Summary: Mrs Y complains on behalf of her late husband, Mr Y, that Cherrytree Residential Home failed to provide the required period of notice before asking him to leave, and retained the fees paid for the following month. We find no evidence that the home asked Mr Y to leave. On the balance of probabilities, it appears more likely than not that Mrs Y chose to move Mr Y. The home was therefore entitled to retain the fee paid as the requirement to serve 28 days’ notice is made clear in the contract signed by Mrs Y.

The complaint

1. The complainant, Mrs Y, complains on behalf of her late husband, Mr Y, that Cherry Tree Care Ltd failed to provide the required period of notice before terminating his placement at Cherrytree Residential Home (‘the home’) in December 2018. She says the home initially agreed to reimburse the fees paid for January 2019 but later retracted this agreement.
2. Mrs Y says the home’s actions have caused both distress and financial loss.

Back to top

The Ombudsman’s role and powers

3. 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. (section 26A or 34C, Local Government Act 1974)
4. 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)

Back to top

How I considered this complaint

5. During my investigation I spoke with Mrs Y and her daughter, Ms X, about the complaint. I also considered their complaints to the home, and the respective responses.
6. I made enquiries of the home and considered its response.
7. I consulted the relevant law and guidance, cited where necessary in this statement.
8. I issued a draft decision statement and invited comments from the home and Mrs Y. I considered the comments received before making a final decision.

Back to top

What I found

Legal and administrative background

9. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards which registered providers of 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.
10. Regulation 17 states: “The intention of this regulation is to make sure that providers give timely and accurate information about the cost of their care and treatment to people who use services. To meet this regulation, 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, treatment and support”

“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.
1. The statement must be in writing and, as far as reasonably practicable, provided “… prior to the commencement of services to which the statement relates”.
2. The Competition and Markets Authority (CMA) has produced guidance for care homes and their service users about contracts. This says that contracts should be clear, unambiguous, and written without jargon. The guidance says that care providers “… may want to include terms in your contract that give both you and the resident legitimate reasons for ending it (for example, because you can no longer meet the resident’s care needs even after making reasonable adjustments)”
3. Most care home residents in England are legally entitled to a minimum of 28 days’ written notice to vacate a care home under the Protection from Eviction Act 1977. Care homes may agree a longer notice period, provided it is set out in the contract.

What happened

14. Mr Y had a residential placement at ‘Cherrytree Residential Home’, which I will call ‘the home’. Mrs Y says she received a call from the home on 31 December 2018 asking her to locate a different home for Mr Y because it could not meet his increasing care needs. Mrs Y says the home asked her to move Mr Y within 48 hours. The home disputes this.
15. Mrs Y had already paid the fees for the upcoming month, January 2019. During the discussion Mrs Y says she asked the home about reimbursement of those fees. According to Mrs Y, the home said the finance manager was on annual leave, but it would arrange to refund the fees paid for January 2019.
16. Shortly after leaving the meeting, Mrs Y says she received a telephone call from the home. During the call Mrs Y says the home explained that it had reconsidered its decision, and that Mr Y could remain there albeit in a nursing bed. Mrs Y says the home told her there would be a fee increase as a result.
17. Mr Y moved to another home on 1 January 2019. The home told Mrs Y that it would not refund the fees already paid for January because it was her decision to move him immediately and without serving the required notice.
18. The home says Mrs Y had already located an alternative placement as she felt the home was not meeting Mr Y’s increasing needs. The home says it did not give notice for Mr Y to leave, verbally or otherwise. To the contrary, the home says it tried to persuade Mrs Y to change her mind.
19. Despite its efforts to persuade Mrs Y, the home says she maintained her decision to move Mr Y to another home which she had visited and arranged a placement at. The home says it explained the terms of the contract, and that 28 days’ notice of Mr Y’s departure would be required.
20. As Mrs Y did not provide the correct period of notice, and therefore breached the terms of Mr Y’s contract, the home says it is entitled to retain the January fees which Mrs Y had already paid.

