Summary: Mrs B complained about the fees Dalemead Care Home Limited charged after Ms C died. The charges do not appear to be in line with established guidance. This is fault. The care provider has refunded part of the fees.

The complaint

1. Mrs B complains that Dalemead Care Home Limited (the care provider) has failed to refund her client, Ms C, the full amount to which it she entitled. The care provider charged four weeks’ worth of fees when Ms C died whereas Mrs B says it was only entitled to charge three days. Mrs B says the care provider should refund the difference between the three days and four weeks.

Back to top

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. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. If the person has died or cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (section 26A or 34C, Local Government Act 1974)
5. 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)

Back to top

How I considered this complaint

6. I have considered a complaint form Mrs B completed and made enquiries of the care provider. I have considered its response along with complaint correspondence, contract of service and relevant guidance. I have taken advice from adult social care specialists.
7. Mrs B and the care provider had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

8. Part 2 of the Consumer Rights Act 2015 and the Consumer Protection from Unfair Trading Regulations 2008 set out the law on unfair contract terms and unfair business practices.
9. In May 2018, the Competition and Markets Authority (CMA, the UK’s main competition and consumer authority) issued guidance (the Guidance) on its interpretation of the above law, in particular, on charging fees after a resident’s death.
10. The Guidance suggests, following a resident’s death, fees may be charged for a short, fixed-term period of no longer than three days.

Key facts

11. Mrs B is acting for Mrs C’s estate. I am therefore satisfied she is a suitable representative for this complaint.
12. In 2015 Mrs C moved into the care provider’s care home. She signed a contract that said when a resident dies ‘…the normal payment will remain payable for four weeks as long as the vacancy created continues for that period.’
13. Mrs C passed away in May 2019, the care provider charged four weeks’ fees from this date.
14. Mrs B wrote to the care provider in January 2020. She explained the Guidance said care homes could charge a maximum of three days’ fees following a resident’s death. She therefore asked that the surplus be refunded.
15. The care provider wrote to Mrs B in March 2020. It said Mrs C had signed the 2015 contract which provided for the four-week charge. It expressed doubt that the Guidance could be applied retrospectively and offered a two-week refund as a compromise.
16. In September 2020, Mrs B complained to the Ombudsman.
17. Following my enquiries, the care provider confirmed that in 2015, it was standard practice to charge four weeks’ fees after a resident died. It asked whether the Guidance could be applied retrospectively.

Analysis

18. I do not consider the CMA Guidance is being applied retrospectively in this case. The CMA issued the Guidance in 2018 so the care provider was put on notice at that point that the pre-2018 clause was unfair. The law behind the Guidance has been in place since as early as 2008. Therefore, while it may not have been clear until 2018 that the clause was unfair, the underlying law was in place when the contract was signed in 2015. Further, Mrs C passed away in 2019, which was at a time the care provider knew the clause was unfair.
19. The care provider has implicitly acknowledged that the pre-2018 clause was unfair as it has amended its standard contract to reflect the Guidance. It is unclear why it did not amend the terms of all the contracts at the same time. The fact the contracts were entered into before the Guidance was issued does not make them fair in terms of the CMA Guidance.
20. Based on the Guidance, there is fault in charging the four weeks’ fees.

Agreed action

21. The care provider has refunded the difference between the fixed period recommended in the Guidance and the fees it has charged (four weeks minus three days). It is reviewing all contracts entered into with residents before May 2018 and ensure the new clause is reflected in these contracts.

Back to top

Final decision

22. The care provider appears to be at fault for charging four weeks’ fees following Mrs C’s death. However, it has now refunded the excess charged and is reviewing existing contracts.
23. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

Back to top

Investigator's decision on behalf of the Ombudsman