Summary: The Care Provider was at fault because it did not issue a written contract for Mr D’s care, gave Ms C, his representative, different figures for the charge verbally, did not send timely invoices and failed to explain how it treated funded nursing care payments. This caused Ms C avoidable confusion and uncertainty. To remedy the injustice, the Care Provider should refund Ms C part of the fee and apologise within one month of this statement.

The complaint

1. Ms C complains about her late father’s (Mr D’s) fees when he lived in one of Prestige Care (Roseville) Ltd’s (the Care Provider’s) nursing homes. She says the Care Provider:
1. Did not issue a written contract for Mr D’s care
2. Gave no or unclear information about how it treated Funded Nursing Care payments
3. Charged Mr D when he was in hospital
4. Did not send timely invoices
5. Inappropriately threated legal proceedings when probate had not been completed.

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The Ombudsman’s role and powers

2. We investigate complaints about adult social care providers. If there has been fault, we consider whether it has caused an injustice and, if it has, we may suggest a remedy. (Local Government Act 1974, sections 34H(3) and (4), as amended)
3. 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

4. I considered Ms C’s complaint to the Ombudsman and documents described later in this statement. Both parties received a draft of this statement and I took comments into account.

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What I found

5. 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.
6. Guidance by the Care Quality Commission, Fundamental Standards, explains:
• People must receive a copy of the contract and they must agree to 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.
7. The point of Regulation 19 and the Fundamental Standards guidance is to ensure care providers give timely and accurate written information about any fees and terms and conditions in a contract, where people are paying either in full or in part for their care.
8. Funded Nursing Care Payments (FNCs) are payments from the Department of Health to nursing homes. Eligibility for FNCs is by an assessment completed by the resident’s local Clinical Commissioning Group (CCG). The CCG sends FNC payments directly to the home; the resident does not receive any money directly.
9. The National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care (November 2012) (‘the National Framework’) explains how FNCs affect other funding for a care package. It says:
• FNC is a contribution towards the cost of registered nursing care;
• The issue is about how the fee is shared between the resident and the NHS;
• The care provider should set an overall fee for care and accommodation, which includes any registered nursing care provided. FNC, when awarded, is paid directly to the care home. The balance is paid by their resident or representative.
10. We issued guidance in 2018 (Funded Nursing Care Payments: Guidance for Practitioners) after seeing a rise in complaints following an increase in the weekly rate for FNC in 2016. When we investigate complaint about FNC, we look at what the law and guidance says care providers must do and compare this with what happened. If we find a care provider’s actions have fallen short of expected standards and this has caused injustice, we may recommend an apology and repayment of fees, depending on the circumstances of the case. We may also recommend actions to improve services for others.
11. 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. If a contract does not make sense we may view it as a fault by the care provider. We are likely to criticise ambiguous, inconsistent, conflicting or unclear terms. We are likely to criticise a contract which is silent about how the care provider treats FNCs.

Key facts

12. Mr D was awarded FNC in April 2018 when he was living in a different nursing home. The local CCG’s letter about the award said

“Mr D’s primary need is for accommodation, personal and social care and his health needs can be met with registered nurse input which will be funded through FNC. This entitles Mr D to £156.16 per week and these payments will be made directly to the nursing home.”

13. Mr D moved into the nursing home at the end of October 2018. Ms C managed Mr D’s finances for him.
14. Ms C told us at her first visit to the nursing home, before Mr D moved in, she spoke to a member of staff who told her the weekly charge for Mr D’s care would be £675. Ms C provided us with a copy of handwritten note saying “£675 private fees.” She said no other charge was mentioned and she understood this to mean the total fee for his residence and nursing care was £675. Ms C said she did not mention her father got FNC.
15. Ms C told us she gave a copy of her father’s FNC letter to one of the nursing home’s nurses a few days before he moved in when the nurse (the Deputy Manager) was carrying out an assessment of Mr D.
16. The Deputy Manager met with Ms C, her partner and Mr D a week before Mr D moved to the nursing home. The Deputy Manager said in a statement for this investigation

“I explained that the fees at the time and to the best of my knowledge were £725 and that I was under the understanding that Mr D was FNC granted which would equate to a contribution of about £158 per week.  Ms C’s partner stated that he had some paperwork concerning the current fees and of who was currently paying what regarding nurse funding. He went to his car and brought back some paperwork sent by Scarborough and Ryedale CCG…...  the paperwork dated 6.4.18 showed agreed funding for FNC at £158.16”

17. Ms C told us the deputy manager did not tell her the weekly fee was £725 and the only fee that was ever mentioned was £675.
18. The Care Provider did not give Ms C a contract to sign when Mr D moved in.
19. Mr D went into hospital in the last week of November. Ms C told us there was no discussion or correspondence about keeping his room open. The hospital arranged for Mr D to return to the nursing home on 20 December. He received full NHS funding from 20 December to his death on 30 December.
20. Ms C told us she did not receive an invoice until she contacted the Care Provider at the beginning of January 2019.
21. The Care Provider sent an invoice for £675 per week. Ms C told us she expected a reduction of £158.16 per week to reflect the FNC payment.
22. Ms C’s partner and the Care Provider’s solicitor exchanged letters and emails.
23. The solicitor said:
• The fee from Mr D was £675 plus the FNC payment, so the staff member was correct in quoting £675
• The FNC payment was not a contribution towards the residential fee of £675
• The absence of a written contract was irrelevant
• Continuing liability to pay when in hospital was standard practice in the industry
• Payment was now due and if it was not received, the Care Provider would start pre-court action
24. Ms C’s partner said:
• There was no written contract or schedule of charges presented
• Ms C had asked the office for a contract and was told one would be sent
• The invoice said nothing about the FNC payment
• The overall fee of £833.16 per week should have been stated at the outset and in the invoice in line with NHS national guidelines
• The Care Provider had not agreed in a contract or verbally, any charges for when Mr D was in hospital
25. Ms C paid the invoice in full at the start of February 2019. She told the Care Provider’s solicitor probate had not been granted so she paid the money personally.

