Summary: Miss C said The Evergreen Care Trust was at fault for ending a contract with her without reason and for charging her for a service she did not receive. Evergreen Care Trust was at fault for terminating Miss C’s contract without allowing her to comment on allegations made against her by staff members. This caused Miss C injustice because she was distressed. Evergreen Care Trust has already apologised for that fault and waived a month’s fees. No further remedy is required. Evergreen did not charge Miss C for a service she did not receive.

The complaint

1. Miss C makes various complaints against The Evergreen Care Trust, (‘the Provider’) which provided domestic services for her in 2020. She says the Provider:
1. did not ensure that one home support worker (HSW) visited her regularly but, instead, sent various HSWs over the course of the contract,
2. required her to pay for services she did not receive during a national lockdown,
3. contacted her local community mental health care trust (CMHT) about her saying things which were not true at a time when she had withdrawn her consent for the Provider to communicate about her,
4. failed to apologise or take action against one of its staff members, Miss X, after Miss X was rude to Miss C and, on the last day of the contract, damaged paving slabs outside Miss C’s property with her car, and
5. gave notice to end the service without explanation in November 2020.
2. Miss C said this caused her distress and worsened her mental health.

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What I have investigated

3. Miss C says the Provider breached her privacy by sharing information with the local CMHT. I have decided that the Information Commissioner’s Office would be best placed to consider this part of Miss C’s complaint and so I have not investigated it.

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The Ombudsman’s role and powers

4. Since October 2010, the Ombudsman has had the power to investigate complaints about adult social care providers who are carrying out regulated activities (activities which are, or can be, registered by the Care Quality Commission) from people who arrange and fund their own care.
5. 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)
6. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
7. We investigate complaints about ‘regulated activity’. The definition and scope of regulated activity is set out in the Health and Social Care Act 2008 and the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Regulation 8(2) of the Regulations says, “an activity which is ancillary to or is carried on wholly or mainly in relation to a regulated activity shall be treated as part of that activity”.
8. Section 9(3) of the Health and Care Act 2008 states, “social care includes all forms of personal care and other practical assistance provided for individuals who by reason of age, illness, disability, pregnancy, childbirth, dependence on alcohol or drugs or any other similar circumstances are in need of such care or other assistance”.
9. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
10. The Ombudsman is satisfied that, because of the above, this complaint and this Provider are within the Ombudsman’s jurisdiction

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How I considered this complaint

11. I read Miss C’s complaint. The Provider sent information to the Ombudsman which I also considered. I corresponded with Miss C by email. I researched the relevant law and guidance and applied them to the facts.
12. Miss C and the Provider had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should happen

Competition and Markets Authority guidance

13. In August 2020, the Competition and Markets Authority (‘the CMA’) issued its Statement on coronavirus (COVID-19), consumer contracts, cancellation and refunds. The guidance “sets out the CMA’s views as to how the law operates, to help consumers understand their rights and to help businesses treat their customers fairly”.
14. The guidance says some contracts were ‘frustrated’ by lockdown laws: that is, due to no fault of either party to the contract, the provider could not provide goods or services to the customer. Where this happened, the CMA says, “the contract comes to an end and, where consumers have paid money in advance for services or goods that they have yet to receive, they will generally be entitled to obtain a refund. They will also not be required to make further payments”.
15. Where there is an ‘ongoing contract’ for goods or services, the CMA says consumers will normally be entitled to a refund for any services they have already paid for which are not provided by the business because of lockdown laws. They can also normally withhold payment for services that are not provided
16. A business may be able to require the consumer to make a small contribution to its costs until the provision of the service is resumed, but only where the contract set this out clearly and fairly and the consumer is free to end the contract if they do not wish to pay these fees
17. The CMA says, “a business should not seek payments for a service it knows it will be unable to provide”.
18. If a business seeks to vary a contract because of lockdown laws and relies on terms of the contract which gives it the right to do so in certain circumstances, (‘variation clauses’) the CMA says this is “likely to be unfair and unenforceable under Part 2 of the Consumer Rights Act 2015 if:
• They have the effect of a ‘blank cheque’ allowing a business to adjust important aspects of the contract at will’,
• the business is not required to give the consumer reasonable notice of any changes, or
• the consumer does not have a right to freely cancel the contract without being left worse off.

Health and Social Care Act regulations

19. The Provider is regulated by the Care Quality Commission (CQC). The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, (‘the Regulations’) regulate the way that regulated providers should provide services.
20. Regulation 9 of the Regulations states that care and treatment of service users must be appropriate, meet their needs and reflect their preferences. The CQC has provided guidance on how providers should apply this regulation. It says providers must, therefore, involve the service user, or those making decisions on their behalf, when designing services and provide them with information they would reasonably need when making decisions about the service they receive.

What happened

Background

21. Miss C is an adult living in the area serviced by the Provider. The Provider is a charity which carries out various functions for those in need including ‘home support’. This involves carrying out shopping, laundry and cleaning.
22. The local CMHT recommended the Provider’s services for Miss C. The Provider says Miss C signed a contract in December 2019. Miss C says the service did not begin until March 2020. The Provider provided two hour’s cleaning per week and a shopping service.

Contract terms

23. The Provider’s care contract states, among other things, that:
1. “You will be allocated a regular HSW who will in time learn of your particular requirements, routines and preferences…Your regular HSW will attend you at home on the agreed days and times unless due to illness, holidays or some other unforeseen circumstances [they are] prevented from doing so”.
2. “If for any reason [the Provider] is unable to provide an alternative appointment or a replacement HSW for the call, you will not be charged”.
3. “You will be charged for the services of your HSW on a time basis. Time will be charged in hourly units”.
4. “[The Provider] will make every effort to keep the charges for the Home Support Service as minimal as possible…. However, [the Provider] reserves the right to periodically increase charges to maintain the financial viability of the Home Support Service by giving you one month’s prior written notice of any proposed increase in charges”.
5. “[The Provider] can suspend the Home Support Service or any part of it when it is not possible to provide the service for any reason beyond [the Provider’s] reasonable control.”

Complaint

24. In March 2020, the country went into lockdown. The Provider was unable to provide services within the home to some clients.
25. Miss C says the Provider wrote to her and asked her to continue to pay 75% of the cost of the cleaning service during lockdown. She says it said she did not have to but, if she chose not to, she would lose the shopping service too.
26. The Provider says it telephoned Miss C in mid-March 2020 and put three options to her:
1. To give notice and cancel the service completely as non-essential domestic work was no longer possible during lockdown, apart from those at high risk (this group included Miss C),
2. To reduce the hours she paid for under the contract, or
3. Retain the service with no visit. This would guarantee they would keep the same HSW after lockdown. She would pay 75% of the cost and receive daily phone calls from her HSW.
27. Miss C and the Provider agree that she chose option c) above. The lockdown lasted for two months after which normal service was resumed.
28. The Provider says Miss C was a difficult client and, over the course of their arrangement, several HSWs asked not to work for her. The Provider says that, by November 2020, it had no carers left who were prepared to work for Miss C so, in late November 2020, it wrote to her giving her one month’s notice that it would end the service in December 2020.
29. The Provider accepts it did not put allegations from HSWs to Miss C or give her the chance to respond to them before giving her notice.
30. Miss C says that, after the decision was made to terminate the contract, her current HSW, Ms X, became rude and took shortcuts in her duties. She therefore wrote to the Provider saying she would not allow Ms X into her home again. She said Ms X should return her washing on the final day of the contract but did not want further visits.
31. On the last day of the contract, Miss X went to Miss C’s property for the last visit. She says she brought Miss C’s clean sheets with her. Both Miss C and the Provider agree that the visit took place and did not go smoothly.
32. Miss C says Miss X arrived in her car, deliberately parked on her paving stones, which broke them, and was rude to Miss C. The Provider says Ms X accidentally parked on the paving stones which may have already been broken. It says Miss C would not let her in to clean and made her pass the sheets in through the window. Miss C says the sheets were not properly washed or ironed. Miss X denies this.
33. Miss C complained to the Provider the next day setting out her version of events. The Provider’s chief executive replied to Miss C apologising for her distress and saying the matter would be taken seriously.
34. Miss C replied to the Provider. She said Miss X had intentionally damaged six paving slabs outside her house with her car, had been rude and had put Miss C at risk. She sent a photo of Miss X’s car parked on a paving slab outside the house.
35. The Provider sent its complaint response in early January 2021. It said it had interviewed Miss X who had provided her version of events: she said she had arrived at Miss C’s house in the rain with the clean sheets. Miss C had refused to let her in and asked her to pass the sheets through the window, which she did. She phoned the Provider to tell her supervisor she could not get in and left. She said she was there for five minutes.
36. The Provider apologised to Miss C for its failure to put allegations of unreasonable behaviour made by HSWs against her before terminating the contract, so she could answer them.
37. A week later, the Provider wrote to Miss C again, apologising for any damage to slabs outside her house and agreeing to have them repaired.
38. Miss C wrote to the Provider on two further occasions asking for action be taken against Miss X for intentional damage of her property.
39. At the end of January 2021, the Provider wrote to Miss C saying it had investigated her claims of intentional damage. It said Miss X had adamantly denied the allegation and said it would have been out of character for Miss X to behave that way. Therefore, the Provider said it did not uphold the complaint. Nonetheless, it said, it would carry out the remedial works on the slabs as fast as it could, given the pandemic, and would pay the bill. It has since done so. It also withdrew the bill for December’s service as a gesture of good will.

