Summary: the complainant Mrs X complained about the poor service given at the Care Provider’s Mortain Place care home at Pevensey Bay Road Eastbourne and its offer of a remedy. The Care Provider said it provided care in line with the care plans but recognised Mrs X’s dissatisfaction and offered £500. We found the Care Provider caused an injustice for which it offered a proportionate remedy.

The complaint

1. The complainant whom I shall refer to as Mrs X complains that Barchester Healthcare Homes Limited (the Care Provider) did not provide the care she commissioned for Mr X’s care in line with his care and support plans. This resulted in Mrs X removing Mr X from the care home within three days.
2. Mrs X says this caused her much distress and anxiety at a time she had planned respite care to relieve the stress of caring for Mr X. Mrs X wants the Care Provider to refund all the care costs paid on Mr X’s admission. Mrs X says the goodwill payment as the Care Provider termed it of £500 did not fully address the injustice caused.

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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. If they have caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
4. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
5. If 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)

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How I considered this complaint

6. In considering this complaint I have:
• Contacted Mrs X and read the information presented with her complaint;
• Put enquiries to the Care Provider and reviewed the responses received;
• Researched the relevant law, guidance, and policy.
7. I shared with Mrs X and the Care Provider my draft decision and reflected on comments received before reaching this my final decision.
8. 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.

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What I found

The law and contractual terms

9. Under the Care Provider’s contract’s terms and conditions, care fees paid in advance are not refundable however:

“This fee will be proportionately refunded where the residence is terminated earlier if the reason for termination is that we cannot reasonably provide care that meets your needs.”

10. The Care Quality Commission (Registration) Regulations 2009 (CQC Regulations) state Care Providers must make written information available to clients about any fees, contracts, terms, and conditions, where people are paying either in full or in part for the cost of their care, treatment, and support. (Care Quality Commission (Registration) Regulations 2009, R 19)
11. In November 2018, the Competition and Markets Authority issued advice to care providers on consumer law. It says at paragraph 4.16 of that advice:

“A term requiring a resident to pay a wholly or partially non-refundable fee on signing a contract is likely to be unfair under consumer law…”

12. Only the courts may decide if a contract term is unfair under consumer law. However, we can consider if the Care Provider has done enough to ensure clients understand the terms and conditions they have agreed to before accepting care.

What happened

13. In June 2020 Mrs X decided she needed a respite break from her caring role for her husband, Mr X. At 86 years old Mr X suffers severe Aphasia, can barely speak, or understand conversation, and needs support in all aspects of daily living.
14. Mrs X visited Mortain Place, 93 Pevensey Bay Road, Eastbourne (the Care Home) run by the Care Provider. After discussion with the care home representative Mrs X booked respite care for three weeks from 13 July 2020. Mrs X says during the meeting and a later telephone consultation with the Care Provider she explained fully Mr X’s need for guidance and support including getting ready for bed and mealtime supervision.
15. The Care Provider says it sent Mrs X a copy of its brochure outlining its services, with a contract with all the terms and conditions on 1 June 2020. On 7 July 2020, the Care Provider issued an admission confirmation letter.
16. With the Covid-19 pandemic Mrs X understood Mr X would be in isolation for the first two weeks. However, Mrs X says she understood from staff that she would be able to talk to Mr X by telephone and via Skype.
17. Mrs X says she contacted the Care Home and arranged a Skype call with Mr X the day after his admission at 8.30pm. When she called the Care Home staff told her the Care Home was offline. The staff member then asked, ‘what did she expect the staff member to do, she was currently engaged in administering medication’. Eventually Mrs X got through to Mr X, but the poor connection made it difficult for her to speak with him. Mrs X says the Care Home has only one tablet to use for Skype calls shared between 80 residents. Mrs X says families had no alternative way of communicating with loved ones during the Covid 19 pandemic and the Care Provided should provide more to improve communication.
18. Mrs X says she told the Care Provider staff needed to encourage fluid intake and she left cordial in Mr X’s room to help them do that. However, following a blood test on 14 July 2020 the GP said Mr X’s heart failure had advanced. Alarmed by the decline in Mr X’s condition Mrs X says she decided to bring Mr X home on 16 July 2020. Mrs X told the Care Provider she would collect him but to avoid causing anxiety or confusion for Mr X not to tell him about his return home. On arrival Mrs X says she found Mr X’s clothes etc piled up ready for packing and the bed stripped. Mrs X says Mr X found this distressing and confusing.
19. In response to my enquiries the Care Provider says it understood Mrs X removed Mr X early because of his declining health and because Mrs X found the separation difficult. In the Care Provider’s records a staff member wrote Mrs X had spoken with her before departure. She says Mrs X said, “ she was finding [the separation] too difficult… it was relating to absolutely nothing on Mortain Place and she thanked me for all we had done she just wanted [Mr X] home”.
20. The Care Provider’s records show it carried out risk assessments for Mr X including a choking hazard assessment. The care plan says staff should be nearby during mealtimes to help Mr X should he experience a choking episode. The fluid and food intake records note on one day Mr X had not received enough hydration and that he needed staff to offer him more fluids. The well-being checks record show staff looked in on Mr X through the day and night during his isolation and offered drinks which sometimes he declined.
21. Mrs X complained to the Care Provider using its complaints procedure. Mrs X said the care did not meet the standard she expected. Mrs X cited issues over Skype calls, lack of proper supervision of fluids and unsupervised mealtimes. Further she said Mr X did not receive help at bedtime and staff did not ask if Mr X wanted the doors unlocked so he could use the patio outside his room.
22. The Care Provider considered the complaint at all three stages of its complaints’ procedure. In its final responses it recognised Mrs X’s poor experience of the expected Skype call service. The Care Provider explained it had two tablets at the Care Home. However, these had not been available at the time. Staff had offered a telephone call as an alternative. The Care Provider recognised staff had sounded unintentionally rude and would receive further training to address that.
23. On fluid intake the Care Provider said its records show Mr X received the fluid target set in his care plan and received offers of further fluids some of which he declined. The records also showed staff had served Mr X food in his room and remained nearby in case he began choking. The Care Provider says previous choking episodes had not occurred due to eating or at mealtimes.
24. The preadmission assessment the Care Provider said suggested Mr X could ready himself for bed. The Care Provider said it encouraged independence so long as it presented no risk and had staff nearby to help. The Care Provider intended Mr X should have access to the patio outside his room. It apologised staff had not asked Mr X if he wanted to go outside rather than wait for him to ask and unlocked the door for him. This meant he stayed in his room for much of his three days stay without the benefit of getting outside.
25. The Care Provider recognised it had returned soiled clothing to Mrs X when she collected Mr X to take him home. The Care Provider explained the short notice given for Mr X’s departure meant it had not had time to clean all his clothing. The Covid -19 pandemic rules in place meant staff must bag clothing including soiled clothing for 72 hours before laundering.
26. Mrs X asked the Care Provider not to tell Mr X about going home to prevent him becoming confused and distressed. The Care Provider explained it could not comply with this instruction because staff could not collect Mr X’s belongings and begin packing without explaining to him why.

Analysis – was there an injustice caused?

27. My role is to consider whether the Care Provider caused an injustice to Mrs X or Mr X in its delivery of care and dealing with the complaint. Where I find it has caused an injustice, I must consider what the Care Provider should do to address that injustice and whether any remedy already offered is proportionate.
28. In our ‘Guidance on Remedies’ we explain we try to place people in the position they would have been but for any faults. Where that is not possible, we will usually recommend a symbolic payment in recognition of injustice caused.
29. The Care Provider delivered care to Mr X but accepts parts of that care did not meet his or Mrs X’s expectations. Under its terms and conditions which it sent to Mrs X before admitting Mr X for respite care the fees charged are not refundable even if a resident leaves the home early. The Care Provider shared those conditions as set out in Regulation 19 of the CQC Regulations. The Care Provider believes it could continue to offer the care Mr X needed and so did not offer a refund. I find the Care Provider acted in line with the contractual terms and conditions it had sent to Mrs X ahead of admission. Therefore, it acted without fault in charging the fees and did not cause an injustice.
30. However, Mrs X did experience lower standards than expected causing an injustice. The Care Provider recognised some failings and acted to address them as well as offering a payment of £500. Our ‘Guidance on Remedies’ recommends a scale for payments in recognition of distress caused and the higher figure usually does not exceed £500. Therefore, I find the Care Provider at fault causing an injustice for which it has offered a proportionate remedy.

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Recommended action

31. In recognition of the injustice caused I recommend the Care Provider within four weeks of my final decision sends an apology to Mrs X and pays the £500 it previously offered to reflect the distress caused.

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Final decision

32. In completing my investigation, I find the Care Provider caused an injustice for which it has offered a proportionate remedy.

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Investigator's decision on behalf of the Ombudsman