby care home.
11. The care home reopened on 19 January 2021. Mrs A had contracted Covid 19 and so could not return at that point. On 20 January her daughter emailed the care provider giving notice that Mrs A would not return to Hyperion House as her family said she was too frail to do so. She said, “I know that under normal circumstances, the 28-day notice for termination rule should apply. I am hoping that because of the circumstances this rule might be waivered thereby permitting an exemption from normal contract rules.”
12. The care provider issued an invoice for £2985.71 which represented four weeks’ fees less an amount which had already been paid.
13. Mr X challenged the requirement for the full period of notice to be paid.
14. The care provider replied. She said she had sought legal advice. She said Mrs A’s daughter had served notice in acknowledgement of the contract that existed between Mrs A and Diva Care. She said the notice period had to be paid to honour the terms of the contract.
15. Mr X complained to the CQC and to the Ombudsman. He said he believed the contract had been nullified by the temporary closure of Hyperion House.
16. The care provider says “The contract with Diva Care Ltd was not terminated and the CCG arranged a temporary short term contract with (another care home) for all residents under the COVID emergency funding”. In respect of the guidance on responsible contractual behaviour, the care provider says “On reopening only 12 residents were back as sadly most succumbed to COVID-19. The sustainability of the business took priority on reopening. Putting any further financial risk by forgoing contractual obligations would have been unfair on our 40+ members of staff and also on the residents who returned from (the other care home). We had made all preparations to accommodate (Mrs A) at Hyperion on reopening. The family communicated their decision to keep (Mrs A) at (the other care home) after we had reopened.”

Analysis

17. The terms of the contract Mrs A had with Diva Care are clear. Mrs A’s daughter acknowledged as much when she emailed to give notice.
18. The care provider acted appropriately in response to the government guidance on responsible contractual behaviour. At no time did the care provider terminate the contract, nor was care for Mrs A ceased.

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Final decision

19. I have completed this investigation on the basis the actions of the care provider did not cause any injustice to Mrs A.

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Investigator's decision on behalf of the Ombudsman