Summary: Mrs X complains about Bupa Care Homes increasing the fees for Mrs Y’s care. There is no evidence of fault by the Care Provider.

The complaint

1. Mrs X complains on behalf of Mrs Y. She complains that Bupa Care Homes increases in fees over a period of 14 months were unfair. As a result, Mrs Y’s placement at the care home was not financially sustainable and she had to move to another care home. This caused distress to Mrs Y who was settled at the care home.
2. Mrs X also complains that clause 7.7 of the Bupa Care Homes contract which sets out when a resident can terminate the contract is untenable. Mrs Y was unable to move out within seven days and had to give a month’s notice so incurred increased fees during that month.

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The Ombudsman’s role and powers

3. 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)
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. I have:

• Considered the complaint and the information provided;
• Discussed the issues with Mrs X.
• Considered documents provided by the Care Provider including a copy of its terms and conditions, placement agreement for Mrs Y and letters to Mrs Y and her family about the fee increases in 2022 and 2023.
• Invited Mrs X and the Care Provider to comment on the draft decision. I considered the comments received before making a final decision.

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What I found

6. Regulation 19 of the Care Quality Commission (Registration) Regulations 2009 states the intention of this regulation is to make sure providers give timely and accurate information about the cost of their care and treatment to people who use services. 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.

Care Provider’s agreement

7. The Care Provider’s agreement sets out it’s approach to reviewing its fees. The relevant clauses to this complaint are as follows.

• Clause 7.2 provides that the annual fee review usually takes place on 1 January. There will be a fee increase following the annual review which will apply to all residents. The increase will take effect automatically and notice of the increase is given in the terms and conditions but the care provider will write to residents to remind them of the increase at least 28 days before it takes effect.
• Clause 7.3 provides the Care Provider will apply an annual increase of 7% to the total fees per annum.
• Clause 7.5 provides that in addition to the annual fee reviews, the care provider will carry out a review of its fees if certain situations arise. These include clause 7.5.4 which is an increase to costs as a consequence of the pandemic and clause 7.5.5 in the event of high inflation and/or additional cost pressures such that the care provider determines that the annual 7% increase is likely to be outpaced by inflation and/or cost pressures.
• Clause 7.7 provides that if a resident is unhappy with a fee increase then they may terminate the agreement by giving seven days written notice. This means the resident must leave the home within seven days of that notice being given.

What happened

8. In late 2021 Mrs Y moved into a care home located close to where her family lived. A member of Mrs Y’s family signed the placement agreement for Mrs Y. The placement agreement explained that the total fees could be varied by the care provider on notice and any changes would be in accordance with clause 7 of its terms and conditions. Mrs X has confirmed the family saw the terms and conditions before Mrs Y moved into the care home.
9. The Care Provider increased its fees by its annual increase of 7% in January 2022.
10. In April 2022, the Care Provider notified Mrs Y that it would increase its fees again by 4% from 1 June 2022. The Care Provider’s letter to Mrs Y explained its reasons for increasing its fees. It said this was because cost pressures due to the COVID-19 pandemic had continued to escalate as well as costs relating to increased staffing and energy costs. The Care Provider set out how Mrs Y’s weekly fee would increase.
11. In late 2022, the Care Provider notified Mrs Y’s family that it was intending to increase its annual fees by 15% from January 2023. In its letter notifying Mrs Y of the increase, the Care Provider explained its reasons for increasing the fee above the usual increase of 7%. It said the increase was due to inflation continuing to rise and significant increases in energy and in staffing costs.
12. Mrs Y’s family complained to the Care Provider about the fee increases in 2022 and 2023. The Care Provider responded to the complaint and explained the reasons for the increases.
13. Mrs Y and her family decided she could not afford to pay the increased care fees. In mid March 2023, Mrs Y’s family notified the Care Provider of Mrs Y’s intended move and that she would move in early April 2023. The Care Provider advised that Mrs Y would need to give 28 days notice in writing and fees needed to be paid until mid April 2022. Mrs Y’s family consider this was untenable as it was impractical to move Mrs Y within seven days of giving notice.

Analysis

14. When we consider complaints about increased care fees our focus is on whether the care provider has acted in accordance with its agreement, terms and conditions or contract with the resident to provide care. We must also be satisfied that the resident or their representative received clear and relevant information about the contract or agreement when they were first admitted to the home and when the care provider notified them of the increased care fees.
15. I acknowledge that it was distressing for Mrs Y and her family for the Care Provider to increase the fees in June 2022 and increase the fees above 7% in January 2023. But there is no evidence of fault by the Care Provider. The terms and conditions provide the Care Provider can increase fees in the event of costs arising from the pandemic. The terms and conditions also provide it can increase fees by more than the annual 7% raise if it considers this will be outpaced by inflation and cost pressures. I therefore do not consider the Care Provider is at fault as its fee increases are in accordance with its terms and conditions.
16. I am satisfied that the Care Provider properly notified Mrs Y and her family of the fee increases. It wrote to Mrs Y and her family approximately six weeks in advance of the fee increases and explained the reasons for the increases and how it would affect her fees. This was in accordance with its terms and conditions.
17. I am also satisfied that the Care Provider supplied clear information about its terms and conditions before Mrs Y entered the care home. Mrs X has confirmed the family saw the terms and conditions in advance of Mrs Y moving into the care home. The placement agreement refers to the care provider being able to vary the fees and refers to the relevant clause in the terms and conditions.
18. Mrs X considers the Care Provider’s clause requiring a person to leave the home within seven days if they disagree with the decision to increase the fees to be untenable. Whether or not a contract is tenable is a legal matter and therefore is a matter best decided by the courts. The key issue for us is that Mrs Y and her family had sight of the terms and conditions before she moved into the care home so would have been aware of the terms of the notice periods when accepting a place.

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Final decision

19. There is no evidence of fault by the Care Provider so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman