Summary: Mr B complained the Care Provider unfairly ended Ms C and Mr D’s contract without providing satisfactory reasoning. Mr B says this caused Ms C and Mr D distress in having to move. He also says this caused him distress in having to make the arrangements without satisfactory notice. We do not find the Care Provider caused an injustice by cancelling the contract, but did cause an injustice for not following its policy. The Care Provider has agreed to pay Mr B a sum of money, has reviewed its procedures and will share the final decision with staff.

The complaint

1. Mr B complains on behalf of his late mother-in-law Ms C and her partner Mr D. He says the Care Provider unfairly terminated their contract without providing satisfactory reasoning.
2. Mr B says the care provider’s actions caused Ms C and Mr D confusion and distress. He says the Care Provider’s actions have also caused him distress by having to find another care home.

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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. (section 26A or 34C, Local Government Act 1974)
5. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
6. 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.
7. If we are 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)
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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How I considered this complaint

9. I spoke to Mr B about his complaint and considered the information he provided.
10. I considered the Care Provider’s response to my enquiry letter.
11. Mr B and the Care Provider have the opportunity to comment on my draft decision. I have considered their comments.

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What I found

Relevant law and guidance

Consumer law

12. Consumer law requires care homes to ensure contracts with residents are fair. Contracts must not put residents at an unfair disadvantage, by tilting the rights and responsibilities under the contract too much in the care home’s favour.

Competition and Markets Authority (CMA) guidance

13. The CMA guidance states care homes should provide residents with details about how they may terminate the contract. It says care homes should include terms in its contracts that give both it and the resident legitimate reasons for ending it.
14. The guidance says even where a resident might be in serious breach of a contract, the care home should ensure they and their representative are given sufficient opportunity to address the conduct. It says care homes should not ask a resident to leave without first consulting with them and their representative, and efforts have been made to meet the resident’s care needs.

Saltwood Care Centre Ltd terms and conditions

15. The Care provider’s policy allows for it to terminate its contract. It says it will undertake four steps which are:

• discussion to avoid termination, accompanied by a letter and verbal warning;
• further discussions with the inclusion of family;
• alternative placement; and
• negotiation of alternative placement and termination date.

16. The Care Provider gives examples of reasons for termination including behaviour, non-payment of fees and where it can no longer provide the level of care required.
17. Where the Care Provider feels it has to end the contract it will give at least 28 days’ notice and all service users will be given:

• appropriate support and enough time to understand; and
• written confirmation of the termination.

What Happened

18. I have set out below a summary of the key events. It is not meant to show everything that happened.
19. Ms C and her partner Mr D moved into Saltwood Care Centre (the Care Provider) in late April 2021 during the COVID-19 pandemic. Ms C was suffering from dementia and lacked capacity. Mr B and Mrs B (Ms C’s daughter) held a lasting power of attorney for both Ms C and Mr D.
20. The Care Provider completed a care plan for Ms C and it says she settled in well to the care home. It also said that Mr D was not happy in the care home and would have preferred to have been in his own home. However, it felt it could provide for their care needs.
21. In July 2021, Mr and Mrs B signed a contract with the Care Provider on behalf of Ms C and Mr D for them to become permanent residents.
22. During Ms C and Mr D’s time in the home, the Care Provider says Mr and Mrs B contacted it on many occasions by telephone, email and in person.
23. Mr B says he only raised genuine and legitimate concerns about the standard of Ms C’s care but says the Care Provider took this as criticism.
24. The Care Provider say Mr and Mrs B’s expectations and contact with the home were very high. It noted that while it felt it addressed the concerns, the continued contact and level of interaction with Mr B was unsustainable. It says it held three meetings in May, June and July 2021 and the latter two meetings were an attempt to resolve the issues and concerns raised by Mr and Mrs B. Mr B says he requested the meetings to address his concerns.
25. The Care Provider says following its meeting in June 2021, where it raised the volume of emails Mr B had sent and agreed Mr and Mrs B should only email if the subject was urgent. Mr B continued to send emails. It says it spent over 20 minutes on the telephone with Mr V at the end of June discussing his concerns. Mr B emailed the Care Provider in June 2021. He raised thirteen concerns and suggestions about the care of Ms C and Mr D.
26. A meeting took place in early July. The Care Provider’s records say that it tried to address Mr B’s concerns point by point. The Care Provider said it felt it was meeting the needs of Ms C and Mr D. It also noted a discussion taking place about its ability to meet Mr and Mrs B’s expectations and the level of contact he expected.
27. Following this meeting Mr and Mrs B asked that Ms C and Mr D become permanent residents. The Care Provider also amended Ms C’s care plan to include Mr and Mrs B’s requests.
28. The Care Provider say Mr and Mrs B continued to send numerous emails following the July meeting too.
29. The Care Provider acknowledges there was delay in producing the incontinence assessment for Ms C but says this was completed at the end of July 2021.
30. In August 2021, Mr B telephoned the care home to complain Ms C was not awake in time for an installation of Sky TV in her room. The Care Provider says that Mr B was rude and aggressive during the telephone call and would not listen to any explanation. It said he sought a discounted fee as he believed Ms C was not getting what she had paid for. The Care Provider said Mrs B said she would “come to the care home every day to get her mother up, and no one would stop her.” Mr B says that he specifically requested Ms C was woken early in anticipation of the Sky installation. He says this was not done and caused Ms C and Mr D stress.
31. Mr and Mrs B sent a further email to the Care Provider in August. The Care Provider says this covered the points already raised and addressed in the meeting with Mr and Mrs B in July.
32. The Care Provider says Mr and Mrs B continued to raise further concerns about Ms C’s dental hygiene and staffing levels. It again updated Ms C’s care plan to accommodate Mr and Mrs B’s concerns.
33. In August 2021, the Care Provider told Mr B of its intent to end its contract with Ms C and Mr D and gave them 28 days’ notice to leave the care home.
34. The Care Provider said it could not meet Mr and Mrs B’s expectations and demands.
35. Mr B emailed the Care Provider the following day. He explained he was unhappy with the notice which he says caused him confusion. He said the termination notice was unexpected and had caused distress and confusion to Ms C and Mr D and left them feeling disorientated with little time to find an alternative residential home. Unfortunately, Ms C died a few months after leaving the care home. Mr B felt the move and termination of the contract had contributed to Ms C’s fall before her death.
36. Mr B formally complained to the Care Provider in September 2021.
37. The Care Provider replied to Mr B’s complaint in October 2021. It said there had been a very high level of contact from Mr B ranging from in person, by telephone and by email. It said its staff could not maintain or continue this level of contact. As a goodwill gesture it paid Mr B £839.45 as the difference between the residential fee and the nursing fee since Ms C had become a permanent resident.
38. It also said that it had contacted the CQC for guidance regarding Mr B’s level of contact and had refunded the nursing care fee back to the NHS. It noted it had learned lessons from the complaint which would help it improve its services.
39. Mr B remained unhappy and responded in October 2021. He provided the Care Provider with a table detailing meetings and emails. Mr B said he felt that the contact was not excessive. He also said that:

• he was confused over the Care Provider’s rationale;
• the care provider had not made its definition of high contact clear;
• it had not provided specific examples of the very high levels of contact;
• the Care Provider had not mediated or discussed its concerns with him;
• he only made contact for legitimate and genuine reasons;
• felt victimised for raising legitimate concerns; and
• he did not accept a goodwill payment and wanted a full refund of the remaining balance of £1452.67 which accounted for the difference between the nursing fee and residential fee and for the Sky Installation.

40. Mr B contacted the Ombudsman in November 2021.
41. The Care Provider responded to my enquiries in March 2022. It said it has learned lessons and highlighted four areas for monitoring and review. It said it would:

• ensure its complaints and feedback policy is clear regarding who to contact and the timescales of expected responses;
• ensure continence assessments are completed as a matter of priority;
• strive for reduction in reliance on agency staff; and
• ensure the termination policy is shared, available and adhered to.

42. The Care Provider has also offered Mr B a further payment of £1740.67 This comprises £288 for the Sky TV installation costs & the reimbursement of the difference between the residential/nursing fees.

Analysis

43. The Care Provider has a four-step policy that it should follow before it decides to terminate a contract.
44. I am satisfied it did tell Mr B about its concerns regarding his level of contact in its meeting in June. I am also satisfied it discussed being unable to meet his expectations in its meeting in July. However, the Care Provider has not provided evidence that it explained or made it explicitly clear the outcome of Mr B’s continued contact would result in the termination of the contract. It also did not follow up the discussion and agreements made in the meeting in writing or by email.
45. The Care Provider is entitled to terminate a contract in line with the law and guidance, however, I have seen no evidence it followed its four-step termination policy. The Care Provider is at fault for not following its own policy which caused Mr B uncertainty and meant Ms C and Mr D had to find an alternative care home.
46. However, but for the failure to follow the termination policy, I find it is likely the Care Provider would have always ended its contract with Ms C and Mr D anyway and they would always have had to find a new care provider.
47. During my investigation, the Care Provider has highlighted four areas for review. I am satisfied this review and further monitoring remedies any injustice caused. The Care Provider has also offered the remedy requested by Mr B. We consider this to be a suitable remedy for the injustice caused to Mr B. I have suggested a further action to address learning for the Care Provider.

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Agreed action

48. The Care Provider has agreed to by 10 June 2022:

• Pay Mr B £1740.67 for the injustice caused; and

• Share the final decision with staff who are involved with issuing and terminating service user contracts and remind them of the necessity to follow its Termination of Service User’s Residency Contract Policy and Procedure.

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Final decision

49. I have not found the Care Provider caused an injustice by cancelling the contracts, but I have found the Care Provider did cause an injustice to Mr B by not following its termination policy and the Care Provider has agreed to my recommendations to address this.

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Investigator's decision on behalf of the Ombudsman