Summary: Miss X complained about how the Care Provider which runs the care home where her mother, Mrs Y, lived from May 2019 managed Mrs Y’s care fees. The Care Provider failed to provide the terms and conditions of Mrs Y’s stay before she became a resident and to provide regular invoices. This caused Miss X avoidable uncertainty, frustration, time and trouble. The Care Provider agreed to make a financial payment to Miss X and review how it manages incoming post.

The complaint

1. Miss X complained about the actions of the Care Provider which runs the Nightingale Nursing Home, Littlehampton, where her mother, Mrs Y, lived from May 2019. She said the Care Provider failed to:
1. provide the terms and conditions or contract for Mrs Y’s stay until six months after she moved in;
2. provide regular invoices and to properly account for NHS Funded Nursing Care contributions;
3. properly explain what would happen when Mrs Y would need financial support from the Council;
4. provide confirmation of Mrs Y’s residence at the home; and
5. follow data protection rules, by sharing information with Miss X’s brother and wrongly implying Miss X was responsible for unpaid care fees.
2. As a result, Miss X said she could not manage her mother’s finances to best effect and her mother could not claim welfare benefits as soon as she could have. Miss X also said she suffered avoidable stress and worry from her brother’s reaction to the unpaid care fees and over her mother’s ability to stay at the care home.
3. She wanted the Care Provider to apologise, in writing, for the delays, to make her brother aware that she was not responsible for the unpaid care fees and to improve its procedures.

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What I have investigated

4. I have investigated parts a) – d) of Miss X’s complaint.
5. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

6. 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)
7. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
8. 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. (Local Government Act 1974, sections 26A or 34C)
9. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe there is another body better placed to consider a complaint. (Local Government Act 1974, sections 34B(8) and (9))
10. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
11. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
12. 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

13. I considered:
• the information Miss X provided and discussed the complaint with her;
• the Care Provider’s comments on the complaint and the supporting information it provided; and
• relevant law and regulations.
14. Mrs Y cannot authorise, in writing, someone to act for her. Miss X has lasting power of attorney for Mrs Y’s financial affairs and so I am satisfied she is a suitable person to complain on behalf of Mrs Y.
15. 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.
16. Miss X and the Care Provider 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

Terms and conditions for care home services

17. Where someone is responsible for paying the full or partial costs of their care, a Care Provider must give them (or someone acting on their behalf) details of the terms and conditions of their care, the amount and payment method of fees and a copy of any contract. This information must be provided, in writing, before the person goes into care or as soon as possible afterwards. (Care Quality Commission (Registration) Regulations 2009, Regulation 19)

What happened

18. Mrs Y moved into the Nightingale Nursing Home (care home), managed by Cadogan Care Limited (Care Provider), in May 2019. At first, this was for a short-term stay, but this became long-term in June 2019. Until mid-2021, Mrs Y self-funded her stay at the care home.
19. Miss X has lasting power of attorney for her mother’s, Mrs Y’s, financial affairs and has taken responsibility for managing Mrs Y’s money and using this to pay Mrs Y’s care fees.
20. Miss X says she asked the care home, on several occasions between June and November 2019, to provide a copy of the contract and monthly invoices so she had evidence for use of Mrs Y’s money.
21. However, the Care Provider only provided a copy of Mrs Y’s contract and the terms and conditions of her stay in November 2019. The contract said residents should pay care home fees monthly, in advance, by standing order and the Care Provider included a standing order form.
22. At the same time, the Care Provider sent Miss X an invoice for over seven months of fees; around £26,000. Miss X paid this invoice in January 2020 and, at the same time, asked the Care Provider to explain its process when residents become eligible for financial support from the local council.
23. The Care Provider explained how to contact the council to apply for funding. Miss X clarified she wanted to know the Care Provider’s policy for transferring to council funding, since Mrs Y’s fees were more than the local council usually paid.
24. The Care Provider did not respond to Miss X until August 2020 when it emailed both Miss X and her brother. In this email the Care Provider explained its approach to transitions to council funding and included an invoice for a further eight months of care fees; around £28,000.
25. Miss X replied the following day saying she would need time to draw down such a large sum from Mrs Y’s finances, but that cheques for the outstanding fees would follow. She asked the Care Provider not to use her email address and to write only by letter. She asked it to send invoices to her by post and for a letter confirming Mrs Y’s residence that she needed for some of Mrs Y’s financial providers.
26. Miss X said her brother had no involvement with Mrs Y’s finances and the email implied Miss X had failed to pay the fees that were due. Miss X said she expected the Care Provider to invoice for the fees, as it had done so far and that implying the build up of fees was her fault caused a disagreement with her brother.
27. The Care Provider sent Miss X two further invoices for September and October at the end of September. Miss X paid all these invoices, over £36,000, in October 2020.
28. Miss X wrote to the Care Provider again in early December 2020, asking for invoices for Mrs Y’s November and December fees, and again for a letter confirming Mrs Y’s residence. However, the Care Provider did not respond until the end of January 2021, when it sent a further invoice for four months fees and the residence confirmation letter Miss X had asked for.
29. Monthly invoices followed until Mrs Y transitioned to Council funding in July 2021.
30. In its response to my enquiries, the Care Provider accepted it had not provided the contract or terms and conditions at the time Mrs Y became a long-term resident. However, it also explained it had significant difficulties contacting Miss X by phone and that her insistence on communicating by letter caused it significant difficulty. It said this caused much of the delays with communication.

