Summary: Mrs X complained that her mother, Mrs Y, contacted the care provider who arranged for someone to take her out into the community. Mrs X says Mrs Y was told this would be free of charge, but invoices were sent to her causing distress. We found the care provider failed to give Mrs Y written information about costs at the outset and failed to keep notes of telephone conversations. In recognition of the injustice caused the care provider has agreed to apologise to Mrs Y and make a payment to her.

The complaint

1. Mrs X complains that her mother (Mrs Y), who is vulnerable, contacted Austin Ben Ltd (the care provider) because she was lonely. It arranged for someone to take her out into the community. Mrs X says Mrs Y was told this was free of charge but invoices were sent to her causing stress.

Back to top

The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about adult social care providers and decides 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. If we are satisfied with an organisation’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)
5. 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.

Back to top

How I considered this complaint

6. I have considered all the information provided by Mrs X, made enquiries of the care provider and considered its comments and the documents it provided.
7. Mrs X and the care provider had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

Back to top

What I found

Legal and administrative background

Fundamental Standards of Care

8. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.
9. Regulation 17 states providers must “maintain securely and accurate, complete and contemporaneous record in respect of each service user, 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”.

The Care Quality Commission (Registration) Regulations 2009

10. Regulation 19 states:

“1. Where a service user will be responsible for paying the costs of their care or treatment (either in full or partially), the registered person must provide a statement to the service user, or to a person acting on the service user's behalf—

1. specifying the terms and conditions in respect of the services to be provided to the service user, including as to the amount and method of payment of fees; and
2. Including, where applicable, the form of contract for the provision of services by the service provider.

2. The statement referred to in paragraph (1) must be—

3. in writing; and
4. as far as reasonably practicable, provided prior to the commencement of the services to which the statement relates”.
3. The intention of this Regulation is to ensure care providers give timely and accurate information about the cost of their care and treatment to people who use services.

Key facts

12. In June 2022 Mrs Y telephoned the care provider asking for help in accessing the community. Two care coordinators visited her on 11 June 2022 to complete an assessment. They recorded that Mrs Y only required social calls. Mrs Y signed the terms and conditions and the service user’s consent form.
13. Mrs X arrived at her mother’s home just as the care coordinators were leaving. She provided her email address for invoicing purposes.
14. The care provider arranged for a carer to visit Mrs Y each week to take her out. The first visit took place in the week commencing 20 June 2022.
15. On 26 July 2022 the care provider sent an email to Mrs X attaching a statement of outstanding invoices for the previous four weeks (since Mrs Y first began receiving the care package). The email asked for payment at her earliest convenience.
16. Mrs X responded saying “is this for information?”. The care provider replied saying, “Yes it is, we will continue to send weekly invoices to yourself. Every four weeks we send out a statement of the account so you can see where you are with the payments”. It went on to say, “What will be your preferred payment method? i.e. bank transfer or cheque?”.
17. Mrs X responded saying “My mum will pay you directly-is this what you have on your records?”. The care provider replied “We have it on our records that we are to email you the invoices weekly and you will pay either via bank transfer or cheque? If this is not the case, how would Mum be paying her invoices?”. Mrs X responded saying “I will pay by bacs [bank transfer] at the weekend”.
18. Mrs X says she telephoned Mrs Y to tell her that there were invoices that needed to be paid. She says her mother was shocked and said the carer had told her the service was free because the council was paying. She says Mrs Y telephoned the carer to check this and he confirmed the council was paying. So, Mrs X thought it had all been a misunderstanding and the matter was resolved.
19. On 24 August 2022 the care provider sent Mrs X invoices for the previous four weeks.
20. On 26 September the care provider sent an email to Mrs X enclosing 13 outstanding invoices totalling £684. It said it had not received payment for any of the care provided to Mrs Y and asked Mrs X to advise when payment would be made. The following day it wrote to Mrs X again saying the care package had been suspended until payment of the outstanding amount for 20 June to 25 September was received. The same day Mrs X made a complaint to the care provider.
21. The care provider responded to Mrs X’s complaint on 15 October. It said it had discussed the costs with Mrs Y at the assessment. She had suggested fortnightly visits at first because of the cost but, on 7 July, she telephoned the office requesting the visits be increased to weekly. The care provider also said the invoices had been sent to Mrs X and she had agreed to pay by bacs.
22. On 31 October the care provider sent Mrs Y hard copies of all the invoices and requested payment in full within 14 days. Mrs X responded saying her mother was told by her carer that the service was free. She said the care provider had never sent any invoices to her mother previously and, if it had done so, the error would have been picked up earlier. She said there is no way her mother would have agreed to pay £57 per week to be taken out.

Analysis

Costs

23. The care provider says Mrs Y was informed about the cost of her care at the assessment on 11 June and the care coordinators had no reason to believe there were any issues relating to her capacity to make decisions about her care needs. Mrs X does not dispute this. She says her mother arranges all her own care and support.
24. There is no written record that the services and costs were explained to Mrs Y at the assessment. The assessment document simply states, “self funder - called up office and requested an assessment”. There is no evidence of what Mrs Y was told about costs. This was poor administrative practice.
25. In addition, the care provider gave no written information to Mrs Y before the service began setting out what services it would provide for her and how much this would cost. Although Mrs Y signed the terms and conditions and a service user agreement, these documents did not include any information about costs.
26. This is a breach of Regulation 19 which requires openness and transparency around costs of care and support. Care providers must give service users information about the terms and conditions of their care or support, including the requirement to pay for it and the expected costs. This information must be provided in writing before the commencement of the services.
27. The care provider should have given Mrs Y written information about the cost of the service before it began so she could make decisions about it. The assessment was on 11 June and the first visit was not until 20 June so there is no reason it could not have done this. It should have confirmed in writing that Mrs Y was responsible for paying the costs of the visits. This would have avoided later confusion.
28. In response to my draft decision the care provider said it did not provide a regulated activity, such as personal care, to Mrs Y who was purely a social client. So, it considers it is not in breach of Regulation 19.
29. I remain of the view that Regulation 19 is applicable here even though the care provider was not providing a regulated service to Mrs Y because it was providing her with social care. Section 9 (3) of the Health and Social Care Act 2008 provides that "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". The definition of social care in section 9 (3) of the 2008 Act is therefore broader than the scope of activities which are currently regulated by CQC and I consider the service provided to Mrs Y falls within this definition as she was receiving “other practical assistance” to access the community and she needed this assistance because of her age.
30. In any event, whether Regulation 19 applies or not, we would still expect, as a matter of good administrative practice, that service users are provided with clear written information on costs at the outset and the Ombudsman will find fault when there is no evidence that this was provided.
31. Mrs Y received the benefit of the service for 13 weeks. I cannot say whether she would have gone ahead with the service if she had received written information about the costs at the outset. But the failure to provide information caused uncertainty and confusion.
32. I am pleased that the care provider has reviewed its procedures so that, in future, an initial agreement form will be completed at assessment with a breakdown of costs and the service user will be required to sign this. However, I also made further recommendations to remedy the injustice suffered by Mrs Y.
33. Mrs X was aware of the charges from 26 July 2022. By this time only two visits had taken place. She agreed to make the payments by bacs when the care provider sent invoices to her.
34. Mrs X says she was under the impression her mother would be paying the invoices but would not be able to complete a bacs payment, so she decided to visit her at the weekend to get the cash from her to put in her bank account and then make a bacs payment on her behalf. She says she then spoke to Mrs Y who told her the service was paid for by the Council.
35. The care provider denies that the carer told Mrs Y the care would be free of charge. It says the carer would not have been aware of any financial information. The carer has also denied saying this. He said he was not aware of funding information for clients, so would be unable to give advice on financial matters. He said, if this question was asked, he would advise the client to telephone the office.
36. This is a question of one person’s word against that of another. In the absence of independent evidence supporting either version of events, I am unable to reach a view on what the carer said to Mrs Y. But, when the invoices were sent to Mrs X on 26 July, it should have been clear to her that payment was due. The care provider asked Mrs X, “What will be your preferred payment method?”. It also said, “We have it on our records that we are to email you the invoices weekly and you will pay either via bank transfer or cheque? If this is not the case, how would Mum be paying her invoices?”. If the Council was paying for the service, the care provider would not have sent invoices to Mrs X and asked her how Mrs Y would be paying the invoices.
37. Mrs X confirmed she would pay the invoices by bacs. She did not ask the care provider to cancel the service or say that her mother could not afford to pay for it.
38. Further invoices were sent to Mrs X on 24 August. She did not pay them, but neither did she raise any concerns.
39. Mrs X says the care provider should have sent paper invoices to Mrs Y. The care provider says it is its practice, when assessing private clients, to obtain an email address to send out statements rather than sending paper copies. Mrs X accepts she gave the care coordinators her email address for this purpose. There are no grounds to criticise the care provider for sending invoices to Mrs X by email.

Record keeping

40. The care provider has been unable to provide notes of telephone conversations with Mrs Y, for example the telephone conversations on 8 June and 7 July 2022 referred to in its response to Mrs X’s complaint. This is poor administrative practice. It is also a breach of Regulation 17 of the fundamental standards which requires care providers to keep accurate, complete and contemporaneous records in respect of each service user. Failure to keep accurate records of telephone conversations causes Mrs Y further uncertainty.

Complaint response

41. The care provider’s terms and conditions state that it will acknowledge complaints within seven days and provide a substantive response with 28 days.
42. Mrs X complained on 27 September. The care provider did not acknowledge the complaint causing Mrs X uncertainty about whether it had been received. However, the care provider did provide a substantive response on 18 October which was within the 28-day timescale. So, I do not consider a remedy is warranted.

Back to top

Agreed action

43. The care provider has agreed that, within one month, it will:
• apologise to Mrs Y for the injustice caused by failing to provide information in writing at the outset about the cost of her care and for failing to keep records of telephone conversations;
• pay Mrs Y £250; and
• issue a reminder to relevant staff to:
1. keep a record of meetings with service users funding their own care to confirm what support they require and what they are told about charges and payment;
2. ensure all service users receive clear written information before their care and support starts about what service the care provider will be providing and at what cost; and
3. keep a record of all meetings and telephone conversations concerning the service user.
44. The care provider should provide us with evidence it has complied with the above actions.

Back to top

Final decision

45. I find the care provider’s failure to give Mrs Y written information about the costs of her care package at the outset and its failure to keep written records of telephone conversations caused her an injustice.
46. I have completed my investigation on the basis that the care provider has agreed to implement the recommended remedy.

Back to top

Investigator's decision on behalf of the Ombudsman