Summary: Miss X complained about the way her mother’s care home dealt with a financial contribution it received from a council towards care fees. We found the Care Provider’s actions caused Miss X and her mother an injustice. Miss X suffered significant avoidable distress, frustration and uncertainty. Her mother paid too much towards her care fees. To remedy the injustice caused, the Care Provider has agreed to refund overpaid fees, apologise to Miss X and review its contract and complaints policy.

The complaint

1. Miss X complains about Avery Homes (Nelson) Limited’s (the Provider) actions relating to her mother, Ms Y’s, care fees. She says the Provider has received contributions to Ms Y’s care fees from a council in a different area since 2020. She complains that until 2024, the contributions were added onto Ms Y’s contracted total care fee instead of being deducted and that the contribution money should be refunded by the Provider. Miss X also complains the Provider has not adequately addressed her complaint.
2. Miss X says this has caused her and the family avoidable distress and frustration. She says this has had a significant impact on Ms Y’s finances.

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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. If they have caused a significant injustice or could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 34B, 34C and 34H(3 and 4) as amended)
4. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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)
7. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I have investigated

8. My investigation begins when Ms Y moved into Armana House (the home) in June 2020. Miss X was not aware of the fee issue until March 2024, so I am satisfied it is appropriate to begin my investigation in 2020.
9. My investigation ends in November 2024 when Ms Y moved out of the home. Although this is after she brought her complaint to us, I am satisfied it is relevant to investigate up to this point due to fees being due until this time.

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How I considered this complaint

10. I have considered all the information Miss X provided. I have also asked the Provider questions and requested information, and in turn have considered the Provider’s response.
11. Miss X and the Provider had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Care Quality Commission

12. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve.
13. The CQC is the independent regulator of health and social care services in England. It has guidance on how to meet the fundamental standards.
14. Regulation 9 of the fundamental standards says that providers must give relevant information that describes costs or fees associated with care and treatment.
15. Regulation 16 says that providers must have an effective and accessible system for complaint handling. It also says that information and guidance about how to complain must be available and accessible to everyone who uses the service. It should be available in appropriate formats to meet users’ needs. It also says that information must be available to a complainant about how to take action if they are unhappy with how the complaint is being handled.
16. Regulation 19 of the CQC (Registration) Regulations 2009 says care providers must give timely and accurate information about the cost of their care and treatment to people who use services. Care 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.

Competition and Markets Authority

17. The Ombudsman can interpret contracts on an ordinary reading. The strict interpretation of a contract is for the courts. However, the Ombudsman can look at a contract on ordinary reading and examine how it appears to a reasonable member of the public.
18. The Competition and Markets Authority (CMA) produces various pieces of guidance for care homes.
19. ‘Care Homes: consumer rights for residents and their families’ says terms and conditions within a care home contract must be written simply and clearly. The terms must be written and agreed with the person in a fair and open way.
20. The CMA guidance on consumer law advice for care homes says “upfront information should, in principle, be provided to all prospective residents and their representatives, regardless of the resident’s funding arrangements. Ultimately, certain information (for example, information about the indicative weekly fees you charge and any upfront payments) may only be relevant for self-funders.”

Provider’s complaint policy

21. The Provider has a two-stage complaint policy (the policy).
22. Stage one says it will acknowledge the complaint in writing and explain who is dealing with it. It says it will respond in 21 working days and inform the complainant if this will not be possible.
23. Stage two says that if a complainant is still unhappy, they can request a review of their complaint. They should request this within 28 working days. It will acknowledge the review request within three working days.
24. The policy says a more senior manager will do the review, normally the regional manager. If that person has already been involved at stage one, then someone from the operations team will review the case instead.
25. The policy lists contact details for the Provider’s head office, the CQC, The Parliamentary and Health Service Ombudsman (PSHO) and us.

What happened

26. I have set out below a summary of the key events. This is not meant to show everything that happened.

Background and context

27. Ms Y has certain health needs. She originally lived in a care home outside of England. The council in Ms Y’s local area at that time paid a weekly contribution (the contribution) towards the care of those who had been assessed as eligible.
28. If the person needing care, in this case Ms Y, is living in a care home, the council pays the contribution directly to the care home as it is already delivering care to the individual.
29. Miss X has power of attorney for Ms Y’s finances and welfare. Ms Y is a self-funder, meaning she pays for her own care costs.

