Summary: Mr and Mrs X complain on the late Mr Y’s behalf that the Care Provider charged more than was due. It also applied for an urgent deprivation of liberties authorisation and referred Mr and Mrs X to the Office of the Public Guardian and the safeguarding team because they complained. They say the Care Provider did not respond to their complaint and this caused them much stress, time and trouble. The Ombudsman finds the Care Provider did not cause injustice.

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs X, complain on behalf of Mrs X’s late grandfather, Mr Y, that Purelake (Chase) Limited (the Care Provider):
• Did not respond to Mr and Mrs X’s complaint in September 2019 about
• an urgent Deprivation of Liberty Safeguards (DoLS) application by the Care Provider, which they felt was because they complained about Mr Y’s care.
• The Care Provider’s report about Mr and Mrs X to the Office of the Public Guardian which they also believed was because they complained.
• added a £400 charge which was not due.
• Charged an extra two days because Mr and Mrs X did not clean out the room immediately although the Care Provider had told them they did not have to hurry. It also said they could leave Mr Y’s clothes and it would clean the room. They do not agree they should pay this charge.
2. Mr and Mrs X say the £400, and two days’ fees for the time taken to clear Mr Y’s room following his death should be refunded to Mr Y’s estate. They say the Care Provider has caused them much stress, time and trouble.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)
5. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended). We consider Mr and Mrs X to be suitable people to bring this complaint on Mr Y’s behalf.

Back to top

How I considered this complaint

6. I considered information from the Complainant and from the Council.
7. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

Back to top

What I found

Background

Deprivation of Liberty Safeguards

8. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative.
9. The Supreme Court decided on 19 March 2014 that deprivation of liberty occurs when: “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”.

Office of the Public Guardian

10. The Office of the Public Guardian (OPG) is responsible for protecting people who cannot make decisions about their own finances. The OPG keeps a register of deputies and people with lasting and enduring powers of attorney. It also supervises deputies and looks into reports of abuse against registered attorneys or deputies.

The Competition & Markets Authority

11. In November 2018, the Competition & Markets Authority (CMA) issued guidance “Helping care homes comply with their consumer law obligations”. The guidance sets out what it expects from Care Providers, including information about fair contract terms.
12. The guidance says that to comply with consumer law, all residents should be provided with a copy of any contract or agreement that they have signed. They should also be provided with a copy in advance.

What happened

13. To avoid confusion, I have referred to Mr and Mrs X where either Mr X, or Mrs X, or both were involved. Also, for clarity, I have referred to Mr Y making payments although as his attorney for finance, Mrs X would have done this on his behalf.
14. Mr Y lived in The Chase care home from late 2017 until he sadly died in August 2019. Mr Y self funded the placement but received funding from the NHS from March to October 2018. Mr Y was again responsible for the fees when the NHS funding ended. Mr and Mrs X say Mr Y had no contract. The Care Provider says Mr and Mrs X were given two copies of a contract but did not sign and return a copy.
15. When the Care Provider heard Mr Y was to receive NHS funding, it reduced his invoice for March 2018 from £3,100 to £2,400. Mr Y had already made two payments of £1,000 and £400 remained outstanding on his account.
16. When the NHS funding ended, Mr and Mrs X were unhappy and appealed the decision. The Care Provider set up a new account for Mr Y’s fees when he became responsible for self funding again. However, Mr and Mrs X withheld payment of Mr Y’s fees because they felt the NHS should continue paying.
17. After five months of no payment, the Care Provider raised a safeguarding concern and alerted the Office of the Public Guardian (OPG). This was because Mrs X was Mr Y’s attorney and his placement was now at risk. It could not continue providing care without payment. It also made an urgent Deprivation of Liberty Safeguard application. The Care Provider says it should have done this sooner but had got behind with the applications.
18. The local council safeguarding team, and the OPG, investigated the concerns and asked the Care Provider for the total fees outstanding, which it said was £19,300. Mr and Mrs X paid this amount.
19. In June 2019 the council held a best interests meeting. It noted there had been an issue with communication as the home manager had not received letters sent by Mr and Mrs X to the head office.
20. Sadly, Mr Y died in mid August. The following day, Mr and Mrs X contacted the home manager who advised there was no rush to clear the room. They asked about a refund as Mr Y had paid for the month of August in advance; the manager said they should contact head office.
21. Mr and Mrs X say they tried to contact head office several times but got no response until 5 September when they received the final account. This showed a refund, but the Care Provider had not refunded the two days taken to clear the room. It had also included the £400 due from before Mr Y was funded by the NHS. Mr and Mrs X withheld the bank details while they disputed this.
22. Over the next few days, Mrs X tried to contact the Care Provider three times without success. On 13 September, the Care Provider explained about the £400. Mr and Mrs X said Mr Y should not pay this. The Care Provider apologised that the £400 was the result of an oversight but said it was still due as was the charge for the two days. Mr and Mrs X provided the bank details so the money could be refunded.
23. On 26 September, the Care Provider asked for evidence that Mr and Mrs X were executor for Mr Y’s estate and they provided this the same day. The Care Provider said it had not received it and the following day, Mr and Mrs X sent the details again.
24. Mr and Mrs X chased the Care Provider again on 1 and 3 October, when it advised the money would be released two working days later, on 7 October. Mr and Mrs X received the money on 9 October, eight working days after they provided the bank details.
25. Mr and Mrs X raised a formal complaint with the Care Provider about the DoLs application and referral to the OPG. They say they did not receive a response to this.
26. On 22 October, Mr and Mrs X received a response to their complaint. It explained about the DoLS application and the referral to the OPG. It also explained that Mr Y’s second period of self funding, after the NHS funding, was set up on a different account. When the Care Provider gave the figure to the OPG and council, it did not realise that the £400 debt was still on the first account. It did not address the issue of the two days charge but had already said this was payable.
27. The Care Provider’s contract is out of date. It refers to the Commission for Social Care Inspection (CSCI) throughout. This was CQC’s predecessor and has not operated since early 2009. The clause (10) relating to payment for time after death says:

“This agreement shall continue until death, or by the required written notice of 28 days. The company reserves the right after death or the end of a resident’s stay, to retain fees unto the end of the week that the room is cleared and made ready for re-letting”

28. The Contract also has a separate clause (7) which appears to contradict clause 10:

“In the event of death, any fees outstanding, to the date when the room is cleared, will be recoverable from the next of kin, who must sign below to this effect before the resident takes up occupancy. This does not apply to residents whose placements are made by social services”

29. Clause 24 of the contract is about the complaints procedure and directs people to the CSCI if their complaint is unresolved by the Care Provider. The address has been changed to CQC’s address but it should also refer to the Local Government and Social Care Ombudsman (LGSCO) and explain the different roles.

Did the Care Provider’s actions cause injustice?

30. I am satisfied that the Care Provider gave a satisfactory response to Mr and Mrs X’s complaint within an acceptable time.
31. The Care Provider was entitled to charge Mr Y’s estate for a short time after he died, while the room was cleared. I do not consider two days is excessive. Although no one had signed the contract, the terms were implicitly agreed when Mr Y stayed at the home and paid the fees. The contract has contradictory clauses about this but is clear that fees are payable for that time. The Care Provider did not try and seek payment from Mr and Mrs X personally, but from Mr Y’s estate. This caused no injustice.
32. In respect of the £400, Mr Y had received the service and therefore should pay despite the unfortunate error by the Care Provider. This caused no injustice.
33. The contract needs updating and clause 7 should be removed. The Care Provider should ensure it has a signed contract so it can evidence it has met its obligations under consumer law. I cannot say whether the Care Provider gave Mr and Mrs X a contract to sign. However, this caused no injustice as Mr Y paid to live there for almost two years without a contract and it is too late now to put that right.

Recommended action

34. The Care Provider should:
• review its contract against the CMA guidance referred to in paragraph 11.
• Ensure that all information about the complaints procedure includes up to date contact details and details for LGSCO.
• Submit a copy of the revised contract to me within three months of the final decision.

Back to top

Final decision

35. I have completed my investigation and do not uphold Mr and Mrs X’s complaints that the Care Provider:
• Did not respond to Mr and Mrs X’s complaint in September 2019 about
• an urgent Deprivation of Liberty Safeguards (DoLS) application by the Care Provider, which they felt was because they complained about Mr Y’s care.
• The Care Provider’s report about Mr and Mrs X to the Office of the Public Guardian which they also believed was because they complained.
• added a £400 charge which was not due.
• Charged an extra two days because Mr and Mrs X did not clean out the room immediately although the Care Provider had told them they did not have to hurry. They do not agree they should pay this charge.

Back to top

Investigator's decision on behalf of the Ombudsman