Summary: Mr X complained the care provider failed to refund care home fees, paid in advance, after it refused to allow his late relative Mrs Y to return to the care home. The care provider was at fault causing injustice. Its contract terms and conditions were not in line with the Competition and Markets Authority guidelines as it failed to address what would happen to fees if a resident’s needs changed. This meant it charged Mrs Y for a room she was not able to use. To remedy the injustice the care provider has agreed to refund the fees paid by Mrs Y for January 2024 and amend its contract.

The complaint

1. Mr X complained the care provider failed to refund care home fees after it refused to allow his late mother in law, Mrs Y to return to its care home following a hospital admission. It also stored items in Mrs Y’s room whilst she was in hospital causing the family distress.

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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. 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. I have considered the information provided by Mr X and have discussed the complaint with him on the telephone. I have considered the initial information provided by the care provider and the relevant law and guidance.
6. I gave Mr X and the care provider the opportunity to comment on a draft of this decision. I considered any comments I received in making a final decision.
7. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I found

The CMA guidance

8. The Competition and Markets Authority (CMA) has published guidance for care homes to help them comply with their consumer law obligations (UK care home providers for older people – advice on consumer law 8 December 2021). The guidance applies specifically to care homes for people over 65 and covers the whole of the United Kingdom. The guidance states it is relevant for all care homes, irrespective of whether residents pay their own fees or are state funded.
9. Consumer law requires care homes to ensure contracts with residents are fair. Contracts must not put residents at an unfair disadvantage, by tilting the rights and responsibilities under the contract too much in the care home’s favour.
10. The CMA guidance states care homes should provide residents with detailed information about how they or it may end the contract. It says care homes should include terms in its contracts that give both it and the resident legitimate reasons for ending it. This includes:
• where there is a need for the resident to move to accommodation that can better meet their care needs, even though the care provider has made reasonable adjustments to try to meet those needs (such as where the care provider is not registered to provide the type of care the resident now requires).
• Where there is a need for a resident to go into hospital (provided that the resident is unable to return to the home in the foreseeable future, the absence is not temporary and the care provider has consulted with the resident and their representatives before a final decision is made).
11. Normally when terminating contracts care homes are expected to provide residents with a written notice of at least 28 days. In certain circumstances, however, such as where a resident’s health rapidly deteriorates care homes may need to take immediate action to safeguard residents and staff.
12. Where the contract ends through no fault of the resident (for example because the care provider is no longer able to meet their care needs) the guidance says the resident should receive a pro-rata refund of any pre-payments (including deposits and fees paid in advance) to ensure that they are not having to pay for services not yet supplied.
13. Where residents have died the guidance says the CMA considers terms which have the effect of requiring residents or their representatives to continue to pay fees beyond the point at which possessions are cleared from the room are in principle likely to be unfair. This is because once residents’ representatives have cleared residents’ rooms the contract is likely to be of no benefit at all to them. It goes on to say that at the time the contract is entered into it is likely residents will have reasonable expectations that representatives will continue to have access to their room for a short period following their death and it is reasonable to charge fees during the brief period. It considers a period of three days or until possessions are cleared from the room appropriate, provided a backstop period of up to ten days is included. This means in practice a care home should usually refund any advance payments that go beyond this fixed period.

What happened

14. Mrs Y’s daughter signed a contract with the care home in July 2021. This stated the care provider reserved the right to terminate the contract giving one calendar months’ notice in writing. Notice of termination of occupation by the resident must be given by the same length of notice in writing. It said in the event that the resident vacates the room permanently for whatever reason, we reserve the right to make a vacant room charge not exceeding one calendar month’s fees where notice cannot be given.
15. In late December 2023 Mrs Y became ill and was admitted to hospital. The hospital discharged her back to the care home the following day. The care provider and family were concerned about Mrs Y’s condition and she was readmitted to hospital that same day.
16. Four days later Mrs Y’s daughter, Mrs X, went to the care home to collect some of Mrs Y’s toiletries. She found a bed being stored in Mrs Y’s room.
17. In early January the hospital sought to discharge Mrs Y back to the care home for palliative care. The care home considered it could not meet Mrs Y’s needs as she needed nursing care and the care home was registered to provide residential care only. Mrs X therefore visited the care home the following day to clear the room. She found a bed was still being stored there.
18. Mrs X emailed the care provider four days later to request a refund of January’s care fees. Mrs Y died shortly after.
19. The care provider responded in early February. It provided a copy of the contract. It referred to the part of the contract which said, ‘in the event a resident vacates the room permanently for whatever reason, we reserve the right to make a vacant room charge not exceeding one calendar months fees where notice cannot be given’ and said a refund was not applicable.
20. Mrs X responded later that month. She said the care home had refused to accept Mrs Y back as it could not meet her needs. Mrs X also pointed out that the care home had stored a bed in Mrs Y’s room so it was not habitable for Mrs Y and so she could not understand why she was charged for that period.
21. Mrs X chased the care provider’s response later that month and in early March Mr X asked the care provider for a copy of its complaints procedure.
22. The care provider responded in early March. It said during the time Mrs Y was in hospital her bed was not occupied by anyone else or advertised as vacant. It said it decided it was not in Mrs Y’s best interests to return as her needs had changed. It accepted it had stored a bed in Mrs Y’s room for a day as it felt this would not cause any detriment as the room was not in use. It said it would refund one day’s fees as the bed was moved that same day and the bed would have been moved had Mrs Y returned to the care home. It reiterated the fee was not refundable.
23. Mr X responded to the email that day. He provided photographic evidence to show the care home had stored a bed in Mrs Y’s room for at least eight days which Mrs X and her sibling had found extremely upsetting. Mr X referred to the CMA guidance following the death of a resident and said they were willing to accept a refund based on three days following the day they cleared the room. He then submitted a formal complaint to the care home in mid-March, requesting an apology and a refund of January’s care fees.
24. The care provider responded to Mr X’s complaint in early April. It said:
• It did not refuse to accept Mrs Y back. It said her needs had changed quite dramatically and so she needed nursing care which it could not provide.
• It had stored a bed in Mrs Y’s room, but this was of no detriment to Mrs Y as she was hospitalised and it could have been moved out had she been readmitted.
• Mrs X chose to clear the room in early January and it had not requested this.
• The contract required 4 weeks notice in writing which it had not received to date.
• As a goodwill gesture it offered to refund one week’s care fees.

Findings

25. After Mrs Y’s hospital admission the care home decided it could no longer meet her needs. In line with the CMA guidance this is a decision a care provider can legitimately take in such circumstances. However, in deciding Mrs Y could not return the care provider had in effect terminated her contract.
26. Given Mrs Y still had possessions in the room, in line with CMA guidance, it would have been reasonable for the care provider to charge until Mrs Y’s representatives cleared the room. However, the care provider was using the room to store a bed without Mrs Y’s or the family’s permission which caused Mrs X distress and meant the room was not immediately available for Mrs Y’s use.
27. Mrs Y’s contract was not in line with CMA guidance. It contained a general clause requiring four weeks notice, whatever the particular circumstances. It failed to explain what would happen to the fees if a resident’s needs changed. This was fault and caused Mrs Y and the family injustice as they were charged for a room which they could not use. The contract ended because the care home could no longer meets Mrs Y’s needs and so the care provider should not have charged Mrs Y for a service it could not supply.

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Agreed action

28. Within one month of the final decision the care provider has agreed to:
1. Apologise to Mr X for the distress caused by the care provider refusing to refund the care fees and using Mrs Y’s room for storage.
2. Refund the fees paid by Mrs Y for January 2024.
29. Within three months of the final decision, the care provider has agreed to review its contract to ensure its terms and conditions are in line with CMA guidance. In particular it has agreed to add terms regarding the ending of contracts when a resident’s needs change and how it will calculate refunds of advance payments where residents are unable to take advantage of a room paid for.
30. The Care Provider should provide us with evidence it has complied with the above actions.

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Final decision

31. I have completed my investigation. Mrs Y was caused an injustice by the care provider’s faults. The care provider has agreed to take action to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman