Summary: The care provider was wrong to charge some additional days’ fees after Mr X died. Once the room was cleared of Mr X’s possessions the care provider should have refurbished the room at its own expense as part of its ordinary business costs. The care provider should now reimburse the additional fees which were paid in advance.

The complaint

1. Mrs C (as I shall call her) complains the care provider charged an excessive amount following the death of her father-in-law.

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What I have and have not investigated

2. I have not investigated Mrs C’s complaint that the care provider lost Mr X’s wedding ring which had been placed in the care home safe. That is a matter which it is possible and appropriate for her to pursue through the Courts. The Ombudsman cannot normally investigate a complaint where there is an alternative remedy available by way of a claim in Court.

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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 injustice, or could have caused injustice, to the person complaining. I have used the term fault to describe this. (Local Government Act 1974, sections 34B and 34C)
4. If an adult social care provider’s actions have caused injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))

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How I considered this complaint

5. I considered the information provided by the care provider and by Mrs C. I spoke to Mrs C. Both parties had an opportunity to comment on a draft of this statement and I considered their comments before I reached a final decision.
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission.

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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 16 says “Complainants must not be discriminated against or victimised.”
9. The Competition and Markets Authority (CMA) has published guidance for care providers on complying with their consumer law obligations, part of which relates specifically to the charging of fees after a resident dies. The guidance says, “in summary the CMA considers that terms which have the effect of requiring residents or their representatives to continue to pay fees beyond the point at which possessions are cleared from the room are in principle likely to be unfair.”
10. The CMA says “We are unlikely to object to terms which permit a care home to charge fees:

(a) For no more than a reasonable short and fixed period from the day following the resident’s death, provided that provision is made for fees to stop being charged if a new resident occupies the room within this period. Generally we consider that three days is sufficiently long for this purpose, in particular where the room is offered on a fully furnished basis and so it is relatively easy to remove the small items which belong to the resident; or

(b) Until possessions are cleared from the resident’s room by their representatives, provided that a reasonable backstop period is included in the contract term for fees to cease from that point.

Generally we consider ten days to be an appropriate backstop period.”

11. The CMA guidance adds, “As many residents pay their residential fees in advance, in practice this means that, after their death, you should usually refund any advance payments that go beyond the short fixed term period.”

What happened

12. Mr X moved into the care home in 2016. Mrs C says they were given a contract to which they requested amendments. She says the home’s director agreed to the amendments and said he would arrange an amended contract for her to sign. He did not do so. The care provider says the requested and agreed changes to the 2016 contract would have read “the resident’s estate shall pay three weeks fees in the event of the resident’s death within 12 months of the placement and two weeks fees in the event of death after 12 months after placement.”
13. The care provider says the current contract states a backstop of ten days in accordance with the CMA guidance.
14. Mrs C says the care provider contacted the family in January 2022 to ask them to sign a contract. She says she raised some concerns about the proposed terms and in the event a contract was never signed, as the family started looking for an alternative placement for Mr X. She says they arranged an alternative placement and arranged to clear Mr X’s room on 25 June, but Mr X sadly passed away on 20 June.
15. Mrs C says she was contacted by the care home staff on 24 June to say the room had been cleared by them of Mr X’s possessions (without Mrs C’s permission). She says when they went to collect Mr X’s belongings on 25 June, the room was already empty and being redecorated.
16. Mrs C says the fees had been paid up to 30 June. Mrs C says there was some dispute about other payments due but once that was resolved, she asked for a partial refund of the fees as the possessions had been removed on 25 June. She says she was told there would not be a refund as it was “reasonable for fees to be payable for 10 days after death”.
17. The family emailed the care provider on 24 August and 06 October 2022 requesting the refund of fees in line with the CMA guidance. The care provider replied on 06 October that his staff had already replied and made the position clear.
18. Mrs C complained to the Ombudsman.
19. The care provider says “The (family) did not sign a new contract and only agreed to the previous contractual terms however despite this the new more favourable terms were applied in accordance with CMA guidance. The (family) collected the possessions 5 days following (Mr X’s) death but the room required refurbishment following (Mr X’s) stay and as such the room was not fit for occupation for 14 days after death”.
20. In terms of the current contract, the care provider says, “3 days is the minimum however if possessions are not collected or the room requires work to recover the room to a standard whereby another resident can occupy the long stop of 10 days is honoured”.
21. The care provider adds that the refurbishment of the room cost over £2000 in total. He says “Carpet was required along with a new mattress and full decoration. (Mr X’s) sight wasn’t the best and he over time knocked drinks and food off his over bed table. The staff cleaned the room but inevitably following his occupation it was required to be replaced”.
22. Mrs C says “The room has not been redecorated since (Mr X) moved into it. The furniture provided by the care home in the room when he moved in, was not new. It was provided as a ‘furnished’ room. Our main concern was the state of the carpet. It appeared that there had been numerous urine spillages from (Mr X’)s Catheter bag. We had witnessed staff ‘mopping’ the carpet on occasions, and the carpet was dirty”.
23. In its response to my draft decision the care provider has introduced a new issue, that of a clause in the contract which says “any damage caused by the resident or family to fixtures, fittings or furniture” will be charged to the resident at extra cost. He says as a gesture of goodwill he did not exercise this clause but instead retained the ten days’ fees. He says if the Ombudsman concludes the fee refund should be paid, the care provider will “fully comply with the outcome but will exercise its agreed contractual term to deduct this figure from the damaged items in the room and present the (family) with remaining bill.”
24. Mrs C says she and her husband had asked several times for the room to be refurbished but no discussion had taken place about contractual terms that required them to pay for damage. She says Mr X spent almost all of his time in bed. “The sides were always raised on the bed, for his own safety. I am therefore at a loss as to what damage he could cause to any fixtures and fittings in the room, as he would not be able to access them. In relation to the bed surely, any deterioration of the mattress would be caused by being constantly in the same bed for 4 years”.

Analysis

25. The care provider has not complied with the CMA guidance which says a three-day charging period after death is sufficient except where possessions have not been cleared. In this case Mr X’s possessions were out of the room four days following his death.
26. The ‘backstop’ in the new contract is not there to override the CMA guidance that fees should stop when the room is cleared. By clearing the room himself on 24 June, the care provider has effectively prevented himself from charging fees beyond that date, and a six-day refund is appropriate, not just five as Mrs C requested. The fact the room could not be re-let immediately is not relevant.
27. The care provider says it charged ten days fees because of the expense required to redecorate . The cost of usual refurbishment (including replacement of a mattress which an incontinent resident had used for at least 4 years, and a carpet which suffered spillages) is an ordinary business expense to be borne by the care provider and passed on in the general fees.
28. The decision by the care provider now to introduce the possibility of using the contractual clause instead appears to be a retaliatory action which does not accord with regulation 16.

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Recommended action

29. Within one month of my final decision the care provider should reimburse six days’ fees to the family.
30. The care provider should provide us with evidence it has complied with the above actions.

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Final decision

31. I find there was fault in the actions of the care provider which caused injustice to Mr X’s family. Completion of the recommendation at paragraph 29 above will remedy any outstanding injustice.

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Investigator's decision on behalf of the Ombudsman