Date of decision: 27 May 2025
Summary
The complaint was made against a care home for charging for a notice period after a resident was regarded as not back to his baseline condition after hospital discharge. The complainant argued that the charge for the notice period for her husband’s care was incorrect. The Ombudsman found there was no fault — this charge was in line with Mr X’s contract.
What happened
The complainant’s husband, Mr X, was admitted to hospital in July 2024 and subsequently could not meet the care home’s baseline mobility requirements for return. Coxbench Hall Limited informed the hospital that it could and would not take Mr X back, unless he met this baseline. When he became able to use a rotunda to transfer, the home held to its position and recommended some input to get him back to its baseline.
After Mr X had had some respite care for rehabilitation, in August, Mrs X said that he was still wanting to return. He was still being hoisted for transfers, however.
2 days later, Mrs X went to clear out Mr X’s room at the care home.
The Care Home contacted Mrs X in September 2024, asking whether Mr X would be returning, as it had no record of her giving notice for him, and the fee for September had not been paid?
Mrs X responded by letter stating that the Care Home had told her that Mr X could not return, if he could not walk, which he could not, after being hospitalised, and that this was what she thought was the situation, because the hospital had told the care home and the care home had told the hospital of its stance, and she was told on 13 July 2024 the Care Home would not take Mr X back if he could not walk.
The Care Home, on receipt of the letter, issued a final account statement including a charge for the contractual notice period of the full four weeks for notice.
Mrs X disputed this when she sent a complaint in October 2024, arguing that billing should have ceased when the room was cleared, not after any notice period.
The care home said that the hospital, having said that Mr X was being sent for rehab for a couple of weeks, never informed the Care Home at any point that Mr X would not return to his baseline, nor that he would not be returning to the Home. It only became aware he was not returning after Mrs X cleared his room. Therefore, as per the signed contract, the appropriate clause in operation here, despite how it looked, was in fact, ‘giving notice to leave by choice’.
The Care Home stood by its decision, but as a gesture of goodwill, reduced the charge by half.
Mrs X remained dissatisfied with Coxbench Hall Ltd’s handling of the matter and thus complained to the Ombudsman.
What was found
The Ombudsman found that Coxbench Hall Limited acted in accordance with the signed contract, which required four weeks’ written notice for termination by choice, or until the room was cleared, if later.
There was no evidence, according to the investigator, that the care home was informed the resident would not return until the room was cleared.
The investigator said that it was for the Care Home to decide whether it could still meet Mr X’s needs and it would have needed to undertake a review to establish this. It had not been in touch about that at the 6-8 week stage recommended by the CMA guidance (UK care home providers for older people – advice on consumer law), but Mrs X had effectively, albeit after having misunderstood the situation, pre-empted that enquiry by clearing his room out, without discussion.
Therefore, no fault was found; the charge was justified as per the contract and the CMA guidance.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
In adult social care settings, the contractual framework between a care home and a resident (or their representative) must (in order to be regarded as fair to people dealing as consumers) be clear about how absence from the home—particularly due to hospitalisation—is handled regarding room retention and notice periods.
As the Ombudsman noted, the relevant consumer law guidance underscores that care homes may retain a resident’s room for them, for a charge, during short-term absences and should review the appropriateness of continued retention after six to eight weeks. The contract should also state explicitly how and when notice can be given, and ensure this aligns with principles of fairness and transparency under consumer protection law.
We think that the investigator treated the condition that one is ‘able to walk’ as the determinant of whether a client is contractually entitled to return, and should have investigated whether:
- that was, in itself, formally stated in the contract; and even if so –
- whether the Home should in every situation be expected to investigate and justify any decision it makes as to whether it is able to meet the needs, on the request of a client to return (we think that that is, indeed, part of what it means to be fit to be running a registered care home)
- whether fairness for consumer demands that taking that sort of stance needs to be objectively justified or reasonably believed to be true to a defensible standard, or can simply be asserted.
Here, there was no attention paid to these aspects of the CMA Guidance:
We don’t think that the ‘baseline condition’ was in the contract, and the report certainly does not say one way or the other.
The investigator hints at a duty of enquiry, as to the person’s condition but the timing of the facts chosen to be featured is vague. There is no reference to there being anything like the CMA-recommended clause for review after 6-8 weeks of absence.
The investigator pays no attention to the Guidance from the CMA about the need, sometimes, within the context for a care home taking the view that it can no longer meet the needs, for an objectively justified defensible basis for regarding the business as NOT ABLE (as opposed to not willing, or not willing unless the fee can be increased) to meet the needs…
This sort of baseline condition, even if it existed in the contract, may also undermine the duty to make reasonable adjustments under Equality law, particularly for people with deteriorating mobility linked to disability.
If a condition or a ground for termination is related to a registration category, ie residential vs nursing care registration, we would think that this would not be objectionable in terms of fairness, but if it is just something related to staffing impact, there ought to be scope for renegotiation of the private fee, as part of the consultation recommended for clients, by the CMA, after a 6-8 week period, we would suggest.
We note that the contract stated that if a resident in hospital is unable to return to the Care Home:
- The purchaser will need to attend to clear the resident’s room which will mark the end of the agreement with the Care Home and billing will cease on this day. This will apply when the care team are no longer able to meet a resident’s re-assessed needs.
This seems to us to be the situation that arises when a care home says to the contractual counter-party that it can’t have the client BACK. If there is a condition in the contract, then CMA expectations may be the only remedy, but if nothing has been said, then taking this stance could also be said to be evincing an intention no longer to be bound by the contract, ie a repudiatory breach, leading to a liability in damages.
The investigator, however, found this clause to be the one that operated in the situation that arose before finding that the Home was not at fault, regarding giving notice for leaving by choice:
- For permanent or longer-term residents, the care home requires four weeks written notice to terminate this agreement. The resident will be charged to the end of the notice period or until the room is cleared of the resident’s belongings, if this is after the notice period end date.
We understand that the situation involved ‘Chinese Whispers’ as between the care home and the hospital and the hospital and the spouse/complainant, but the contract was either in Mr X’s name, and he should have been regarded as the only source of reliable answers as to what was happening, if capacitated. If he was no longer capacitated and his spouse had no welfare authority, the local authority needed to be involved, as that is where the responsibility lies for self funding adults who have lost capacity. This aspect is entirely overlooked by the investigator, but regardless of that aspect, raising that question of who said what to whom, and who needed to say what to whom, might have led to a different perception of where the problem lay.
The CMA Guidance gives as an example of a FAIR term the following prose:
“If you are away from the care home (for example, because you are on a pre-arranged holiday or because you are in hospital) your room will be reserved for you. During the first full week of absence your fees will continue to be payable in full. After that, your fees will be reduced by 20%.
If you are absent from the home for a continuous period of 6 weeks, we will consult with you and your nominated representative to seek agreement regarding the further retention of your room.’
Furthermore, the CMA Guidance says this:
“Generally a term that requires a resident always to pay full fees regardless of whether allowance could be made by you for savings or gains available because of the resident’s absence may be unfair under consumer law. You may also be making specific cost savings because of no longer having to provide the full service (for example, on food or medicines or personal care or personal care). This is likely to create an imbalance in the rights and obligations under the contract to the detriment of the resident who is paying for a service that, to a significant extent, you are no longer having to provide.
…We recognise that the costs you save during the residence absence may be limited, particularly where you reserve the resident’s room for them. In these circumstances an assessment of fairness will consider the period for which the resident is required to pay full fees. Fairness is more likely to be achieved where you limit the period for which full fees are payable after which a discount will be applied and ensure that the discount represents a reasonable estimate of your likely savings.”
All the report said regarding the notice about its mobility condition is this, and this was about the Care Home’s stance, not its contract or information leaflets, we note: “The Care Home is unable to accept residents into its care who are unable to walk with a zimmer frame and the help of one carer. This is its baseline to be able to give residents the care and support they need.”
That may well be the determinant of its willingness, for the fee that it is charging, and that would be acceptable, most likely, IF that had been made clear in the first place. But it does not seem to have done that, and the investigator does not factor that into the uncertainty and miscommunications that then transpired.
We think that that is a serious omission which makes this decision that there was no fault, potentially wrong in principle.
In an aside, the investigator mentioned that Mrs X also complained that the Care Home wrongly invoiced her £20 for a chiropodist appointment Mr X had in November 2024. The response to that from the Ombudsman was that a chiropodist came to the Care Home to treat 23 residents, one of whom was Mr X, and that he had sufficient mental capacity to decide not to have this treatment if he did not want it.
Please use the following link to read the original Local Government and Social Care Ombudsman’s Coxbench Hall Limited (24 015 264) report.
If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ opinions provided in response will then serve both you and the broader community when posted.
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