Summary: Mrs X complained Berkley Care Active Limited failed to notify her of a change in her mother, Mrs Y’s care needs resulting in an increase in care home fees, or that it had applied for a Funded Nursing Care contribution on her behalf. She complains the Care Provider also failed to explain how the contribution would impact on the fees Mrs Y was required to pay. Mrs X has suffered an injustice as a result of the Care Provider’s failure to inform her of a change in Mrs Y’s care needs and care fees. The Care Provider has made an appropriate offer to remedy this injustice.

The complaint

1. The complainant, whom I shall refer to as Mrs X complained the Care Provider failed to notify her of a change in her mother, Mrs Y’s care needs resulting in an increase in care home fees, or that it had applied for an NHS Funded Nursing Care (FNC) contribution on her behalf. She complains the Care Provider also failed to explain how the FNC contribution would impact on the fees Mrs Y was required to pay.

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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. If they have caused a significant injustice or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 34B, 34C and 34H(3 and 4) as amended)
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)

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How I considered this complaint

4. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Care Provider and considered the comments and documents the Care Provider provided;
• Mrs X 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

Care home fees

5. The Care Provider has a banding system for its fees. Bands 1 and 2 apply to residents who do not require nursing care and require less than 2.5 or 3.5 hours of care and support each day. Where residents require nursing care, they are charged at either Band 3 or 4 rates depending on the level of care and support they need.
6. The Care Provider’s standard resident contract states it will review fees annually and provide at least 30 days’ notice of any change in fees. Fees may also be reviewed at any point where there has been an unexpected change in care needs.
7. In relation to FNC funding, it states:

“Once a resident has been admitted, and if their dependency needs increase to a point where they may be eligible for the NHS Funded Nursing Care contribution, we will apply for this on your behalf. If after assessment this is approved and paid… we will deduct this from any increase in the overall fee that is determined as a result of the increased dependency.”

What happened here

8. Mrs Y was a resident at Cumnor Hill House (the care home) from April 2021 until October 2022. Mrs Y did not require nursing care when she moved there and paid Band 1 fees of £1300 per week, which increased to £1391 in April 2022.
9. The Care Provider says Mrs Y’s needs increased and in June 2022 the care home assessed she needed nursing care. This increase in care moved Mrs Y from Band 1 to Band 3, with an associated increase in fees to £1690 per week. The care home did not discuss the increase in care needs or the increase in fees with Mrs X. The care home applied for FNC to cover the increase in fees.
10. Mrs X received a letter from the NHS confirming Mrs Y was eligible for FNC. It explained the care home would receive a monthly payment and encouraged her to confirm with the care home the arrangements for reimbursing this contribution to Mrs Y. Mrs X contacted the care home on 30 June 2022 asking to discuss this. She chased the care home on 7 July 2022 and then had a meeting with them on 26 July 2022.
11. At this meeting the care home acknowledged it had not involved Mrs X in, or informed her of, the application for FNC. It also said it had not received a copy of the letter confirming Mrs Y was eligible and would chase this up. Mrs X also questioned some of the scores on the application. Mrs X subsequently asked the care home to provide a copy of Mrs Y’s contract with them
12. Following this meeting the care home confirmed it had now received the letter confirming Mrs Y’s eligibility and advised it can take some time for the payment to be processed. The care home confirmed it would let Mrs X know when it received payment.
13. Mrs X chased the care home for an update in August, September, and October 2022. She also chased the care home for a copy of Mrs Y’s contract. As she did not receive a response, Mrs X contacted the Care Provider at the end of October 2022. She asked them to explain how the care home managed the FNC contribution.
14. The Care Provider explained that if a resident is assessed as requiring nursing care prior to admission, the fee quoted will include the FNC element. The care home will apply for the funding and once approved and paid, it will deduct it from the on-going rate. If after admission a resident’s dependency needs increase, the care home may carry out a fee review, resulting in a fee increase. If the increase in care needs means the resident becomes eligible for an FNC contribution the care home will apply for this and if approved, deduct it from the fee.
15. Mrs X says that as she believed the FNC payment would reduce Mrs Y’s fees she chased the NHS and local council for the payment. The care home received a backdated FNC payment in November 2022. By this stage Mrs Y had moved to another care home. Mrs X asked the care home to reimburse Mrs Y the FNC contribution, or to deduct it from the outstanding amount on Mrs Y’s account.
16. The Care Provider advised Mrs X that Mrs Y was admitted to the home as a residential resident, paying Band 1 fees. She was then assessed as requiring nursing care and moved into Band 3. This resulted in an increased fee, which would be offset by the FNC contribution. They explained that rather than pass the increase in fee onto Mrs Y, it accrued on her account to be settled once the care home received the FNC.
17. Mrs X considered it unacceptable to be told Mrs Y’s fees had gone up more than 20 weeks after the event. She considered the care home should deduct the FNC from the £1391 per week Mrs Y had and been paying and reimburse her accordingly.
18. The Care Provider confirmed it had applied for FNC to cover the increased fee based on Mrs Y’s needs. It would normally expect a manager to discuss the care package and FNC application with Mrs X and apologised that this did not happen. The Care Provider provided a final bill showing Mrs Y had outstanding fees of £4,347.08 and asked Mrs X to review this and confirm it was correct.
19. Mrs X maintained that as she was not informed Mrs Y had moved band or that her fees had increased, the FNC contribution should be deducted from the fee she was actually paying. She also asked the Care Provider to check the final bill as previous invoices had been incorrect.
20. The Care Provider confirmed the outstanding balance was made up of four elements:
• £1300 for the period 25-31 May 21 when no payment was received
• £312.62 in respect of a catch up payment when fees increased from £1300 to £1391 per week.
• £2,583.29 for the period 1- 13 October 2022 when no payment was received
• £151.18 due to the difference in standing order payments.
21. Mrs X noted the missed payment in May 2021 was due to a 3 weeks’ respite care for the price of 2 promotion in place at the time and should be deducted from Mrs Y’s account. Mrs X accepted the £312.62 and £151.18 were owing and arranged to pay these sums. However, she calculated the care home should have received about £3500 in FNC payments and suggested this be offset against any further monies owing on Mrs Y’s account.
22. Mrs X considered the care home had had ample opportunity to explain both the proposed increase in Mrs Y’s care fees and how it intended to handle the FNC contribution but had not done so. Mrs Y had no written contract with the Care Provider and was not informed of a fee increase. She asked to escalate her complaint.
23. A senior officer at the Care Provider discussed Mrs X’s concerns with her and then responded to her complaint. They acknowledged there were a number of occasions where it missed the opportunity to provide key information regarding Mrs Y’s increased care needs and the FNC process. Had it provided this at the time Mrs X would have had a full understanding of Mrs Y’s care needs, fees, and the purpose of FNC support. The Care Provider apologised Mrs X was not informed and that no one at the care home took responsibility to give her this information.
24. The Care Provider said the FNC application was prompted by a change in Mrs Y’s care needs and asserted it was entirely reasonable for it to use the payment to cover the cost of the nursing care it provided. This care was not included in the weekly fee Mrs Y paid as she was not assessed as having a nursing need when she was admitted.
25. As they had not been clear in their communication with Mrs X the Care Provider proposed cancelling Mrs Y’s outstanding balance of £3,883 to clear her account.
26. Mrs X questioned the outstanding balance, which appeared to include the £1300 previously added to Mrs Y’s account for the period 25 to 31 May 2022, when a three for two promotion should have applied. She understood the balance outstanding on Mrs Y's account was £2,583.29.
27. Following further correspondence the Care Provider confirmed it was willing to write off the outstanding £2,583.29. Mrs X did not consider this adequate. Mrs X considers the care home should refund Mrs Y all of the FNC payments it has received.
28. Mrs X remains concerned about the Care Provider’s charging practices. She says she received three invoices for Mrs Y’s stay at the care home and each one was incorrect and had to be amended once she had checked them. Has she not questioned the charges Mrs X says Mr Y would have been over charged by more than £15,000.
29. Mrs X is also concerned the Care Provider gave inaccurate information about the fees increase and how this would be met. In response to Mrs X’s complaints the Care Provider confirmed Mrs Y’s fees had increase to the Band 3 rate of £1,710. This was an increase of £319 ach week while the FNC payment was £209.19, leaving a shortfall of £109.81 each week. However in response to my enquiries the Care Provider has confirmed the Band 3 rate was £1,690 each week. This would result in a shortfall of £89.91 each week. Mrs X asserts that where the Care Provider increases a resident’s fees it should be clear about the new amount and explain how any shortfall will be met.

Analysis

30. There is no dispute the care home failed to advise Mrs X of Mrs Y’s change in care needs or the resultant increase in her care fees. It also failed to involve Mrs X in the application for FNC or explain the process and how this would affect Mrs Y’s fees.
31. It is disappointing that despite Mrs X’s repeated requests for information between June and October 2022 the care home did not properly explain the position. This meant the confusion and uncertainty was allowed to continue and raised Mrs X’s expectations regarding a refund of fees. The Care Provider acknowledges these were missed opportunities and I would expect it to take action to ensure such situations do not arise in the future.
32. I would also expect it to ensure that all residents have a signed contract with the Care Provider. Had Mrs X received a contract for Mrs Y’s placement at the care home she could have familiarised herself with provisions for fee reviews and FNC contributions.
33. The lack of clarity regarding Mrs Y’s care fees was compounded by the error in her final bill which showed Mrs Y owed £1300 more than she did. This error was then repeated in the Care Provider’s response to Mrs X’s complaint and was not immediately corrected.
34. The care home’s failure to ensure Mrs X was aware of the change in Mrs Y’s care needs and fees, and to explain how FNC contributions would affect Mrs Y’s fees has caused an injustice. To remedy this injustice, Mrs X would like the Care Provider to:
• Apologise,
• Pay Mrs Y the full amount of FNC contributions it received
• Review the way its contracts are drawn up and how people are notified of fee increases and the FNC process;
• Ensure invoices are correct; and
• Recognise and compensate her for the significant amount of time she has pursuing this matter.
35. The Care Provider has apologised for the poor communication and offered to write off the outstanding balance on Mrs Y’s account but will not pay Mrs Y the full amount of FNC it received.
36. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a Care Provider. Our primary aim is to put people back in the position they would have been in if the fault by the Care Provider had not occurred.
37. In this instance but for the fault Mrs X would have known about the increased fees and that this increase would to be offset by FNC contributions. The amount Mrs Y paid towards her fees would not have decreased. She would have continued to pay £1391 each week. I am not therefore persuaded the Care Provider should account to Mrs Y’s estate for the full amount of FNC contributions it received.
38. We would however expect the Care Provider to make a symbolic payment to acknowledge the raised expectations, distress or difficulties caused by their failings. Rather than make a payment the Care Provider has offered to write off £2,583.29 in outstanding fees. I consider this to be a generous offer.

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Agreed action

39. The Care Provider has agreed to:
• apologise to Mrs X for distress, difficulties and uncertainty she experienced due to the failings in its communication. In making this apology the Care Provider should have regard to our guidance Making an effective apology.
• write off Mrs Y’s outstanding care fees in the sum of £2,583.29 in recognition of the distress, difficulties and uncertainty its failings in communication caused;
• review its procedure for notifying residents and their families of changes in care needs and fees charges. The Care Provider should ensure this information is properly shared and recorded;
• remind its staff of the need to ensure all residents have signed contracts in relation to their placements at its care homes
40. The Care Provider should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Final decision

41. Mrs X has suffered an injustice as a result of the Care Provider’s failure to inform her of a change in Mrs Y’s care needs and care fees. The Care Provider has made an appropriate offer to remedy this injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman