Summary: The care provider should have provided clearer information about the fees payable by Mr B’s father. It should review the way in which its contracts and information for residents is worded to avoid more confusion and refund the amount of the FNC payments.

The complaint

1. The complainant, whom I shall refer to as Mr B, complains on behalf of his deceased father. He complains the care provider that looked after his father has not refunded backdated Funded Nursing Care (FNC) payments.

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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 or others. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
3. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
4. 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)
5. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we may share this decision with CQC.

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How I considered this complaint

7. I read the papers put in by Mr B and discussed the complaint with him.
8. I considered the care providers comments about the complaint and any supporting documents it provided.
9. I gave the care provider and Mr B the opportunity to comment on my draft decision.

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What I found

10. Funded Nursing Care payments are payment from the Department of Health to nursing homes for nursing care. Eligibility for FNCs is by assessment and they are made directly to the care provider. The resident does not receive any money directly.

What happened?

11. Mr B’s father went into the care home in May 2017 for a 2 week respite period with a weekly fee of £980.
12. Mr B’s father became a permanent resident from June 2017 at the residential rate of £850 per week. The contracts signed were for residential care and did not include any reference to FNC. The Council said in response to my enquires that the fee was £850 for residential residents and £850 plus FNC for nursing care.
13. Mr B’s health worsened and the care home manager asked for an assessment to see if Mr B’s father met the criteria for nursing care. The care provider has no record of the date it requested the assessment or when Mr B’s father started to receive nursing care.
14. The assessment was on 12 February 2018 but Mr B’s father died on 27 February. The care provider received notification that Mr B’s father had been awarded funded nursing care on 9 March 2018, backdated to 13 July 2017.
15. The care provider has said that as Mr B’s father died before the FNC notification there was not an opportunity for a new contract for nursing care. This contract would have included FNC payments as part of the fee breakdown. The care provider said that its Service User Guide also stated that fees excluded FNC, but is not able to supply the guide sent out in 2017.
16. The care provider has said that if FNC had not been awarded to Mr B’s father, his weekly fee would have remained the same. The care home manager says that she explained to the family that the weekly fee did not include FNC if awarded, but there is no record to support this.

Did the Care Provider’s actions cause injustice?

17. Mr B complains the agreement between him and the care provider made no mention of how FNCs were dealt with in relation to fees. His understanding was the level of care as assessed by the home in May 2017 was fully covered by the weekly fee of £850 and it included all his father's nursing, care needs and expenses. So, he thinks any FNC award should have been offset against the fees and returned to his father.
18. The care provider says the contract signed was for residential care and so did not include FNCs.
19. The Ombudsman’s guidance to care providers on FNC’s says that we are likely to find fault if a contract is silent on how the care provider treats FNCs.
20. It is clear the care providers view is that it normally keeps the FNC award, as well as the fees, when a resident needs nursing care. However, there is no evidence the care provider told this clearly to Mr B and there is no record of when nursing care started for his father. Mr B clearly expected the FNC should reduce the fees his father was paying and his family has suffered a financial injustice as they expected the FNC to reduce the fees. The care provider has said that they would not have increased the fees if the FNC had not been approved, which does support Mr B’s view.
21. I understand that Mr B’s father was on a residential care contract. However, it is not unusual for a resident’s care needs to increase and so it would be reasonable for a residential care contract to explain what happens in the future if a resident needs nursing care.

Agreed action

22. For the reason given in paragraph 19, within one month of my final decision, the care provider should refund to Mr B’s fathers estate the amount of the FNC award it received from the NHS;
23. Within one month of my final decision the care provider should ensure it reviews its information for residents and clarifies what FNC is, to whom it is payable, and when it is awarded.

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Final decision

24. I have completed the investigation and uphold Mr B's complaint. Mr B has been caused an injustice by the actions of the service provider and I have recommended it takes action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman