Summary: Mr B complains for a relative, Mr C, that his care provider wrongly decided he needed one-to-one care, put that care in place and increased his fees to pay for it. Mr C passed away during the course of this investigation. The Ombudsman finds the provider was entitled to increase the care provision and to change for it, but should have provided information about the increased fees as soon as reasonably practicable, and in this case there was a delay. However, the provider took action to waive the relevant fees for an appropriate period and therefore Mr C did not suffer injustice as a result.

The complaint

1. The complainant, whom I shall call Mr B, complains for a relative, Mr C, for whom he held Power of Attorney, that his care provider the Freemantle Trust:

• Wrongly decided he needed full time one-to-one care, put this care in place and increased his charges by £1900 a week to cover it;
• threatened Mr C with eviction because of the accumulation of over £50,000 arrears following the above action;
• wrongly advised other care providers that Mr C needed this level of care, leading them to conclude they could not meet his needs; and
• used agency staff who provided a poor standard of care.

2. Mr C passed away during the course of my investigation.

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The Ombudsman’s role and powers

3. 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)
4. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. If the person has died or cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (Local Government Act 1974, section 26A or 34C)
5. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. (Local Government Act 1974, section 26A or 34C)
6. We normally name care homes in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home. (Local Government Act 1974, section 34H(8), as amended)
7. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

8. I considered all the information provided by Mr B in support of the complaint. I made written enquiries of the care provider and considered the information it provided in reply. I provided Mr B and the care provider with a draft of this decision and took account of all comments received in response.

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What I found

9. Mr C had Parkinson’s disease and dementia. At the time of the events complained of, he was living in a privately commissioned care placement run by the Freemantle Trust. He was self-funding.
10. A lasting power of attorney is a legal document that allows someone to appoint one or more people to help them make decisions or to make decisions on their behalf. Mr C’s wife had Power of Attorney for his health and welfare and for his property and financial affairs. Mr B had joint Power of Attorney.
11. The contract for Mr C’s care signed by Mrs C in April 2017 showed weekly fees of £1583 but set out the provider reserved the right to change the fees payable at any time where there is ‘a change in the category of care or level of needs’.

One-to-one care is introduced

12. At the beginning of November 2017 Mr C attempted to take his own life with a ligature around his neck. A community psychiatric nurse (CPN) attended and advised that Mr C should have one-to-one observation day and night. Mrs C was advised.
13. The care provider says that the requirement for one-to-one care was not envisaged as permanent at this time and there was no intention to increase the cost of Mr C’s care to cover the one-to-one support at this point. Attempts were made over the next few months to reduce the level of care. But on 10 April 2018 when an overnight period without this care was attempted, Mr C made a further attempt at self-harm. One-to-one care was therefore reintroduced. Copy correspondence from April 2018 from a consultant psychiatrist refers to Mr C having put a cord around his neck and noted one-to-one care as probably the best management strategy for this.

Information provided to the family about the care and its costs

14. On 1 January 2018 Mrs C attended a meeting at the home at which the home manager and its clinical lead confirmed Mr C’s increased care needs (the one-to -one care) and the need to cover the costs of this. The record of this meeting notes that an application was being made for Continuing Healthcare (CHC) funding, but that Mrs C was aware that if this was not successful, the one-to-one care would be an additional cost to her husband’s care. The actual cost of the care is not recorded as discussed. Regarding the quality of care, Mrs C was said to be happy with that, although she wanted her husband to have more stimulating activities.
15. On 26 April 2018 the provider wrote to Mrs C about her husband’s increased needs and the need to invoice her for the cost of the additional support. In that letter it said family liaison manager had discussed this with her and that it would be invoicing her for the cost of the one-to-one care. A form was enclosed for completion and return, to provide agreement to meet the cost of the additional care. Mrs C did not sign the form. The letter did not say what the increased charges would be, but an invoice followed for the cost of the care from 1 February 2018.
16. On 25 May 2018 the care provider received its first communication from Mr B. He said one-to-one care was not necessary and that it had not been until Mrs C had received the invoice for the additional cost that the extra charges for this had come to light. I have noted above that Mrs C had been advised in January 2018 there would be an additional cost, though she was not told what the cost would be.
17. On 27 June 2018 there was a support plan review meeting with Mrs C. The record of the meeting noted a psychiatrist had visited and agreed Mr C was still at risk of self-harm and one-to-one care was to continue. Regarding cost, it said noted the one-to-one care was an additional cost outside the terms of the weekly fees contract, and the hourly fee for this was £11.71. Mrs C signed the record of the meeting. On the same day the provider wrote to Mr B about the meeting, saying that it had been identified that his involvement in future communications and decision-making would be beneficial for all parties. He was invited to a meeting, along with Mrs C, on 3 July. The provider sent him a copy of the consultant psychiatrist’s information from April.
18. Following the meeting on 3 July, at which Mr B had expressed concerns about the need for the one-to-one care and the associated costs, the provider wrote to him. It sent him evidence of communication with Mrs C since November 2017 about her husband’s challenging behaviour and suicide attempt and about covering of cost for the 1:1 care. The provider acknowledged however that no formal pre-billing notifications were provided to Mrs C in November when the one-to-one support had begun, and while it had agreed to pass on the extra cost from 1 February 2018 only it now agreed this would be revised so that it would apply from 1 April 2018 only.
19. By 15 October, further correspondence had been exchanged and this included some concerns raised by Mr B about the care being provided to Mr C. No payment towards the outstanding bill for the one-to-one care had been made. The provider wrote to Mr B requesting a support plan meeting in order to address any concerns about the care provided and setting out that it would not able to sustain the provision of the one-to-one support without the financial contribution. It said to move forward, it would cover 25% of the cost of the additional support from 1 April to 30 September 2018, but thereafter would provide the additional support only with full financial cover from Mr C’s funds. It said that without this, it would consider serving notice to terminate the contract and Mr C’s place in the home.
20. The meeting took place on 24 October 2018. The provider says that at the meeting the family agreed to pay, and on 31 October it wrote to Mr B and Mrs C accordingly and enclosing an adjusted invoice. The correspondence also noted concerns Mr B had raised about agency staff employed in Mr B’s care and agreed that a permanent care assistant from the provider’s own team of staff would be used in future.
21. By 24 December 2018 no payments had been received and the provider wrote again to Mr B. The statement of account dated 18 December 2018 showed £57,915.00 due at 18 December 2018. The letter advised that if balances were not settled by 4 January 2019 the 28-day tenancy termination notice would apply from 10 January and the provider would commence proceedings to recover the outstanding fees in full.
22. On 2 January 2019 Mr B asked for action to be delayed as he was equity release on Mr C’s house to pay the invoice. The provider confirmed on 10 January 2019 that proceedings would be suspended until 31 January 2019 but that it would show goodwill if a partial payment were made.
23. On 1 February 2019 the provider wrote to Mr B giving formal 28-day notice for termination of contract, so effective from midday on 28 February 2019. Mr C moved to an alternative provider on that date.

Analysis

24. The provider had a responsibility to safeguard Mr C and it was entitled to take account of the opinion of medical professionals directly involved in his care in respect of the level of care and supervision Mr C required. It was entitled to make provision accordingly and to charge for that care.
25. 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. When investigating complaints about a care or nursing home, the Ombudsman considers these Regulations and whether the fundamental standards set out in CQC guidance have been met. If they have not, he considers whether any identified faults have resulted in an injustice.
26. Regulation 19 of the Care Quality Commission (Registration) Regulations 2009 refers to fees. Guidance by the CQC says providers must notify people of any changes to their terms and conditions, including increases in fees, and give them sufficient time to consider whether they wish to continue with the service.
27. In this case, although the provider advised Mrs C about the one-to-one care being put in place, and in January 2018 that it would need to be paid for, no information about the cost of the one-to-one care was provided to her until April 2018. That was contrary to the CQC guidance referred to above and was fault. However, there is no unremedied injustice to Mr C because the additional costs for the period prior to April 2018 were waived, and later the additional costs for the period up to the end of September 2018 were reduced by 25%. Mrs C and Mr B, holding Power of Attorney, could have taken the decision to move Mr C to an alternative home at any point if they were dissatisfied with the level or quality of care being provided, or the costs of that care once they became aware of them.
28. The provider was entitled to serve notice requiring Mr C to quit the accommodation. It was not contrary to the contract and there was large and accumulating bill for care which had not been paid.
29. Mr B complains that the provider hindered the family finding alternative accommodation for Mr C by saying he needed one-to-one care. But it was appropriate that the provider shared information about the level of care it considered Mr C needed (and which it was providing). It was a matter for the other providers to decide if they could meet his needs.
30. Mr B also complains about the care provided to Mr C. He says carers displayed poor hygiene practices. I have not seen evidence that concerns about this were raised with the care provider at the relevant time. There is evidence that Mr B objected to the use of agency carers; that non-white carers had been allocated to care for Mr C despite his history which it was claimed meant this presented challenges for him; that Mr C was suffering falls despite being allocated a carer on a one-to-one basis; and that Mr C had been found with four chocolate wrappers in his mouth presenting a choking risk. These matters are subsidiary to the main complaint about the provision of one-to-one care and its costs, and I am satisfied that the provider addressed all these points appropriately.

Agreed action

31. Although there had been no personal injustice caused in this case, in order to prevent injustice being caused in the future to others because of similar actions by the provider, I recommended that within three months of the date of the decision on this complaint, the care provider:

• reviews its procedures to ensure that as far as reasonably practicable it provides information about changes in fees to service users prior to those changes taking effect, to ensure compliance with Regulation 19 of the Care Quality Commission (Registration) Regulations 2009 and associated guidance; and
• provides evidence to the Ombudsman of this review and any steps taken to improve its procedures in this regard.

32. The Council agreed to my recommendations and has complied with them.

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Final decision

33. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman