Summary: Ms X complained the Care Provider breached the contract when a carer left her mother, Mrs Y, alone and so she should not have to pay any termination fee. While we cannot say the termination fee is not payable, we consider the actions of the Care Provider caused distress and put the family to significant time and trouble. The Care Provider has agreed to make a further payment to recognise this injustice.

The complaint

1. Ms X, on behalf of her mother Mrs Y (deceased), complained Promedica 24 UK Limited (the Care Provider) is wrong to request any payment in respect of the notice period on the contract as it ended when the carer breached the agreement and left Mrs Y alone.
2. Ms X says this action resulted in the family losing confidence in the ability of the Care Provider to meet Mrs Y’s needs and the family then had to take on all the caring responsibilities.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Care Provider and considered the comments and documents the Care Provider provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Care Provider and the complainant and taken account of their comments in reaching my final decision.

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What I found

6. Mrs Y had dementia and required 24 hour care. The Care Provider provided direct payments and Ms X and the family contracted with the Care Provider who provided a live-in carer. Ms X says Mrs Y could not be left alone. She explained that family members lived in the same street and would come to the property and sit with Mrs Y when the carer was on a break.
7. Ms X says that on 11 March 2022, Mrs Y’s next door neighbour called her saying she had seen the carer leave the property. Ms X went to Mrs Y’s property and found Mrs Y alone. She says the windows were wide open and Mrs Y was in her bedroom in the dark and was distressed and shouting.
8. Ms X phoned the carer who told her she was in the local pub and would come back soon. Ms X waited 30 minutes and then walked to the pub but the carer was not there. Ms X phoned the carer again who said she hadn’t been to the pub but was out for a walk. Ms X says the carer was away from the house for about two hours.
9. While waiting for the carer to return, Ms X phoned the Care Provider. She says it was the care manager on call that evening. It was agreed the carer would leave Mrs Y’s property that evening and would not continue as Mrs Y’s carer. Ms X says that she stayed with her mother that evening.
10. Ms X says the family decided to give notice on the contract with the Care Provider. She says that Mrs Y was at the end of her life and the family felt it would be too disruptive and traumatic for Mrs Y to get to know a new carer. Ms X says that the family provided the care for Mrs Y for the next few weeks until she died. Ms X gave written notice to the Care Provider from 11 March. In the letter she said that she was giving notice due to unacceptable behaviour and did not consider she should be charged the four week notice period.
11. The Care Provider wrote to Ms X on 6 April in response to her complaint. It noted the carer had been removed immediately at the request of the family and that a new carer was offered but the family declined. The Care Provider said it would waive 14 days of the notice period and apologised for any distress concerned. It also said that a safeguarding concern had been submitted to the Local Authority.

Analysis

12. Ms X complains about the Care Provider charging for the notice period after she terminated the contract when a carer breached the terms of the agreement.
13. It is not disputed that the carer acted wrongly when she left Mrs Y alone on 11 March. This was fault. The Care Provider responded quickly to the situation and removed the carer that night. The Care Provider says that it offered to find a new carer to fulfil the contact.
14. I note this was a live in position with very specific requirements which could make it difficult to fill. The Care Provider says that it had a carer available who could have started immediately which would have met the contract requirements. I have not seen evidence to support this but in any case the family did not want another carer.
15. Ms X says the actions of the carer in leaving Mrs Y alone was a breach of the contract. I have seen a copy of the signed contract and it states the termination fee is an amount equal to the services fee and additional client services fee (where applicable) for a period of 28 days plus any reasonable costs arising from the termination. It says a termination must be made in writing and that it can be terminated if the Care Provider commits a material breach of the agreement which is either not capable of being cured, or if it is capable of being cured, has not been cured by the Care Provider within a period of 30 days.
16. It seems likely there was a material breach of the contract as the carer did not provide care in the way specified. Ms X gave written notice but did not allow the Care Provider to make right the breach of contract. So I cannot say there was a breach that would mean the 28 days notice did not apply.
17. I note the Care Provider has reduced the notice period to 14 days as a gesture of goodwill. While I welcome this, I am not persuaded this fully remedies the injustice caused to Mrs Y, Ms X and the family. Ms X says that when she went to the property she found Mrs Y alone and in distress. It seems to me it was fortunate a neighbour noticed the carer leaving the house and that she was able to alert Ms X. This quick action meant Mrs Y was not left alone for too long and any risk was minimised. However, I consider that this actions of the carer did cause distress and ultimately broke the trust between the family and the Care Provider.
18. I am satisfied the decision of the family to end the contract was made as a direct result of the carer abandoning Mrs Y on 11 March and that but for this action, the contract would have continued. Mrs Y was at the end of her life, she died just a few weeks later. Introducing a new carer at that point would undoubtedly be disruptive and distressing for Mrs Y. It would require input from the family to help familiarise both the carer and Mrs Y.
19. I consider both the family and Mrs Y suffered distress and were put to considerable time and trouble as a direct result of the fault in this case. While I cannot say there was a breach of contract or that the Care Provider is wrong to demand a termination fee, I do consider that a further remedy is required.

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Agreed action

20. Within one month of my final decision, the Care Provider will make Ms X a symbolic payment of £500 to recognise the distress and time trouble caused to the family as a result of the carer failing to provide the agreed standard of care to Mrs Y.

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Final decision

21. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Care Provider has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman