Summary: Ms C disputes her late father’s nursing home charges. The Care Provider’s contract is unclear and not in line with guidance. This has caused uncertainty about charges. The Care Provider has agreed to apologise to Ms C and review its contracts, providing clarity on the fees and NHS-Funded Nursing Care (FNC) payments.

The complaint

1. The complainant who I refer to as Ms C complains Benton Care Limited, the “Care Provider”, charged more than the agreed rate for her late father’s care. Specifically the Care Provider should remove the Funded Nursing Care (FNC), component from the weekly charge and the accrued arrears.
2. Ms C says the Care Provider is wrongly pursuing her for money that was not part of the agreement.

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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. If they have caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
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)

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How I considered this complaint

5. I spoke with Ms C and considered information she provided. I considered information provided by the Care Provider following initial enquiries. This included contract and invoicing information. I also considered:-
• the Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences. I have used the fundamental standards as a benchmark for considering this complaint;
• Competition and Markets Authority 2018 (CMA) guidance, “Care homes: consumer rights for residents and their families”.
6. Ms C and the Care Provider had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

7. FNC payments are made to nursing homes for nursing care from the Department of Health. They are paid directly to the nursing home.
8. Care Quality Commission (Registration) Regulations 2009: Regulation 19 says care providers must make written information available about any fees, contracts and terms and conditions, where people are paying either in full or in part for the cost of their care, treatment and support.
9. Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 16 says care providers must have an effective and accessible system for identifying, receiving, handling and responding to complaints from people using the service, people acting on their behalf or other stakeholders. All complaints must be investigated thoroughly, and any necessary action taken where failures have been identified.
10. CMA guidance says, “terms and conditions in that contract must be written simply and clearly, avoiding jargon, so that you can easily understand your rights and responsibilities.”

What happened

11. Ms C’s father, who I refer to as Mr D, moved into a nursing home in June 2019. In October 2019 Ms C received Mr D’s first invoice dating from 27 August 2019. She wrote to the Care Provider disputing the care fees saying it should deduct the FNC component from the weekly fee. Ms C says this was based on information provided by a social worker before Mr D entered the care home. Ms C says the Care Provider did not respond to her complaint.
12. In April 2020 Mr D died. Ms C says she received no further contact from the Care Provider until January 2021 when the Care Provider threatened legal action. Up until this point Ms C had paid no fees to the Care Provider. Ms C says she has paid the Care Provider £15000 for fees she considers owed, but the Care Provider has rejected this money.
13. The Care Provider’s resident agreement at paragraph 7.1 signed by Ms C says, “the weekly private fee on admission is £628.34”. The Care Provider has not provided any written evidence it made Ms C aware of what would happen to FNC payments.

Was there fault causing injustice?

14. The Care Provider’s resident agreement is not in line with either CMA guidance or Regulation 19 as it is silent on how to treat FNC payments. This is fault and has caused uncertainty about how the Care Provider would treat FNC payments.
15. The Ombudsman can consider the ordinary meaning of contractual terms when considering complaints and make recommendations on this basis. However in this complaint there is conflict between a clear contract term about the weekly fee and the failure of the contract to include information about the FNC. In these circumstances it is not for the Ombudsman to decide what Ms C should pay. This is a matter for the courts.
16. Ms C says she did not receive regular invoices. I do not intend to investigate this further as even if I were to find fault I could not say this caused Ms C injustice. This is because Ms C did not make payment when she received the initial invoice neither did she prompt the Care Provider for invoices after her complaint.
17. Ms C complained to the Care Provider but did not receive a response. This is fault. The Care Provider should have a working complaints policy. As a result Ms C did not have her complaint responded to which may have resolved matters.

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Agreed action

18. I have found fault in the actions of the Care Provider which has caused Ms C injustice. The Care Provider has agreed to take the following actions to remedy the complaint:-
1. apologise to Ms C for the uncertainty caused by the failures I have identified;
2. if it has not already done so provide Ms C with an itemised statement of account which includes the total cost of the placement and the FNC;
3. review its current contract to ensure it includes what happens if a person is in receipt or gets FNC funding;
4. review contracts of current residents so they are also clear on the matter of FNC payments;
5. remind staff about responding to complaints properly according to the complaints policy.
19. The Care Provider should complete (a)-(b) within one month of the final decision and (c)-(e) within three months of the final decision.

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Final decision

20. I have found fault in the actions of the Care Provider which has caused Ms C injustice. I consider the actions above are suitable to remedy the complaint. I have now completed my investigation and closed the complaint.
21. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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Investigator's decision on behalf of the Ombudsman