Summary: Mr X complains the Care Provider wrongly claimed FNC payments for Mrs A and failed to take away this from her care fees. This caused her to be overcharged. The Ombudsman finds fault with the Care Provider for how it communicated about FNC, however, the Ombudsman cannot investigate the contract terms of the agreement. The care provider has agreed to make a payment for the uncertainty caused to Mr X.

The complaint

1. Mr X complains the Care Provider has wrongly calculated the care fees Mrs A was charged by the Care Provider
2. Mr X complains the Care Provider did not properly take away the FNC payment from the care fees paid by Mrs A. This caused her to be overcharged from April 2017.

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The Ombudsman’s role and powers

3. 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)
4. If an adult social Care Provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))

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How I considered this complaint

5. I considered Mr X’s complaint and information provided by him. I also considered information from the Care Provider. I also considered relevant law and guidance.
6. I considered previous decisions and recommendations made by the Ombudsman about the Care Provider where the matter complained about was the same.
7. I considered comments from Mr X and the Care Provider on a draft of my decision.

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What I found

National Framework

8. The 2018 National Framework for NHS Continuing Healthcare and NHS Funded Nursing Care set out the principles relating to the FNC. It said:
• NHS-funded Nursing Care (FNC) is the funding provided by the NHS to Care Providers with nursing, to support the provision of nursing care by a registered nurse for those assessed as eligible for FNC.
• The Care Provider provider should set an overall fee level for the provision of care and accommodation. This should include any registered nursing care provided by them. Where a Clinical Commissioning Group assesses the resident’s needs require the input of a registered nurse they will pay the NHS-funded nursing care payment (at the nationally agreed rate) direct to the Care Provider, unless there is an agreement in place for this to be paid via a 3rd party (e.g. a local authority). The balance of the fee will then be paid by the resident, their representative or the local authority unless other contracting arrangements have been agreed.
• Contracts between individuals with providers should have terms and conditions which are transparent and fair, including setting out what happens if a resident is admitted to hospital or what happens if a resident dies.
9. In 2011 the Department of Health published answers to frequently asked questions on FNC funding for local authorities and others. On the impact of FNC funding on self-funders, the advice is:
• For 'self-funders' the specific arrangements are dependent on the terms in their contract with the Care Provider. Depending on the terms, in some situations the overall fee would increase to reflect the increase in NHS FNC and the resident’s contribution would remain the same. In other situations the overall fee would remain the same and the resident’s contribution would decrease.
• If the contract explicitly stated the overall fee level was made up of a specific contribution by the resident plus the amount of any NHS contribution the resident’s contribution is a separate matter to any changes in the level of the NHS contribution. The overall fee level payable to the Care Provider would increase/decrease in the level of NHS contribution.
10. The advice explains FNC payments do not cover the entire cost of a person’s nursing needs. They are a ‘contribution towards the cost of services provided by a registered nurse.’ (Continuing Healthcare – Frequently Asked Questions” - November 2011).

Care Quality Commission

11. The Care Quality Commission (Registration) Regulations 2009 regulation 19 addresses the issue of fees.
12. The intention of regulation 19 was to make sure that providers gave timely and accurate information about the cost of their care and treatment to people who used services.
13. To meet this regulation, 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.

Ombudsman’s guidance

14. The Ombudsman has written guidance about the FNC.
15. The guidance says:
• The starting point with FNC complaints is to look at the contract and any information the resident is given before they move in.
• We interpret contracts on an ordinary reading. If a contract does not make sense to use, then we may view it as a failure by the Care Provider. We are likely to find fault where a contract term is ambiguous, inconsistent or is poorly drafted. We may also find fault where a contract term contains conflicting terms or is silent on how the Care Provider treats FNCs. Information from other sources may also be relevant.

