Summary: We will not investigate this complaint about fee increases for privately arranged residential adult social care. This is because investigation is unlikely to lead to a different outcome. On our ordinary reading the Care Provider has acted in line with its contract. A court would need to decide if the Care Provider has breached its contract or its terms are unfair.

The complaint

1. Mr B says the Care Provider has increased its fees without a satisfactory explanation for the increase. The Care Provider did not give enough notice for Mr B to make financial arrangements to cover these costs. And Mr B worries about future increases and how to financially plan to ensure he can cover his relative, Mr C’s, care fees for the rest of Mr C’s life. Mr B says Mr C is frail and moving him is not an option. Mr B wants a six month notice of any fee increase, a review and reduction of the recent increase, a refund of the fee increase they have already paid, and a fixed yearly increase so they can financially plan.

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The Ombudsman’s role and powers

2. We investigate complaints about adult social care providers. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we could add to any previous investigation by the care provider, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, sections 34B(8) and (9))

3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

4. I considered information provided by the complainant and the Care Provider.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Ombudsman can consider a contract on ordinary reading and examine how it appears to the reasonable member of the public. The strict interpretation of a contract is for the courts. The Ombudsman cannot say what is a fair cost for care or stipulate how much a Care Provider can charge or increase its fees by.
7. The Care Quality Commission regulates care providers in England. Regulation 19 of the Care Quality Commission (Registration) Regulations 2009 is about fees. This requires providers to give people information about the terms and conditions of their care, treatment or support, including the expected costs and the requirement to pay for their care, treatment and support. Providers must notify people of any changes to their terms and conditions, including increases in fees and give them enough time to consider whether they wish to continue with the service.
8. The Care Provider has given Mr B the terms and conditions of its care which states it will increase fees in January each year by at least 7%. The Care Provider aims to give at least 28 days’ notice before it increases the fee and will explain its reasons. The contract gives the Care Provider a wide scope to increase its fees above the standard 7% should it consider it necessary.
9. The Care Provider has acted in accordance with its contract by writing to Mr B in November to explain fees would be increasing in January, so more than 28 days’ notice. The letter explained an increase of around 14% and explained the reasons for the increase. Which are reasons in line with the contract.
10. The Care Provider has responded to Mr B’s complaint with further explanation for the increase. It has explained why it cannot change its contract terms to accommodate Mr B’s wish to have a greater notice period and a fixed increase rate. Although Mr B disagrees with the need to increase the fees by such a large amount, this is not a dispute the Ombudsman can resolve. If Mr B is no longer satisfied with the contract terms and fees, he is open to find an alternative provider. Though we appreciate the impact that has on Mr C having to move.
11. In my view the Care Provider has acted under its contract. It has reviewed its fees and has written to Mr B with enough notice period before it imposed the increase. It has met its duty to advise of any changes, explain its reasons, and allow enough time for Mr B to decide if he wants to continue with the service. If Mr B wishes to challenge the terms of the contract or the level of fees, he would need to take legal advice.

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Final decision

12. We will not investigate Mr B’s complaint because it is unlikely we would add to the Care Provider’s response or achieve a different outcome. We cannot tell the Care Provider what its fees must be, or that it must amend its contract terms about notice periods and fee increase rates. If Mr B wishes to challenge whether the Care Provider has acted in accordance with its contract, whether the contract terms are fair, and whether the fee increase is fair, he would need to seek legal advice.

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Investigator's decision on behalf of the Ombudsman