Burlington Care (ASC) Limited (20 013 974)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 30 Jul 2021

The Ombudsman's final decision:

Summary: Mr B has made a complaint on behalf of Mr D who, for a time, was in residential care. Mr B says the Care Provider increased Mr D’s care fees without giving any information with respect to costs. He says this meant Mr D’s joint lasting power of attorneys could not make an informed decision whether they wished for the care to continue. The Ombudsman has identified fault with respect to the information given by the Care Provider, as well as how it implemented the changes. We have therefore recommended a number of remedies to address the injustice.

The complaint

  1. The complainant, who I refer to as Mr B, is making a complaint on behalf of Mr D. Mr B holds joint lasting power of attorney for Mr D who is currently in residential care with Burlington Care (ASC) Limited. I refer to Mr B’s other joint lasting power of attorney as Mrs X.
  2. Specifically, Mr B says that Burlington Care (ASC) (the Care Provider) increased Mr D’s care fees by roughly £500 per day due to extra care needs. Mr B complains the Care Provider failed to consult with him and Mr D’s other representative with joint lasting power of attorney. He says the Care Provider did not seek consent for the additional charges and these were not agreed to.
  3. Mr B says this matter is causing him distress and time and trouble. Further, he says both him and Mrs X have responsibility for Mr B’s financial resources which are being affected due to the actions of the Care Provider. As a desired outcome, Mr B wants the Care Provider to waive the fess and compensate him and Mrs X for all the trouble, inconvenience, upset and distress caused.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. 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).
  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. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and the Care Quality Commission (Registration) Regulations 2009 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.
  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.

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How I considered this complaint

  1. I have reviewed Mr B’s complaint to the Ombudsman and Care Provider. I have also had regard to the responses of the Care Provider, supporting documents, applicable legislation and the CQC fundamental standards and regulations. Both Mr B and the Care Provider commented on a draft of my decision. Each of their comments were considered before a final decision was made.

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What I found

Background information

  1. Regulation 19 of the Care Quality Commission (Registration) Regulations 2009 is intended to make sure care providers give timely and accurate written information about the cost of their care. To meet Regulation 19, care providers must give timely and accurate written information about the cost of their care and treatment to people who use services.
  2. Regulation 19 also states care providers must notify people of any changes to their terms and conditions. This includes increases in fees and giving service users sufficient time to consider whether they wish to continue with the service.
  3. The private care agreement between Mr D and the Care Provider sets out important terms which govern his care. This states the total weekly fee for Mr D’s care is £950, though states that fees will be reviewed from time to time as determined by the Care Provider. Further, the weekly charge shall remain unchanged unless 28 days written notice is given by the Care Provider, or the agreement is jointly amended by all parties to the agreement.
  4. Further, the care agreement states that it shall continue in force until terminated by either party giving to the other written notice four weeks before termination.

Chronology of events

  1. In late December 2020, Mr D began receiving 24 hour care due to an incident which had occurred over the previous weekend.
  2. Around the same time, Mr D’s social worker (Social Worker A) visited the care home. She explained to the deputy manager of the care home the additional care needs would need to be paid for by Mr D. Social Worker A enquired about the cost of the care per hour and said the deputy manager did not know at this stage. Social Worker A asked the deputy manager to find out the costs and tell both Mr B and Mrs X given they had joint lasting power of attorney.
  3. Further, the Care Provider says a conversation took place between Mrs X and the deputy manager at the care home to discuss Mr D’s additional care needs. It was reported that Mrs X did not ask any details of costs because it was Mr D’s money which was intended to fund his care. Further, the Care Provider said that Mrs X said she was going to sell Mr D’s house.
  4. The next day, Social Worker A emailed Mrs X. Social Worker A explained an incident at the home occurred over the previous weekend. She said this meant Mr D now needed 24 hour care and that agency carers had been recruited to be with him day and night. Social Worker A also said that Mr D would need to pay for the additional care which would be separate to his normal fees.
  5. Also, Social Worker A said she had asked the care home to find out how much the agency was charging per hour so to inform how much the additional care would cost. Further, Social Worker A acknowledged the additional care would have an impact on Mr D’s finances and she gave Mrs X some information about financial support available.
  6. On the same date, Mrs X replied to Social Worker A thanking her for the email. Mrs X also said the care home had been good at keeping her informed about the incidents and what was happening.
  7. In February 2021, Mr B emailed the Care Provider to acknowledge that he and Mrs X understood that Mr D required additional care and that this decision was taken in his best interests. However, Mr B made a complaint and disputed having been made aware of or agreeing to added charges.
  8. Some days later, the Care Provider replied to Mr B telling him that Mrs X and the deputy manager at the care home had discussed Mr D’s additional care needs in December 2020. Further, she referenced Social Worker A’s contact with Mrs X with respect to the added costs.
  9. In early April 2021, the Care Provider responded to Mr B’s complaint. It said the account of both the manager and deputy manager at the care home and Social Worker A supported the view that Mrs X was informed about Mr D requiring additional care. Further, it said that Mrs X consented to the additional care and was informed this would be at an extra cost. The complaint was not upheld.
  10. In addition, the Care Provider said it does not send contracts or any other written agreement for one to one care required by Mr D. It said this is because the care is usually very personalised and not for set hours or a set cost. Mr B said the Care Provider could have sent both him and Mrs X a letter giving enough information to allow them to make a decision about whether to accept or reject the additional charges. On that basis, Mr B did not make payment for the additional charges.
  11. In late April 2021, the Care Provider confirmed it would be taking legal action to recover the unpaid amounts in respect of Mr D’s additional care. This is because it felt there was an oral contract in place for the care and fee variation. However, it said it has placed this action on hold pending the outcome of the Ombudsman.

My findings

  1. I have investigated the following matters:
  1. whether the Care Provider informed either Mr B or Mrs X that Mr D’s care needs had changed and this would be subject to additional cost;
  2. whether the Care Provider complied with Regulation 19, as set out at paragraphs 10 and 11 (above) and;
  3. whether the Care Provider correctly gave either Mr B or Mrs X 28 days’ notice before varying Mr D’s care costs.

Variation to care and associated costs

  1. Mr B acknowledges the additional care provided by the Care Provider was in Mr D’s best interests. However, Mr B disputes the Care Provider ever gave him and Mrs X clear information as to the associated costs for the additional care. Further, Mr B says had he and Mrs X been given this information, as well as time to properly consider the changes, the fees would have been rejected.
  2. In my view, there is evidence to show that Mrs X was informed Mr D’s care needs had changed. I am also satisfied Mrs X was told the extra care would be at an added cost which would need to be paid for by Mr D. This is because Mrs X was emailed to this effect in December 2020 by Social Worker A. On balance, I also believe Mrs X met with the care home deputy manager and that a discussion took place that Mr D’s fees were increasing. In my view, this information should have been properly relayed to Mr B by Mrs X. For the reasons given, I see no evidence of fault by the Care Provider in that it did not properly make Mrs X aware Mr D’s care, and the fees payable, were subject to change.

Regulation 19: Fees

  1. I am not satisfied the Care Provider gave Mr B and Mrs X either an exact or rough estimation of the costs. Regulation 19 requires the Care Provider to give written information about any changes to their terms and conditions. This includes increases in fees and giving service users time to consider whether they wish to continue with the service. The Care Provider states that it does not give written agreements for one to one personal care as this can vary. This approach is incompatible with Regulation 19. Further, I agree with Mr B that the Care Provider should have offered information in writing, giving some indication of costs, so to allow a decision to be made. For those reasons, the Care Provider was at fault.

Four weeks’ notice

  1. I see no evidence the Care Provider complied with its own terms and conditions to give Mr B and Mrs X four weeks’ notice before the fee variation came into effect. The Care Provider has put forward the argument this is because it reached an oral agreement with Mrs X. However, I do not accept this to be the case. This is because the Care Provider failed to give either an exact or rough estimation of the costs involved, this being a crucial factor in order to bring about a legally binding contract between the parties.
  2. In addition, the Care Provider has said one to one care is not subject to a 28 day notice period as per its own terms and conditions. I do not accept the Care Provider’s interpretation or position in this matter. The Care Provider’s care agreement makes no special provision for personal or one to one care. In my view, the cost of the additional care would increase the total weekly fee payable under the contract which requires a 28 day notice period to vary. It should also be noted that the CQC’s guidance regarding Regulation 19 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.”

  1. The Care Provider sought to increase Mr D’s weekly fee by providing additional care and yet failed to give 28 day notice. Further, it acted contrary to the CQC’s guidance in this respect. For those reasons, the Care Provider was at fault.

Injustice

  1. Because of the fault identified, I must therefore assess whether Mr D and/or his representatives have suffered an ‘injustice’, meaning serious loss, harm or distress. In my view, the Care Provider failed to give Mr B and Mrs X four weeks’ notice to vary Mr D’s care fees. Further, it did not provide any written information giving an indication of the likely costs. On this basis, I do not believe Mr B and Mrs X had sufficient information to make a well informed decision about whether it should continue with Mr D’s care placement. This caused uncertainty and distress to Mr B and Mrs X, as well as time and trouble in pursuing the complaint.
  2. That said, I do consider that Mr B and Mrs X knew costs were increasing. I believe they therefore had a responsibility as joint lasting power of attorneys to make enquiries to find out the likely costs. In my view, if Mr B and Mrs X were unsatisfied with the fee variation, it should have given 28 days’ notice to the Care Provider and found an alternative care placement for Mr D. In theory, this notice would have coincided with the Care Provider’s notice to increase Mr D’s fees, meaning no added fees would have been payable.

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Recommended action

  1. In light of the faults and injustice identified above, I recommend the Care Provider take the following actions:
  • Within one month of a final decision, the Care Provider should provide Mr B and Mrs X a written apology which acknowledges the faults and injustice identified in this statement. It should also pay each £150 on account of the uncertainty, upset and time and trouble they have experienced.
  • Within one month of a final decision, the Care Provider will waive the fees for the first 28 days of additional care provided to Mr D. The Care Provider is still entitled however to charge £950 per week for the care, as per the terms and conditions of the care agreement.
  • Within three months of a final decision, the Care Provider will undertake a review of its practices with respect to providing fee variations in writing to its service users or their representatives. Further, the Care Provider will review its procedures for ensuring services users receive the appropriate notice with respect to important changes to their care and terms and conditions. These reviews will identify service improvements to be implemented by the Care Provider. This is for the purpose of ensuring compliance with the CQC regulations and its own terms and conditions.

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Final decision

  1. The Care Provider was at fault for failing to give 28 days’ notice before bringing into effect a fee variation for Mr D’s care. Further, it failed to comply with Regulation 19 of the CQC standards. These matters caused Mr B and Mrs X an injustice and so I have recommended a number of remedies.

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Investigator's decision on behalf of the Ombudsman

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