Comments from the Care Provider

26. The Care Provider’s solicitor told us:
• It accepted there was no written contract. This was an oversight and it was sorry
• The lack of a written contract meant that the total fee including FNC was not set out in writing, nor was it made clear that fees were chargeable in hospital
• There was an oral contract
• The fee of £675 was for accommodation, personal and social care
• It admitted Ms C was told on the initial visit that the fee was £675. The employee who gave that information was likely unaware that Mr D already received FNC from his previous stay at a different nursing home.
• At a meeting one week before Mr D moved in, an employee made it clear the fees were higher than £675. Ms C had an opportunity to clarify fees at that meeting
• It was normal practice to charge residents for periods of absence in hospital so that they can return when their health allows
• It had an internal procedure to establish whether a resident qualified for local authority funding support. Once it was established that Mr D was not eligible, the internal process ended and it did not retain invoices to the local authority.
• The local authority declined to fund, but took some time to confirm this and this was the reason for the family only receiving one invoice at the end and was not within its control
• He corresponded with Ms C’s partner who was a legal professional and they knew one another professionally. Both of them understood the style of correspondence. Had he been dealing with Ms C directly, his tone would have been different
• Ms C would have been aware that the rate was £675 and FNC payable in addition because of Mr D’s stay in another care home
• He was aware probate had not been granted but that was not a bar to proceedings as payment would then have to await probate.
27. The Care Provider’s standard contract says

“Our total charge to live in this home is £….. per week of which your contribution is £….. per week…

Services covered by our charges include full board and accommodation, a choice of meals, drinks and snacks… activities…laundry….liaison with health professionals… and nursing care..”

28. The contract also says “should you require hospital treatment, the Home will retain the Room for you. Our charges remain due to be paid in full… should the stay exceed 6 weeks, then a 20% reduction will apply.”

Comments from Ms C

29. Ms C told us:
• She did not approach the local authority for funding and so this cannot have been a reason for the delay in invoicing
• Ms C told us she was upset about the threat of court proceedings and the tone of emails and she paid the money because she did not want the estate involved in litigation.

Was there fault causing injustice, requiring a remedy?

Complaint a: The Care Provider did not issue a written contract for Mr D’s care

30. The Care Provider should have issued its standard written contract when Mr D moved in to the care home. The failure to do so was fault. That contract, had it been completed with the appropriate figures, would have made it clear that that Mr D’s contribution was £675 and FNC was payable on top of that.
31. The lack of a written contract with a clear breakdown of the different elements of the fee was not in line with the law and guidance described in paragraphs five and six and was fault. The lack of information caused Ms C avoidable confusion when she was presented with an invoice.
32. Verbal statements made by employees on two different occasions before Mr D moved in were that the weekly fee was £675 or £725. We note Ms C denies being told the fee was £725. Either way, Ms C was not given full or accurate information about the fee either in writing or orally. This caused additional uncertainty and was fault.

Complaint b: The Care Provider gave no or unclear information about how it would treat Funded Nursing Care payments

33. Ms C was given no information verbally or in writing about how the Care Provider treated FNC payments. This was not in line with Regulation 19 of the 2009 Fees Regulations or with CQC Guidance as set out in paragraphs five and six and was fault.

Complaint c: The Care Provider charged Mr D when he was in hospital

34. It is standard practice to charge a person when they are in hospital and we are not critical of the Care Provider for doing so. Ms C would have known a charge in hospital was standard in all care home contracts as Mr D had been in a different care home placement before this one.

Complaint d: The Care Provider did not send timely invoices

35. The Care Provider should have sent invoices promptly and regularly. We expect this of all care providers and it is usual practice in the industry. The first invoice was not sent until January after Ms C contacted the Care Provider shortly after Mr D’s death. Mr D moved into the placement in October. There should have been a first invoice in November and monthly thereafter. The delay in sending an invoice denied Ms C the opportunity of raising the issue fees at an early stage and while Mr D was still alive.

Complaint e: The Care Provider inappropriately threated legal proceedings when probate had not been completed

36. If the Care Provider’s solicitor had been writing to a relative or resident, we would have considered the tone to be inappropriate but in this case, we are not critical because the email correspondence was between two people who were legally qualified and knew one another professionally. Ms C’s partner adopted a legal tone when corresponding with the Care Provider’s solicitor.
37. We do not find fault in the Care Provider saying it would start proceedings if the money was not paid.

Recommended action

38. Our approach where there is ambiguity about what the parties intended is to take a broad view on fairness whatever the strict contractual position. Here the information about fees given to Ms C orally was incomplete and she was quoted two different figures with no discussion about how the Care Provider treated FNC payments. This lack of information was confusing and fell short of the standard of information she was entitled to receive. Given this, we recommend the Care Provider refunds Ms C the FNC payments for Mr D’s care and apologises within one month of my final decision.

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Final decision

39. The Care Provider was at fault because it did not issue a written contract for Mr D’s care, gave Ms C, his representative, different figures for the charge verbally, did not send timely invoices and failed to explain how it treated funded nursing care payments. This caused Ms C avoidable confusion and uncertainty. To remedy the injustice, the Care Provider should refund Ms C part of the fee and apologise.
40. We have completed the investigation and shared a copy of this statement with the Care Quality Commission in line with our information sharing agreement.

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Investigator's decision on behalf of the Ombudsman