Summary: Mrs X complained about the way the care provider treated funded nursing care payments awarded to her late parents. The care provider was at fault. Its contract made no reference to funded nursing payments and it failed to explain how these would be handled and treated. So, Mrs X believed these payments would be deducted from the care fees. The care provider should pay the funded nursing care payments it received to Mr and Mrs Y’s estate. It should also review its contracts to make clear how it treats and uses a resident’s funded nursing care payments

The complaint

1. Mrs X complains about the way the care provider treated funded nursing care payments awarded to her late parents, Mr and Mrs Y. She considers the payments should have been used to reduce the care fees but they were instead retained by the care provider and so she has paid to much for her parents’ care.

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

5. I considered the information provided by Mrs X and discussed the complaint with her on the telephone. I considered information provided by the Care provider.
6. I gave Mrs X and the care provider the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.
7. 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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What I found

The relevant law and guidance

8. NHS-Funded Nursing Care (FNC) is the funding provided by the NHS to care homes providing nursing, to support the cost of nursing care delivered by registered nurses. If a person does not qualify for NHS Continuing Healthcare, the need for care from a registered nurse must be determined. If the person has such a need and it is determined their overall needs would be most appropriately met in a care home providing nursing care, then this would lead to eligibility for NHS-Funded Nursing Care.
9. 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.
10. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers that meet the fundamental standards of care, inspects care services, and reports its findings. It can also enforce against breaches of fundamental care standards and prosecute offences.
11. Regulation 19 of the Care Quality Commission (Registration) Regulations 2009 requires providers to give timely and accurate information about the cost of their care and treatment to people who use services. 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.
12. The Competition and Markets Authority published guidance in 2017 (updated in 2021) which says ‘If you’re paying for your own care, there will be a contract between you and the care home. The terms and conditions in that contract must be written simply and clearly, avoiding jargon, so that you can easily understand your rights and responsibilities’.
13. In 2018 we published guidance for adult social care providers on funded nursing care payments. Our starting point when considering complaints about charges is to look at the contract and any standard information given to the resident or their relative before they moved in. We interpret contracts on their ordinary reading. 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 contains conflicting information or is silent on how the care provider treats FNCs. If a contract explained how the care provider treats FNC then we would be unlikely to find fault.

What happened

14. Mr Y had dementia. Following a hospital admission, it became apparent Mr Y could not safely return home. Mrs Y also had health problems so Mrs X sought a care home that could accommodate both Mr and Mrs Y and their health needs.
15. Mrs X visited Brownhills Nursing Home which had two rooms available. Mrs X says she spoke to the manager and agreed the weekly fee of £725 for nursing care and the manager agreed to speak to the hospital direct regarding Mr Y’s discharge. Mrs X says funded nursing care was not mentioned. Mr Y was discharged from hospital just before Christmas and the care home agreed to accept him. Shortly after, Mrs Y also moved in. Mrs X signed contracts for Mr and Mrs Y to receive nursing care at the care home.
16. The contract stated the fee payable per week was £725. It stated, ‘the charge that applies to you as a Service user of the Home depends on your assessed care needs and type of accommodation’. Under ‘services include:’ the contract stated:
• ‘Liaison with your GP, social worker, district nurse, chiropodist and other professionals, but any charge that any of these make must be met by you.
• Nursing care (where the contract is for nursing care). However, any additional charges for extraordinary nursing care or nursing equipment not covered by the Registered Nursing Care Contribution will be agreed by the resident or nominated representative’.
17. In early February Mrs X says she received a call from an Assessment Officer who was due to visit Mr Y to assess for FNC. Mr Y passed away suddenly shortly after. Later that month Mr Y was awarded FNC backdated to when he moved into the care home. Mrs X believed this would reduce the care fees owed to the care home.
18. Following a hospital admission Mrs X says the assessor agreed to visit with a social worker to assess Mrs Y for continuing health care funding (where care is arranged and funded by the NHS where the individual is found to have a primary health need). Mrs Y passed away before the meeting took place.
19. Mrs Y later received FNC backdated to when she moved into the care home.
20. The care provider sent Mrs X the outstanding invoices for Mr and Mrs Y’s stay. Mrs X queried the charges as she believed FNC should have been deducted. The care provider responded that FNC was in addition to the weekly fee charged to the family and was not deducted from the quoted fee.
21. Mrs X raised concerns that this was not in line with the contract and asked for revised invoices. The care provider responded and explained that FNC was a payment to support the provision of nursing care in a nursing home and the NHS made these payments direct to the care home. The weekly charges invoiced were not subject to the FNC element.
22. Mrs X responded to the care home and referred to the guidance the Ombudsman had issued about FNC. The care provider responded that at no time was it mentioned that FNC would be deducted from the care fees. It advised it would allow 14 days for payment or it would commence legal proceedings.
23. Mrs X complained to the care home.
24. The care provider responded to Mrs X’s complaint in late July 2022. It said the manager could not recall exactly what was discussed with Mrs X. However, they would never have said that FNC was included in the care fee quoted. It said the home’s administrator applied for FNC for Mr and Mrs Y in January 2022. It said FNC ‘has always been a top up for nursing fees for the home’. It added that care fees were clearly shown on the notice board in the office. It did not uphold the complaint.

Mrs X settled the final bill with the care home in July 2022. She then complained to us.

Findings

25. The care provider, in its response to Mrs X, said 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.
26. The contract between Mrs X and the care provider suggested, in the section regarding the services included, nursing care was included in the fees charged. The contract was silent on how it treated FNC payments. Mrs X says she did not know what FNC was until she was later contacted by an assessor. There was no written information provided to Mrs X in the contract or otherwise to explain how the care home treated FNC funding. This is not in line with the law or CMA guidance and is fault. Mrs X therefore believed Mr and Mrs Y’s fees would be reduced by the FNC payments.
27. Mrs X chose the care home based on the availability of two rooms and knowing the care fees Mr and Mrs Y would be charged. The contract should clearly have stated that FNC would be paid to the care provider and would not change the fees paid by the resident. Alternatively, the care provider should have issued a revised contract explaining FNC was in addition to the care charges, when it was awarded. It did not do this.

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Recommended action

28. Within one month if the date of the final decision I recommend the care provider reimburses to Mr and Mrs Y’s estates the FNC payments it received for their care.
29. Within two months of the final decision I recommend the care provider:
• reviews and updates the information it provides residents and their representatives about how it treats and uses FNC payments.
• reviews and revises the terms and conditions on its contract for self-funding residents to make it clear how it treats and uses FNC payments.
30. Within three months of the final decision I recommend the care provider issues its revised contract to all new and existing self-funding residents who receive FNC payments.

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Final decision

31. I have completed my investigation. The care provider was at fault which caused an injustice to Mrs X for which I have recommended a remedy

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Investigator's decision on behalf of the Ombudsman