Miss C’s complaint

40. Miss C complained to the Ombudsman about the matters set out in paragraph 1 above. The Provider largely denies Miss C’s allegations but has admitted that Miss X did park accidentally on a paving slab outside her property.

Analysis

Sending various HSWs to provide service to Miss C

41. Miss C has said that various HSWs provided the service. This was, she says, contrary to the Provider’s commitment in the contract.
42. The Provider says this was because HSWs found Miss C to be intimidating. It says the first HSW allocated to her refused to return after six months. Over time, other HSWs made the same decision. In the end, the Provider says, it had no choice but to terminate her contract as it had no more HSWs.
43. The Provider’s contract states that, where there are ‘unforeseen circumstances’, it can send alternative HSWs. If Miss C was rude to HSWs who subsequently refused to go to her home, that would be an unforeseen circumstance which would be sufficient to allow them to use other HSWs.
44. Miss C and the Provider have given different versions of events. I cannot know what the facts were so, in the circumstances, I do not uphold this part of Miss C’s complaint.

Requiring Miss C to pay for services she did not receive

45. The CMA guidance is clear that, where a contract was “frustrated” by lockdown laws, as in this case, customers should not be required to pay for services that they do not receive.
46. In this case, however, the Provider says that it offered Miss C a range of alternatives. It said Miss C could stop the service, reduce her hours or maintain the service and pay 75% of the cost of her home visits. She would receive daily phone calls, if she did so and, if required, the HSW would come to her house.
47. This, the provider said, allowed, “the potential opportunity for members to call [the Provider] if they had any anxiety, concern, emergency or need for items bought and delivered without further additional charge”. If customers did not choose this option, they would have to pay for such visits.
48. Therefore, on balance, it is my view that this was not an unfair contract term as identified by the CMA but a freely entered into commercial arrangement in which Miss C was able to choose between the expense of paying a retainer and the risk of incurring greater expenditure later.
49. For that reason, I do not find the Provider at fault.
50. Miss C says that she received less than one call a week and that this was often to check that she did not have COVID before a visit. I cannot say what would be sufficient or insufficient provision. This is a contract dispute and not, therefore, in my view, a matter for the Ombudsman.

Contacting Community Mental Health Trust

51. As stated above, this is best considered by the Information Commissioner, as set out in my paragraph nine above.

Damage to paving stones, Miss X’s rudeness and failure to apologise

52. The Provider investigated Miss C’s allegations. Having done so, it decided Miss X’s version of events was more likely to be true. It wrote to Miss C explaining the reasons for this decision. The Provider apologised for Miss C’s distress but could not be expected to apologise for Miss X’s rudeness or damage to the paving slabs as it did not accept that these complaints were justified.
53. Later, Miss C sent a photograph to the Provider which showed Miss X’s car wheel positioned on one of Miss C’s outside paving slabs. Until it received this, the Provider had not accepted that Miss X had parked on the slabs at all. After seeing the photograph, the Provider accepted that Miss X had parked on the slabs but did not accept Miss C’s claim that she had done so deliberately nor that she had caused the damage Miss C claimed. Again, the Provider gave good reasons for this decision. Despite the fact that there was no evidence that Miss X had caused the damage, it agreed to pay for the repairs. It also apologised. I do not find fault.
54. Miss C says the repairs took an unacceptably long time. The evidence shows that it was extremely cold in the spring of 2021. It was also a time when COVID restrictions were in force. Both of these factors combined to make it difficult to arrange the repairs so some delay was understandable. I do not find fault.

Withdrawal of service without warning

55. In November 2020, the Provider wrote to Miss C and informed her that it would be terminating the service. It did not say why. It provided her with a list of alternative providers and offered to help her find one.
56. According to the CQC guidance on regulation 9, the Provider should have given Miss C information about its concerns to help her realise how her behaviour might affect her right to the service in future. It should have put the allegations to her and allowed her to respond.
57. The Provider has accepted that it should have done so and has already apologised to Miss C. This was fault but I do not consider that any further remedy is required.

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Remedial action

58. No further action is required because the Provider has already apologised for the fault found. It has also waived a month’s fees and paid for damage to paving slabs outside Miss C’s house.

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Final decision

59. I have made a final decision and have closed my investigation.

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Investigator's decision on behalf of the Ombudsman