My findings

31. Miss X’s complaint is late because she complains about events going back to May 2019, although she complained to the Ombudsman in March 2021. However, this followed protracted discussions between Miss X and the Care Provider, which reached a point where they were making no further progress in early 2021. Miss X complained to the Ombudsman shortly after this. Considering this, and that the Care Provider did not provide its complaints procedure, which should include details of the Ombudsman, until November 2019, I am satisfied there are good reasons to consider Miss X’s complaint back to May 2019.

a) Contract, terms and conditions

32. The Care Provider accepts it did not provide the required contract or terms and conditions of Mrs Y’s stay until November 2019. This was after Mrs Y became a resident and not as soon as possible afterwards.
33. Miss X knew how much Mrs Y’s fees were, from her temporary stay. However, the failure to provide the terms and conditions led to Miss X being unaware of the expected payment methods or how the care home would account for Funded Nursing Care (FNC, an NHS contribution towards Mrs Y’s nursing needs). While this did not affect Mrs Y’s stay in the care home, since the Care Provider agreed to invoice in her case, this could have caused injustice in different circumstances. Therefore, I am satisfied the failure to provide the terms and conditions in a timely way was fault.

b) Invoicing and accounting for Funded Nursing Care

34. The evidence shows the Care Provider invoiced Miss X intermittently during Mrs Y’s say, including two invoices of more than £25,000 and one of around £12,000. Miss X says she asked the care home multiple times for invoices before it provided the first invoice and the evidence shows Miss X paid the invoices quickly, considering the sums involved.
35. The Care Provider said the second large invoice, which prompted it to tell Miss X’s brother of the fees building up, arose because Miss X did not arrange payment by standing order.
36. Although the contract said payment should be by standing order, rather than after invoicing, the Care Provider did not make Miss X aware of this as it should have done. The Care Provider did not take any action between January and August 2020 to chase payment or make Miss X aware it wanted her to pay by standing order. The evidence also shows the Care Provider later agreed to invoice Miss X for Mrs Y’s fees.
37. Considering:
• the delay in providing the terms and conditions of Mrs Y’s stay;
• the Care Provider had, at first, invoiced Miss X; and
• it took no other action about the fees between January and August 2020

I am satisfied the Care Provider was mostly responsible for the build-up of fees.

38. This did not affect Mrs Y’s stay, since Miss X paid the fees. However, I am satisfied the Care Provider’s actions caused Miss X avoidable uncertainty, frustration, time and trouble when managing Mrs Y’s finances, so this was fault.
39. Although the contract says the Care Provider will refund Funded Nursing Care contributions to residents quarterly, this assumes payment of the full fees by standing order. However, Miss X agreed invoicing with the Care Provider. Therefore, I am satisfied the offsetting of FNC payments against the fees on invoices did not cause Mrs Y or Miss X an injustice, so this was not fault.
40. Although the Care Provider apologised to Miss X for the delays, I am not satisfied this was a suitable remedy, given the time over which the delays happened and the injustice to Miss X.

c) Transition to Council funding

41. Miss X asked for information about the transition to council funding in January 2020. The Care Provider explained how to contact the council and start the process shortly afterwards. When Miss X clarified she wanted to know how the Care Provider approached this, it did not explain this for eight months.
42. Although the Care Provider does not have a written policy on transition to council funding, as Miss X expected, there is no requirement for it to have one. I am satisfied the explanation the Care Provider gave Miss X about its approach to transition was enough. There is no evidence the delay in the explanation caused Mrs Y an injustice, as she has now transitioned successfully to council funding.

d) Confirmation of Mrs Y’s residence

43. The care provider took eight months to provide Miss X with confirmation of Mrs Y’s residence. This was a significant period of time and although the delay did not cause Mrs Y an injustice, I am satisfied it caused Mrs X avoidable uncertainty and frustration, so was fault.

Communication issues

44. The Care Provider said much of the delay was caused by Miss X wanting to communicate by letter, rather than email. There is no requirement in the Care Provider’s terms and conditions that communication must be by email. Care providers should ensure they have procedures in place to communicate effectively, and this includes by post if someone prefers this. I appreciate the Care Provider feels Miss X’s insistence on using letters contributed to the difficulties. However, Miss X told the Care Provider several time she did not wish to use email and wanted communication to be by letter. She says she did this only after the Care Provider copied her brother into an email about the outstanding fees. Care providers should ensure they have procedures in place to communicate effectively, and this includes by post if someone prefers this.
45. Therefore, I am not satisfied that Miss X’s insistence on postal communication mitigates the fault I have found.

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Agreed action

46. Within one month of my final decision, the Care Provider will pay Miss X £200 for the avoidable uncertainty, frustration, time and trouble caused by the delays in providing the terms and conditions, intermittent invoicing and delays in providing other information.
47. Within three months of my final decision the Care Provider will review how it handles postal correspondence to ensure it can keep track of letters it receives and can take into account preferences or reasonable adjustments for postal communication.
48. I would normally have also recommended the Care Provider review its processes to ensure terms and conditions are provided before self-funding residents start their stays. However, the Care Provider says it has already done this.

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Final decision

49. I have completed my investigation. The Care Provider failed to provide the terms and conditions of Mrs Y’s stay before she became a resident and to provide regular invoices. This caused Miss X avoidable uncertainty, frustration, time and trouble. The Care Provider should make a financial payment to Miss X and review how it manages incoming post.

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Parts of the complaint that I did not investigate

50. I did not investigate Miss X’s complaint that the Care Provider wrongly shared information with her brother. Miss X has complained to the Information Commissioner’s Office (ICO) about this matter and the ICO has investigated this part of Miss X’s complaint. We normally expect someone to refer to the Information Commissioner if they have a complaint about data protection. Since Miss X has already done this, I do not consider there is good reason to consider this part of her complaint.

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Investigator's decision on behalf of the Ombudsman