Summary: Mr X complains that Ave Maria Care Ltd failed to advise his mother, Mrs Y or her family about an increase in the hourly rate for her care. Mr X states Mrs Y did not enter into a contract with Ave Maria Care Ltd and the signature on the contract is not Mrs Y’s. The Care Provider’s failure to ensure Mrs Y was aware of and understood the cost of her care amounts to fault. This fault has caused Mrs Y an injustice.

The complaint

1. The complainant, whom I shall refer to as Mr X complains that Ave Maria Care Ltd failed to advise his mother, Mrs Y or her family about an increase in the hourly rate for her care. Mr X states Mrs Y did not enter into a contract with Ave Maria Care Ltd and the signature on the contract is not Mrs Y’s.

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))

Back to top

How I considered this complaint

4. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the care provider and considered the comments and documents the Care Provider has provided;
• discussed the issues with Mr X;
• Mr X 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

Key facts

5. Mrs Y lived at home and received a care and support from Ave Maria Care Ltd (the Care Provider). Mrs Y’s local council commissioned and paid for this care package. In 2020 Mrs Y was admitted to hospital following a fall. When she was discharged she needed an increase care package.
6. Mr X states the local council suggested that rather than the council continuing to commission Mrs Y’s care and support, it make direct payments to Mrs Y. This would give her greater flexibility to choose the care provider she wanted. Mrs Y chose to continue using the Care Provider.
7. This package of care continued until Mrs Y moved into a care home. The Care Provider issued a final invoice in October 2020. Mr X disputed this final invoice. He was unhappy that the Carer Provider had increased their fees when Mrs Y changed from a council commissioned service to direct payments.
8. Mr X made a partial payment which left a balance of £413.64 outstanding. He complained the Care Provider had not told Mrs Y or the family about the increase in fees. The Care Provider confirmed Mrs Y had signed a contract when the increased care package began, which set out the hourly rate. The Care Provider sent Mr X a copy of the signed contract. Mr X disputed Mrs Y had signed the contract and asserted the signature was forged. He provided other examples of Mrs Y’s signature to illustrate the signature on the contract was not Mrs Y’s.
9. The Care Provider investigated Mr X’s concerns and then confirmed a care coordinator had visited Mrs Y at home on 15 June 2020 to ask her to sign the contract. It explained the contract was necessary as Mrs Y was now paying by direct payments and there had been an increase in care. Mrs Y had not previously needed to sign a contract as the council had commissioned her care. The Care Provider sent Mr X statements from the care coordinator and their manager confirming Mrs Y had signed the contract.
10. The Care Provider also confirmed they had reviewed the signature samples Mr X had provided and noted it had changed slightly over the years. The Care Provider maintained its position that Mrs Y had signed the contract and asked Mr X to pay the outstanding balance.
11. Mr X remains dissatisfied and has asked the Ombudsman to investigate his complaint. Mr X states that had they been aware of the increased costs, they would have continued with a care package commissioned by the council. He disputes the Care Provider explained the costs to Mrs Y and asserts that even if it had, Mrs Y would not have understood. Mr X states Mrs Y does not recall signing the contract and has confirmed the signature is not hers. He would like the Care Provider to cancel the outstanding charges.
12. In response to my enquiries the Care Provider states Mrs Y’s care plan confirms she had capacity and was able to make all decisions around her care and other aspects of her life and did not have a power of attorney in place.
13. It states it cannot offer any meaningful comment on Mr Y’s assertions around Mrs Y’s signature or the samples as it considers there are too many variables. It maintains its position that Mrs Y agreed to and signed the contract for care services. She received services from the Care Provider pursuant to the care plan and complimented the service on numerous occasions.
14. The Care Provider also notes that Mr X paid all previous invoices without query while the services were being provided. The hourly rate is clearly stated on the invoices. The Care Provider states Mr X only began disputing the charges once Mrs Y had moved to residential care. It considers this matter is more about avoiding payment now Mrs Y does not need the service than a genuine dispute over the price agreed for the services.
15. In response to the draft decision Mr X maintains Mrs Y did not sign the contract. He states there are differences in the formation of several letters which clearly demonstrate it is not his mother’s signature.
16. He states the earlier invoices were all paid in full and not queried due to the way the council paid Mrs Y’s direct payments. Until the final invoice, there was always sufficient money in the direct payment account to pay the fees. Mr X states that as the council had previously paid the fees directly to the Care Provider they would not have known the Care Provider had increased their fees without seeing a copy of the contract. The Care Provider did not give Mrs Y or the family a copy of the contract.
17. The Care Provider has also responded to the draft decision. It does not accept fault and maintains the cost of Mrs Y’s care was explained in the contract and fee schedule. The Care Provider states Mrs Y read and signed the contract.
18. Although the Care Provider will not accept fault, or apologise, as a gesture of goodwill, it has offered to deduct £100 from Mrs Y’s final bill. This will reduce the outstanding bill to £313.64. The Care Provider states it sent the bills to Mr X at Mrs Y’s request and asserts Mrs Y was aware of the hourly rate from the outset.

Analysis

19. It is unclear what information or advice Mrs Y’s council provided when discussing moving to direct payments. If Mr X is concerned Mrs Y was not given sufficient information to be able to make an informed decision about changing to direct payments, this is a matter he should raise with the council. It does not form part of the complaint about the Care Provider.
20. It is not unusual for there to be a difference in the rates care providers charge individuals who arrange their own care and the rate they charge a council. But we would expect service users to know how much their care and support package will cost them. I note the contract sets out the hourly rates. It also highlights that the cost of the care service it provides may be more that the funding from the local council as direct payments. And that it is the service user’s responsibility to make up any shortfall.
21. The Care Provider states Mrs Y agreed to the contract, but I have not received a record of any discussion between Mrs Y and the Care Provider regarding their charges. The care coordinator’s statement confirmed they visited Mrs Y to get her to sign the contract and explains why a contract was necessary. It does not refer to any discussion about the terms of the contract or the charges. Nor does it suggest a copy of the contract was left with Mrs Y.
22. Mr X states Mrs Y would not have understood the contract and that ordinarily he or another family member would be there to support with such decisions. The care plan dated June 2020 states Mrs Y has capacity and manages all her own health/wellbeing and financial needs. It also notes Mrs X will pay for the service by direct payments and does not require support managing her finances. In such circumstances it may not have be considered necessary for Mrs Y’s family to be present.
23. However, I note that all of the invoices are addressed to Mr X rather than Mrs Y, and are sent to his address. This suggests the Care Provider was aware Mrs Y did not manage all her finances or the direct payments, and of the need to involve Mr X in such matters.
24. I consider the Care Provider’s failure to discuss or document any discussions with Mrs Y regarding the cost of her care package and the failure to provide Mrs X with a copy of the contract amounts to fault. This lack of clarity regarding the cost of Mrs Y’s care has caused an injustice.
25. I consider it more likely than not had Mrs Y and Mr X been aware at the outset the direct payments would not cover the Care Provider’s fees they would have reverted to a commissioned service. I do not however consider this means the Care Provider should waive the difference in the charges in full.
26. Irrespective of any discussions before the contract started, Mr X would have been aware of the Care Provider’s charges when he received the first invoice in late June 2020. Although this first invoice does not specify the hourly rate, it does confirm the charge for each visit, which could be used to calculate an hourly rate. As this is different to the hourly rate for direct payments, Mr X could have questioned the charges and the shortfall with the Care Provider and/ or the council at this stage. This could have avoided Mrs Y paying any further shortfalls.
27. I recognise Mr X disputes that the signature on the contract is Mrs Y’s, but not this is not an issue the Ombudsman can resolve. If Mr X believes Mrs Y’s signature has been forged, this is a matter for the police.

Back to top

Agreed action

28. The Care Provider has agreed to reduce Mrs Y’s final bill by £100. This will leave an outstanding balance of £313.64.
29. The Care Provider should take this action within one month of the final decision on this complaint.

Back to top

Final decision

30. The Care Provider’s failure to ensure Mrs Y was aware of and understood the cost of her care amounts to fault. This fault has caused Mrs Y an injustice.

Back to top

Investigator's decision on behalf of the Ombudsman