Contemporaneous evidence

21. The service agreement dated 26 May 2017, which appears to show Mrs Y’s signature, includes the following terms and conditions:
• The service user or home may terminate this agreement at any time by giving 28 days’ notice to the other party. The notice to the care home must be served to the registered manager either by hand, post or email.
• The home will only be entitled to serve the 28-day notice if it is unable to meet the needs of the resident and after consultation with all stakeholders.
22. An entry in the ‘communication medical notes’ on 27 December 2018, four days before Mr Y’s departure, recorded: “senior carer and director spoke to [District Nurse name] today regarding whether [Mr Y] had been assessed for needing a hospital bed as [Mr Y] doesn’t have pressure sores he doesn’t require one and that it would be up to the family to purchase one if it is for comfort”. Mrs Y disputes this. She says the home which Mr Y moved to identified two unexplained pressure sores which it duly reported to CQC.
23. Four days later, another entry summarises a conversation between the home and Mrs Y: “[Mrs Y and Ms X] came to see [manager name] today and advised they have decided to move [Mr Y] to another home called [name removed]. [Mrs Y] advised she had already been to see the home and has made provisions for a room for [Mr Y] at the home. [Manager name] stressed that we could continue to meet the needs of [Mr Y] at the home and requested [Mrs Y] to reconsider her decision…. It is clear that [Mrs Y and Ms X] had made up their minds and this was not going to change… I advised there is a 28 day notice period to be given to the care home and this would be chargeable even though they have decided to take [Mr Y] now. [Ms X] said she did not feel they should be charged and there was a disagreement. [Manager] advised the home would standby the terms of the agreement and the 28 days would be charged”.
24. The notes go on to recall a telephone conversation with Ms X on 31 December 2018, in which she confirmed “… the decision had been made by [Mrs Y] to move [Mr Y] to another home and it was a decision they would like to stick with... [Ms X] advised he will be moving on 1 January, [manager name] then said she would of course help and speak with all parties concerned to ensure a smooth transfer of [Mr Y’s] care”.
25. Mrs Y disputes the notes of this call. She says the home had called her to confirm Mr Y could remain, albeit at an increased cost.
26. A letter, which the home says it hand delivered to Mrs Y on 31 December 2018, confirmed the following: “Thank you for attending the home today to confirm you have decided to move [Mr Y] to another home on New Years Day. As explained by [name removed] we have all the facilities and the ability to continue providing [Mr Y] with the care he needs and should you change your mind we would be more than happy to keep [Mr Y] at Cherrytree… As advised by [name removed] the payment for the 28 day notice period will still be chargeable by the home”.
27. Mrs Y says she did not receive this letter.

My findings

28. The Ombudsman makes impartial decisions based on evidence. 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.
29. The information provided by the home supports its argument that Mrs Y made an informed decision to move Mr Y, despite the requirement to pay for the notice period as outlined in the contract. Therefore, the home is not required to issue a refund to Mrs Y because she was bound, as per her contract, to serve a period of 28 days’ notice.
30. Mrs Y disputes much of what the home says. She maintains her view that the home asked Mr Y to leave with just 48 hours’ notice because it was unable to meet his increasing needs. Although Mrs Y has shared with me photographs of sores on Mr Y’s skin, which she says the new home discovered upon his admission, there is no evidence to support her claim that Mr Y required additional care which the home was unable to provide. To the contrary, the District Nurse said in their professional opinion that Mr Y did not require a specialist bed. Further, correspondence provided by Mrs Y also shows the new home provided a residential placement for Mr Y, rather than a nursing placement.
31. In my view, there is no evidence to support Mrs Y’s claim that the home served notice on Mr Y and so I do not uphold Mrs Y’s complaint.

Back to top

Final decision

32. I have completed my investigation with a finding of no fault for the reasons explained in this statement.

Back to top

Investigator's decision on behalf of the Ombudsman