Summary: There was no fault when Curtis Homes Limited decided that it could not meet Mr K’s care needs. However, given all the circumstances, it should have considered more fully his daughter’s request to refund care fees when she arranged to move Mr K from the care home before the notice period expired. The care provider should apologise to Mr K’s daughter and refund the fees to his estate.

The complaint

1. Mrs X complains on behalf of her late father, Mr K, that Curtis Homes Limited (the Care Provider):
• First said that it could meet Mr K’s needs and then the next day said it could not; and
• encouraged Mr K to vacate the residential home during his notice period but has not considered properly whether it should refund some of the fees.

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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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. 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)
6. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
7. 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

8. I considered the information provided by Mrs X and discussed the issues with her. I considered the information provided by the care provider including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered comments from both parties before issuing this final decision.

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What I found

Guidance

9. The Competition and Markets Authority has issued advice about consumer law obligations for care homes. This sets out key principles of the advice and says care homes must treat residents and their representatives fairly

What happened

10. Mr K moved to the Care Provider’s residential care home in December 2019 following a stay in hospital. He was there for respite care but renewed his stay while trying to decide whether he should move there permanently. His physical heath was deteriorating.
11. The care home meets the needs of ‘low dependency’ residents, and does not provide nursing care. In November 2020, Mr K decided to stay at the home permanently and he entered into a contract with the care provider.
12. On 2 November Mrs X asked the provider whether her father needed nursing care and was told he did not. However, the next day the provider emailed Mrs X to say the home was no longer the right setting for her father and it could not meet his needs. It gave him a month’s notice so that he should move by 3 December 2021.
13. The Care Provider has explained that Mr K’s needs had increased as his health deteriorated. He had been struggling and it was hoped that a change in medication could be offered. Mr K had not seen his consultant for some months due to COVID-19 restrictions. On 2 November, Mr K’s consultant met with him to review his treatment but did not make any changes to this. The care provider says this was a significant factor in its decision that it could not meet his needs.
14. The care provider has further explained that Mr K’s mobility had significantly decreased and it does not have hoist facilities and was concerned for his safety moving around the home, given this and that its staff ratio is set to meet lower needs. The care provider also mentions that Mr K had become uncooperative at times and his behaviour was challenging. Again, the amount of staff available to assist him was not sufficient to properly meet this aspect of his needs. Lastly, the care provider has explained that tensions between the family members and Mr K’s challenging behaviour made it difficult for staff to manage.
15. Mrs X was understandably upset and confused because she had only a day earlier asked whether the home could meet her father’s needs. The Care Provider has explained that Mrs X had asked the manager whether the home could cope with her father when she collected him for his hospital consultant appointment. The manager replied but there was no formal consideration. The manager was not able to consult the care records or staff, or formally consider Mrs X’s question.
16. The Care Provider says that on the morning of 3 November, Mr K was rude and verbally aggressive. The manager says they discussed his care needs with him and they agreed that these had increased and he would need more support, particularly as his treatment was unchanged. Mr K agreed that he should move to a different home. The Care Provider gave Mr K notice that day and informed his daughter.
17. Mrs X says that when the family later spoke to Mr K about moving he appeared not to know that this was happening. He was distressed and said he had not agreed to move. Mrs X sent an email to the Care Provider that her father was distressed. She says that the Care Provider confirmed that there had been no meeting with Mr K to discuss that he should move.
18. The contract between the provider and Mr K says that there will be no refund of care fees if the resident moves out during the notice period.
19. Mrs X told the Care Provider she would look for a new care home for her father, but that she would be out of the country during the last week of his notice period, so her brother would help Mr K move. The provider replied that it did not want the brother to be involved due to tensions with the staff and her father, and it could be flexible with a moving date and could even extend his stay. In the meantime, Mrs X’s brother raised a complaint against the Care Provider. On 9 November, the provider emailed Mrs X saying “perhaps it would be to everyone’s advantage if [he] moves to an alternative care home before you go away on holiday”.
20. Mrs X found potential care homes and arranged for them to assess whether they could meet her father’s needs. She liaised with the Care Provider about this and then advised it of a moving date, one week before the notice period expired.
21. Mr K’s daughter arranged for him to move out a week before the notice period expired. She asked the Care provider to refund the week’s care fees totalling £1040.
22. The Care provider told Mr K’s daughter that it could not refund any overpaid fees and the contract is clear that if the resident vacates during the month’s notice period then the full cost will be required and there will be no refund. It said it did not ask for his move to be brought forward and only suggested that it might be in everyone’s interest. The Care Provider further says that Mrs X did not try to negotiate alternative dates or ways in which someone else could help Mr K move, despite it offering to discuss this, and instead she changed the moving date to suit her own holiday arrangements. The Provider also says that Mr K himself wanted to move as soon as possible and did not trust anyone else apart from Mrs X to help him with this. It suggested that if Mrs X had wanted a refund, then she should have spoken to the provider about this at the time.
23. The Care Provider accepts that it would not have offered an extension of the notice period to allow the daughter to return from holiday, because other family members had become more hostile and intimidating, and because Mr K wanted to move as soon as possible. Mrs X notes that Mr K did not tell the family he wanted to move as soon as possible.
24. Mr K sadly died in the summer of 2022.

Analysis

25. There was no fault in the Care Provider deciding that it could not meet Mr K’s increasing needs. I accept that when the manager responded to Mrs X, he was not considering this in a formal way. The Care Provider also had new information to inform its decision when the consultant did not alter the treatment plan in any way that would alleviate the more difficult symptoms.
26. The Care Provider is correct that its contract with Mr K states that there will be no refund if the resident moves during the notice period. However, it has an overarching responsibility to treat residents fairly.
27. The Care Provider knew that Mrs X would be away during the last week of the notice period, and it has said that it would not have extended the notice period. Importantly, it was the Care Provider that suggested that Mr K should move earlier, and it was clear that it did not want Mrs X’s brother to facilitate Mr K’s move. Taking all this into account, I am not persuaded that Mrs X moved her father earlier to suit her own holiday arrangements, and as such, the Care Provider should consider what is fair outside of the strict contract terms.
28. I agree that Mrs X could have been more careful and that she could have asked about the fees before she moved her father. However, we need to recognise that this was a difficult and stressful time for Mrs X, and that the Care Provider could have made it clear during its liaison with her, that the full fees would still be due. As a result, Mr K had to pay fees at the Care Provider’s home and at his new home.

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Recommended action

29. The Care Provider should within one month of the date of this decision:
• Apologise to Mrs X;
• Refund to Mr K’s estate his fees for the remainder of the notice period following his move to a new home; and
• Share this decision with the relevant staff.

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Final decision

30. I have completed my investigation. Mr K was caused injustice as a result of the Care Provider’s actions. I have recommended action to remedy the injustice caused by the Care Provider’s fault.

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Investigator's decision on behalf of the Ombudsman