The Ombudsman's final decision:
Summary: Miss X complains on behalf of Mrs Y that Platinum Community Care Limited overcharged Mrs Y for care provision. Miss X complains the care provider sent two carers per visit when Mrs Y only required one. Miss X says this caused financial loss to Mrs Y. We have found fault by the care provider who has agreed to provide a remedy to address the injustice caused.
- Miss X complains on behalf of her mother, Mrs Y, that Platinum Community Care Limited overcharged Mrs Y for care provision. Miss X says that for a period of about two weeks, the care provider sent two carers per visit to Mrs Y when she only required one carer per visit.
- Miss X says this caused financial loss to Mrs Y, and she would like the care provider to refund the costs of the additional carer.
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)
- We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
- If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
- If we are satisfied with a care 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)
- Under our information sharing agreement, we will share our final decision with the Care Quality Commission.
How I considered this complaint
- I have discussed the complaint with Miss X and considered the information she provided.
- I have made enquiries to Platinum Community Care Limited and considered the information it provided.
- Miss X and Platinum Community Care Limited have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.
What I found
Relevant law and guidance
- The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the Act) sets 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.
- Regulation 11 says care and treatment of service users must only be provided with their consent.
- Regulation 17 says care providers should securely maintain accurate and complete records in respect of each person using the service.
- The Care Quality Commission (Registration) Regulations 2009, (Regulation 19) says care providers must make written information available about any fees, contracts and terms and conditions, where people are paying either in full or in part for the cost of their care and support. As far as reasonably practicable, this should be provided before the start of the care provision.
- If a person has been in hospital, they may need some temporary support and care when they return to their home. This is known as reablement care.
- Mrs Y lives in an annexe of her daughter’s property. I will refer to Mrs Y’s daughter as Miss X. Mrs Y has a health condition which causes her to be unsteady on her feet and to sometimes fall over.
- In June 2020, Mrs Y stayed in hospital after having a fall. Following her discharge from hospital in July 2020, Mrs Y received temporary support from reablement carers who visited her four times a day.
- Miss X contacted Platinum Community Care Limited (the care provider) in August 2020 to ask if they could provide care to Mrs Y once reablement care ended. At about the same time, a social care assessor from the Council called Mrs Y to discuss the type of care she needed after reablement care ended. The assessor advised Mrs Y should continue to receive support four times a day from a single carer.
- The care provider visited Mrs Y at home in August 2020 to carry out its assessment of her needs and to establish how her care would be funded. Mrs Y said she would pay for her care herself. The care provider discussed with Mrs Y the type of care she needed and completed an initial assessment form. Miss X was not present at the time of the visit. During the care provider’s assessment, two reablement carers arrived as part of their scheduled visits.
- The care provider asked Mrs Y how many carers she usually had. Mrs Y told the care provider she was not sure as sometimes she had one carer and sometimes, she had two. The care provider says it discussed this with Mrs Y and agreed with her that it would start to provide care with two carers, four times a day. It said it would review this provision after one month.
- A few days after the assessment, the care provider produced a care and support plan. The plan said the care provider would visit Mrs Y four times a day, with two carers at each visit.
- Platinum Community Care Limited started to provide care to Mrs Y on 24 August 2020.
- On 31 August 2020, the care provider sent an invoice to Mrs Y showing a breakdown of the costs of the care provision.
Miss X’s complaint on behalf of Mrs Y
- On 2 September 2020, Miss X called the care provider because she was unhappy Mrs Y had been charged for two carers per visit. Miss X asked for the invoice to be reduced. The care provider declined Miss X’s request and said it had charged for two carers as agreed with Mrs Y.
- Miss X called the care provider again a few days later and said the social care assessment from the Council’s assessor said Mrs Y only needed one carer. Miss X emailed a copy of the assessment to the care provider.
- The following day, the care provider reduced the number of carers attending Mrs Y to one carer per visit.
- The care provider recorded the incident as a complaint and told Miss X on 11 September 2020 that it would review her request for a reduction of charges.
- Miss X asked the care provider for an update on 16 and 20 September 2020.
- The care provider replied to Miss X on 21 September 2020. It said it had carried out its own assessment of Mrs Y’s needs and discussed with her how many carers she needed. It said it agreed with Mrs Y during the assessment that it would provide two carers per visit, to ensure her safety and that of the care workers. The care provider said the charges were correct, and that it had charged Mrs Y at a single rate from the date it reduced the number of carers.
- Miss X replied to the care provider on the same day. She said the care provider had not told her Mrs Y would have two carers and she had not received anything in writing to say this would be the case.
- The care provider replied on 28 September 2020. It said consent forms and contracts are signed after the monthly review to ensure both parties are happy. It said the monthly review would be carried out later that week. It said that up to this point, the care provider operates based on the initial assessment and a verbal agreement. It said it would soon be sending the September invoice and requested payment of the August invoice in full.
- Miss X remained unhappy with the care provider’s response and brought the complaint to us.
- Mrs Y paid the August 2020 invoice in October 2020.
- The care provider says it is not common practice for it to obtain records about potential service users who are self-funded before it provides care. As a result, it says it did not know a social care assessor from the Council had carried out an assessment of Mrs Y’s needs. The care provider says it carries out its own assessments so that it can create person-centred support plans.
- I have reviewed the Council’s social care assessment and acknowledge it recommends one care worker to attend Mrs Y, four times a day. However, this assessment was carried out over the telephone because of the restrictions due to the Covid-19 pandemic. As a result, the assessor did not observe Mrs Y’s mobility issues and was not able to speak to her directly as she was not available at the time.
- I have also reviewed the care provider’s initial assessment, completed when it visited Mrs Y in August 2020. The assessment form says the care provider discussed the number of carers to be provided to Mrs Y and says Mrs Y agreed to have two carers at each visit. The form says the care provider would review this decision after one month. However, Mrs Y did not sign the assessment form. I acknowledge the care provider says Mrs Y was unable to sign because of her health conditions and that she verbally agreed the contents of the assessment. But I consider the care provider did not follow the form’s guidance about obtaining the service user’s agreement.
- The form says Mrs Y had capacity to provide consent. Under these circumstances, the form says if the service user is unable to sign, but can provide verbal consent, “a witness should be identified and asked to sign consent in the presence of staff and the service user…” The person named as the witness on the form is the care co-ordinator who carried out the assessment.
- The form says the witness should sign “in the presence of” staff and the service user. This indicates the witness should be someone other than staff or the service user. The purpose of a witness is to act as a neutral third-party who can verify the validity of the form’s content and the agreement of the service user. The care provider is not a neutral third-party and I consider the care provider’s actions were therefore not in line with the guidance provided on the form.
Is there fault by the care provider?
- I have not found fault in how the care provider decided to provide two carers. It assessed Mrs Y in a face-to-face meeting, observed her interaction with the existing carers and her level of mobility. The care provider can make its own determination about the level of care required. It does not have to depend on the previously completed social care assessment carried out by the Council, particularly as that assessment was carried out over the telephone.
- However, the care provider should provide the service user with a copy of the agreed care plan and as far as is reasonably practicable, agree the contract of care before the start of the care provision. Miss X says the care provider did not provide a copy of the care plan to herself or to Mrs Y.
- The care provider says it did not provide Miss X with the care plan because she was not party to the assessment and Mrs Y has full mental capacity. It says a copy of the agreed care plan was in Mrs Y’s home when it began providing care and the documents explaining the level of care were within the care plan.
- However, there is no evidence the care provider gave Mrs Y any documents to explain what level of care it would be providing as there is no signed copy of the care plan or contract.
- I acknowledge the care provider said it would provide consent forms and a contract after its first month review. I have seen an unsigned copy of the contract which sets out the care provision for Mrs Y and this shows the care provider was to provide two carers per visit. The contract says two copies of the care agreement are to be completed and both should be signed by the care provider and the service user, or their advocate.
- Miss X says Mrs Y was not initially provided with a contract, but later signed one in about December 2020, after care provision had started.
- However, the care provider says it has no signed contract with Mrs Y. It says the contract and the consent forms were given to Mrs Y at the initial assessment and were left with her so they could be signed. The care provider says Mrs Y wanted Miss X to sign them, but these documents are now missing.
- The care provider says it verbally agreed to provide two carers for Mrs Y. Miss X says Mrs Y thought she would only have one carer. Under these circumstances, the contract provides clarification about the terms and conditions agreed by both parties. However, as the contract, assessment form and care and support plans have not been signed by Mrs Y, or her advocate/witness, I have seen no evidence Mrs Y agreed to the terms of the care package, either at the time of its creation or since.
- The CQC’s guidance about the fundamental standards says records relating to the care and treatment of each person using the service must be kept and be fit for purpose, (regulation 17(2)(c)). This means care providers’ records must be complete and up to date. I consider the lack of a signed contract with Mrs Y is evidence the care provider has not maintained complete and up to date records. On this basis, I have found the care provider to be at fault.
- Having identified fault, I must consider if this caused Mrs Y a significant injustice. Miss X says Mrs Y has experienced financial loss by paying for two carers when she thought she would only receive care from one. The lack of a contract to clarify what was agreed led to avoidable confusion regarding this matter. Miss X also says she has spent a lot of time dealing with this issue.
- Having identified the injustice to Mrs Y and Miss X, I must consider an appropriate remedy. Our key principle is that the remedy should, as far as possible, put the complainant back in the position he or she would have been in but for the fault identified.
- To address the injustice arising from the fault identified, the care provider has agreed to take the following action within four weeks of the final decision:
- Provide an apology to Mrs Y and Miss X;
- Refund the charges for the second care worker to Mrs Y;
- Obtain and retain a contract and consent form signed by Mrs Y or her advocate;
- Remind staff to ensure service users’ records are accurately maintained, including obtaining and retaining signed contracts and consent forms;
- Remind staff that persons acting as witnesses to service users’ agreements should be an independent third-party instead of a staff member.
- I have found fault by the care provider who has agreed to take the above action to resolve this complaint. I have therefore concluded my investigation.
Investigator's decision on behalf of the Ombudsman