Summary: Mrs X is complaining on behalf of her father Mr Y. She says his care provider, JKD Trading Ltd, is at fault for not refunding him for care he paid for to another provider and for charging him for care it did provide. The Ombudsman has discontinued his investigation into this complaint because he cannot determine if there are grounds for JKD Trading Ltd to pursue payment from Mr Y. Furthermore the Ombudsman cannot ask the other care provider to refund money to Mr Y.

The complaint

1. Mrs X, who is complaining on behalf of her father Mr Y, says JKD Trading Ltd (the Company) is at fault because it has:

• failed to refund money Mr Y paid in advance to another care provider, Agency B, for care he no longer needs; and
• charged Mr Y for care it provided between May and September 2018.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. 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:

• we cannot achieve the outcome someone wants; or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. As part of my investigation I discussed the complaint with Mrs X and considered information she provided. I made enquiries of the Company and gathered information from the Companies House website. I set out my initial thoughts on the complaint in a draft decision statement and I considered Mrs X’s comments in response.

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What I found

4. In February 2018 Mr Y paid over £7000 in advance to Agency B for homecare services. The contract he signed said he could cancel by giving one month’s notice and explained how a cancellation fee would be calculated.
5. In May Agency B went into insolvency. Another company acquired Mr Y’s contract and subcontracted this to the Company.
6. Companies House says no directors of Agency B are involved in the company that acquired Mr Y’s contract or in the Company.
7. The Company wrote to Mr Y explaining that it had taken over his contract. It said his service would not be affected and billing had transferred to them. It sent Mr X a contract to sign and say he did not return it. Mrs Y says her father did not receive a contract. Nevertheless the company continued to provide care to Mr Y without a contract being signed.
8. In June the Company wrote to Mr Y again with contact details for staff.
9. Mrs X wrote to the Company in August advising that Mr Y was moving into a care home as his dementia had worsened. She said that for this reason he would be terminating his contract and requested a refund the remaining money he had paid in advance.
10. The Company wrote to Mrs X explaining that it had not received any money for Mr Y’s care from Agency B so could not offer him a refund. It explained it had budgeted for providing care to Mr Y in the hope he would continue with the service. The letter did not request payment for care provided by it.
11. When Mrs X challenged the Company’s view that a refund was not required, it reiterated its position and now said Mr Y owed over £2000 for care it had provided to him since May.
12. Mrs X is unhappy with the Company’s view.

Analysis

13. Mr Y paid in advance for his care to Agency B which went into insolvency. In such circumstances, we cannot pursue Agency B for a refund of the monies paid to it by Mr Y.
14. As the Company received no payment for Mr Y’s care, I do not see there are grounds for it refund any payment made by him to Agency B.
15. I do not consider we can come to a view on the issue of whether the Company has grounds to charge Mr Y for the care it provided to him. This is because only the courts can determine if there is a contract in place and the grounds on which charges can be levied.

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Final decision

16. I have discontinued my investigation into this complaint. This is because we cannot determine if there are grounds for the Company to pursue payment from Mr Y nor can we pursue Agency B for a refund of the money paid to it.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman