Summary: Miss X complained about the way Prime Life Limited (the care provider) treated her late father, Mr Y’s Funded Nursing Care (FNC) payments between September and November 2019. The care provider was at fault for failing to provide a clear contract or explain from the outset how it treats and handles FNC payments. This caused Miss X uncertainty. The care provider agreed to provide Mr Y’s estate with a partial refund of FNC payments it received. It also agreed to review and revise its contracts to make it clear how it treats and uses a resident’s FNC payments.

The complaint

1. Miss X complained about the way Prime Life Limited (the care provider) treated her later father, Mr Y’s Funded Nursing Care (FNC) payments when he lived at Rutland Care Village (the care home) between September and November 2019. Miss X said the care provider failed to act fairly and transparently in how it managed and used Mr Y’s FNC payments and did not reduce his weekly care fees.
2. Miss X wants the care provider to refund Mr Y’s FNC payments and make it clear to all residents and their families about how it treats and uses FNC payments.

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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. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
5. If we are satisfied with a care provider’s 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)
6. 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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How I considered this complaint

7. I spoke to Miss X about her complaint.
8. I considered the care provider’s response to my enquiry letter.
9. I considered guidance titled ‘Funded Nursing Care Payments’ which the Ombudsman issued to care providers in January 2018.
10. Miss X and the care provider had the opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Regulations and guidance

11. Regulation 19 of the Care Quality Commission (Registration) Regulations 2009 says care providers should provide the resident or their representative with a written statement, ideally before the resident moves in. The statement should:
• Set out the terms and conditions of service, including the amount and ways to pay the fee;
• Include a contract.
12. Guidance by the Care Quality Commission, 'Guidance for providers on meeting the Regulations', explains:
• People must receive a written copy of the terms before their care and support begins;
• Care providers should tell people about any changes in terms and conditions in advance, including increases in fees. This is so people have time to consider whether to continue with the service;
• Care providers should give an estimate of costs if a fixed price is not possible. This should include details of additional costs.

Funded Nursing Care (FNC)

13. The NHS can provide continuing healthcare (CHC) at home or in a care/nursing home, if someone’s primary need for needing care is health-based. The 2012 Regulations say the NHS should assess for NHS Continuing Healthcare where it appears somebody is in need of such care. In these cases, the NHS will meet the full cost of that person’s care.
14. The NHS is also responsible for meeting the cost of care provided by registered nurses to residents in all types of care homes. Council funded and self-funding residents who need to move into care homes with nursing should have an assessment to identify any nursing needs, including the possible need for NHS-funded nursing care (FNC).
15. FNC is funded at a single rate, which is determined each financial year. The NHS pays FNC directly to the care home. The resident does not receive any money directly.
16. The Ombudsman has produced a focus report called ‘Funded Nursing Care Payments: Guidance for care providers’. The report sets out our position on how care homes treat FNC payments. Our approach is that homes may make their own decision on how to treat FNC payments. Our starting point is to look at the contract and any information given to the resident or their representative before they moved in. We interpret contracts on an ordinary reading. We are likely to find fault if a contract stays silent or is unclear on how the care provider treats FNC payments. We may find this caused an injustice and recommend a reimbursement of fees.

What happened

17. Mr Y had dementia and did not have capacity to make his own decisions. In July 2019 he moved into the care home on a respite basis. Mr Y’s stay at the care home was initially funded by the council. A contract was in place between the council and the care provider.
18. Records show Miss X and her sister, Ms F, asked for a CHC assessment for Mr Y due to a decline in his behaviour. The NHS carried out an assessment of Mr Y but decided he was not eligible for CHC funding. It did however agree that Mr Y had nursing needs and was therefore entitled to FNC payments. The NHS wrote to Ms F in September 2019 and said Mr Y would receive FNC payments while he remained a resident at the care home. It said it would pay the FNC payments directly to the care home. Mr Y was entitled to the standard weekly amount of £165.56 plus an extra £5.80 per week for his continence costs. Mr Y began receiving FNC payments from 23 September 2019.
19. On 27 September 2019 Mr Y became a self-funding resident and from this date he began funding his care privately. The care provider issued Mr Y with a new contract which was specific for self-funding residents. The contract listed various terms and conditions including the cost of the placement at £1037.75 per week. The contact made no reference to FNC payments or how the care provider treated those payments.
20. Records show the care provider sent monthly invoices to Ms F for Mr Y’s care fees. The invoices all showed Mr Y’s care fees as £1037.75, in line with his contract. Upon receiving the invoice in October 2019 Ms F questioned with the care provider why it did not show a reduction in Mr Y’s care fees to reflect the FNC payments it was receiving. The care home manager informed Ms F that the FNC payments would not reduce Mr Y’s normal weekly care fees. They said the FNC were in addition to the fees paid for Mr Y’s care.
21. Mr Y remained at the care home until the end of November 2019 when he moved to a different placement due to his deteriorating dementia. Mr Y died in April 2020.
22. In August 2020 Miss X complained to the care provider. She complained it had not reduced Mr Y’s care fees between September and November 2019 during the period he received FNC payments while living at the care home. Miss X said she and Ms F believed the FNC payments would be deducted from his weekly care fees. Miss X said at no time did the care provider advise otherwise. Miss X also pointed out that at no time did it explain or provide her with information about how it managed FNC payments and the contract also contained no information about it.
23. The care provider sent Miss X its response. It said Mr Y was awarded FNC when the Council was still funding his care. The care provider said the contract between the Council and the care provider in place at the time referred to the FNC payments. It said FNC payments do not reduce care fees but cover additional fees for input from nurses and clinicians.
24. Miss X responded to the care provider. She said at no time did anybody explain what happened to FNC payments. Miss X said the care provider was not transparent with its fees. She said a new contract was signed after Mr Y started receiving FNC payments and that made no reference to FNC.
25. The care provider wrote back with its final response. It said it believed it did discuss FNC payments with Miss X and Ms F however it had no records to prove or disprove what exactly was said. The care provider reiterated what it said in its initial response and said FNC payments do not reduce or change the standard care fees.
26. Miss X remained unhappy and complained to us.

My findings

27. The care provider’s stance is that FNC payments do not reduce the usual care fees and are used to fund additional services such as input from nurses and clinicians. There is no fault in that as it is for the care provider to decide how to use the payments. However, it must clearly communicate this and explain it in its terms and conditions.
28. The care provider has relied on the initial contract between it and the Council which it says includes information on FNC payments. I have read the terms and on ordinary reading it is not clear how FNC payments are treated. Regardless of this, Mr Y then entered into a private arrangement with the care provider and signed a new contract. There is nothing in the terms and conditions which refer to FNC payments or how the care provider treats them. The invoices also made no reference to them. There are no records to show the care provider gave Miss X or Ms F any clear information about how it would use and treat Mr Y’s FNC payments.
29. The care provider was at fault for failing to provide a clear contract or explaining from the outset how it treats and handles FNC payments. This caused Miss X and Ms F uncertainty as they believed the FNC payments would reduce Mr Y’s care fees. It also meant, as Mr Y’s representatives, they did not have the opportunity to make an informed decision around whether to move him to a different care home.

Consideration of remedy

30. Our guidance says we may ask a care provider to apologise and repay FNC payments it received if its terms are not clear. We may also ask it to make changes to its procedures. In this case the terms and conditions within its self-funding contract is silent on what happens to FNC payments.
31. Ms F raised the issue with the care provider at the earliest opportunity when she received the first invoice after Mr Y’s FNC payments started. The care provider provided an explanation at the end of October. Therefore, there was no ongoing injustice at this point. Miss X and Ms F had enough information to make an informed decision about whether to move Mr Y to a new care home.
32. I therefore recommended a remedy for the period between 27 September when Mr Y became a self-funding resident and the end of October when Miss X and Ms F were aware of how the care provider treated FNC payments.

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Agreed action

33. The care provider agreed within one month of the final decision to:
• apologise to Miss X and pay her a £150 symbolic payment to recognise the uncertainty caused by failing to provide her and Ms F with clear information about it would treat Mr Y’s FNC payments
• reimburse Mr Y’s estate £758.57 in FNC payments it received between 27 September and 31 October 2019.
34. Within two months of the final decision the care provider agreed to:
• review and update the information it provides residents and their representatives about how it treats and uses FNC payments.
• review and revise the terms and conditions on its contract for self-funding residents to make it clear how it treats and uses FNC payments.
35. Within three months of the final decision the care provider agreed to issue its revised contract to all new and existing self-funding residents who receive FNC payments.
36. The care provider agreed to provide us with evidence it has completed the above actions.

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Final decision

37. I completed my investigation. I have found fault and the care provider agreed to my recommendations to remedy the injustice caused by that fault.

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Investigator's decision on behalf of the Ombudsman