Summary: Mrs X complains BCT Care Services Ltd continued to charge her sister for support accessing the community, despite not being able to take her out of her care home because of COVID-19, and suggested Mrs X persuade the care home to let it do so. There is not enough evidence to say the care provider’s actions caused injustice which warrants a remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains BCT Care Services Ltd continued to charge her sister for support accessing the community, despite not being able to take her out of her care home because of COVID-19, and suggested Mrs X persuade the care home to let it do so.

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The Ombudsman’s role and powers

2. We investigate complaints about adult social care providers. If there has been fault, we consider whether it has caused an injustice and, if it has, we may suggest a remedy. (Local Government Act 1974, sections 34B, 34C and 34H(4), as amended)

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How I considered this complaint

3. I have:
• considered the complaint and the documents provided by Mrs X;
• discussed the complaint with Mrs X;
• considered the comments and documents BCT Care Services Ltd has provided in response to our enquiries;
• shared a draft of this statement with Mrs X and BCT Care Services Ltd, and taken account of the comments received.

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What I found

Key facts

4. Mrs X’s sister, Mrs Y, lives in a care home. In May 2019, Mrs X arranged for BCT Care Services Ltd (the care provider), which trades as Home Instead Senior Care, to provide companionship for her sister for three hours each Friday afternoon. The contract Mrs X signed on behalf of her sister, for whom she has Power of Attorney for property and financial affairs, says:
• “Where your right to change your mind has expired, you can cancel the services at any time by giving us a minimum of 4 weeks’ notice. Please note that where no notice or less than 4 weeks’ notice is given you will be charged for the losses that we incur as a result.”
5. By March 2020 the care provider was taking Mrs Y out four mornings a week for two hours. According to its records the purpose of the visits was to provide companionship and to “Take [Mrs Y] out for the length of the visit. Offer her choices of places to visit but variations from previous visits”.
6. On 17 March Mrs X called the care provider about its visits, as her sister’s care home had told her it was now in lockdown she was concerned about the visits. It told her it had written to care homes and would be calling her sister’s care home asking for its visits to continue. It told her it could still take her sister out for a walk in the park or to have a short drive out.
7. The care provider took Mrs Y out in the mornings of Thursday 19 and Friday 20 March.
8. On 20 March the care provider noted that a care giver had raised concerns about going into Mrs Y’s care home on Sunday 22 March because of COVID-19. The care provider said it would call the care home and suggest care givers call five to ten minutes before they were due to visit so staff at the care home could get Mrs Y ready and standing by the door to go out with the care giver, who would wait outside. The care provider called the care home, which agreed to the proposed arrangement. The care provider told its care givers not to enter the care home, but to ring the bell and wait outside. It told the care giver visiting on 20 March to take Mrs Y out for a walk and a drive to make sure she was not around people. It noted cafés etc were closing and it was taking the situation a day at a time, so things could change again.
9. On 22 March the care giver told the care provider the care home had said the visit was cancelled and had asked if the care provider had received any paperwork.
10. On 23 March the care home told the care provider it would make sure its staff were aware of the arrangement so another care giver could take Mrs Y out on 24 March. The care provider said to let it know if anything changed before 24 March. It told Mrs X what had happened on Sunday. It advised the care giver visiting on 24 March about the arrangement and to disinfect the car before and after the visit.
11. Later that day the Prime Minister made a statement telling everyone to stay at home apart from:
• shopping for basic necessities, as infrequently as possible
• one form of exercise a day
• any medical need, to provide care or help to a vulnerable person
• travelling to and from work, but only when absolutely necessary and work cannot be done from home
12. On 24 March the care provider noted a care giver was unsure whether they could visit Mrs Y. The care provider asked the care giver to take Mrs Y out for a short walk and a drive then take her back. The care giver agreed to do the visit but did not want to do any more until COVID-19 was under control. However, the care home would not let Mrs Y out as it was on full lockdown for three weeks.
13. The care provider called Mrs X on 26 March and said it could not take Mrs Y out because her care home was on full lockdown. It said she could put the service on hold for the next two months by paying 50% of the fee or cancel the service by paying the full fee for 28 days. Mrs X said she would think about this. The care provider confirmed the offer by text message. Later that day it e-mailed Mrs X adding a third option:
• “Persuading [the care home] to allow visits to continue subject to social distancing safeguards”.

It said several care homes and assisted living locations had lifted their initial blanket bans on visitors since Public Health England recognised visiting care givers as essential workers. It said its employees were highly trained in infection control and carried full PPE with them. It offered to contact the care home either on her behalf or in support.

14. Mrs X wrote to the care provider on 29 March saying she saw no flexibility. She said her sister was very vulnerable, having a chronic obstructive pulmonary disease, asthma, heart problems and regular chest infections for which she takes steroids. She said Mrs Y would not be able to return if she left the care home and would be unlikely to survive if she caught COVID-19. She said such people had been told to stay at home for 12 weeks and her sister’s care home was shielding her. She said it would be some time before her sister could resume her outings.
15. When the care provider replied the next day, it said it was not sure what Mrs X meant by “flexibility” or what she wanted to achieve. It said, while the current situation was extremely unusual, it was not dissimilar from a client going into hospital with uncertain timelines. It said Mrs X needed to decide between suspending or cancelling the service, if there was no possibility of persuading the care home to change its position.
16. On 7 May the care provider sent Mrs X an invoice for £472 for nine cancelled calls between 2 and 21 April. It said it had taken notice from 26 March, rather than her confirmation date of 1 April. It also said it had redeployed staff on 5, 14 and 19 April, so would not charge for those calls.
17. Mrs X complained about the offer to continue visiting her sister and the suggestion of “persuading [the care home] to allow visits to continue”. She said this was contrary to Government guidelines on shielding vulnerable residents. She said the arrangement was to take Mrs Y out in a car, where it would be impossible to social distance. She said the contract had been “frustrated” so there should be no cancellation fee. She said her sister had tested positive for COVID‑19 but had recovered and returned to the care home. She said she had not expected to receive a bill from the care provider.
18. When the care provider replied to Mrs X’s complaint in June, it said:
• it had acted professionally and in good faith;
• had offered options for maintaining, cancelling or suspending the service and had been willing to consider alternative proposals;
• it had not suggested taking Mrs Y out into the community;
• having taken legal advice, it was satisfied Mrs Y’s contract had not been “frustrated” by the COVID-19 outbreak. It had become “more onerous but not impossible” to deliver
• as essential workers it had continued to support clients in care homes during lockdown, subject to appropriate distancing and PPE;
• the Care Quality Commission had been satisfied with its interpretation of the Coronavirus Regulations.
19. Mrs X paid the care provider in July.

Did the care provider’s actions cause injustice?

20. The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 came into force at 13.00 on 26 March. They say no one could leave their home without a reasonable excuse. Among other things, a reasonable excuse included:
• “to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006, to a vulnerable person, or to provide emergency assistance.”
21. Under the terms of the Regulations, Mrs Y is a vulnerable person because of her medical conditions. By 26 March the care provider was no longer proposing to take Mrs Y out into the community but to provide companionship at her care home. While companionship does not constitute “personal care” under the Safeguarding Vulnerable Groups Act 2006, the Regulations allow for a broader (unspecified) range of activities than proving personal care.
22. It is clear that a key objective of the arrangement with the care provider was for Mrs Y to receive companionship in the community. The care provider’s offer of providing companionship in the care home would not have met that objective. However, that does not mean it was wrong to make that offer, as it was not precluded by the Regulations.
23. It is not for the Ombudsman to say whether a contract has been “frustrated” as that is a legal matter which would need to be decided by a court.

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Final decision

24. I have completed my investigation as I cannot say the care provider’s actions caused injustice which warrants a remedy.

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Investigator's decision on behalf of the Ombudsman