Summary: Mr C complains about the way the care provider dealt with notice period charges and the return of belongings after his mother left the care home. Mr C says the care provider did not try to mitigate its financial loss when his mother left the home and should waive the remaining invoice. We have found no evidence of fault by the care provider.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains about the way the care provider dealt with notice period charges and the return of belongings after his mother left the care home. In particular, Mr C complains the care home did not follow relevant guidance about reallocating the room and a pro rata refund of fees. Mr C says because of the above fault, the care provider did not try to mitigate its financial loss when his mother left the home and should waive the remaining invoice of £300.15.

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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. (Local Government Act 1974, sections 34B and 34C)
3. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))

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How I considered this complaint

4. I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the care provider and provided a copy of this to Mr C. I have explained my draft decision to Mr C and the care provider and considered the comments received before reaching my final decision.

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What I found

Key events

5. Mr C signed a contract with the care provider for the care and accommodation of his mother dated 2 January 2018. The contract sets out that the fee was £850 per week subject to annual adjustment and was payable monthly by direct debit on the 1st day of the month one month in advance.
6. Under the heading ‘Absences from the home’ the following is stated at point 18.

“In the event of a resident becoming absent from the Home for whatever reason, the following terms will apply:

1. Less than two weeks. Full fee will be payable.
2. More than two weeks. A reduction of 10% of the full fee will be allowed for each week of absence, excluding the first two weeks.
3. After six weeks the reduction may be varied, at the discretion of the Home Manager.”
1. Under the heading ‘Termination of Agreement’ the following is stated at point 21:

“Should a resident desire to leave the Home for whatever reason, or the Home decide that the resident’s needs can no longer be met, following consultation with the resident/relatives 28 days notice will be given by the relevant party in either situation.”

8. Under the heading ‘Personal effects & valuables’ the following is stated at point 28:

“When the resident leaves the Home, all furniture and personal effects must be removed. A room is deemed to be still occupied and the full fees will be charged until all furniture and personal possessions are removed from the Home.”

9. Mr C emailed the care home on 8 April 2020 at 5pm. The email was headed ‘Notice of termination’. Mr C stated “As per our telephone conversation today, I am writing to give you notice of my mother [name] vacating her room as of 7pm this evening and terminating her contract of stay at [the care home]. I understand from our conversation that, if any time during the notice period we change our minds then [name] could return to her room in [care home] and the notice of termination cancelled. Please keep us informed of the situation at [care home] over this difficult period.”
10. As per the contract, Mr C had paid the invoice for care fees dated 1 April 2020 for the period 1 to 30 April 2020 of four weeks and two days at a weekly rate of £955 totalling £4,092.86 by direct debit on 1 April.
11. Mr C emailed the care home on 20 April to say he had received an invoice for the whole of May and referred to the notice he gave on 8 April. He asked for the invoice department to be notified of the error. The care home responded the same day and stated “Following on from our conversation earlier and speaking with my accounts department at Head Office regarding your notice; we gave you the opportunity for Mum to return to [care home] within the four week notice period. However, we will need confirmation whether Mum will/will not be returning to [care home] no later than 27.04.2020 as Head Office will need two days notification before they collect the DD from 01.05.2020. If you decide Mum will not be returning to [care home] then Head Office will send you a separate invoice up to the notice period date.”
12. The home emailed Mr C with a list of items still in his mother’s room which Mr C confirmed on 24 April and added a booster cushion to the list and queried if there were more clothing items in the wash and asked when he could pick these remaining items up.
13. 
    The care provider says its approach during COVID-19 restrictions was to box or bag items for collection and these were placed in the reception area on an agreed date. The care provider says Mr C took some belongings when he picked his mother up on 8 April and collected the remaining items at a later date.
14. Mr C emailed the home on 27 April seeking a revised invoice and to say he had cancelled the direct debit but would settle the account once the correct invoice had been received.
15. The care provider issued a credit note which reduced the outstanding amount to £682.15. Mr C emailed the home on 16 June to ask it to waive this invoice due to the unprecedented circumstances under which his mother left the home. Mr C said notice was given on 8 April and payment had been made in advance to the end of April.
16. The care provider responded and referred to the contractual notice period of four weeks and that it had advised Mr C when he decided to remove his mother that the full amount would be required. The home also confirmed it had kept the room free for the four week notice period to give him the opportunity to return his mother to the home.
17. Mr C emailed the home on 19 June to say he had sought legal advice about a claim for breach of contract for failing to provide his mother with a safe environment. Mr C said he had made clear on 28 April that his mother was not returning and that he was concerned about being charged for the whole of May if he had not cancelled the direct debit. Mr C also complained about the return of his mother’s personal items. Mr C said he was given clothes that were not his mother’s (these were labelled with another resident’s name) and other items not being returned including a booster cushion. Mr C also said his mother’s wedding ring was missing and he assumed this had been lost at the home. Mr C acknowledged he had been shown another wedding ring but this was not his mother’s. Mr C asked the home to reconsider its decision about the amount outstanding. I have not seen any further correspondence about the return of personal items.
18. The home responded to Mr C on 9 July and noted Mr C gave notice on 8 April so the period of notice ran from 9 April to 5 May. As invoices were paid in advance Mr C had paid for April which left 5 days in May outstanding. The home offered to apply a 10% reduction to the whole notice period which would reduce the amount outstanding from £682.15 to £300.15.
19. Mr C responded to the on 28 July to say he would accept a 17.9% discount and as his mother had paid to the end April this would mean there was nothing further to pay. There followed further correspondence but Mr C confirmed he did not accept the offer on 7 August and the home advised it would pass the matter to its debt recovery team.
20. Mr C emailed the home on 11 August and accepted the offer seemed generous compared to the standard conditions which allowed for reduced fees during periods when a resident was not using the room. However, Mr C noted the home made no attempt to reallocate the room to a new resident which deprived his mother of the possibility of a reduced charge. Mr C said he did not instruct the home to hold the room and this was a decision by the home.
21. The care provider wrote to Mr C on 9 September about the outstanding balance of £300.15 and set out the methods of payment of this final balance. The care provider wrote to Mr C on 7 October to chase payment of this amount.
22. Mr C replied about the outstanding amount of £300.15 on 9 October and provided a link to the Competition and Markets Authority (CMA) guidance about the potential for a pro-rata refund of fees. Mr C says he was told he had to pay for the whole notice period even though his mother had left her room which he considered was incorrect as it did not meet the CMA guidance. The care provider acknowledged Mr C’s email on 14 October.
23. The home replied further to Mr C on 17 November and confirmed it had considered his comments but remained of the view the outstanding amount of £300.15 was payable and reiterated how it had arrived at this figure.
24. The care provider sent a statement of account to Mr C on 10 February 2021. Mr C replied on 12 February to say it had not replied to his concerns and he disputed the outstanding debt.
25. The care provider wrote to Mr C on 23 February to confirm its position was as set out in previous correspondence and seeking payment of £300.15 or he could make a complaint to the Ombudsman.
26. The care provider emailed Mr C on 27 April seeking £300.15 within 14 days plus interest and administration charges as per the contract as it had not been notified that the Ombudsman was investigating.
27. Mr C made a complaint to the Ombudsman on 9 May and received an administrative reference which he provided to the care provider the same day. The care provider confirmed to Mr C it would place his account on hold until the outcome of our investigation. We acknowledged Mr C’s complaint on 17 May and provided him with our case reference. The care provider wrote again to Mr C on 23 June to highlight the reference number he had previously provided was not recognised and asking for an update. The care provider emailed Mr C again on 8 July as he had not replied. Mr C provided the case reference number the same day which the care provider acknowledged.

