Summary: Mrs A complains the care provider overcharged for additional care her mother received in a care home. The Ombudsman found fault by the care provider. It has agreed our remedy.

The complaint

1. The complainant, who I shall call Mrs A, complains that the care provider (East Anglia Care Homes Limited) has overcharged for additional 1:1 care that her mother Mrs X received from an external care provider during her stay at its care home. Mrs A says she arranged the external care provision, but the care provider then said it arranged the care and added administrative costs leading to an additional charge of £441.

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The Ombudsman’s role and powers

2. We have powers to investigate adult social care complaints in both Part 3 and Part 3A of the Local Government Act 1974. Part 3 covers complaints where local councils provide services themselves, or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. Part 3A covers complaints about care bought directly from a care provider by the person who needs it or by a representative, and includes care funded privately or with direct payments under a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act).
3. 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)
4. If we are satisfied with a care provider’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

5. I have discussed the complaint with the complainant and considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the care provider and considered the comments and documents it provided. I have also invited Mrs A and the care provider now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Care provider fees

6. Regulation 19 of the Care Quality Commission (Registration) Regulations 2009 is intended to make sure care providers give timely and accurate written information about the cost of their care. To meet Regulation 19, care providers must give timely and accurate written information about the cost of their care and treatment to people who use services.
7. Regulation 19 also states care providers must notify people of any changes to their terms and conditions. This includes increases in fees and giving service users sufficient time to consider whether they wish to continue with the service.

What happened

8. Mrs X moved into the care provider’s residential care home in autumn 2019. Mrs A acted as her representative in relation to financial matters. In early 2020, Mrs X had a fall on stairs in the home. Mrs A asked about 1:1 supervision because of the risk of Mrs X falling. Mrs A says the care provider manager suggested she called a care agency which the home named, to arrange this service.
9. Mrs A did so straightaway while at the home. She asked the hourly rate and believed the contract was between her and the agency. The care agency later sent Mrs A details of its rates and confirmed it could provide 1:1 care starting the next day. It also sent paperwork for Mrs A to complete including a form to sign accepting the agency’s rates and terms of business. Mrs A returned this to the agency.
10. Mrs A says she called the agency and cancelled the care provision after 10 days because Mrs X was moving to a different home. Mrs A was surprised to see that the care provider deducted the costs of the 1:1 care from the deposit and that the total charge was higher than she had agreed.
11. She complained to the care provider that the charges were £441 higher than she had agreed with the care agency in its contract with her. She asked for a refund of this amount. She also advised that Mrs X had recently passed away and the issue was causing her stress.
12. The care provider replied that it had the legal responsibility to meet Mrs X’s care needs. It said it had arranged the 1:1 care with the agency itself. The care provider explained that its charge took account of arranging the service, providing cover if the agency carer worker did not attend, proving cover when the agency worker had a break and overseeing their work to ensure good care practice. It stated that it should have agreed the hourly rate with her.
13. Mrs A responded that she had arranged the care agency, and the care provider had not agreed its hourly rate with her.
14. In the following complaints correspondence the care provider said
• Its director was aware at the time Mrs A was planning to arrange the care herself and he “made it known such an arrangement could not go ahead.” He said he asked the care home manager to communicate this including the hourly rate to Mrs A and was informed that the manager had.
• The care home then proceeded to arrange and manage the service. The agency invoiced it for the service, and it then paid.
• It could not explain how the agency accepted Mrs A’s instruction to cancel the service.
• It needed to ensure there was cover if needed and it was its responsibility to check and manage staff.
15. In its response to my enquiries the care provider said that its manager had incorrectly advised Mrs A to contact the care agency to arrange the 1:1 care. However, it also says that this was quickly recognised and rectified. It said its director asked the manager to speak to Mrs A and giver her information in line with its contracts and policies. It believes that the manager did so, because the family asked the manager to cancel the agency 1:1 service. The manager sent an email to the agency cancelling the service.
16. The care provider also referred to its contract and terms and conditions. These state that if the resident’s needs change requiring enhanced levels of care the company may increase the fees in order to meet this enhanced level of care. The terms state the company would use its best endeavours to provide the client with seven days notice of the increase. But in circumstances where it was necessary to provide enhanced care to protect the resident and if could not give seven days notice, the company would give “prior notice”.
17. The care provider sent me a copy of the email which its manager sent to the care agency cancelling the service. However, the care provider did not send me:
• Written notice of the charges or confirmation of the charges the care provider would charge to Mrs A for the enhanced care.
• Contemporaneous notes on its system regarding the discussion the manager had with Mrs A about the care provider responsibility to arrange the care, or that she explained the hourly rate the care provider would charge.
• a copy of the care provider contract with the care agency in respect of Mrs X’s 1:1 care.
• The invoice from the care agency to the care provider.

Analysis

18. I consider there was fault by the care provider because it initially incorrectly advised Mrs A to arrange the 1:1 care herself. Mrs A was then under the impression that she was contracting directly with the care agency. Mrs A received the care agency terms and contract which she signed and returned. The care agency advised Mrs A in writing of the hourly rate, so this is the rate she thought was due.
19. While the agency says that its manager spoke to Mrs A about the care agency arrangements and advised her that it was responsible for making the arrangements. Mrs A has not advised me about any such discussion so there is a conflict of evidence here. There is also contradictory evidence about who cancelled the care agency, as the care provider’s email shows it contacted the agency. But Mrs A says that she called it to cancel the care.
20. At present, on the balance of probability, I consider that before the care ended Mrs A was aware that the care provider was responsible for the care agency arrangements because she or a member of the family contacted the care provider to ask it to cancel the care agency.
21. However, I do not consider there is sufficient evidence the care provider manager explained the charges it would make for the 1:1 care. There is no written notification, which in my view appears to be fault by the care provider because it does not accord with regulation 19 of the Care Quality Commission (Registration) Regulations. While the 1:1 care was arranged at short notice, the care provider should still have notified Mrs A in writing in accordance with the regulations.
22. The care provider’s contract also states it would give prior notice of increased fees due to enhanced care. I would expect this notice to be in writing. As there was an initial error on the part of the care provider, I would expect it to properly clarify the fees and responsibilities in writing. This fault led to a lack of clarity about the fees, which was not explained until after Mrs X had left the home. Mrs A was left with unexpected extra charges, which were higher than the rates she had received from the care agency. She was also put to time and trouble in making a complaint at a stressful time, before the care provider explained the charges.

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Agreed action

23. I considered there was fault by the provider which caused injustice to Mrs A. I recommended that the care provider, within 6 weeks of my decision:
• Apologises and refunds £441 to Mrs A.
• Pays Mrs A £150 for her time and trouble.
• Reminds its managers that they should notify increases in fees in writing in accordance with the regulations and its contract.
24. The care provider has agreed to my recommendations.

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Final decision

25. There was fault by the care provider. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman