The Ombudsman's final decision:
Summary: Mrs X complained the provider of her mother, Mrs Y’s, home care required an unreasonable period of notice to cancel the contract. There was fault in how the care provider failed to give Mrs Y or her family a copy of the terms and conditions of her care in good time before her care started. Although this did not cause Mrs Y an injustice, it could have done in different circumstances. The Care Provider has reviewed how it provides this information in future. I am satisfied with the action the Care Provider has taken.
- Mrs X complained the provider of her mother, Mrs Y’s, home care required an unreasonable period of notice to cancel the contract. She said the provider did not give her or Mrs Y a copy of its terms before the care started and that asking for more than 30 days’ notice is unfair. As a result, she said Mrs Y overpaid. She wanted the provider to refund part of the fee Mrs Y paid and change its contract.
What I have investigated
- I have considered Mrs X’s complaint about the information the Care Provider gave Mrs Y and her family before her care started.
- The final section of this statement includes my reasons for not investigating the rest of the complaint.
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. 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)
- We may investigate complaints from the person affected by the complaint issues, or from someone they authorise in writing to act for them. If the person affected cannot give their authority, we may investigate a complaint from a person we consider to be a suitable representative. (Local Government Act 1974, section 26A or 34C)
- We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- 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)
How I considered this complaint
- I considered:
- the information Mrs X provided and discussed the complaint with her;
- the Care Provider’s comments on the complaint and the supporting information it provided; and
- the contract for Mrs Y’s care signed by her family.
What I found
Information about care fees, terms and conditions
- Where someone is responsible for paying the costs of their own care (even partially) their care provider must give them written information about the costs and the important terms and conditions which apply to their care. This includes a copy of the form of contract for those services. (Care Quality Commission (Registration) Regulations 2009, regulation 19)
- Care providers must provide this information, as far as is reasonably practicable, before the services start and must give a copy of this contract to the person being cared for, or the person lawfully acting on their behalf.
- Care providers must also maintain adequate systems and processes to ensure they keep adequate records related to the management of their regulated care services. (Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, regulation 17)
Care provider’s cancellation terms
- The Care Provider’s contract for live-in care contains the following cancellation terms:
- People can change their mind about the service within 14 days of signing the contract. They do not need to give a reason and will only need to pay for the services they have received during that time.
- After 14 days, people must give a minimum of 1 months’ notice. The agreement will then end on either the 15th of the month, or the last calendar day of the month, one month after the date the person gave notice. After giving notice, people must pay the fees until the end of the contract. The contract contains example dates explaining how much notice would be needed based on different cancellation dates.
- Mrs Y received home care visits from the Care Provider for several years.
- In early 2021, Mrs Y’s health got worse and she needed more regular care. Mrs Y’s family, including her daughter Mrs X, explored several options including Mrs Y moving into a care home, or paying for a full-time live-in carer. The Care Provider was one of the companies Mrs Y’s family considered for live-in care.
- Mrs Y’s family had several meetings with the Care Provider in early 2021 to discuss what it could provide for Mrs Y. The Care Provider said it provided Mrs Y’s family with copies of its fees, terms and conditions during those meetings. However, Mrs Y’s family said they were not given any paperwork.
- After a short stay in a care home, Mrs Y and her family decided to arrange live-in care from the Care Provider, starting in early June 2021. Mrs Y’s family said the first time they saw a copy of the contract was on the day the carer started. They said they signed that day but were not given a copy so they had to take photographs of the contract instead. The Care Provider said it gave Mrs Y’s family a copy of the contract and left a copy in her Care Plan kept in Mrs Y’s home.
- After a few weeks, it became clear to Mrs Y’s family that live-in care was not suitable for Mrs Y, so they contacted the care provider to cancel.
- Mrs Y’s family gave notice to end the contract in early July 2021. According to the contract, this meant that the contract would expire on 15 August 2021 and the Care Provider billed Mrs Y on that basis. Shortly after cancelling Mrs Y moved into a different care home.
- Mrs X complained to the Care Provider saying it did not make Mrs Y and her family aware of the cancellation terms. They accepted giving a month’s notice was reasonable, but that they should not have to pay the additional two weeks. They also told the Care Provider that the carer who was supporting Mrs Y was due to leave before the end of the notice period and they did not believe the Care Provider would have been able to provide a replacement. The Care Provider disputed this and said it would have ensured a replacement carer was available.
- Mrs Y cannot authorise someone else to bring her complaint. I am satisfied that Mrs X is a suitable representative to complain on Mrs Ys behalf.
- In its response to my enquiries, the Care Provider said it had given Mrs Y’s family copies of the terms and conditions several times in the months before the contract started in June 2021. However, while it was able to show it had several meetings with Mrs Y’s family, it could not provide any evidence it had given them the written information it said it did at those meetings.
- Having considered all the information from the Care Provider and Mrs Y’s family, on the balance of probabilities, I am not satisfied the Care Provider gave Mrs Y’s family the information when it said it did.
- The date next to Mrs Y’s family’s signature on the contract is two days before Mrs Y’s live-in carer arrived. This shows Mrs Y’s family saw the contract a few days before Mrs Y’s care started, rather than on the day the care started as they believed. However, this was clearly a time of significant stress for Mrs Y’s family, and I am satisfied the Care Provider was aware of this. For that reason, I am not satisfied that two days’ notice would have been enough for Mrs Y’s family to properly consider the contractual terms.
- However, Mrs Y’s family told me that had they known about the cancellation terms sooner, they would still have used the Care Provider’s services, so I am satisfied there was no injustice to Mrs Y. Although this did not cause an injustice to Mrs Y on this occasion, I am satisfied that in difference circumstances it could have done, so I am satisfied the failure to provide the key terms and conditions sooner was fault.
- Mrs Y’s family also said the Care Provider did not give them a copy of the contract when they signed it. The Care Provider could not provide any evidence it did so. On the balance of probabilities, I am not satisfied the Care Provider gave Mrs Y or her family a copy of the contract at the time they signed it.
- However, Mrs Y’s family took photographs of the contract, were aware of the 14 day cooling-off period and did not ask the Care Provider for another copy of the contract before they cancelled the care. For that reason, I am satisfied Mrs Y’s family had a reasonable opportunity to check the notice period before they ended the contract. As above, although this did not cause an injustice to Mrs Y or her family, it could have done in different circumstances, so this was also fault.
- Since Mrs Y cancelled the contract before a change of carer was needed, the Care Provider never needed to arrange a different carer. I cannot say what would have happened had Mrs Y continued with live-in care, since this never happened.
- Although the actions of the Care Provider did not cause an injustice to Mrs Y or her family, I made recommendations to prevent injustice being caused in the future in consequence of similar action.
- The Care Provider has reviewed how it provides information about fees, terms and conditions to prospective service users, and how it keeps records to demonstrate this. I am satisfied with the action the care provider has taken.
- I have completed my investigation. There was fault in how the care provider failed to give Mrs Y or her family a copy of the terms and conditions of her care in good time before her care started. Although this did not cause Mrs Y an injustice, it could have done in different circumstances. The Care Provider has reviewed how it provides this information in future. I am satisfied with the action the Care Provider has taken.
Parts of the complaint that I did not investigate
- I have not investigated Mrs X’s complaint about the fairness of the notice requirements in the contract between Mrs Y and the Care Provider. The fairness of contractual terms is something that the courts can consider and this is a role best left to the courts. Given the fees involved, I am satisfied that it would be reasonable to expect Mrs Y or her family to pursue this alternative remedy, so I should not consider this part of her complaint.
Investigator's decision on behalf of the Ombudsman