My consideration

28. In 2017 the CMA published consumer law advice for care home providers. Following a case in the High Court the CMA suspended this guidance in August 2021 while it considered the judgement. The CMA issued revised guidance in December 2021 which remained largely unchanged other than to reflect the High Court’s approach to administration charges. The guidance says at point 4.104 (d) that:

“You do not require the resident to pay fees for any period beyond the agreed notice period. If the resident leaves the home before the end of the notice period and you are able to re-allocate their room to a new resident during that period, you should provide them with a pro-rata refund of the fees (as you will have already reduced your loss arising from the resident’s departure). Where the resident terminates with justification (for example, where you are at serious fault) the resident may be entitled to a full refund of prepayments and to compensation.

29. The CMA provide the following as an example of such a term:

“Where you vacate the room during the notice period and we can use the room to accommodate another resident, the fees due for the remainder of the notice period will be reduced to take into account any sums received from the new resident for that period.”

30. Mr C’s email of 8 April gave notice but also confirmed his understanding that should they change their mind during the notice period his mother could return to her room and the notice of termination be cancelled.
31. It is clear from the correspondence above that the room was left available should Mr C wish to return his mother to the home during the notice period. Mr C chose not to return his mother to the home. I am satisfied it was clear the room was to be left empty and fees incurred for the full notice period of 28 days.
32. The care provider has confirmed it did not try to reallocate the room as it had kept the room available should Mr C’s mother wish to return. I do not consider this conflicts with the CMA guidance. This applies if a home can use the room which in this case they could not as it was being left available for Mr C’s mother should there be a change of mind. In these circumstances, I see no grounds for a pro-rata refund of fees.
33. I have seen no other evidence of fault in the way the care provider has applied its contractual terms and am satisfied it has taken a proportionate and reasonable approach when reaching its view on the outstanding amount due of £300.15.
34. I do not consider the loss of a booster cushion and receiving some clothes for another resident in error has caused a significant injustice which warrants further investigation by the Ombudsman. The loss of Mr C’s mother’s wedding band is regrettable. I note Mr C was shown a ring by the home that he confirmed did not belong to his mother. Unfortunately, I do not consider further investigation by the Ombudsman on this point alone would achieve a better outcome for Mr C given the passage of time.

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Final decision

35. I have completed my investigation as I have found no fault causing injustice by the care provider.

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Investigator's decision on behalf of the Ombudsman