Summary: The care provider did not provide sufficiently clear information about the fees or placement before Mr and Mrs X moved into the home. It should repay the deposit amount to Ms A.

The complaint

1. Ms A (as I shall call the complainant) complains the care provider failed to give clear information about the placement and fees before her parents moved into the home. When the placement had to be terminated at short notice as the care provider could not meet her father’s needs, it refused to repay the deposit.

Back to top

The Ombudsman’s role and powers

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. 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)
3. 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

Back to top

How I considered this complaint

4. I considered the information provided by Ms A and the care provider. However, the care provider has not provided me with all the information I requested, so I do not have the benefit of the daily records or care plans.
5. Both Ms A and the care provider had the opportunity to comment on an earlier draft of this statement before I reached a final decision.
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission.

Back to top

What I found

Relevant law and guidance

7. 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.
8. Regulation 19 says “Providers must give people information about the terms and conditions of their care, treatment or support, including the expected costs and the requirement to pay for their care, treatment and support.” It goes on, “People must be given a written copy of the terms and conditions that they must agree to before their care, treatment or support begins.”
9. The Competition and Markets Authority (CMA) produces guidance for care providers on meeting their obligations under consumer law. It says (para4.16) “A term requiring a resident to pay a wholly or partially non-refundable fee on signing a contract may be unfair under consumer law…..It can, for example, have the practical effect of taking away the resident’s right to terminate the contract, particularly within any trial period, and can operate as a financial sanction on the resident and a windfall for the care home, given that contracts can normally be terminated by either party on one month’s notice.”

What happened

10. Mr and Mrs X are an elderly couple who required an urgent move into residential care in 2021. Ms A says Mrs X’s mental health was deteriorating, and the family was awaiting a visit from the Community Mental Health Team; Mr X was in hospital but medically fit for discharge. Ms A says the Clough care home was identified by the hospital as the only local home with space available for both her parents immediately.
11. On 26 February the care home manager wrote to Ms A with a copy of the residency agreements for Mr and Mrs X. Her letter said, “I am enclosing an invoice for the deposit of 28 days fees which is redeemable at the end of the contract.” She also enclosed a standing order form for Ms A and her parents’ solicitor to set up monthly bank payments for the fees.
12. The residency agreement says “We shall provide you with personal care in accordance with your assessed needs….” “A deposit equal to 28 days fees ….is payable by the resident or their representative upon signing of this contract and will be returned upon termination less any fees outstanding at that time”. The agreement required 28 days’ notice to terminate the contract and says “if you leave before the end of this period of notice you are still liable to pay us your contribution for the full 28 days”.
13. The residency agreement also says, “If you have been admitted to the Care Home on a placement which is identified at the start as being for a limited period of no more than 8 weeks, this agreement shall terminate automatically at the end of this pre-determined period unless we agree to vary the duration”.
14. The residency agreement mentions different types of placement (long stay, short stay, respite, rolling respite) but does not specify which sort of placement was entered by Mr or Mrs X. Ms A says she believed her parents were in the home for a four-week assessment period before any permanent arrangement was made. She says she was not given any information about the sort of placement her parents were in.
15. The care provider did not carry out a pre-admission assessment because of the Covid 19 restrictions in place at the time of the admission enquiry. The care provider says at that time it was reliant on information from other professionals to inform its views.
16. On 1 March Ms A gave the home a cheque for £15,021.43 which was a month’s fee payment and a deposit of £3,800 for each parent. She says that during the weekend of 28 February she was put under “immense pressure” to pay the £15000 or her parents would not be able to be admitted on the Monday. She says she was not informed of the different types of contract. She says the manager told her Mr and Mrs X would be assessed over a four-week period.
17. Ms A says although she explained to staff that her father had Alzheimer’s disease, it quickly became clear no-one had the skills to deal with his behaviour. She says it took three days for them to seek medical attention for him as he became increasingly disturbed due to a UTI and he passed out in the home’s lounge before medical help was sought. Ms A says she was only informed of his condition after the home called an ambulance.
18. Ms A says the hospital said her father’s needs were too great to return to residential care, which did not have a specialist dementia unit. On 22 March she wrote to the manager to confirm that her parents would be moving and said, “I am therefore giving you formal notice that they will not be staying with you in the long term, but I do not have an exact date for their transfer today.” She went on, “I have read the contracts that my mother signed on admission to The Clough, and as they are considered short term residents – less than 8 weeks – I would expect a full refund on the deposit, but am happy to allow the full month’s care fee to go ahead, even though my father has been in hospital since 15th March.”
19. Ms A when she spoke to the manager over the telephone on 22 March “she informed me that we were required to give 28 days’ notice of my parent’s departure or else we would forfeit our deposit of £7,200. I told her that according to the contracts we had signed my parents were considered short term residents and notice was not needed. On the telephone, her exact words to me in response were “Fair enough”. Ms A says the following day the manager emailed and said Mr and Mrs X were not short-term residents as the care provider would not have asked them to set up a standing order if so.
20. On 30 April Ms A wrote to the managing director and said she had heard nothing more since her letter of 22 March. She said “I thought my parents were at the Clough for a 4-week assessment (being “a limited period of less than 8 weeks” - paragraph 15.1 of your Residency Agreement - no requirement for notice). At the time of admission, I made it clear that it was my intention to move my parents down to live near me as soon as this could be arranged. The management team at The Clough were made aware of this at the time of the admission.” She said she awaited the return of the deposit, as well as some of Mrs X’s clothes which had gone missing and Mr X’s gold watch.
21. The care provider’s regional manager responded to the complaint in May. She said, “the fact that a contract was given and signed and that a month’s money was paid upfront plus the months fees does indicate that you did know it was a permanent placement at this time.” She said it was evident Mr and Mrs X were to be permanent residents and therefore no fees or deposits would be returned. She said there would be an investigation into the missing watch, but she could not substantiate Ms A’s concerns that other residents had been seen wearing Mrs X’s clothes.
22. Ms A wrote again. She reiterated that they had not been informed (as they should have been, under consumer law) of the type of contract. She said they should have been advised properly of the types of contract available.
23. The regional manager responded that she had taken advice from head office and it was agreed the contracts were binding, and that the family knew the placement was permanent.
24. Ms A complained to the Ombudsman. She said her father had only spent 10 days in total in the home, for which they had paid a whole month’s fees.
25. The care provider has not been able to provide a copy of the contract which stipulates what sort of placement was entered into.
26. The care provider has not been able to explain what the manager meant by a ‘redeemable’ deposit except to say they “think it means they [the complainants] pay a month up front which if contract ends and we owe moneys then it is refunded”.
27. In response to the draft decision statement, the care home manager says “although I believe this was a long term contract I don’t have anything documented which will support that actually states this”. She adds there is nothing in the contract or supporting letters which stipulates the sort of contract entered by Mr and Mrs X.

Analysis

28. There was no clarity around the terms of the contract signed by the family. The care provider has not been able to provide any evidence of agreement to a permanent placement. It is not sufficient to say the family ’must have known’ what type of placement was entered.
29. There is therefore no evidence the care provider has complied with the requirement to give “information about the terms and conditions of their care, treatment or support, including the expected costs” and there is therefore a potential breach of the regulations.
30. The actions of the care provider caused actual financial loss to Mr and Mrs X.

Back to top

Recommended action

31. Within one month of my final decision the care provider should apologise for the time and trouble caused by its failure to follow the proper procedures in agreeing the contract;
32. Within one month of my final decision the care provider should refund the total deposit amount of £7200;
33. Within one month of my final decision the care provider should update its contracts and supporting documents to ensure clarity.

Back to top

Final decision

34. I find that the failings of the care provider caused injustice to Mr and Mrs A which the completion of the recommendations at paragraphs 30 and 31 above will remedy.

Back to top

Investigator's decision on behalf of the Ombudsman