Summary: Miss B complains that her late mother’s care home has refused to refund overpaid care fees to her estate. We found fault by the Care Provider in its communication which caused injustice. The Care Provider has agreed to remedy this.

The complaint

1. Miss B complains about the actions of the Care Provider after her mother, Mrs B passed away. She says it refused to refund fees in credit of £2544. After eight months it said it had charged additional fees of £6000 due to an increase in Mrs B’s care needs. Miss B says this caused the family distress and time and trouble.

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The Ombudsman’s role and powers

2. 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)
3. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
4. 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)
5. 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

6. I have discussed the complaint with Miss B and considered the information she provided. I have considered the comments and documents the care provider sent us. Miss B and the organisation had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

7. 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).
8. 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.
9. 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. It can also enforce against breaches of fundamental care standards and prosecute offences.

What happened

10. Mrs B was living in a care home. She was living with dementia. She paid for her care herself.
11. Mrs B passed away in early 2023. The Care Provider advised the family three weeks later that there was a credit of £2544 on her account because it was paid in advance. The Care Provider also sent a statement of Mrs B’s account.
12. In March 2023 Mrs B’s other daughter, Ms X, who was the executor of Mrs B’s estate asked the Care Provider to pay the refund.
13. In April Ms X complained to the Care Provider that it had not refunded the credit. She sent a copy of the completed refund form. While probate was not yet granted, she said the Care Provider could pay to Mrs B’s bank account.
14. In May Ms X chased a response to her complaint, but received no reply.
15. In July Ms X sent the Care Provider a copy of the grant of probate. She chased a response several times in July and August. Miss B also complained.
16. In mid August Ms X complained further to the Chief Executive of the Care Provider about the refund. She said it had ample time to explain why it had not refunded the credit. The Care Provider emailed an acknowledgement and apologised for the delay. It said it would raise the issue with senior management.
17. Later in August Ms X contacted the Care Provider again to say that when she called an officer had advised he would call back, but he had not done so. She said it was now 5 weeks since probate had been granted. She could not finalise Mrs B’s estate because of the delay.
18. Ms X contacted the Care Provider again at the end of August. She said that she would contact the CQC. The Care Provider replied saying it was had received information it was seeking from the care home and would now make a decision.
19. On 6 September, after further chasing by Ms X, the Care Provider replied. It apologised for its delay in responding. However, it said that no refund was due to Mrs B’s estate. This was because for two months from November 2022 it had not billed Mrs B for an extra 240 care hours. It said it had verified this on the system it used in its care homes. This amounted to £6000. And therefore taking the credit of £2544 into account, it left a debt of £3455 which was payable. The Care Provider enclosed an invoice for this amount and said that it was payable within 14 days to avoid interest charges. It apologised for the inconvenience caused by its delay and said that it would review the matter internally.
20. Miss B responded that the Care Provider:
• was now contradicting its own account because it had sent a statement shortly after Mrs B’s death.
• had taken payments by direct debit set by it own accounts department.
• had now added 240 hours over a six week period.
• Had not asked for additional money at any time during her mother’s stay
• had not discussed any extra care costs with the family.
21. Miss B asked the Care Provider for a full breakdown for this extra charge. Ms X also complained further asking how it could make the additional charge.
22. Miss B complained to the Ombudsman. We considered the complaint had not completed the Care Provider’s complaints procedure and asked it to respond.
23. The Care Provider sent Miss B a statement showing 270 additional hours over 6 weeks which it said were over the budgeted hours of 30 per week. It also said “only billed discounted extra hours - £200 hours.”
24. In response to Miss B and Ms X’s queries it said that:
• All refunds were reviewed and authorised by head office.
• Extra care hours are more expensive to the company because from time to time it had to rely on contract staff which were more expensive.
• The clause in its contract regarding variation of fees was 1.6.
25. Clause 1.6 said that - “the service provider’s fees shall be reviewed:
• Where extra or specialist nursing care or equipment is provided to the resident or there is an overall change in the level of care required by the resident; and
• To ensure compliance with statutory requirements coming into force after the last review of fees.
• The service provider will exercise its reasonable endeavours to give the resident and representatives not less than two months notice of any variation in the fees under this clause 1.6. The service provider does, however, reserve the right to give shorter notice in appropriate circumstances.”
26. Ms X replied that Mrs B had been admitted to the Care Provider’s care home for 24 hour 7 day per week care and was billed as such. While, she accepted the Care Provider would need to make a final check before refunding, it was reasonable to expect this to be done as soon as possible after the death of a resident. It was not reasonable for the Care Provider to claim the care home made a mistake eight months after Mrs B’s death. Ms X asked if Mrs B and other residents were responsible for extra cost when the Care Provider was short staffed. Ms X also stated that the family saw no change in the care Mrs B received from when she first moved in to when she died. The Care Provider did not discuss or notify the family about any specialist nursing care, equipment or variation of fees either before or after Mrs B’s death. She said the family had been unable to move on because of the stress and distress caused by the matter.
27. Miss B brought her complaint back to the Ombudsman.
28. We made preliminary enquiries and stated we considered there was fault by the Care Provider. We invited it to remedy the apparent faults by refunding £2544 to Miss B and paying her £300 to recognise the distress.
29. The Care Provider did not agree. But it offered to write off the outstanding £3455.

Analysis

30. I consider there is fault by the Care Provider because its contract is unclear and its communication was poor. This caused injustice to Miss B, and her family.
31. Clause 1.6 states that the service provider’s fees will be reviewed where extra or specialist nursing care or equipment is provided to the resident, or there is an overall change in the level of care required by the resident. It also notes the service provider will exercise its reasonable endeavours to give the resident and representatives no less than two months’ notice of any variation in the fees.
32. On an ordinary reading of clause 1.6, I consider “extra care” is unclear. There, is no definition of extra care. In addition if the Care Provider considered Mrs B required extra care it would be reasonable to expect it to have discussed this with the family beforehand. The representatives would then have an opportunity to consider whether they agreed to pay the fees, or seek alternative provision.
33. I have not seen evidence that the Care Provider used its reasonable endeavours to give notice to Mrs B’s family and representatives of the variation in fees. Instead, it issued a credit notice after her death and then, eight months after she died, an invoice. There was no proper explanation of the increased fees. I consider this was fault and caused the family distress.
34. I consider there was fault in the Care Provider’s communications. Both Miss B and Ms X chased the complaint by email and by phone several times over a period of 6 months. They raised complaints which were in my view inadequately answered. There was unacceptable delay and a failure to explain why the Care Provider added charges. This caused additional time and trouble and distress.

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Agreed action

35. Within one month of my decision, I recommend that the Care Provider:
• Refunds £2544 to Mrs B’s estate.
• Apologises to Miss X for the distress and inconvenience it caused.
• Pays Miss X £300 in recognition of the distress and time and trouble it caused.
36. Within two months of my decision, I recommend the Care Provider
• Reviews its contract to ensure clarity regarding variations in fees.
• Explains the steps it has taken to address this fault and prevent delays in providing final statements.
37. The Care Provider should provide us with evidence it has complied with the above actions.

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Final decision

38. There was fault by the Care Provider. It has agreed a suitable remedy. I have completed my investigation and closed the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman