Care home at fault for terminating residence without notice, and charging incorrectly, the ombudsman finds.

Country Court Care Homes did not provide the seven day notice period stated within its own contract with the resident, which prevented an independent assessment of the resident and caused the resident to have to move to another care home at short notice, causing distress.

Facts

A gentleman who had lived at Neale Court for over a year and who had, as Neale Court agree, become a member of its family, was summarily discharged from the home when he was in hospital, on the footing that his needs were no longer able to be met. The resident later died, ending his days in another care home, and his brother in law who administered his finances made a complaint.

The care home contract stated that in the event that the care home was no longer able to provide the level of care needed by the resident, it had the right to terminate the agreement with seven days’ written notice.

However, prior to taking this decision the care home undertook only a very ‘minimal’ assessment of the resident in hospital.

On 5 September 2017, a senior staff member from Home P attended the hospital to assess the patient/resident.

On 8 September 2017, it informed the brother in law the resident could not return to Neale Court. 

The home said it contacted the hospital to say it would not be accepting the resident back to its care. The hospital said it found out through the resident’s sister on 9 September 2017. The hospital said it called Home P to inform it that the patient had not had a nephrostomy tube fitted, as had been assumed by the assessing care worker based on a leaflet at the end of his bed.

However, Home P maintained that it still could not meet the resident’s needs.

During a previous hospital admission, a healthcare checklist had been completed. The view of ward staff had been that the scores were overly high and there was no evidence in the notes to support an application for funded nursing care. The hospital said it informed Home P of this at the time and Home P was willing, then, to accept the gentleman back into its care.

The brother in law said he emailed Home P on 10 September 2017 to say his wife had spoken to staff at the hospital, who said her brother had not undergone surgery and his care needs were just the same as the previous time he had been discharged from hospital. 

The home denied the hospital told it that the resident did not have a nephrostomy tube but maintained that in any case, it was not the only reason it felt it was unable to meet the resident’s needs.

The gentleman was very distressed that he was not able to return to Home P, where he had made many friends and had made his home.

The brother in law challenged the home’s opinion. He researched the medical issues that Home P said the resident was facing, and, in summary, presented the case that there was nothing so severe that would require nursing care.

The brother in law said he was told to clear his relative’s room. The Home say that he was told there was ‘no immediate rush’. It accepts it said the room would be continued to be charged until it was cleared.

The resident was then assessed by two other residential homes. Both offered him a place, with the view that he did not need nursing care. He was discharged from the hospital into a residential home on 28 September 2017.

Findings

The ombudsman felt the home was honest in its assessment that the man’s needs could no longer be met, even if it was mistaken. It was not unreasonable for Home P to have concerns about its ability to manage his care. It was within its rights to determine that it could no longer meet the needs of the resident.

However, the assessment notes take by Home P were not comprehensive. It appears to have completed a very minimal assessment of the resident in hospital and his condition. In complaint correspondence with the Ombudsman Home P had said that a care worker’s notes about leaflets placed at the end of his bed about how to recover from surgery led it to think the man had undergone surgery. The ombudsmen said that a more thorough investigation of his condition than this should have been made.

The care home did not give him the seven days’ written notice outlined in its contract before ending his residential licence.

Initially the home said that the part of the contract that referred to the possibility of getting an independent assessor was in relation to an increase in fees. It indicated it was not relevant to this case as there was no fee increase, but a discharge.

The LGO did not consider the contract was clear on this point but in any event, the home gave other unsatisfactory reasons why it did not suggest getting an independent assessment. It said it was only told of the resident’s brother in law’s disagreement with its assessment, after discharge had been finalised.

The home thus prevented an independent assessment being undertaken (provision for which was made within the home’s own contract) and thus blocked the opportunity of challenging the home’s assessment and getting a review of the decision made, before the contract and residential licence ended, which was important, even if the care home had gone on and upheld its original decision.

With regard to fees and whether the invoice was correct, it was not clear whether the man was a patient in hospital for over six weeks. He was contractually required to pay the full fee for the first six weeks. For any remaining time he would have only to pay 85 per cent of the full fee.

Incorrect fees were charged as the correct amount was less than the invoiced amount. This could have been a simple miscalculation. However the home also delayed in notifying the resident of his discharge from the home, which the ombudsman thought should have led to a reduction of the invoice by the three day delay. If he was in hospital for more than 6 weeks, the 15% reduction would also have had to have been factored in.

With regard to the end of contract wear and tear charge, the contract advised that at termination of a stay where the resident had stayed in a room for over six months, the care home may charge a fee of up to £495 as a contribution towards the total costs of restoring a room following any ‘excessive wear and tear’, payable in the final statement of account – a ‘dilapidation charge’. In this case, the home added a fee of £250 as an end of contract charge for ‘dilapidation’.

The ombudsman decided this fee could not be a ‘dilapidation charge’ because there was no evidence that the resident had created ‘excessive wear and tear’, and no justification for the charge given by the care home, who added the fee on after the final statement of account was already issued. Eventually the home removed this charge. The LGO and the complainant both took the view that the charge was removed because there was no evidence it was justifiable or any explanation available as to why it had been charged. That the fee had been added in the first place was found to be inappropriate and considered arbitrary, by the ombudsman.

With regard to complaint handling, the home had not bothered with the brother in law’s complaints because the resident had moved to another care home and it saw no point in spending the time on such matters. The LGO determined that dealing with complaints is not just about resolving immediate mistakes but about learning from complaints. The home’s inaction showed a lack of resolve to learn from complaints made about its practice.

Discussion

Residents who are have fees paid or partially paid for by a local authority would be protected by the local authority’s contract which would usually take precedence over any other contract issued by a care home. However if the local authority is not involved in the funding arrangement, for example if the resident is paying the care home fees privately as a ‘self-funder’, then the local authority will have no contractual involvement, as was the case here.

Thus the care home’s own contract would apply. In this case the care homes contract was found to contain a clause regarding financial charges for wear and tear of the resident’s room, which the home decided to apply after the final invoice and without flagging up any evidence of any such excessive wear and tear occurring. This could be considered an unfair term, and certainly the ombudsman found fault with the care home for apparently applying an arbitrary charge, along with other incorrectly calculated fees.

Additionally even plainly fair terms in this case were not applied fairly, as the contractual notice period was not applied.

Confusing or unfair care provider contracts are not new issues. Consumer organisation ‘Which?’ previously investigated care home contracts and highlighted unfair terms and an unwillingness to prove sample contracts. The Competition and Markets Authority (CMA) then also investigated care homes in 2017, concerned about potential breaches of consumer law in their practices and contracts. Following a consultation in 2018 the CMA launched its consumer law advice for care homes, explaining what they need to do to ensure they are treating residents fairly including contractual terms and complaints procedures. In addition a short guide to consumer rights for residents and their families was also created (links below).

Considerations for Professionals within the provider sector

  • How do you ensure that you are contracting with a capacitated person? Do you check whether the person signing the contract is lawfully entitled as the agent of the resident (ie has finance LPA or deputyship, or informal agency through the as yet capacitated resident’s request)? Do you check to see if the person signing means to be signing in their own right, for themselves, to be liable?
  • How fair are your contractual terms in contracts with individuals?
  • What about those terms detailing reviews and fees increases, and whether there is a need for acceptance? What if a provider does not receive acceptance but the resident does not move out? Is a debt consisting of the notified increase recoverable in that situation as would be the case in a private school’s contract? Is the provider entitled to treat absence of acceptance as the giving of notice?
  • How confident are you that your actual practice is in line with the contractual terms?
  • Are your invoices easy to check, for clients or their proxies to be sure of accurate invoicing?

Questions for Clients / Service Users

  • Are you clear of the meaning of the contractual terms of your residential licenses for privately contracted stays?
  • Are the contractual terms fair?
  • What about those regarding increases? Do they fit with the CMA’s view as to what is fair or unfair? Do the price increase clauses provide for acceptance of the variation, or deem it from silence, and what is the consequence of silence, if the resident then dies after several months of invoices at the higher fee? Does omission to accept count as the giving of notice? The provider may be entitled to give notice if its request for an increase is not met, as with a private school increasing its fees.
  • Is the care provider’s invoice sufficiently detailed and easy to check?

Date: 7th August 2019

For advice and support please contact: advice@cascaidr.org.uk

The CMA guidance ‘Care Homes: consumer rights for residents and their families’ can be found at: https://www.gov.uk/government/publications/care-homes-short-guide-to-consumer-rights-for-residents

Here is an excerpt:

Terms and conditions

If you’re paying for your own care, there will be a contract between you and the care home. The terms and conditions in that contract must be written simply and clearly, avoiding jargon, so that you can easily understand your rights and responsibilities.

Terms must be written and agreed with you in a fair and open way.

If a term in a contract is unfair, it will not be valid and the care home cannot hold you to it. Unfair terms include those which put you, or the person who signs the contract on your behalf, at an unfair disadvantage (for example, because they give the care home more rights than you).

Terms which may be unfair include those that:

  • hold you to ‘hidden’ terms that you have not had the chance to read and understand
  • do not hold the care home responsible if things go wrong and it is their fault.
  • require fees to continue to be paid for extended periods after a resident has died
  • allow the care home to make unexpected changes to your fees
  • require any upfront payments, unless it is a fair deposit or an advance payment of the regular residential fees

The full Local Government Ombudsman report can be found at

https://www.lgo.org.uk/decisions/adult-care-services/residential-care/17-015-611

Please share:
error