Summary: There was some fault in the way the care home communicated with Mr B that it had made a decision to terminate his mother’s stay at the Home. Some of the terms of the Home’s contract were also not in line with the guidelines. We have recommended that the Home apologises, pays a small and reviews its contract.

The complaint

1. Mr B complains on behalf of his mother, Ms C, who has sadly passed away. He complains about Elmfield House care home in Woking.
2. The complaint relates to:
• The increase in fees.
• The delay in the Home’s actions to obtain incontinence pads funded by the NHS for Ms C.
• The Home’s care plan which said that Ms C had a diagnosis of dementia.
• The Home’s claims about Mr B’s actions which led to a breakdown in the relationship and the eviction of Ms C.

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What I have investigated

3. I have investigated the complaints Mr B made except for the complaint about the incontinence pads. Paragraph 59 explains why I have not investigated this complaint.

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The Ombudsman’s role and powers

4. 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)
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. I have discussed the complaint with Mr B. I have considered the documents that he and the Home have sent, the relevant law, guidance and the Home’s contract and both sides’ comments on the draft decision.

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What I found

Law and guidance

Regulations

7. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers that meet the fundamental standards of care, inspects care services, and reports its findings.
8. The Care Quality Commission (Registration) Regulations 2009 set out requirements relating to registration. The CQC has provided guidance on the regulations.
9. Regulation 19 says care providers should provide the resident or their representative with a written statement, ideally before the resident moves in. The statement should:
• Set out the terms and conditions of service, including the amount and ways to pay the fee;
• Include a contract.
10. The CQC guidance says:
• People must receive a written copy of the terms before their care and support begins;
• Care providers should tell people about any changes in terms and conditions in advance, including increases in fees. This is so people have time to consider whether to continue with the service;
• Care providers should give an estimate of costs if a fixed price is not possible. This should include details of additional costs.

Competition and Markets Authority Guidance

11. 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.
12. The Competition and Markets Authority (CMA) has published guidance for care homes to help them comply with their consumer law obligations.

Changes to fees

13. The CMA Guidance says the following about contract terms regarding fee increases:
• ‘Fee increase terms need to be treated with great care, in particular so that they do not allow you to increase your fees arbitrarily. To ensure compliance with consumer law, your fee variation terms must set out clearly the circumstances in which the resident’s fees may change and the method of calculating the change. This should enable residents and their representatives to foresee, on the basis of clear, objective and intelligible criteria, the changes that may be made and evaluate the practical implications for them, before entering the contract. In addition, we consider that general fee reviews should be limited to once a year.
• ‘Simply stating that your fees may go up as a result of ‘increased costs’, ‘local market conditions’ or ‘the wider national economic picture’, will not make your terms fair. This type of general wording is both unclear as to what residents can expect and open to misuse, since residents can have no reasonable certainty over what the increases will be.’
14. The Guidance says best practice is to consider fee variations by reference to a relevant, objective, and verifiable published price index.

Terminating the contract

15. The CMA Guidance addresses also terms to end the contract and says:
• ‘Where your terms give you a wide discretion to terminate the contract (for example, for any reason at all or for vaguely defined reasons), this is likely to infringe consumer law, as such wording is open to misinterpretation and mis-use.’
• ‘Even where a resident might be in serious breach of contract, you should ensure that they and their representatives are given sufficient opportunity to address the conduct (for example, address detrimental behaviour or catch up with missed payments) and, where necessary, appeal a decision to end the contract. You should not ask a resident to leave the care home without first consulting with them and their representatives, and any other relevant independent professionals, and after efforts have been made to meet the resident’s care needs. The reasons for the consultation should be fully discussed, together with possible solutions, before any final decision is made on the resident’s continued stay in the care home.’
16. The CMA Guidance gives examples of terms that are likely to be unfair:
• ‘We may end our agreement with you on four weeks’ written notice at any time where you breach of the terms of this agreement.’

The agreement between the Home and Ms C

17. The Home’s agreement which it asked its residents to sign said the following.
18. Fee increases:
• ‘We regularly review our fees. We reserve the right to increase our fees by giving you one calendar month’s notice in writing. If you object to the increase, you can terminate this Agreement by giving us notice in writing of at least one calendar month.’
19. Notice:
20. We can terminate this agreement on seven days’ notice in writing if:
• You need to go into hospital long term or other care at short notice.
• Any fees payable for us remain unpaid thirty days from the due date.
• You have committed a serious breach of this agreement and/or the House Rules which, if it can be remedied, has not been remedied within seven days of us asking you to do so in writing.
21. We can terminate this agreement on one month’s notice:
• For any other reason.

Chronology of events

22. Ms C moved into the care home on 23 November 2020. Elmfield Residential Home Ltd became the owners of the care home in November 2021.
23. On 2 December 2021, the Home sent a letter to Mr B informing him that the fees would increase on 1 January 2022. The fees related to a rise in inflation, increased costs because of the COVID-19 pandemic and an increase in business rates and insurance.
24. Mr B’s sister sent an email to the Home on the following day and said the increase was ‘totally unacceptable and outrageous’. She said the Home should have given them three months’ notice to find this extra payment. She asked the Home to consider delaying the increase until April 2022.
25. Mr B sent an email to the Home on 6 December 2021 as he was ‘alarmed and annoyed’ that Ms C had been informed of the price increase. He said Ms C’s state of mind, ever since she had to pay for care, was that she was a burden and did not want to ‘waste’ money that was destined for her children and grandchildren.
26. The Home replied and said no member of staff had discussed the fees with residents. The Home had not informed Ms C of the increase but had to ‘deal with the aftermath’ of Ms C being informed. He said the Home’s fees were competitive compared to other care homes in the area.
27. Mr B sent an email to the Home on 14 December 2021. He wanted an opportunity to discuss the matter and the Home rang Mr B on 21 December 2021.
28. On 3 January 2022 paid some of the fees but £1,046 was outstanding.
29. On 7 January 2022 the Home sent a letter to Mr B and said there was an outstanding fee of £1,046 to be paid.
30. On 11 January 2022 Mr B sent an email to the Home. He said the Home’s attitude was ‘pay up or get out’ and that the tone of the letters was ‘offensive and threatening.' He had paid £700 from his personal account, and ‘the shortfall of £346 was to partly cover the cost of pads and other numerous irritations. Next month’s fees are dependent on my meeting with local advisory council.’
31. On 12 January 2022 the Home sent a letter to Mr B and served Ms C with one month’s notice. The Home said:
• It had served notice because the relationship between the relatives and management had broken down.
• ‘I am very conscious of the problems that have surfaced between you and I since my company took over the Home.’
• ‘I am also aware of the difficulties that you and the staff have encountered over the time that your mother has been in residence at the Home.’
32. On 14 January 2022 the Home discussed the fee increase with Ms C.
33. The Home sent an email to Mr B on the same day and further explained the reason for the termination of the agreement. The Home said: ‘…we have tried the best to work with you and your sister but the constant unfounded accusations leave the team feeling vulnerable, anxious and on edge.’
34. Mr B sent an email back on the same day asking the Home to clarify its statement that he had left staff ‘vulnerable, anxious and on edge.’ In later emails Mr B said that this statement was a ‘clear case of character defamation which can lead to a personal injury lawsuit.’

Mr B’s complaint and the response

35. Mr B complained on 10 February 2022 and said:
• He had asked to discuss an incremental payment scheme for the fee increase. The Home refused to discuss this and said that, if the family did not pay, Ms C would have to move.
• He had not paid the full amount on 3 January 2022, but had intended to do so.
• On 14 January 2022 the Home spoke to Ms C about the fee increase. The Home should not have discussed the fees with Ms C and should not have done so without her family present. The Home told Ms C that her children had not paid the fees and that she would have to leave. This conversation greatly upset Ms C.
• Ms C’s care plan said she had a diagnosis of dementia. That was not true and made it more difficult for the family to find a care home which would accept Ms C after the Home had terminated the agreement.
• The Home then agreed to change the care plan on 25 January 2022
• The Home had still not clarified its allegations against Mr B which it said were part of the reason why it gave notice to Ms C.
36. The Home responded and said:
• The Home could increase the fees and had given appropriate notice of the fee increase, all in line with the agreement that was signed.
• The Home had explained the reasons behind the increase in its letter dated 2 December 2021.
• Mr B’s email of 11 January 2022 indicated that he was not going to pay the increase in the future.
• On 14 January 2022 Ms C asked to speak to staff about the fee increase and the notice. She had been informed of the increase by the family. It would have been ‘ignorant and disrespectful’ to ignore a request to speak to Ms C. Ms C had questions which the Home answered. The Home made no derogatory or unkind comments about the family to Ms C but told her that the family had made unkind comments about staff at the Home. Ms C was not upset or distressed during the meeting. None of the staff on duty that day raised concerns that Ms C was upset.
• In response to the complaint about the diagnosis of dementia in the care plan, the Home said that it had clarified this with Ms C’s previous Community Psychiatric Nurse and Ms C received a diagnosis of dementia following the failure of a memory test.
• The care plan was not amended as the dementia diagnosis was factual. Ms C was diagnosed with dementia in 2021 by the Community Mental Health Team.
• In terms of the complaint about the termination of the agreement, the Home provided fourteen ‘accusations’ which, according to the Home, were examples of incidents or communications by Mr B and the family which left the staff feeling ‘vulnerable, anxious and on edge.’ The Home pointed out that Mr B had said, in the conversation with the manager, that, if the fees were this high, the family may have to look elsewhere.

Further information

37. I have considered the following records as part of the investigation.
38. Ms C’s care plan said she was diagnosed with dementia. Ms C’s medical records confirmed she received a diagnosis of dementia in August 2021.
39. The care plan did not include any restriction on what discussions could take place with Ms C.
40. I have read the daily notes for 14 January 2022. There is no reference to the conversation regarding the fee increase. There is no indication, from the records, that Ms C was upset because of the conversation.
41. In its response to the draft decision, the Home has said that there is still an outstanding amount of the fees to be paid.

Analysis

Complaint 1 – fee increase

42. It is not for the Ombudsman to tell a care provider what its fees should be or to say whether an increase is appropriate or not. However, care homes must ensure that their contract/agreement terms are in line with consumer law and CMA Guidance.
43. The Home’s agreement said: ‘We reserve the right to increase our fees by giving you one calendar month’s notice in writing’.
44. These terms gave the Home unlimited discretion to increase its fees. The terms did not explain the circumstances in which fees may change or the method of calculating the change. It meant residents could not foresee fee changes or understand the practical implications of them. The terms were not in line with the CMA Guidance which says terms such as these are likely to be unfair under consumer law which is fault.
45. It is impossible for me to say how Ms C found out about the fee increase as both the Home and the family deny informing her.
46. In terms of the conversation on 14 January 2022, I cannot say what exactly was discussed as there is no record of the conversation. There was nothing wrong, in principle, with the Home answering Ms C’s questions about the fee increase. There was no indication in the care plan that the Home could not discuss financial matters with Ms C.

Complaint 2 - diagnosis of dementia

47. I find no fault in the Home’s care plan. Ms C had been diagnosed with dementia and the care plan reflected this.

Complaint 3 – termination of the agreement

48. I have not investigated the different allegations the Home made about Mr B in its response to the complaint. The Ombudsman focusses on the actions of a care provider carrying out regulated activities such as providing care and charging. We would not investigate a defamation of character or personal injury as these are matters for the court.
49. I have not focussed on the termination of the agreement itself but the way the Home communicated with Mr B about the termination.
50. Ending a contract with a resident in a care home should always be a matter of last resort. The CMA Guidance says that even where a resident is in serious breach of contract, a care home should ensure that they and their representatives are given sufficient opportunity to address the conduct (for example, address detrimental behaviour or catch up with missed payments) and, where necessary, appeal a decision to end the contract.
51. The CMA Guidance says a resident should not be asked to leave the care home without first consulting with them and their representatives. The reasons for the consultation should be fully discussed, together with possible solutions, before any final decision is made on the resident’s continued stay in the care home.
52. I therefore find fault with the way the Home communicated with Mr B in relation to the ending of the agreement. There is no evidence that the Home gave Ms C or her family any opportunity to address the concerns it had found. The Home made the decision to terminate the contract without consulting or informing the family and did not communicate the allegations against Mr B and the family until after he made the complaint. This meant that Ms C and her family did not have an opportunity to address the concerns that the Home had raised. The family was also not given any opportunity to appeal the decision and this was further fault.
53. I cannot say what the outcome would have been, of course, if the Home had followed the correct process / communications when it terminated the agreement. I accept that the outcome may have been the same. The injustice is therefore the uncertainty of not knowing whether the outcome could have been different.
54. I have also considered the agreement and the terms within the agreement about the termination.
55. The CMA Guidance says that if a care home’s contract gives a wide discretion to the care home to terminate the contract (for example, for any reason at all or for vaguely defined reasons), this is likely to infringe consumer law.
56. I note that the Home’s agreement says the Home can terminate the agreement with one month’s notice without giving any reason. This gives the Home total discretion and is not in line with the CMA Guidance.

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Recommended action

57. I recommend the Home takes the following actions within one month of the final decision. It should:
• Apologise to Mr B for the fault I have identified.
• Pay Mr B £150 for the distress caused by the fault.
• Review its agreement to ensure it is in line with the CMA Guidance and consumer law.

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Final decision

58. I have completed my investigation and have found that the Home’s actions have caused an injustice. I have recommended a remedy to address the injustice.

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Parts of the complaint that I did not investigate

59. Mr B complains that there was a long delay by the Home between November 2020 and November 2021 in making an application for an assessment for NHS funded pads. The current owners of the Home took ownership of the Home in November 2021 so the majority of Mr B’s complaint relates to the actions of the previous owners of the Home and their actions do not form part of his investigation.

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Investigator's decision on behalf of the Ombudsman