Summary: There was fault by the South Yorkshire Senior Care Services Limited (the Provider) when it charged for home care while that late Mrs B was in a hospice. It did not consider whether it should charge in the circumstances, as required by its contract with Mrs B. In its old contracts the Provider requires clients to give more notice than it must give to end the contract. This is likely to be unfair. The Provider should apologise to Mr B and refund to Mrs B’s Estate the fees it charged during the notice period.

The complaint

1. Mr B complains the Provider:
• Wrongly required him to terminate his late wife’s contract for home care when she was unexpectedly admitted to a hospice; and
• Wrongly charged her for the notice period (up until the time of her death) when they had not wanted to terminate the contract and they had not been charged when previously suspending services.
2. Mr B says because of this, his wife was charged for care that she should not have needed to pay.

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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. (Local Government Act 1974, sections 34B and 34C)
4. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
5. If we are satisfied with the Provider’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)

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How I considered this complaint

6. I considered the information provided by Mr B and the response of the Provider to my enquiries. I have considered the guidance set out below and the Ombudsman's own guidance. Both parties have had a draft of this decision and have responded to that before I reached a final decision.

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What I found

Government Guidance

7. The Competition and Markets Authority has issued general guidance on consumer rights and unfair terms. Although this guidance is aimed at care homes, the principles of the guidance are also applicable to domiciliary care providers. This says that rights to end a contract should be of equal extent and value between the consumer and trader. (Unfair Contract Terms Guidance 2016 section 5.16.1)

The Ombudsman’s Guidance

8. The Local Government and Social Care Ombudsman has also issued guidance to his investigators about the interpretation of contract terms and fees. This says the Ombudsman can interpret contacts 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.

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What happened

9. Mrs B contracted with the Provider for home care. The agreement between Mrs B and the Provider says:
• She can give notice to suspend or terminate the services by giving 28 days notice in writing.
• The Provider can charge for the scheduled services where less notice is given unless the suspension or termination arises as a result of unforeseen or unexpected circumstances where it is not practicably possible to give prior notice.
• The Provider can terminate the contract for any reason on seven days notice.
• The contract terminates on the death of either party.
10. Mrs B suffered with brain tumours and went into hospital several times, sometimes at short notice. The family would contact the Provider to suspend home care calls when Mrs B was in hospital. The Care Provider did not charge Mrs B for the times care was suspended.
11. Mrs B went into a hospice. The family contacted the Care Provider to tell it Mrs B did not need their care at that time. The Provider asked them to put this in writing and to terminate the service giving 28 days notice. Mr B says the Provider said this would be the best option as it was likely Mrs B might need a different level of care should the hospice discharge her.
12. Sadly, two weeks later, Mrs B died. The Provider charged £2,760 for the cancelled service from the day Mrs B went into the hospice to the day she died.
13. Mr B asked the Provider to refund that money. He said they had not asked to terminate the service. If his wife had survived and needed different care, they would have paid the charges for the notice period. But they had in fact asked to suspend the services due to the unforeseen and unexpected admission to the hospice. Mr B wants to give the fees to the hospice.
14. The Provider responded to Mr B’s complaint. It said it had given the correct information that he must give 28 days notice to terminate the service, and it had correctly calculated the final invoice.
15. In response to my enquires, the Provider has said it was clear the family wanted to cancel the home care, rather than suspend it. It has sent me a copy of the emails from a member of the family that it would routinely deal with. This states they want to give 28 days notice to cancel the care. It has also sent me evidence from its file that it confirmed this with the family before putting the termination into effect.
16. I asked the Provider why the termination rights were not the same for it and the customer. It must give seven days notice, whereas the customer must give 28 days. It explained that seven days notice is appropriate for it to withdraw care if it is clear the customer needs a different level of care; it needs to allow the new provider to take over. With the 28-day notice period for the customer, the Provider told me this is clear in the contract. It also confirmed it did not charge Mrs B for the whole notice period but only up to the day she died.

Was there fault by the Provider causing an injustice to Mr and Mrs B?

17. The Provider was entitled to rely on the email from the family member it usually dealt with. Its files are clear that it clarified the intention to terminate care. There was no fault in the Provider terminating care rather than suspending it on this occasion.
18. According to the contract, it next had to consider whether to charge for the services or whether to waive the charge because the termination arose because of unforeseen or unexpected circumstances where it is not practicably possible to give prior notice. There is no evidence the Provider did this and its failure to do so means Mr B is uncertain whether the whole charge should have legitimately been paid by his late wife’s Estate.
19. The Provider explains when the CMA introduced its guidance about care home contract terms it checked its contract terms against the guidance. The Provider took legal advice and amended its contracts. Since February 2019 all new clients have been offered the updated terms; the cancellation period for both parties is now 28 days. The Provider is in the process of transferring all existing clients on to the new contract terms, but that will take time.
20. Mrs B was on the old contract terms; the provider accepts it should have considered this when it issued the invoice. This means Mrs B may have paid more than she would have, had the Provider properly considered whether the termination arose through unforeseen circumstances and had the termination rights been equal in extent and value. I cannot say whether the Provider would have charged Mrs B at all and in considering the remedy, I have had to take a view on balance, and recommend a fair remedy for both parties.

Agreed action

21. Within one month of this decision, the Provider will show the Ombudsman it has:
• Apologised to Mr B;
• Refunded Mrs B’s Estate the amount paid by her in excess of seven days notice; and
• Shared this decision with relevant staff so that it considers the circumstances of the termination before making full charges, in line with the contract.

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Final decision

22. I have completed my investigation on the basis the agreed actions are enough to acknowledge the impact of the Provider’s actions.

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Investigator's decision on behalf of the Ombudsman