2020

30. Towards the end of June 2020, the home carried out a pre-admission assessment on Ms Y. Ms Y moved into the home at the end of the month.
31. Two days before moving in, on behalf of her mother, Miss X and the Provider signed a contract (the contract). The contract showed a total gross self-funded fee of £1300 per week.
32. Sections of the contract below this to show any NHS funded nursing care (FNC) or continuing health care (CHC) contributions were left blank. As the Provider did not normally deal with that type of contribution, there was no specific section for it.
33. The Provider left the final section to show the self-funded fee to be paid after deducting the FNC or CHC contributions blank. This indicated the total gross self-funded fee remained at £1300 with no deductions.
34. At the beginning of July 2020, the council paying the contribution confirmed in writing to the Provider that it would pay the contribution direct to it and the family would pay the remainder of any fees.
35. At the end of September 2020, the council wrote to the Provider and confirmed the weekly amount would be £180, paid each four weeks. The council asked the Provider to sign to confirm the terms and conditions that the contribution was towards Ms Y’s weekly charge and the balance would be paid by a third party. The Provider signed the document and returned it to the council at the beginning of October 2020.
36. The Provider sent fee increase letters to Miss X in 2020, 2021, 2022 and 2023. These explained the amount of and reasons for the increases but did not provide an updated breakdown of Ms Y’s fees or any matters linked to the contribution.

2024

37. At the beginning of March 2024, Miss X emailed the Provider. She said although she was very happy with Ms Y’s care at the home, the family had decided to give notice and move Ms Y. She said this was due to the fees having risen to £1800 per week, which was a problem. Miss X said she had also recently realised the Provider was not deducting the contribution from Ms Y’s care costs but adding it on to them instead.
38. A few days later, the Provider said it had reviewed Ms Y’s account and could see that the fee of £1300 plus the £180 contribution was appropriate for Ms Y’s needs when it admitted her in 2020. The Provider said there had been five fee increases since Ms Y moved in, costs were now above £2000 per week and Miss X had not questioned increases until now.
39. The Provider offered to reduce its fee to £1789 per week and backdate this to 1 September 2023 with no increase due until at least April 2025. It would reimburse any overpayment made since September 2023. The lower total fee would now be what Ms Y had been previously paying but would subtract the contribution (£233 per week at the time). This meant Ms Y was to pay £233 per week less from September 2023 onwards.
40. The backdated overpayment was almost £7100. The Provider asked Miss X to confirm if she wished to withdraw the notice of Ms Y leaving the home. Miss X confirmed the next day that the family would like Ms Y to stay at the home under the terms set out by the Provider.
41. A few days later, Miss X contacted the Provider again. She repeated she had signed a contract with it for £1300 as the agreed total fee. She said a social worker later advised about the contribution. She said she had recently realised the contribution money was not going into one of Ms Y’s bank accounts as she had assumed, which had led to a substantial overpayment. She calculated this to be around £39,000.
42. Two days later, the Provider posted a new and unsigned contract out to Miss X. This showed the reduced total agreed self-funded fee of £1789 per week and a deduction of £233 for the contribution, leaving Ms Y’s weekly costs at £1556. Miss X says she never received the contract.
43. At the end of April 2024, Miss X made a formal complaint to the Provider about the fees and that it had not deducted the contribution.
44. Early in May 2024, the Provider sent its complaint response to Miss X. It confirmed that Ms Y’s fees when she was admitted were £1480 with £1300 paid by Ms Y and £180 from the contribution from the council out of area. The Provider repeated the breakdown of the reduced fee which it had offered. The Provider noted that in March 2024 the family had cancelled the direct debit which paid Ms Y’s fees. This meant she was currently £14400 in debit to the Provider. It asked Miss X to put the direct debit back in place and pay the outstanding balance.
45. Towards the end of May 2024, the Provider wrote to Miss X and advised her to take any further fee concerns to the Ombudsman.
46. At the end of May 2024, the Provider gave Miss X one month’s formal notice to end Ms Y’s placement because she had not paid the outstanding fee.
47. Early in June 2024, Miss X contacted the Provider to again state her case. She said she had not paid two month’s fees because the family felt it had already made a pre-payment of over £30,000. She also said she wanted the total fee to be capped at £1600 per week from January 2023 as she felt the Provider was charging more than other similar homes in the area. Miss X said she did not wish for her mother to leave the home.
48. The Provider responded at the beginning of July 2024. It repeated that costs had increased since 2020. It said it acknowledged Miss X’s concerns and it was not unusual for funding to be received directly from Government bodies. It said that to acknowledge the distress, it had already agreed a goodwill gesture at the beginning of March. This was £7100 backdated fees credited to the account in April 2024. It offered to extend its reduced fee offer to the end of August 2025, instead of April 2025.
49. The Provider held an online meeting with the family to discuss matters late in September 2024.
50. Further communication passed between the family and the Provider in October 2024 regarding the fees, whether Ms Y would stay at the home and payments which the Provider said were due. The Provider sent another copy of March 2024’s new contract to the family.
51. Ms Y left the home in November 2024.

Fees owing

52. Miss X and the family had discussed fees with the Provider throughout 2024. At certain times, Miss X had cancelled the direct debit paying Ms Y’s fees. At other times, Miss X and the family had decided the Provider’s fee should be a maximum of £1600 minus the contribution and paid an amount calculated on that basis.
53. The Provider did not agree to this at any time. This led to a debit on Ms Y’s account of over £36,000 when she moved out in November 2024. This is still outstanding.

Analysis

Pre-admission assessment and contract

54. In response to my enquiries, the Provider said it had informed Miss X at the time of Ms Y’s admission that it would admit her on a high dependency basis and the fee for the high dependency unit was £1500 per week. The Provider said Miss X had told it about the contribution in the pre-admission meeting, but that the manager was unaware of the amount and so it did not put it onto the contract. I have viewed the pre-admission assessment which the Provider completed five days before the contract for £1300 was signed by both it and Miss X.
55. The assessment clearly states that it would admit Ms Y at the cost for high dependency care and that fees and the contract of residency had been explained. However, nowhere in the document is any specific price quoted. The document has no signature or annotation by Miss X. The contribution is not mentioned anywhere. I am therefore satisfied this document does not show that Miss X was aware of the fee being any particular amount, nor that the contribution would be added onto the costs the family were expected to pay, rather than deducted from the total fee in the later signed contract.
56. The contract signed by both parties in June 2020 stated £1300 as a “total gross self-funded fee” and did not show any monies anticipated to be from other sources (the FNC or CHC).
57. In response to my enquiries, the Provider said its self-funded contract did not have a section to take account of the contribution for Ms Y as it was not something it normally dealt with. It said it should have recorded the money in the ‘additional contribution’ section. It said this was not correctly done at the time of the original contract and was an oversight on its part.
58. The contribution, however, was not an additional contribution. It was designed, as per the council’s email to the Provider in July 2020, to be paid to the Provider with the family paying the rest using Ms Y’s money. The council’s email also stated that Ms Y’s family would be responsible for paying the full amount for the first two weeks of Ms Y’s stay until the notice period from her previous care home had expired. At that point, the contribution would begin to take effect at the home.
59. In response to me, the Provider said it had clarified the original contract error with the council, Miss X and the family and had issued a new contract. However, none of this took place until after Miss X had challenged it on the fees in February 2024.
60. The Provider’s stance here seems confused. It states the manager did not know what the amount of the contribution would be when the contract was signed and was therefore not entered onto the contract. This does not explain how it would know that the £1300 it had included on the signed contract would be sufficient if it intended for the contribution to top it up to £1500, when it did not know what the contribution amount was. There are no annotations on the contract to say that it would be amended on confirmation of the contribution or any mention of the contribution at all.
61. There is no evidence of the Provider knowing the contribution was set at £180 until late September 2020 and it did not make contract changes until March 2024. Since Miss X raised the issue in 2024, the Provider has stated numerous times that Ms Y’s original fees were £1480 (not £1500), minus the contribution of £180, leaving £1300 for the family to pay.
62. However, there is no evidence the Provider told the family that in addition to the contracted total fee they had signed for, its charges would be higher and it would add the contribution onto their payments. The only time this is evidenced is after Miss X began to query matters in February 2024.
63. CQC regulations 9 and 19 are clear that timely and accurate information about fees, costs and in contracts should be given to those using the service. CMA guidelines say contract terms must be written and agreed in a fair and open way. I am satisfied, that in the circumstances of this complaint, not deducting the contribution from the contracted total gross self-funded fee Ms Y had to pay was fault. This will have caused Miss X significant avoidable distress, frustration and uncertainty. It also meant Ms Y had been paying more for her care than the contract stated she had to. I acknowledge the Provider changed the contract in March 2024 and backdated the decrease to 1 September 2023. However, I do not consider this is an appropriate remedy in the circumstances. I have made a recommendation below to remedy the injustice.

Contribution and fee increases

64. I have viewed the contribution increase notification letters, spreadsheets, account statements and invoices the Provider sent as evidence.
65. The Provider made one fee increase in 2021, two in 2022 and two in 2023.
66. The contribution from the council increased at the beginning of April each year. On average, the weekly figure increased £17 each year. The increase would run for the next 12 months. The weekly figure started at £180 per week in 2020 and rose to £248 per week at the beginning of April 2024.
67. There is no evidence to suggest that when the contribution increased each April, the invoice amount was reduced to reflect this and used to offset Ms Y’s costs. Instead, apart from July to December 2022, the full fee increase was invoiced to the family each time. In the circumstances of this complaint and on the balance of probabilities, I am satisfied it is more likely than not the Provider did not consider the contribution as an integral part of Ms Y’s fees but instead as a separate pot of money. It meant the average increase of £17 per week applied each April did not factor in Ms Y’s amount owing or invoices.
68. I am satisfied, that in the circumstances of this complaint, not offsetting the increased contributions against the fees for Ms Y’s care was fault. It will have caused Miss X significant avoidable distress, frustration and uncertainty. It also meant Ms Y paid more for her care then she was contracted to do so. I have made a recommendation below to remedy this injustice.

