Summary: Mrs R says Sunrise Senior Living wrongly refuses to return a ‘community fee’ paid by her mother, Mrs C. She says this caused injustice as the fee should have been refunded. The Ombudsman will not investigate this complaint because it is unlikely that we would be able to provide Mrs C with a worthwhile outcome.

The complaint

1. Mrs R complains on behalf of the estate of her late mother, Mrs C, about an assisted living company, Sunrise Senior Living, (‘the company’). She says Mrs C moved into an assisted living facility owed and operated by the company in Spring 2013. Before she moved in, she was required to pay a ‘community fee’ which, Mrs R says, she was told was to pay for any unforeseen expenses which might arise. After Mrs C died in 2020, Mrs R requested repayment of the deposit. The company refused saying it had used the money to pay for ‘maintaining facilities and communal areas’.
2. Mrs R says that this is an injustice. She says that, nowhere in the contract, did Sunrise say that the money would be used for maintenance which is not an unforeseeable expense. She says the charge was not properly defined in the contract and was therefore contrary to consumer legislation.
3. Mrs R says she is seeking repayment of the £6,000 plus interest.

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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. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

6. I considered the information sent to the Ombudsman by Mrs R. I wrote an enquiry letter to the company asking for further information. I researched relevant law and
7. Mrs R and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should happen

8. The Competition and Markets Authority (CMA) is an independent non-ministerial government department which promotes competition for the benefit of consumers both within and outside the United Kingdom.
9. The CMA’s responsibilities are to ensure that consumers get good deals when buying goods and services, and that businesses operate within the law. The CMA says it does that in a number of ways including, protecting consumers from unfair trading practices.
10. In 2017 the CMA carried out an investigation into how some care providers charged for their services. That investigation uncovered an upfront fee called a ‘community fee’ charged by the care provider. It said the purpose of the fee was unclear but, ran into several thousands of pounds per person. The amount differed depending on which one of the care provider’s homes the residents lived in. The investigation found the fee was non-refundable once someone had lived with the care provider’s home for more than 30 days.
11. Following the CMA’s findings in 2018, the care provider provided legally binding commitments to stop charging those upfront fees for future residents. A care provider agreed to give compensation to residents who paid the community fee since 1 October 2015, and who remained with the care provider for less than two years. The level of compensation was based on the length of time the resident spent in the home, and the size of the fee paid by the resident.

What happened

12. In 2013, Mrs C moved into a facility run by the company. Mrs R helped her arrange the move. Mrs C was required to pay a ‘community fee’ of £6,000. She says the purpose of the community fee was not explained in the contract. Mrs R says she was told it was to cover unforeseen expenses.
13. Mrs C lived at the facility until her death in 2020. At this point, Mrs R requested the repayment of the community fee. The company said it would not repay the fee saying it had been spent on maintenance.
14. Mrs R complained to the Ombudsman.

Analysis and decision

15. In 2019, the CMA entered into a deal with care providers about this issue. The deal required the care providers to pay back money to people who had entered into similar agreements entered into after 2015 in certain circumstances.
16. Mrs C signed her agreement in 2013. It is not possible for us to know what was said during any meetings that occurred and so we cannot reach an informed view on the merits of the complaint.
17. For that reason, I have decided to discontinue my investigation on the grounds that it is highly unlikely we could achieve any outcome Mrs R would think was worthwhile. The evidence is not there for us to reach a finding of fault and we could not refer to the 2019 agreement between the CMA and care homes.

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Final decision

18. I have decided the Ombudsman should not investigate this complaint. I have discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman