Summary: Miss X, a solicitor, complained that Advinia Care Home Limited added extra fees to Mrs Y’s invoice and failed to make a full refund. The Care Provider was at fault for not explaining the care fees properly. We also found fault with the way the Care Provider dealt with the refund and inadequate complaint handling. This was detrimental to Mrs Y’s estate and caused distress to Mr Z. The Care Provider has already apologised for this and reviewed its processes for extra care charges. However, we recommend it also makes a payment to recognise the distress to Mr Z.

The complaint

1. Miss X, a solicitor, complains on behalf of Mrs Y and Mr Z that Advinia Health Care Ltd added extra charges to Mrs Y’s invoice and failed to refund the full amount of care fees due.
2. Miss X says Mrs Y’s family have been owed this money for over a year and despite the Care Provider making promises of payment, they have not received the full amount due to them.

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The Ombudsman’s role and powers

3. We investigate complaints about adult social care providers and decide whether their actions have caused injustice, or could have caused injustice, to the person complaining. I have used the term fault to describe this. (Local Government Act 1974, sections 34B and 34C)
4. If an adult social care provider’s actions have caused injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
5. 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)
6. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

7. I considered the information provided by Miss X and Advinia Health Care Ltd (the Care Provider).
8. Miss X and the Care Provider had the opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Guidance and legislation

Regulations

9. Providers must give people information in writing about the terms and conditions of their care, treatment or support, including the expected costs and the requirement to pay for their care, treatment and support. (Care Quality Commission (Registration) Regulations 2009 paragraph 19)

Care Provider residency agreement for self-funded residents

10. Residents are required to pay a deposit equal to four weeks fees upon admission. The Care Provider says the deposit will be repaid, subject to the right to deduct any fees that are outstanding within 45 days of a resident’s death. (clause 1.3)
11. The agreement says that if a dispute arises over the return of the deposit, the Care Provider and the resident or representative shall attempt to resolve the matter informally between themselves within 90 days of the death of the resident. If there is no resolution, then the dispute shall be referred to Alternative Dispute Resolution. (clause 1.3)
12. If a resident’s care needs increase and results in changes to the services usually provided, the Care Provider will endeavour to inform the resident and the representative as far as possible. Any increase in the fees will be applicable from the date the need increased. If the resident or representative object to any variation, they have the right to terminate the agreement, but would need to pay for the extra direct hours which may have been provided. (clause 1.5)

The Care Provider’s complaint policy

13. When a complaint cannot be immediately resolved the Care Home Manager or person in charge will complete the following actions within the timescales from the time the complaint was made:

• within 12 hours will review the complaint and record it on the system;
• within three days will write to the complainant;
• within five days will discuss the matter with the person raising the complaint and start proper investigations;
• within 21 days will end the investigation and send the complainant a full response.

14. Where any exceptional circumstances mean the investigation cannot be finished within 21 days from its receipt, a letter explaining the reason for the delay will be sent to the complainant with the dates the investigation is expected to end. The complainant will be updated every 21 days after this.
15. Where a complaint is not resolved at stage one it may progress to stage two. At stage two the complaint would be considered at a regional level.

What happened

16. Mrs Y died in December 2022. At the time of her death, she was a self-funded resident at Ryland View Care Home, a care home run by Advinia Health Care Ltd.
17. Shortly after this, the Care Provider told Mrs Y’s representatives that it owed her estate £7946.11 for overpaid care fees and the admission deposit. It also said that it owed a £50 refund for personal allowance.
18. In March 2023, a solicitor representing Mrs Y’s representatives and her estate received the grant of probate and completed the Care Provider’s refund form for these refunds.
19. The solicitor did not receive the refund and so contacted the Care Provider on 3 July by telephone to complain and then followed this up with an email the same day.
20. The solicitor chased this again by telephone and email on 5 September and again on 23 September.
21. The solicitor then wrote to the Care Provider on 26 September stating that if they did not receive the funds, they may have to pursue other action.
22. The Care Provider acknowledged receipt of this email and said it would respond to the solicitor within 10 working days, however it failed to meet this deadline.
23. The solicitor chased this again via email on 24 October and 7 November, however the Care Provider failed to respond to this correspondence.
24. The solicitor contacted the Care Provider again on 4 December and said it would be sending a complaint to the Ombudsman.
25. At the end of January 2024, the Care Provider responded to say it had processed the refund after taking away the final excess care hours invoice and it would make the payment the following week.
26. The solicitor says the Care Provider paid only £1276.11, without any correspondence to explain this amount.
27. Shortly after this, the Care Provider sent an invoice dated 17 November 2022 to the solicitor. This was for the sum of £6720 which the Care Provider said was for outstanding care fees. The Care Provider said it took off these care fees from the sum they were holding for Mrs Y.
28. On 14 June 2024, the Care Provider refunded £6720 directly to the solicitor.
29. On 20 June, the Care Provider sent an apology to the solicitor. This was to apologise to Mrs Y and Mr Z for the time it had taken to resolve this complaint and the distress and uncertainty caused by its actions.

Analysis

Care charges

30. I asked the Care Provider to explain the extra care charges from the invoice dated November 2022. The Care Provider said it needed to charge additional fees when dependency increased but they did not explain a breakdown of this.
31. However, the Care Provider also said it recognised its communication was not as clear as it should have been and that it did not explain the extra care hours and charges to Mrs Y or Mr Z at the time. This is not in line with the Care Provider’s policy which says it will “endeavour to inform the resident and/or representative as far as possible where there are any changes to care requirements and in turn care fees”. This is also not in line with the regulations. This is fault which the Care Provider has already accepted. It has made a full refund and provided an apology to remedy this.
32. As the Care Provider has made a full refund and apologised, I will not investigate if these charges were added fairly in the first place, as further investigation would not lead to a different outcome.
33. I find the Care Provider’s refund and apology has already provided a suitable personal remedy for any injustice caused to Mrs Y and Mr Z in relation to the care charges. This is also in line with our published Guidance on Remedies.
34. The Care Provider also said that it had now taken measures to ensure all the residents and their representatives understand how it calculates fees and it has applied this through a new resident’s charter. The Care Provider supplied me with a copy of its new resident’s charter, however, this applies to residents that are funded by a council. Mrs Y was not funded by a council, she was a self-funding resident. Therefore, I recommended service improvements for self-funding residents which the Care Provider carried out before the issue of the final decision and I am satisfied with the completion of this.

Refund of fees and deposit

35. The terms and conditions attached to Mrs Y’s residency agreement says the Care Provider will refund the deposit and any overpaid care fees within 45 days of a resident’s death. Mrs Y died in December 2022, and so the Care Provider should have made the refund by mid-January 2023. This did not happen, and this is fault which caused a shortfall in Mrs Y’s estate.
36. The Care Provider’s terms and conditions says that if there is a dispute about a refund which is not resolved within 90 days, it will refer this to Alternative Dispute Resolution. The Care Provider failed to follow this procedure.
37. The Care Provider issued a partial refund in January 2024, but it took until June 2024 to complete the full refund, 17 months past the expected deadline.
38. I recognise the Care Provider has apologised for this, and made the full refund, however I do not consider this to be a sufficient remedy for the delay. I will therefore suggest a further personal remedy to recognise the injustice caused to Mr Z because of this delay.
39. The Care Provider has already agreed to review its processes for refunds to ensure they happen in line with its policy so I will not recommend anything further here.

Complaint handling and communication

40. The Care Provider failed to follow its complaint policy. The Care Provider’s failure to respond to the solicitor’s complaint is fault. This has caused an injustice to Mrs Y and Mr Z as the concerns remained unaddressed which was detrimental to Mrs Y’s estate.
41. The Care Provider’s failure to consider this complaint meant the solicitor has spent extra time and trouble trying to get a response to the complaint. This has also caused distress to Mr Z due to the time it has taken to resolve.
42. The Care Provider has accepted fault for this. It said that its finance department went through several changes, and it missed opportunities to speak to the complainant to ensure the information was accurate and understood. The Care Provider has apologised for this.
43. The Care Provider has already agreed to review its complaint handling. However, I recommend the Care Provider makes a payment for the personal injustice caused to Mr Z due to poor complaint handling and associated communication.

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Agreed action

44. To remedy the injustice caused by the Care Provider’s actions, the Care Provider agreed to pay Mr Z £200 to recognise the delay in issuing the refund and poor complaint handling. The Care Provider says it has already made this payment.
45. The Care Provider should provide evidence of this action within four weeks of the final decision.

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Final decision

46. I have completed my investigation with a finding of fault causing injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman