The Ombudsman's final decision:
Summary: Ms B complains on behalf of her parents, Mr and Mrs C, that the service provided by Midshires Care Limited was inadequate and that it wrongly charged them for care provision during the 14 day notice period. She also says it delayed in responding to her complaint. We uphold Ms B’s complaint. Mr and Mrs C and their family suffered distress and inconvenience because of the actions of Midshires Care Limited. It has agreed to remedy the injustice caused by making a payment and issuing a revised invoice.
- Ms B complains on behalf of her parents, Mr and Mrs C, that Midshires Care Limited (‘the care provider’):
- failed to provide the necessary care and support;
- used four different carers over the short contract;
- Provided inappropriate carers who smoked;
- charged Mr and Mrs C for care provision they did not receive during the 14 day notice period; and
- delayed in responding to her complaint.
The Ombudsman’s role and powers
- 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)
- If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.
How I considered this complaint
- I have considered all the information provided by Ms B, made enquiries of the care provider and considered its comments and the documents it provided.
- Ms B and the care provider had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- Mr and Mrs C were elderly and suffering from dementia. The family decided they needed live-in care and contacted the care provider for a package of care. They specified they wanted an experienced female carer who did not smoke.
- The care provider completed an initial assessment of Mr and Mrs C’s care needs and decided nine hours of care was required over a 24-hour period.
- On 12 February 2019 the care provider proposed a live-in carer (‘Ms X’) to the family and sent them her profile which stated she was a non-smoker. The family agreed to accept her. She started caring for Mr and Mrs C on 14 February 2019.
- Shortly afterwards Ms X told her manager she wished to leave the placement so the care provider sourced another carer to take over. The replacement carer it proposed was rejected by the family because she had very little experience. Ms X had found the placement challenging despite being an experienced nurse so they believed it would be too much for someone with little experience.
- A few days later the care provider proposed another carer who was experienced but was a smoker. The family were not happy with this and rejected her.
- The care provider proposed another carer, Ms Y, who did not smoke and had good experience. The family accepted her and she took over on 6 March 2019. When Ms Y arrived the family were concerned because she smelt of cigarette smoke. She accepted she sometimes smoked even though it did not say this on her profile. She left the same day.
- The care provider provided another carer, Ms Z, on 8 March 2019. After a couple of days the family contacted the care provider saying the placement was not working as Ms Z was not assertive. Mr and Mrs C had no trust in her and would not allow her to help them. Ms Z left on 11 March 2019. The family asked whether Ms X would consider covering for a few days until a suitable replacement was found. The care provider explained Ms X was not available but it was trying to find a replacement carer.
- The care provider proposed another carer, Ms W, whose profile stated she was a non-smoker. The family accepted her but subsequently discovered she was a smoker. But they decided to keep her because a further change would have been traumatic for Mr and Mrs C.
- On 9 April 2019 Mrs C was taken into hospital and was not expected to return home. So, the family gave notice to the care provider on 12 April 2019. The carer left the same day. The care provider told the family they would be charged for the 14-day notice period.
- The care provider issued an invoice for £5125. Ms B complained saying they had not been happy with the care provided or the care provider’s communication. She also said they were not happy to pay charges for the notice period.
- Ms B received no response to her complaint, but the credit control team sent monthly statements of account confirming the amount outstanding.
- Ms B wrote to the credit control team in August 2019 requesting progress on the dispute. The team then passed the complaint to the area manager.
Failure to provide the necessary care and support
- Ms B says the carers provided were inadequate and the family had to help them. She also says the local care manager failed to support the family or the carers. They had no contact from her apart from an email explaining why she had not responded when the carer was ill and two further emails in response to the family giving notice, primarily to advise that they would be charged for the notice period.
- The care provider says that, when completing the initial assessment of Mr and Mrs C’s needs, it involved them and family members to ensure all their needs were identified and discussed before creating the care plan and all their needs were met.
- However, in responding to Ms B’s complaint, the care provider accepted the support offered was not sufficient for Mrs C’s care and the handover from one carer to another was unsatisfactory. It apologised for the poor level of service and offered a fee reduction in recognition of this. It also confirmed it had relocated its carer services team into regional hubs to ensure closer working relationships and better geographical knowledge. This was to ensure carer services had a more in-depth knowledge of carers and clients in their area which should also improve communication to both parties.
Four carers over the short contract
- Ms B says the fact that there were four different carers within eight weeks was very unsettling and traumatic for her parents.
- The care provider says it aims to find the right match for its customers but this cannot always be achieved from the start. It will exchange the carer as quickly as possible if the customer is dissatisfied. It says the family was involved in the selection of each carer and every time an issue was raised by the family it was dealt with promptly.
- The care provider says it aims to have two carers in rotation for each family, ideally for a period of 4 to 6 weeks each. It accepts that, because of Ms X’s availability, it could not fulfil this and, unfortunately, another carer was also placed that did not have sufficient availability. The sourcing of the next carer took time and the family had to look after Mrs C themselves. The care provider acknowledged this was not acceptable and offered the family a refund of £190.
Provided inappropriate carers who smoked
- Ms B says the family specified they wanted a carer who did not smoke but the care provider ignored this.
- The care provider says Ms X was documented as a smoker but was accepted by the family despite this. However, Ms B has provided a copy of the care provider’s email of 12 February 2019 and the attached profile for Ms X which stated “Smoking: No”. The family accepted her on this basis.
- The care provider says Ms Y had not disclosed that she was a smoker and it was unaware of this until she arrived at the property and the family said she smelt of smoke. She was replaced within 24-hours. Ms Z was a non-smoker.
- In its response to Ms B’s complaint, the care provider accepted that, as the family requested a non-smoker, it had not provided them with the service they deserved. It agreed to reduce the invoice by £190 in recognition of this.
Charging for provision not received during the notice period
- The care provider issued an invoice for £5125 including £3040 for the notice period. Ms B says they should not have to pay charges for the notice period because no care was provided. The carer left on 12 April 2019 and the family took over Mr C’s care. The care provider had not yet arranged a replacement carer for 16 April onwards.
- In its response to Ms B’s complaint, the care provider accepted the family was invoiced for the entire notice period even though no service was planned from 16 April but says care was planned as an ongoing package of care until then. It said it had a duty of care towards both its customers and its carers as it must find them a suitable new placement.
- The care provider’s terms and conditions of business stated, “In the event of your unforeseen and temporary hospitalisation, we may charge you for the services for the first 48 hours of hospitalisation”.
- The terms and conditions stated that the service user may cancel the care agreement at any time by providing at least 14 days’ notice in writing. It says “Any advance payment you have made for services that have not been provided will be refunded to you. We will invoice you for any services that we have carried out but you have not paid for (including during the 14 day notice period)”.
- We interpret contracts on an ‘ordinary reading’ and are likely to find fault where a contract term is ambiguous, inconsistent or poorly drafted. On an ordinary reading of the terms and conditions in place at the time, the care provider should not have charged the family for the notice period because no services were carried out during that period. The family gave notice on 12 April 2019 and the carer left the same day. However, the care provider was entitled to charge the family for the 48 hours following Mrs C’s admission to hospital.
- The care provider has now revised its terms and conditions to clarify that the notice period is chargeable.
The care provider’s response to Ms B’s complaint
- Ms B complained to the care provider by telephone on 26 April 2019 but her complaint was never responded to. She disputed payment of fees for the notice period with the credit control team on 8 May 2019. The care provider says it cannot find a plausible reason why this dispute was not dealt with at the time. The credit control team did not treat it as a formal complaint and forward it to the complaints team but simply sent invoice reminders.
- When Ms B chased a response to her complaint in August 2019 the credit control team passed it to the area manager who issued a stage 1 response. Ms B replied stating that the response had not dealt with all the concerns she raised. The area care manager responded on 23 October 2019. She accepted the initial response had not addressed all the points Ms B raised in sufficient detail and went on to respond to those points. Ms B escalated the complaint to stage 3 and the care provider responded on 20 December 2019.
- Although Ms B did not raise her complaint with the complaints team directly in accordance with the care provider’s complaints policy, the credit control team should have forwarded the complaint to the complaints team when it was received. Failure to do so meant there was a significant delay in responding to the complaint which should have been done within 20 days in accordance with the care provider’s policy. There was also a delay at stage 2 of the process.
- The care provider has now changed its process so that, if an invoice is disputed for more than 30 days, the regional care director must review and resolve any issues. If a dispute continues for 60 days or more, the managing director will review the matter and ensure it is resolved.
- In recognition of the inconvenience caused by the delay in responding to the complaint, the care provider agreed to reduce the invoice. It has now also credited a further £380 to the outstanding bill.
- Mr and Mrs C and their family suffered a significant injustice because of the care provider’s failings. Mr and Mrs C suffered distress at the frequent changes of carer. The family suffered distress because of the inadequate service and the inconvenience of having to support the carers. Ms B was also put to time, trouble and inconvenience in disputing the charges and pursuing a response to her complaint.
- In its stage 2 response, the care provider apologised to Ms B for the poor level of service the family received. It also reviewed its terms and conditions to clarify that the 14 day notice period is chargeable and changed its procedures for responding to disputed invoices.
- The care provider has now deducted a total of £3420 from the outstanding invoice leaving a balance of £1705. I am satisfied this represents a satisfactory remedy for the injustice caused by the care provider’s failings. £3040 of this sum represents a refund of the charges wrongly made for the notice period and the remaining £380 is a satisfactory remedy for the injustice caused by the inadequate service provided and the delay in responding to Ms B’s complaint.
- Midshires Care Limited has agreed that, within one month, it will issue a revised invoice to Ms B for £1705.
- I have completed the investigation and uphold Ms B’s complaints that:
- the service provided to the family was unsatisfactory;
- the care provider wrongly charged the family for the notice period; and
- there was a significant delay in responding to Ms B’s complaint.
Investigator's decision on behalf of the Ombudsman