Summary: The care provider did not apply the contract terms properly and has now agreed to refund the relevant notice period. The care provider has also now apologised to Mrs X for its handling of this matter and offered a sum recognising the time, trouble and distress she was caused in pursuing this.

The complaint

1. Mrs X complains the care provider failed to abide by its contract terms when she gave notice to cancel her mother’s care. Mrs X says she was given no option by the care provider but to cancel the care but then was charged an incorrect period of notice.

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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 injustice, or could have caused injustice, to the person complaining. I have used the term fault to describe this. (Local Government Act 1974, sections 34B and 34C)
3. If an adult social care provider’s actions have caused injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))

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How I considered this complaint

4. I considered the information provided by Mrs X and the care provider (which includes text messages between Mrs X and the office manager). Both parties had an opportunity to comment on an earlier draft of this decision before I reached a final decision.

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What I found

Relevant law and guidance

5. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.
6. Regulation 19 says, “Where a service user will be responsible for paying the costs of their care or treatment (either in full or partially), the registered person must

provide a statement to the service user, or to a person acting on the service user’s behalf—

(a) specifying the terms and conditions in respect of the services to be provided to the service user, including as to the amount and method of

payment of fees.”

What happened

7. Mrs X arranged care at home for her mother Mrs A. The terms and conditions of the contract she signed said, “If you do not want the services to start again after your planned holiday or hospital admission, you must provide us with at least 14 days’ notice to cancel. Where you have already provided us with 48 hours’ notice of any planned holiday or other absence, or you have been admitted to hospital due to unforeseen circumstances, you will only need to provide us with five days’ notice to cancel”.
8. Mrs A was unexpectedly admitted to hospital on 24 July. Mrs X contacted the care agency and agreed the service should be suspended till further notice. She paid two days’ late cancellation of service fees.
9. The office manager texted Mrs X to say the agency would have to terminate the care package “in line with company policy” by 9 August if there was no planned return date. On 3 August Mrs X texted again to say Mrs A was no better so she would have to cancel as required and reinstate when Mrs A was better. Mrs X says while she agreed to this line of action, she did not request it but understood it was what the agency required. She says the manager told her over the telephone that the carers had already been reassigned and that no further fees were due.
10. Mrs A died in September.
11. The agency then sent Mrs X an invoice for £1330. Mrs X complained on 22 November. On 23 November she received a response. The response said, “On the 3rd August, notice was given to (the office manager) that you would like to cancel the contract. This was then cancelled in line with policy, where two weeks’ notice was taken until the 17th August. Meaning the planned visits of care for (Mrs A) within this notice period were charged, which were the 4 visits a day. Which are shown through the invoice of 9515088 to the total of £1330.83. Which is the outstanding bill.”
12. Mrs X wrote to the agency again. She said she had clearly indicated she wanted to make a formal complaint but there had been barely 30 minutes time elapsed between the acknowledgement of her complaint and the subsequent response. She said the cancellation had been agreed but not instigated by her. She reiterated she had been told no further fee was payable.
13. The area manager replied in December. He said there had been an error made in the calculation. He said the 5 days cancellation clause should have been instigated. He said the bill would now be reduced to £441. He also acknowledged that the initial complaint investigation had not taken account of all the applicable evidence, and he apologised.
14. Mrs X complained again. She pointed out that as she had agreed on 3 August to cancel the service with effect from 9 August, she had actually provided 6 days’ notice of the cancellation and therefore no fees should be due. She added that the invoice had been addressed to her late mother which was upsetting and insensitive.
15. The regional manager replied. She said “the account [was] rebilled for the correct amount which covered the 5-day cancellation charge that should have originally been applied. In addition (the area manager) provided reference to our Terms & Conditions where this charge is clearly stated. I therefore agree with (the area manager’s) Stage 2 response and do not propose any changes.”
16. Mrs X complained to the Ombudsman. She said the agency had been pursuing her for over 6 months for charges which she did not believe were due, which was distressing and upsetting in the aftermath of her mother’s death.
17. The care provider says there is no record on the file of the office manager’s telephone conversation with Mrs X and mobile phone calls would not have been recorded. The office manager says her recollection of the conversation is “(Mrs X) made me aware that her mum was going to be going into a care home with no return date to go home. I advised (Mrs X) if her mum wasn’t going to be returning home would she like me to cancel the care. (Mrs X) advised this was best. I made (Mrs X) aware I would cancel the care in line with the terms and conditions.”
18. The care provider says the complaint has now been reviewed by the managing director who has agreed to refund the charges paid for the 5 days cancellation period.

Analysis

19. Mrs X gave 6 days’ notice (from 3 to 9 August) of her agreement to cancel the contract. The care provider charged her for a 5-day notice period. That was clearly wrong in terms of the contract. The care provider has now agreed to refund those charges.
20. The care provider took too long to reach that agreement. Mrs X should not have had to go through three stages of a complaint procedure and escalate the complaint to the Ombudsman before the care provider correctly applied its own terms and conditions. That caused Mrs X additional distress and anxiety.

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Agreed action

21. In addition to the agreed refund, the care provider has apologised formally to Mrs X for the way it has handled this matter.
22. The care provider has also offered Mrs X the sum of £500 in recognition of the time and trouble it has caused her in pursuing the complaint, and in acknowledgement of the additional distress it has caused her.

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Final decision

23. I find that the actions of the care provider caused injustice to Mrs X: completion of the recommendations has remedied that.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman