Summary: No injustice was caused to Mr X by the actions of the care provider: its contract clearly states a cancellation fee would be payable.

The complaint

1. Mr X (as I shall call the complainant) complains the care provider charged him a cancellation fee when his mother’s (Mrs A’s) needs increased and could no longer be met by a domiciliary care agency.

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The Ombudsman’s role and powers

2. 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)

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How I considered this complaint

3. I considered the information provided by Mr X and by the care provider. Both Mrs A and the care provider had an opportunity to comment on an earlier draft of this statement before I reached a final decision.

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What I found

Relevant law and guidance

4. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
5. Regulation 19 says the care provider must 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.
6. People must be given a written copy of the terms and conditions that they must agree to before their care, treatment or support begins. Providers must give people using the service information about the costs, terms and conditions of the service, so that they can make decisions about their care, treatment or support.
7. The domiciliary care agency (which is registered with the CQC for the provision of domiciliary care services only) says in the contract it asks clients to sign, “If the service user wishes to cancel the service permanently, 14 days written notice must be given to the support provider (otherwise a charge of up to 14 days support fees will be levied).”
8. The care agency’s statement of purpose also says, “A care worker is only with you for a limited time so you will not have the same level of support as in a residential home”.

What happened

9. Mrs A received a domiciliary care service from the care provider from 2016 onwards.
10. Mrs A’s needs increased and by January 2020 Mr X emailed the care provider saying it was obvious his mother’s needs were increasing ‘in every respect’ and she would ‘soon need to be in a care home’.
11. Mrs A fell at home and was admitted to hospital in July 2020. Mr X says he fully expected the domiciliary care visits to resume once she left hospital. He says around 23 July the hospital told him Mrs A needed 24-hour care. He asked the care provider if it could provide full time care, but it told him it could not (as it was not registered to do so). Mr X arranged for a live-in service instead.
12. On 29 July the care provider sent Mr X the cancellation invoice. Mr X replied he had no idea it charged a cancellation fee, he thought it was wrong after he had paid ‘tens of thousands of pounds over many years’ and he did not recall reading about it.
13. The care provider replied, ‘we have a two-week cancellation which is clearly stated in the contract between you and our company’.
14. Mr X made a formal complaint to the care provider. A manager investigated the complaint and concluded, “The investigation shows that the contract clearly outlines the cancellation fee and was signed by Mr (X), therefore agreeing him to the terms of the contract…. The statement of purpose and CQC registration clearly shows that Golden Services provided domiciliary care and not live-in care… he was aware that his mother would require live-in care from a different care company prior to her returning home”.
15. Mr X did not accept the outcome of the investigation. He complained to the Ombudsman.
16. The care provider started legal proceedings to recover the outstanding fees. Mr X paid the fees in full.
17. The care provider says during the time it provided care for Mrs A, her needs steadily increased. It says, “towards the end of 2019 and early 2020 the GP and palliative care team were involved and all strongly suggested that (Mrs A) needed full time care, either at home or in a residential setting.” It says Mr X was worried about the increased charges and the effect on his mother’s savings.
18. The care provider’s email correspondence with Mr X shows he was aware that his mother would require 24-hour care after her discharge from hospital. The care provider says he had ample opportunity to cancel the service with the requisite notice. It says “If there had not been the previous, lengthy conversations regarding (Mrs A’s) care needs we would have considered a sudden need for 24-hour care as an exceptional circumstance and we would have waived the fee. However, this had been a long-standing issue.”
19. Mr X complains it was unfair of the care provider to impose the cancellation fee as he had no choice but to end the contract because of his mother’s needs.
20. The care provider has updated its contract. It now says, “If you wish to permanently cancel your care services, unless exceptional circumstances prevail, 14-days written notice must be given to us.

If you permanently cancel your care services and do not provide 14-days written notice, a charge equivalent to 14-days care services will be levied.”

Analysis

21. The chronology of events here is such that Mr X was aware for some time that his mother was likely to need more care. He could have given notice on the contract once the hospital told him she should not go home without 24-hour care.
22. Mr X signed a contract which said a cancellation fee of “up to 14 days” charges would be levied if no notice was given of termination of the contract. The care provider could have charged less than the 14-day fee. It charged the full fee as it says Mrs A’s need for live-in care had been anticipated by all parties for some months.
23. The care provider charged a cancellation fee in line with the agreed contract.
24. The care provider has altered the wording of its contract but that has not made any difference to the situation here.

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Final decision

25. The care provider charged a cancellation fee in line with the agreed contract. No injustice was caused to Mr X by the actions of the care provider.

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Investigator's decision on behalf of the Ombudsman