Summary: We have investigated the impact of a transport charging policy on residents of care homes operated by a Care Provider (Voyage Care), where the Council paid for their care. We find fault in some actions taken by the Council since we first highlighted concerns about the impact of this policy in January 2022. The Council accepts this finding. It recognises the policy has caused injustice to residents wrongly charged for transport the Care Provider should have provided as part of their care. The Council has agreed action to remedy injustice caused to those residents (up to 14 in total).

The complaint

1. We opened this investigation to consider a complaint the Council had not intervened sufficiently to ensure residents in a care home were not charged inappropriately for transport costs as part of their care. An earlier investigation we conducted found that Voyage Care (‘the Care Provider’) had introduced a transport costs policy in one of its care homes in the Council’s area. This required residents to contribute to the running of a car at the home. We had a concern the Care Provider’s policy did not account for transport costs it committed to meet as part of meeting residents’ needs in its contract with the Council.

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The Ombudsman’s role and powers

2. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’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)

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How I considered this complaint

5. Before issuing this decision statement, I took account of:

• a previous investigation completed in January 2022 where we found fault with the introduction and application of a travel cost recovery policy introduced by the Care Provider;
• information gathered from the Council in response to written enquiries.

6. I gave the Council and Care Provider chance to comment on a draft version of this decision statement. I took account of any comments or evidence provided in response before completing this final decision statement.
7. Under an information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC before publication on our website.

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What I found

Background to this investigation

8. In January 2022 we completed an investigation into a complaint made on behalf of ‘Ms C’ by her mother, ‘Mrs B’. Ms C was a resident at a residential care home run by the Care Provider. Mrs B complained the Care Provider asked Ms C to contribute an unreasonable amount each week towards running a car, used by the care home residents. 20 010 875 - Local Government and Social Care Ombudsman
9. During our investigation we found:

• Ms C was a learning disabled adult who had lived at the care home since 2017. The Council assessed Ms C should make a financial contribution to her care which Mrs B paid on Ms C’s behalf as her financial appointee.
• When it assessed Ms C’s care needs the Council had said she had a need to maintain her relationship with Mrs B. Her care plan said the Care Provider would help meet this need by providing Ms C with transport to and from the family home at weekends. Also, the care plan said the Care Provider would support Ms C with access to the local community for activities and shopping.
• Mrs B and Ms C did not have any terms and conditions, or similar, setting out what services the Care Provider could charge for, which were not covered by its contract with the Council.
• The Council’s contract with the Care Provider said the amount it paid for Ms C’s care would cover “all costs to cover the service user’s placement”. The Care Provider had originally quoted a price for Ms C’s care which included an amount for providing her with travel and transport. However, we noted it had agreed a final price for Ms C’s care less than the quote.
• In March 2019 the Care Provider had introduced a ‘travel cost recovery policy’ (TCRP). It asked Ms C to pay £159 a month towards the car used by care home residents. It calculated the amount taking account of a disability benefit Ms C received to support her mobility. It reduced this sum to £111 a month after the start of the COVID-19 pandemic in March 2020.
• Mrs B had consistently challenged the policy, something the Council became aware of in June 2019.

10. I summarise our key findings from the investigation as follows:

• We accepted the Care Provider could reasonably charge for use of the car in certain circumstances. First, if the charges were to cover journeys that did not form part of Ms C’s assessed care needs for which the Council paid as part of her package of care. Second, that such charges were not for matters which the Care Provider had otherwise committed to meet from the cost for care agreed with the Council. Third, that charges were clearly and transparently communicated in line with guidance issued by the care home regulator, the Care Quality Commission. Fourth that the charges were, in fact, incurred.
• We considered the Care Provider’s agreement to cover “all costs to cover the service user’s placement” included any travel and transport costs forming part of Ms C’s care plan. So, this would include journeys to and from the family home and at least some community activities. We found fault as the Care Provider had not distinguished those journeys when charging Ms C under its TCRP.
• We found in addition the Care Provider had sought to recover transport costs for Ms C to attend a medical appointment. This was a fault as we had found a document which said the Care Provider would not charge clients for transport needed to attend such appointments.
• We found further fault in the way the Care Provider introduced the TCRP. While it said that acceptance of the policy was optional for individual users of its service, we said it had presented it as a ‘fait accompli’ and invoiced accordingly. We also found the Care Provider had no terms or conditions it gave to residents (or their families) which explained what services it provided under its contract with the Council.
• Finally, we found insufficient evidence to justify that Ms C had incurred the charges. We noted that if all residents of the care home contributed what the Care Provider asked Ms C to pay, then it would receive more money than it said it cost to run the car. We also noted Ms C’s sporadic use of vehicle during the pandemic and sudden unexplained increase in her use of the car in May 2021.

11. We made a series of recommendations which the Council agreed to implement. Of relevance to this investigation the Council agreed to:

• find out if the other residents of the care home and/or their representatives had clear information setting out what services the Care Provider provided as part of their package of care. Also, to explain what further expenses the Provider might incur on behalf of residents which would then be for the resident to fund. If the Council found residents did not have this information, it would ensure they received it;
• find out whether the Care Provider had billed other residents of Ms C’s care home in the same way as they had billed her, for use of the car since 2019. It agreed to find out what money the Care Provider had received from them. The Council said it would then review those charges taking account of the principles outlined in our decision statement. It agreed to seek a refund for those residents if appropriate;
• ensure the Care Provider had suspended its TCRP for those residents whose care the Council had contracted for. It would also ensure any replacement policy took account of the principles set out in our decision statement.

12. Over the next twelve months we checked the Council’s actions in putting the above into effect (along with other recommendations). By February 2023 we found the Council had:

• written to all residential care providers it contracted with. It set out its expectation that what it paid for care included an expectation the care provider would meet transport needs contained in residents care plans and to attend medical appointments;
• suggested that it had shared an internal policy document explaining the above with learning disabled residents in residential care and / or their families, setting out these expectations;
• been in discussion with the Care Provider over its TCRP. We noted the Care Provider had put forward proposed revisions to the policy. Also, the Council had then indicated concern with some of the content. Particularly that which appeared contrary to the Council’s expectations set out in the first bullet above;
• come to the view the Care Provider had asked the other residents at the care home to only pay ‘reasonable costs’ towards their transport, based on their number of journeys. It had not explained to us how it reached this view.

13. We decided that we could not say the Council had satisfactorily carried out the actions agreed when we completed our earlier investigation. In particular, we had concerns about how the Council had considered what other residents at Ms C’s care home had paid towards transport costs. We therefore decided to open this second investigation using our powers under Section 26D of the Local Government Act.

Our investigation

14. During this investigation I have established the Council funds the placement of two other residents at the same care home as Ms C, who paid money to the Care Provider under its TCRP. In each case they paid around £2100 to the Care Provider between May 2019 and December 2021. The Care Provider then suspended the policy and has not reintroduced it.
15. I found both these residents had care planning documents suggesting that transport costs formed part of their assessed care needs. In one case the care plan said the resident needed to go out regularly into the community and took part in many activities. While the other said the resident accessed the community most days.
16. I found one of these residents had a contract whose fee schedule indicated the Council paid an amount to cover transport costs as part of what it gave to the Care Provider. While in the other case, the resident’s contract documents were incomplete and did not contain a fee schedule.
17. The Council gave me details of the discussions it had with the Care Provider around the TCRP from February 2022 onward. It gave me a copy of the revised TCRP the Care Provider proposed reintroducing. This said the policy was for circumstances where “the care package does not contractually include the provision of transportation”. It also said: “care funding from commissioners includes necessary transport costs in line with the person’s assessed needs/care plan, such as GP or hospital appointments, but does not include activities in the community or recreational activities”. I noted the Council had challenged the Care Provider over the wording of its proposed policy in January 2023. At the current time I understand it has not responded to those comments, nor reintroduced the policy.
18. I asked for more detail about how the Council reviewed the cases of the two other residents who lived in the same care home as Ms C, who paid to the Care Provider under the TCRP. The Council told us that neither resident, nor their families, had made any complaint or representations about the policy. It said that it found both residents used the car frequently as the Care Provider stated. On that basis it had decided the Care Provider only made reasonable charges for its use. It said that to undertake a more comprehensive ‘line by line’ study of the costs, would use much officer time and take them away from front line services.
19. The Council gave me a copy of a letter the Care Provider sent to residents and their representatives in February 2022 telling them it had suspended the TCRP. But the Council had not, as earlier indicated, shared its policy document setting out its expectation of what care providers could charge residents for, separate to any money it paid under the contract for care. It said instead it had given advice to relevant staff making it aware of its expectations, including in an internal newsletter.
20. Finally, I established the Council also funded another 12 clients at care homes run by the Care Provider. These were in various locations both inside and outside the Council’s area. It told us the Care Provider had applied the TCRP in those other care settings and suspended it at the same time across its care settings.

Our findings

21. I recognise that since we issued our decision statement in January 2022 the Care Provider has suspended its TCRP. This will impact on those other residents at the care home where Ms C lived, and residents living at other care homes run by the Care Provider, whose care the Council pays for. While the policy remains suspended there is no prospect of other residents experiencing any ongoing injustice. I welcome this development and the discussion between the Care Provider and the Council over its potential reintroduction of the TCRP.
22. However, I am disappointed with some other aspects of the Council’s response since we issued our decision in January 2022. I find it has not done enough to tell those learning disabled residents whose care it funds in care homes run by the Care Provider (or their families), of its expectations of the Care Provider around charging. When we investigated Ms C’s complaint, we explained we had a wider concern than that engaged by the use of Care Provider’s TCRP alone. That we had found Ms C and Mrs B had no terms and conditions (or similar) that explained what the Council’s contract for care covered. And so, they had nothing which set out what services the Care Provider could charge for, not covered by its contract with the Council.
23. I find since we completed our earlier investigation the Council clearly set out its expectations to its own staff and care providers on its expectations regarding transport costs. But it has not addressed this concern, nor our wider concern, to ensure the relevant users of the Care Provider’s services or their representatives know of its expectations. Given this is something the Council agreed to ensure it would do, its failure to have done so, must result in a finding of fault.
24. Turning to the Care Provider’s TCRP, I have a further concern about the Council’s investigation into the expenses incurred by the two other residents of the care home where Ms C lives, between May 2019 and December 2021. I accept its decision not to carry out a line-by-line audit of their use of the car. I can see why the Council thinks this would not be a proportionate or effective use of its officer’s time. But when we investigated Ms C’s complaint, we made clear our concerns went beyond some of the Care Provider’s record keeping of her journeys.
25. We highlighted our main concern was the Care Provider’s TCRP did not distinguish transport needed to meet Ms C’s care needs, identified in her care planning documents. In other words, those journeys the Care Provider should have paid for as part of its contract for care with the Council. I find the Council’s review of the other two residents in the same care home has not addressed this issue. Even though their care planning documents, like those of Ms C, identify them having a need to travel into the community. The Council’s failure to address this point in its review of their cases was a fault.
26. This will have caused injustice because those residents will have paid charges for journeys which it was the Care Provider’s obligation to provide. However, I also note the care planning documents lack specificity in setting out detail of how much community activity those residents needed to meet their assessed needs. So, on balance I think it likely they undertook more journeys while the TCRP was in force, than those strictly required to ensure the Care Provider met their assessed needs. This is relevant to the scope of the action the Council has agreed to remedy their injustice, set out below.
27. I have next considered the additional information provided by the Council, identifying that it funds other residents living in the Care Provider’s care homes. Inevitably, I must question if they too have paid for transport it was the Care Provider’s obligation to provide under its contract agreement with the Council. On balance, I consider their care plans too will likely show a need for travel as part of their assessed care needs. And this will not be excluded from the Care Provider’s contract to provide care. So, they too will have suffered injustice arising from the same underlying fault with the Care Provider’s TCRP. The Council has agreed to consider these users of its services also, in agreeing action to remedy any injustice in this case.
28. Finally, while I note the Care Provider has not reintroduced the TCRP, I must add my concerns to those of the Council on its current proposed wording. The reintroduced policy should make clear the expectation the Care Provider meets the resident’s need for transport where this forms part of their assessed care needs. If it does not, then the faults identified in these investigations may recur. This is a further relevant consideration when it comes to the actions agreed by the Council, set out below.

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Agreed action

29. The Council accepts the findings set out above. To remedy the injustice identified in this case, it has agreed that:
1. within 20 working days of a decision on this complaint, it will arrange for those two residents living in the same care home as Ms C, who previously paid under the TCRP, to receive a refund of 50% of the sums they paid;
2. within three months of a decision on this complaint, the Council will also review the charges incurred by the other 12 residents whose care it funds at one of the Care Provider’s care homes. Unless it finds those residents did not have transport needs forming part of their care needs, the Council will also arrange for them to receive a 50% refund of any sums they paid to the Care Provider under the TCRP while it was in force;
3. when it has completed the review at b) above, the Council will write to those residents and / or their representatives and tell them the outcome of the review. It will also set out its expectations about what the Care Provider may charge for transport needs and that they should have terms and conditions which cover any other additional charges the Care Provider may make. Also, to provide them with a point of contact if this letter leads to any complaints or enquiries.
30. The Council has also given a commitment:
1. to continue to seek discussion with the Care Provider on its proposed reintroduction of the TCRP;
2. that in the event the Care Provider introduces a policy that does not make clear it must meet a resident’s need for transport forming part of their assessed care needs, that it will take legal advice on how this might be challenged in the interests of those residents whose care it pays for; and
3. that it will consider acting on that advice.
31. The Council will need to provide us with evidence it has complied with the actions set out in paragraph 29 above.

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Final decision

32. For reasons set out above I upheld this complaint finding fault by the Council causing injustice. The Council has accepted this finding and agreed action to remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman