The Ombudsman's final decision:
Summary: We uphold Ms A’s complaints about a care provider not providing her with reading and social support. Ms A suffered avoidable distress and inconvenience and she did not receive the services agreed on her care plan. To remedy the injustice, the Care Provider will reduce the bill by a further £1500 and apologise for the failings identified within one month. We do not uphold Ms A’s complaint about billing her for a second carer.
- Ms A complains Allot Healthcare Services (the Care Provider) failed to provide her with reading and social care support and overcharged her by billing her for a second carer.
- Ms A says the Care Provider’s actions had a negative effect on her mental and physical health and caused her avoidable stress. She also says she missed out reading important mail and on socialising which could have improved her well-being. She wants the Care Provider to drop the bill and make her a payment to recognise the distress it caused her.
The Ombudsmen’s role and powers
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team for both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
- The Local Government and Social Care Ombudsman investigates complaints about adult social care providers. We decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. (Local Government Act 1974, sections 34B, and 34C, as amended)
- The Health Service Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’ in health services. We use the word ‘fault’ to refer to these. If there has been fault, we consider whether it has caused injustice or hardship. (Health Service Commissioners Act 1993, section 3(1))
- If the actions of a health and social care provider have caused injustice, the Ombudsmen may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
- If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I considered Ms A’s complaint to us, the Care Provider’s response to the complaint and some of the Care Provider’s case records on Ms A. A colleague discussed the complaint with Ms A. The parties received a draft of this statement and I took comments into account.
What I found
What should have happened
- The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. The Care Quality Commission (CQC) issued guidance in 2015 on meeting the regulations (the Guidance.) We look at the 2014 Regulations and the Guidance when determining complaints about poor standards of care.
- Regulation 9 of the 2014 Regulations requires care and treatment to be appropriate, to meet a person’s needs and to reflect their preferences. Care providers should carry out an assessment of needs and preferences and design a care plan. The Guidance explains there may be times when a person’s needs and preferences cannot be met. If so, providers must explain the impact and explore alternatives.
- Regulation 19 of the 2014 Regulations requires a care provider to give accurate and timely information about the cost of their care and treatment to people who are paying in full or in part for the cost of their care. The Guidance explains providers must ensure they give a copy of a written contract detailing the service to be provided to the person or their representative. People must receive information about the cost, terms and conditions of the service before it starts, if practicable.
- NHS continuing health care (CHC) is a package of health and social care funded by the NHS and arranged by the person’s local Clinical Commissioning Group (CCG)
- The Care Provider’s customer guide, which it gives to all new customers, explains:
- It invoices the organisation funding the care (for those people who have publicly funded care packages)
- It invoices private-paying customers every four weeks
- It may end a service if a private customer does not pay invoices.
- Ms A has a rare condition affecting her mobility and vision. The Care Provider told us the CCG awarded it the contract for Ms A’s care which was funded by CHC and the agreement was the CCG paid half the invoice and Ms A paid the other half. The Care Provider’s service to Ms A was from the end of December 2016 to October 2017. In August 2017, the CCG decided Ms A was no longer eligible for CHC.
The CCG’s assessment
- In November 2016, the CCG invited local care providers to bid for Ms A’s care package. It sent the Care Provider an assessment for Ms A. The assessment set out Ms A’s care needs and contained a statement of the hours of care the CCG was prepared to fund. All care was to be provided by two carers because of assessed risks based on Ms A’s previous behaviour. Ms A needed:
- two hours each morning for personal care, breakfast, continence care and medication
- one and a half hours each lunch time for lunch, continence care, medication and to complete her exercise programme
- one and a half hours each teatime for meals, continence care and medication
- one hour each night for getting to bed and taking medication
- two and a half hours two days a week to support her with shopping, getting to the bank and socialising.
The total funding through CHC was for 47 hours for two carers. One of the health outcomes specified in the CCG’s assessment was ‘assistance with reading letters and writing due to client being registered blind.’
- The CCG awarded the contract for Ms A’s care to the Care Provider.
- The Care Provider’s care plan for Ms A set out detailed instructions for carers about how they should support Ms A and what they should do on each call. She needed support with transfers, dressing, personal care, cleaning, laundry, medication, using the toilet, meal and drink preparation. The care plan said on some days Ms A might choose to ‘combine her morning calls with her lunch and social calls so she could do some errands and would let carers know the day before.’ The care plan also said Ms A might have paperwork that needed dealing with and she might ask for help with this during the teatime call.
- The Care Provider also had a ‘carers duties list’ for Ms A. This set out a list of tasks for carers to do on each call. The list did not include any social calls. One of the tasks was opening Ms A’s letters and filing papers.
- The Care Provider kept daily care diaries of each visit to Ms A. These indicate carers supported Ms A with personal care, transfers, continence care, dressing, housework and laundry, meal and drink preparation and occasional shopping. The diaries do not say whether carers fetched Ms A’s shopping for her or supported her to go to the shops to get it herself. The diaries do not contain any entries of ‘social calls’. There are no records of the Care Provider supporting Ms A to read or to socialise.
- The daily care diaries have entries for four calls for the first week of the care package, (the last week of December 2016). The diaries indicate Ms A cancelled her lunch call after the first week and so had three calls from January 2017. From the end of July 2017, according to the diaries, Ms A only had two calls a day and for the last week of the service in September, only one call at tea/bedtime.
- The Care Provider disclosed invoices dated:
- 14 February 2017 for care between 23 January and 12 February 2017, addressed to the CCG and with no statement about sharing the bill. There is no copy to Ms A
- 6 March 2017 for care between 23 December 2016 and 5 March 2017, addressed to Ms A and says the bill is to be shared equally by the CCG and Ms A
- 10 April 2017 for care between 6 March and 9 April, addressed to Ms A and says the bill is to be shared equally by the CCG and Ms A
- 1 May 2017 for care between 10 and 30 April, addressed to the CCG and to be shared equally. There is no copy to Ms A
- 2 October 2017 for care between 4 September and 1 October, addressed to the CCG and to be shared equally between the CCG and Ms A. There is no copy to Ms A
- An undated email (possibly around July or August 2017) from the Care Provider to the CCG said:
- Ms A kept changing her hours because she wanted to pay less
- She owed money, but it had not chased her for this because she was vulnerable
- It wanted to ask the CCG for advice about how to deal with outstanding invoices
- It was concerned she kept reducing her hours and this placed her health at risk; for example, she had cancelled her lunch call but asked carers to prepare her lunch on other calls
- She cancelled her bedtime call and this meant the morning call took longer due to the bed being wet.
- The lunch calls were cancelled altogether. As the lunch calls were 1.5 hours per day Ms A did not understand why the invoice was for 40 hours
- In relation to the teatime call, according to the care plan, the carers had been with Ms A for 1.5 hours, but because the carers came in pairs this should be 45 minutes. However, according to the Care Provider’s own records, the carers had only been staying half an hour. The invoice did not reflect this and therefore was incorrect.
- No social hours had been provided apart from occasional trips to the bank noted in the records. The invoice did not reflect this and was therefore incorrect.
- The collection of items and shopping were added to the invoices as extras when in fact they were supposed to be part of the morning call. This should not be added as extra in any invoice as the duties were part of the call.
- Due to changes in medication, and the times it should be taken, the night call was cancelled. This needed to be reflected in the invoices.
- From the first week, the weekly hours were 28. However, the invoices received were for 47 hours then reducing to 40 hours. This was unclear and required an explanation
- The second carer did not do anything. If the second carer was not completing their duties, Ms A should not have to pay. Those duties were reading letters, washing floors and cleaning. She did not want or need two carers.
- Morning visits were regularly late and Ms A had been missing her activities. She had told the Care Provider about this previously and it had taken no action.
- There was no written contract between it and Ms A because she did not negotiate the care package with it, rather the CCG did.
- It was agreed she would pay half the bill and so it invoiced her for half the bill
- It provided 47 hours from 23 December to 22 January. On some weeks she did not take the social calls, but it had organised carers and so it still charged her for those hours because she needed to give a week’s notice to cancel
- From 23 January until 28 May, the hours were 40 but it would only charge for 40 hours from 23 January to 6 March and for 33.5 hours from 6 March to 28 May.
- From 29 May to 16 July it charged for 29 hours, then there was a reduction of one hour for a further week and then another reduction to 21 hours until 24 September when the package was reduced again to one call of 30 minutes done by two carers.
- All the above cancellations were done by Ms A and it had implemented them. She had not paid anything for over seven months
- It did provide social calls and it had records to prove it. As a goodwill gesture, it had reduced the bill and the revised invoices reflected this.
- It was never part of the care plan to do shopping during the time of the calls. The risk assessment was that two carers needed to be in place and it made this clear to Ms A at the start. It would continue to provide two carers
- It had met with Ms A and a number of her advocates to try and resolve her concerns and she still had not paid.
Comments from the Care Provider
- The Care Provider told us:
- The CCG had paid its share of the bill.
- The CCG funded two carers because Ms A had made allegations against carers in the past. While Ms A said she only wanted one carer, the Care Provider had refused to reduce her package to one carer because it wanted to protect its staff.
- It stopped Ms A’s care because she was not willing to pay for it and the NHS had also stopped funding.
- There had been a number of meetings with Ms A about the bill. It reduced the balance from £13000 to £8000. It intended to go to court if she did not pay the bill.
- Ms A said she was happy with its service at the time.
- She asked for changes to the service and she seemed happy with what had been agreed.
- For the first three months it did not send Ms A an invoice because the CCG had agreed to fund all her care. Then ‘they’ (it is unclear who this was) met and decided the fee was going to be split equally between Ms A and the CCG.
- 47 hours from 23 December to 22 January
- 40 hours from 23 January to 6 March
- 33.5 hours from 7 March to 28 May
- 29 hours from 29 May to 16 July
- 28 hours from 17 July to 23 July
- 21 hours from 24 July to 24 September
- From 25 September to the 1 November: Ms A kept making changes every week.
- The Care Provider was supposed to provide Ms A with support with reading and writing. The CCG’s assessment stated its funding of 47 hours of double-handed care included support with reading and writing as Ms A was blind. The Care Provider’s own care plan included support with managing bills and post. There is no evidence in the care diaries that carers carried out this task. I consider Ms A’s care was not in line with the agreed care plan. The Care Provider did not act in line with Regulation 9 of the 2014 Regulations.
- The Care Provider was also supposed to provide Ms A with ‘social calls’, twice a week for two and a half hours, as this was set out in the CCG’s assessment and funding and referred to in Ms A’s care plan. There is no evidence in the care diaries that the Care Provider supported Ms A to socialise. The Care Provider’s manager told us he had provided this support for Ms A, but there is no record in her care diaries and so there is no evidence to support this claim. I consider Ms A’s care was not in line with the agreed NHS funding or her care plan and so was not in line with Regulation 9 of the 2014 Regulations.
- The CCG’s assessment and the Care Provider’s care plans said Ms A required two carers. When Ms A queried the need for two carers, the Care Provider explained the reason for this. I consider the Care Provider acted in line with Regulation 9 of the 2014 Regulations and in line with the Guidance by explaining why it would not provide Ms A’s preferred service. So I do not uphold this complaint.
Payments, invoices and contract
- The Care Provider failed to provide Ms A with a written contract. This was a requirement of the Guidance as Ms A paid for part of her care privately. The lack of a written contract with Ms A was fault. The fact that there was a separate contract with the CCG for Ms A’s NHS-funded care did excuse the Care Provider from contracting with Ms A in writing for the privately funded part of her care. The Guidance is clear on that point.
- I consider the invoices to Ms A fell short of expected standards in Regulation 19 of the 2014 Regulations. Regulation 19 requires care providers to give accurate and timely information about costs. There was a delay of several months in sending the first invoice (I note that this was because Ms A’s care was said to be fully NHS funded during this period, but there is still an expectation to invoice the payer four weekly) and the Care Provider cannot evidence it sent every split invoice to Ms A.
- I note Ms A is said to have made frequent changes to the hours and calls. These changes were undocumented in the care records. The Care Provider should have made a contemporaneous note when Ms A contacted it to change the times of her care visits or to cancel: it has provided no records of contact from Ms A cancelling calls. And there is no evidence Ms A asked the Care Provider to cancel her social calls or not to provide her with support to read.
- It was particularly important for the Care Provider to confirm in writing to Ms A the changes it had made in response to her requests so that the parties were aware of the agreed changes. This lack of clarity about the changes to hours that had been implemented was fault which caused confusion about what the weekly fee was and about invoices. The failure to provide accurate and timely information about the agreed changes meant the Care Provider’s service to Ms A was not in line with Regulation 19 of the 2014 Regulations.
- I have upheld Ms A’s complaints about not providing her with reading and social support. I have not upheld her complaint about the provision of a second carer.
- Ms A suffered avoidable distress and inconvenience and she did not receive all the services she was assessed as requiring and being funded by the NHS to receive. I note she also owes the Care Provider a significant amount of money for the care which she agreed to fund herself. I have taken into account the Care Provider has already reduced the bill by £5000 before Ms A complained to us, although I note the invoicing is itself confusing and unclear. I note also that Ms A does not dispute that she agreed to pay half the bill.
- To remedy the injustice to Ms A, the Care Provider will reduce the bill by a further £1500 and apologise to Ms A for the failings I have identified. It should do so within one month of this statement. In recommending this figure, I have taken into account the LGSCO’s Guidance on Remedies and the PHSO’s Guidance on Financial Remedy.
- I have upheld some of Ms A’s complaints about a failure to provide agreed care. I have recommended a reduction in the fees owed and an apology and the Care Provider has accepted these recommendations
- I have completed the investigation and shared a copy of my final statement with the Care Quality Commission, in line with our information sharing agreement.
Investigator's decision on behalf of the Ombudsman