Summary: The care provider’s records show Mrs X refused replacement care after her disabled son Mr A injured his care worker, and that she asked to terminate the contract. The actions of the care provider in asking for the payment of notice specified in the contract did not cause injustice to Mrs X or Mr A.

The complaint

1. Mrs X (as I shall call her) says the care provider required the payment of four weeks’ fees after she gave notice of termination of the contract for care for her disabled son Mr A. Mrs X says she thought from her reading of the contract that because the care-worker had been injured by Mr A, a different contract clause would apply which would not require the payment of fees.

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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)
3. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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 the care provider (IPHS) and by Mrs X. We spoke to Mrs X. Both Mrs X and the care provider had an opportunity to comment on an earlier draft of this statement and I considered the comments before I reached a final decision.
7. 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.

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What I found

Government Guidance

8. The Competition and Markets Authority has issued general guidance on consumer rights and unfair terms. 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

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

Fundamental standards

10. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards. The Ombudsman considers the 2014 Regulations and guidance when looking at complaints about standards of care.
11. Regulation 17 says care providers should securely maintain accurate, complete and detailed records in respect of each person using the service ‘including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided’.

What happened

12. Mr A is a man in his 50s who has early onset dementia. His care plan says “he can become aggressive at times and throw things about causing damage and possible injury to who [sic] are in his way”. He lives independently in a flat: Mrs X lives in the adjacent block.
13. In June 2020 Mrs X arranged for IPHS to provide a live-in care service for Mr A. The contract says it was “To provide live-in care for the customer. The live-in care package will involve a programme of personal care and support with other daily activities associated with living at home. These are detailed in the customer care plan.” It says termination of the contract would occur when either party gave four weeks’ written notice.
14. The contract also said the provider could give immediate notice of termination under certain circumstances, including where:

5.5 The Provider considers that the Customer requires a level or category of Service which cannot be provided by the Provider then in any such event, and without prejudice to any other rights and remedies which the Provider may possess, the Provider shall be entitled to terminate this Agreement and, subject to the provisions of clause 5 and any preexisting liabilities of the Customer hereunder, neither party shall have any rights as against the other.

5.6 The Customer or parties representing them exhibits behaviour which the provider considers unsociable to such an extent that they seriously affect the well-being of staff working at the agency or the relationship between the customer or the agency is judged to have broken down for any reason.

15. Mrs X says the first carer was not satisfactory and she complained to IPHS about his standards of care. She emailed to say he did not clean the flat regularly, or shop often enough for food; he was often inattentive to Mr A’s needs and didn’t engage well with Mr A.
16. The care provider investigated the complaints and wrote to Mrs X upholding her complaints. The manager said his reported conduct had not been up to the care provider’s standards and he had been disciplined as a result. He left at the end of July 2020.
17. On 18 August Mr A became very agitated with the new carer and threw chairs and a table at her, causing soft tissue injuries. Mrs X telephoned the care agency and said she was prepared for the carer to leave that day. Mrs X said she did not want another carer. She agreed to put her decision in writing.
18. In her email Mrs X wrote that the placement had broken down and ‘we agreed with [the IPHS officer] that we would terminate the contract. We hope that as this was by mutual agreement we do not need to give 4 weeks’ notice. It is possible that terms 5.5 or 5.6 apply’.
19. IPHS sent Mrs X an invoice for the four weeks’ notice.
20. On 23 August Mrs X emailed IPHS again. She said she had not had a reply to her earlier email (of 18 August). She said her query about how the contract was terminated had not been answered. She said the IPHS officer had not offered a substitute or notify Mrs X she would need to pay the notice period. She said she would not pay the invoice.
21. The care provider replied on 26 August. The manager said she had listened to the transcript of the conversation and there was no agreement made with the officer (who did not have the authority to waive notice in any event) not to pay the notice period. She said terms 5.5 and 5.6 did not apply.
22. Mrs X requested a copy of the transcript, which the care provider sent.
23. Mrs X’s daughter also spoke to the care provider and said the recording was ambiguous. The IPHS manager agreed to speak to senior managers about the outstanding invoice. The manager wrote to Mrs X on 24 September and said the invoice still stood and the complaint was now closed. Mrs X replied on 26 September that there was nothing in the contract which covered the circumstances when care broke down because of an injury to the carer.
24. The care provider has sent me a transcript of the telephone conversation (as well as a copy of the correspondence it exchanged with Mrs X). In the conversation Mrs X says the carer has been hurt and is going to the station. The IPHS officer asks “Want somebody else to come in, or are we….”?. Mrs X replies “No,no” In response to the officer asking if she was sure, Mrs X says “I think we’re due to pay the bill the 24th…I think we’ll just give notice”. After further discussion the officer says “if you put that in writing I’ll forward it to (…) at head office”.
25. Mrs X complained to the Ombudsman. She said the transcript was ambiguous and in her view the clause 5.6 in the contract (“The Customer or parties representing them exhibits behaviour which the provider considers unsociable to such an extent that they seriously affect the well-being of staff working at the agency”) should have applied and they should not have had to pay four week’s notice.
26. The care provider says “We have reviewed the contract and there is nothing within the contract to say what happens when a carer leaves due to injury. In the event of a carer being suddenly unable to work for whatever reason, such as a bereavement or sickness, then our contractual obligations remain in that we will replace the carer to ensure continuity of care. In this case a replacement carer was refused”.
27. Mrs X says she remains unhappy about the communication from the care provider. She also says the IPHS officer did not give any assurance about the potential success of a new carer.

Analysis

28. I note how Mrs X read clause 5.6 of the contract. However, the relevant point here is not that the care provider withdrew care as it considered Mr A’s behaviour unsociable, but that Mrs X said she would give notice. The care provider offered replacement care: Mrs X refused.
29. The care provider abided by the terms of the contract in offering replacement care. That Mrs X thought notice might be payable is evident from the wording of her email giving notice.
30. The telephone call on 18 August could have been clearer about the notice payable. But I am satisfied both that the IPHS officer did offer replacement care which was refused, and that Mrs X said she would give notice.

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Final decision

31. I have completed this investigation on the basis that the actions of the care provider did not cause injustice to Mrs X or Mr A.

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Investigator's decision on behalf of the Ombudsman