Complaint handling policy and procedure

69. As part of my enquiries, I asked the Provider whether its complaints policy was available to view on line or in the home. The Provider confirmed the policy is available to view in the home and said it was detailed in the contract. The Provider’s online chat service repeats some of the basic information set out in the contract when asked for a complaints policy but nothing more. There is no readily available copy of the complaints policy to view on line.
70. The complaint section of the contract and the policy do not mirror each other. The contract does not mention the policy, set out any timelines about complaint handling or explain escalation processes. Both give information on who a complaint can be escalated to, but the contract misses out the PHSO which the policy includes.
71. I am satisfied the way to make a complaint and what the procedure is are not clear enough and could cause confusion. I do not consider this caused a significant injustice to Miss X as she was able to make a complaint and was sent two responses as per the Provider’s policy. However, I have made a recommendation below to ensure the process and expectations are clearer for others wishing to make a complaint in future and the policy is readily available to view.

Miss X’s complaints

72. Miss X first made a formal complaint to the Provider on 28 April 2024. Whilst I have seen no evidence of a formal acknowledgement to this as per the Provider’s policy, it did reply within the 21 working day timeline set out.
73. The response, however, did not set out the Provider’s formal escalation procedure if Miss X remained unhappy or make it explicitly clear that it was the Provider’s stage one response. I am satisfied this did not cause a significant injustice to Miss X as she continued to express her unhappiness about the issue in the coming weeks. However, in line with CQC regulation 16, I have made a recommendation below to prevent a reoccurrence of similar issues in the future which may affect other complainants.
74. After further communications between both parties, the Provider sent a further response to Miss X on 20 May 2024. The response was not labelled as the stage two response but it was sent within the timescale set out for stage two responses and said any other fee concerns should be directed to the ombudsman. Matters had not been reviewed by a different manager as per the complaints policy but instead dealt with by the stage one responder. The reply did not highlight which ombudsman organisation she should contact.
75. I am satisfied that this lack of clarity did not cause a significant injustice to Miss X as she was aware of us and had been told the Provider had set out its final stance on the fees. However, in line with CQC regulation 16, I have made a recommendation below to prevent reoccurrence of similar issues in the future which may affect other complainants.
76. Miss X complained the Provider had not adequately addressed her complaints. I am satisfied that through the complaint responses sent and the significant communications between parties after this, her complaint regarding fees had been sufficiently responded to. I find no fault in the Provider’s actions here, regardless of the outcome of Miss X’s complaint to it.

Remedy recommendation

77. I am satisfied, that in the circumstances of this complaint, it is appropriate to recommend a financial remedy in addition to an apology. This is to reflect the injustice caused by the actions of the Provider. This is because there is no evidence it deducted the contribution from Ms Y’s total gross self-funded fee in the contract signed by Miss X, when it should have done.
78. I am satisfied the reduced fee offered in March 2024 but backdated to 1 September 2023 ended the issue of the Provider not deducting the contribution.
79. The Provider has confirmed the fees charged until Ms Y moved out of the home were the same as those in place from 1 September 2023.
80. Using information sent by the Provider of the amount of contribution received from 1 July 2020 until 31 August 2023, I calculate this to be £33,321.27 (amount A).
81. I recommend the Provider offset this from outstanding fees owed which are a higher amount.
82. I also recommend the Provider ensure the increase in the contribution from 1 April 2024 onwards (amount B) is offset against any fee amount owed.
83. In response to my draft decision, the Provider calculated amount B was £510.34. This will be used to offset the debit balance.

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Agreed action

84. To remedy the injustice caused by it, the Provider has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Miss X for the identified injustice;
• reduce the debit balance on Ms Y’s account by amount A and amount B, as per paragraphs 80 to 83; and
• make a symbolic payment to Miss X of £200 to reflect the distress, frustration and uncertainty caused by the identified injustice.
85. Within three months of the date of my final decision, the Provider has agreed to review its complaints policy.
86. It will do this to make sure complainant responses:
• are clear what stage the response sent is at;
• explain how they can escalate their complaints at both stages one and two; and
• signpost the relevant ombudsman and its details in the final response.
87. It will place the updated complaints policy available to view online for those who are not able to view it in any of the Provider’s care homes.
88. Within twelve months of the date of my final decision, the Provider has agreed to review its contract to ensure it gives consistent complaint information as reflected in its policy or directs people viewing the complaints section of its contract to its complaint policy.
89. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
90. Symbolic payments made are in line with the Ombudsman’s guidance on remedies.
91. The Provider should send us evidence it has complied with all of the above actions.

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Decision

92. I have now completed my investigation and uphold Miss X’s complaint. The Provider has agreed to take the recommended action.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman