Summary: Mr Y complains a care provider failed to notify him in writing of the additional care and support it provided to his mother, Mrs X. Mr Y then received an invoice with backdated charges for the period complained about. There is fault because the provider did not give written notification in accordance with Mrs X’s contract. However, the records show Mr Y received notification by telephone so the injustice arising from the fault is not significant enough to warrant any remedial action.

The complaint

1. Mr Y complains on behalf of his mother, Mrs X, that Westward Care Living:
• failed to notify him or the family about the additional care and support which it says Mrs X has required since October 2021; and
• issued a backdated invoice for the additional care provided without giving written notice of the increase, contrary to the terms of Mrs X’s contract.

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The Ombudsman’s role and powers

2. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. Part 3A is for complaints about care bought directly from a care provider by the person who needs it or their representative, and includes care funded privately or with direct payments using a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We may investigate complaints from the person affected by the complaint issues, or from someone they authorise in writing to act for them. If the person affected cannot give their authority, we may investigate a complaint from a person we consider to be a suitable representative. (section 26A or 34C, Local Government Act 1974)
5. If we are satisfied with an organisation’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. During my investigation I considered Mr Y’s complaint and the provider’s response. I gave Mr Y the opportunity to discuss the complaint with me by telephone.
7. I made enquiries of the Care Provider and considered its response.
8. I consulted any law, policies or guidance relevant to this complaint.
9. Mr Y and the Care Provider had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What happened

10. Mr Y complains on behalf of his elderly mother, Mrs X, who lives in an apartment within a complex offering residential care. The care can be accessed on an ‘as needed’ basis and the charges are invoiced accordingly. Throughout this statement I will refer to the organisation responsible for giving the care as ‘the provider’.
11. Mr Y holds power of attorney for Mrs X’s financial affairs. Mr Y says he supports his mother in all aspects of her life due to her age and her hearing and sight loss. However, the records show Mrs X retains capacity to make her own decisions about any matters relating to her health and welfare.
12. The provider’s notes show that Mrs X slipped or fell five times in September 2021. The provider’s records show it called Mr Y on 29 September to advise him of the incidents. The notes say the provider mentioned that Mrs X may need some additional support. The notes show Mr Y queried whether his mother needed nursing care. The provider explained there were other options available.
13. An internal email between managers says “… if [Mrs X] is wanting more support with washing and dressing, please put a proposal of costings to [Mr Y] as soon as possible and see what he comes back with”
14. The records show Mr Y spoke with the provider again on 1 October. The notes of this call say: “I mentioned to [Mr Y] that I feel there has been a deterioration in his mum since having her meds twice a day she is withdrawn and she even said yesterday that she is lonely that she doesn’t see staff from morning till night. He said if she needs the care he was fine with it and see how it goes. I said we would start the support from tomorrow”.
15. In response to my draft decision Mr Y said the note referred to in the paragraph above is false.
16. Internal emails show the provider realised in January 2022 that it had failed to invoice Mr Y for the additional care provided since 2 October. This amounted to two 15 minutes calls each day. The notes of the call say “I spoke to [Mr Y] about the payment been [sic] backdated. He was fine with this”. This is also reflected in an internal email which says, “He is happy for it to be backdated to October”
17. Mr Y says the provider did not relay details of the additional costs incurred.
18. Later that day, the notes show Mr Y called the provider to query whether Mrs X needed the personal care. He said the last time he spoke to his mother she expressed that she did not need help getting ready.
19. Mr Y says this note is also untrue.
20. As Mrs X has capacity to make her own decisions about the support she receives, the provider spoke with her to clarify whether she wanted to continue with the calls. The notes say, "... she is expressing she does need help at times with her care but she is worried about her finances”. This is reflected in other notes where Mrs X says that she wants help but is worried that Mr Y will say it is unaffordable.
21. Two weeks later Mr Y received an invoice dated 31 January 2022 seeking payment for the backdated charge of £1260.75. That invoice is the subject of this complaint.
22. Upon receipt of the invoice Mr Y complained to the provider and said:
• He is not prepared to pay for the ‘unapproved’ backdated charges
• When the provider called him earlier in the month, they caught him ‘off guard’ and with hindsight, he should have queried this further.
• After considering this further, he has decided not to make the payment because the provider failed to give the required written notice and has not explained the ‘costing’ for the additional amounts involved.
• When he spoke to Mrs X the previous month, he understood that she was capable of dressing and undressing herself and it was not apparent that she needed personal care.
• Mrs X does need some help with putting her socks on and sometimes needs help preparing for bed, but it was not made clear that these would be subject to additional charges.
23. The provider responded to Mr Y’s complaint. It said the care notes recorded by staff between October 2021 and January 2022 demonstrated that Mrs X has received additional support on a “continuous” basis. The provider said it will not refund the additional charges, as requested by Mr Y.
24. Mr Y complained to the LGSCO. He said the provider’s actions are contrary to term 4.7 of Mrs X’s contract, which says:

“Westward Care Limited reserves the right to review the fee at other times of the year in the event of unexpected changes in costs such as material change in the client’s care needs since the date of admission/the previous annual increase. Notification of such increase will be made in writing”

25. The ‘Outreach Terms and Conditions’, signed by Mrs X on 12 December 2020, outline the hourly fees and also say:

“We will endeavour to discuss all aspects of your changing needs with you (or your representatives) to ensure that you are kept fully informed. In such cases, where ever possible four weeks’ notice will be given”

26. In Mr Y’s opinion, there are two key examples of service failure; firstly, the provider’s failure to evidence a “material change in the client’s care needs” and secondly for not notifying him of the increase in writing.

Was there fault causing injustice in the provider’s actions

27. When considering complaints about care fees, the LGSCO needs to be satisfied the service user received clear and relevant information; both in the original contract terms and when the provider delivered additional services to Mrs X.
28. This is because the Care Quality Commission (Registration) Regulations 2009, regulation 19, states that providers must “…give timely and accurate information about the cost of their care and treatment to people who use services”. To do so, “... 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”
29. I am satisfied with the provider’s rationale for offering additional support to Mrs X in late 2021. The records show she was regularly falling over. The frequency of the falls decreased during the time Mrs X received personal care. This is evidence that Mrs X had experienced a sudden and material change in her needs. In my view, it was not feasible to have anticipated or discussed this in advance of the support being required.
30. However, there is no evidence to show the provider confirmed the changes in writing. This is fault because it is contrary to term 4.7 of Mrs X’s contract. In my view, the injustice arising from this is not significant enough to warrant any remedial action. The provider’s contemporaneous notes show it discussed Mrs X’s support needs with Mr Y by telephone. Mrs X herself was also aware of the proposal because she requested the support. The hourly rates are clearly outlined in Mrs X’s contract.
31. It appears that Mr Y’s dissatisfaction arose when the provider failed to invoice him until four months after the additional support began. I appreciate this invoicing error caused him some frustration however the provider did call him as soon as it noticed the mistake. During that call Mr Y agreed to pay any backdated charges.
32. 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. Although Mr Y has disputed the provider’s notes of the phone calls, on balance I consider it more likely than not that the calls did take place. The notes and emails referring to the calls are contemporaneous in nature as they are date and time stamped. Other than assertion, Mr Y has not provided anything to challenge the accuracy of those notes.
33. Furthermore, as Mrs X has capacity to make her own decisions about her health and welfare, it is for her to decide whether to access the additional services offered by the provider. Although Mr Y has responsibility for paying the invoices and managing his mother’s financial affairs, the decision about care and support is one which lies with Mrs X.

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Final decision

34. I have completed my investigation with a finding of fault causing no significant injustice for the reasons explained in this statement.

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Investigator's decision on behalf of the Ombudsman