What happened

16. Mrs A moved into the Care Provider in June 2016 and the admission agreement was signed by her representative Mr X.
17. The admission agreement said the weekly fee for Mrs A’s care was £933.
18. The agreement also said that if a resident has been awarded Funded Nursing Costs (FNC), also known as NRCC, the payment will be made direct to the Care Provider.
19. Mrs A was awarded FNC in June 2016 at a rate of £112 per week. The Care Provider says it showed this on the invoices of Mrs A’s care from July 2016 onwards.
20. FNC rates increased in April 2016, however there was a delay in applying this decision from the government and the Care Provider says therefore it did not immediately come into effect. The Care Provider said it undertook a review of fees following the increase in FNC and found there had been a shortfall in the costs of care because of the different FNC rates.
21. The Care Provider wrote to Mr X in January 2017 and told him it had reviewed costs because the FNC change. It told Mr X the FNC payment was required to offset the calculated costs and that it had adjusted Mrs A’s care costs to reflect this.
22. Between March 2017 and November 2022 the Care Provider increased the fee for Mrs A’s care several times. It wrote to Mr X each time it did this. It also wrote to him in November 2020 that Mrs A’s FNC would be increasing.

Previous Ombudsman decisions

23. The Ombudsman has previously investigated the Care Provider for how it communicated about the change in FNC for residents and showed this on its invoices.
24. The Ombudsman found the Care Provider should have explained its change from including the gross fee to the net fee in its letters.
25. The Ombudsman found where residents had been aware of the gross figure from the change, it is fair to use the gross fee figure. The Care Provider failed to take away the full FNC from that figure and some residents suffered a direct financial injustice as a result.
26. The Ombudsman previously found the Care Provider had been aware of the increase in FNC, but that had continued to send invoices with the lower amount. This meant the full FNC costs were not being offset from residents’ invoices, and that both the FNC and the residents were being charged for the care the FNC was to pay for.
27. The Ombudsman also found the Care Provider’s admission agreement did not clearly set out what its position was on FNC and recommend the Care Provider review the agreement.
28. However, the Ombudsman decided this did not mean the Care Provider should be held to this lower figure. This meant the Care Provider should repay the shortfall in the amounts, but it was not responsible for repaying the full amount. The Ombudsman recognised the FNC was used to pay for additional nursing care costs.
29. Following the Ombudsman previous decision, the Care Provider reviewed residents it had wrongly invoiced, and residents received a refund of the shortfall of FNC costs.

Mr X’s complaint

Mr X’s complaint to the Ombudsman

30. Mr X complained the agreement for Mrs A’s admission was that nursing costs were included in her fee but the Care Provider was also charging FNC for nursing costs. Mr X felt Mrs A had seen no benefit in the additional care that was apparently being paid for by the FNC and was being claimed wrongly.
31. Mr X complained Mrs A should be refunded the full amount of FNC from the start of her admission.
32. The Care Provider agreed to repay Mrs A for the FNC shortfall following the Ombudsman’s previous decision. It did not accept that it had added FNC wrongly to Mrs A’s invoices and refused to refund the full FNC costs.
33. Mr X remained unhappy and bought his complaint to the Ombudsman. He said that he only became aware of the issue due to the Ombudsman’s previous decisions about the care provider.

Analysis

Assessment of FNC

34. I have considered whether there is any fault in the Care Provider’s actions.
35. The Care Provider had some discretion in how it wanted to address the FNC, but it had a duty to clearly communicate its position when Mrs A moved in.
36. Mr X complains that Mrs A did not benefit from being assessed or receiving the FNC payments.
37. NHS-funded Nursing Care (FNC) is the funding provided by the NHS to Care Providers with nursing, to support providing nursing care by a registered nurse for those assessed as eligible for FNC.
38. Mrs A was assessed as being eligible for FNC by the Care Provider, and therefore the Care Provider was entitled to include the FNC payments in its costs.
39. The Ombudsman has already found the Care Provider should have clearly set out what its policy was in the admission agreement about its position on FNC. The Ombudsman also found the Care Provider did not suitably communicate with residents about how it was applying the FNC costs to its invoices.
40. Mr X believes the admission agreement for Mrs A says that she is paying for nursing costs, however the Care Provider claimed FNC which also paid for nursing costs.
41. Mr X feels the Ombudsman’s decision that says “the Care Provider could not have it both ways. Either it excluded the nursing fees from the calculation of the fees, or it included the nursing fees in the calculation of the fees, but then it had to deduct the FNC. The Care Provider included the nursing costs in its calculation of the fees, but then failed to deduct the full FNC” means the Care Provider should refund all the FNC costs as it was charging nursing costs to both Mrs A and FNC.
42. The calculations by the Care Provider show that it was at first absorbing the shortfall in the change of FNC, and this is what the Ombudsman recommended the Care Provider repay its residents.
43. However, the Ombudsman recognised the Care Provider could not be held to the lowest number, which would be to refund the full FNC costs, as it was entitled to claim FNC for residents who qualified for it. In this case, Mrs A was eligible for FNC payments, and therefore the Care Provider is not at fault for including this in its cost of her care.

Admission agreement and communication

44. In 2011 the Department of Health published answers to frequently asked questions on FNC funding for local authorities and others. On the impact of FNC funding on self-funders, the advice is:
• For 'self-funders' the specific arrangements are dependent on the terms in their contract with the Care Provider. Depending on the terms, in some situations the overall fee would increase to reflect the increase in NHS FNC and the resident’s contribution would remain the same. In other situations the overall fee would remain the same and the resident’s contribution would decrease.
• If the contract explicitly stated the overall fee level was made up of a specific contribution by the resident plus the amount of any NHS contribution the resident’s contribution is a separate matter to any changes in the level of the NHS contribution. The overall fee level payable to the Care Provider would increase/decrease in the level of NHS contribution.
45. Mrs A’s admission agreement says the fee for the room would be “£933”. It also says the full fees would include “provision of care staff on a 24 hour basis to provide personal care as outlined in the care plan (including where appropriate in our opinion provision of professionally qualified nursing staff to provide nursing care where the Care Provider is the Care Provider”.
46. The admission agreement is ambiguous and does not clearly set out whether the FNC is included in the base rate for Mrs A’s room. It could read that the full fee would be £933 and would be used to cover all the care Mrs A needed, including specialist care provided by qualified nurses. This could lead the reader to assume any FNC claimed would be offset against the £933.
47. The other interpretation of the agreement is that Mrs A will pay a flat fee of £933 per week, and where she is entitled to more care, the Care Provider will also claim FNC. These combined costs will provide her with the services in the admission agreement and would be the full fee.
48. I uphold Mr X’s complaint that the admission agreement is ambiguous and unclear. This was fault by the Care Provider.
49. However, as part of my investigation, I have also considered the communication that was sent alongside the agreement, and the invoices that followed.
50. When the admission agreement was sent, a letter was also sent to Mr X which clearly said the fee was “£933 excluding FNC”. The invoices for Mrs A’s care also use the gross total costs, which show the total being the £933 plus the FNC. The invoices for Mrs A’s care show that her fee plus the FNC equal the gross invoice amount. These documents show that FNC was separate from the standard rate fee of £933.
51. There is enough evidence on balance to say the Care Provider thought it had adequately kept to the terms of the agreement, and claimed FNC on top of the fees. The Care Provider believed that Mrs A needed added care which is why it assessed her for FNC, and this is what the FNC paid for.
52. I appreciate the first agreement was ambiguous and has left Mr X uncertain about whether Mrs A has been paying for the specialist nursing care as well as the FNC paying for it. However, it is not for the Ombudsman to say if the contract was unfair, unenforceable or has been breached. This would be for a court to decide.
53. The Care Provider has already recognised the was a shortfall of the changed FNC amounts that was charged to Mrs A and has recognised the communication about FNC was ambiguous. I uphold the same view as the previous decision. The Care Provider should not be held to the lower figure of refunding the full FNC as it was entitled to claim this to provide specialist nursing care to those who were eligible.
54. The Care Provider has already carried out recommendations from the previous decision to review how it communicates with residents about FNC. This was the most suitable service remedy to ensure there is no further confusion.

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Agreed action

55. Within 4 weeks the Care Provider has agreed to

• Write to Mr X and apologise for the fault identified.
• Pay Mr X £300 in recognition of the uncertainty caused.

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Final decision

56. Subject to further comments by Mr X and the Care Provider, I intend to find fault with the Care Provider for how it explained the FNC costs to residents.

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Investigator's decision on behalf of the Ombudsman