Summary: Ms D complains GB Care Ltd has charged the wrong fees and had no contract for her father’s residential care fees. The Ombudsman has found there was fault causing injustice. The care provider has agreed to apologise and make a payment to Ms D. Ms D should now settle the outstanding fees.

The complaint

1. Ms D complains GB Care Ltd has charged the wrong fees for the care of her father, Mr F, at Acorn Hill Nursing Home from 1 December 2017 to 3 August 2018. In particular, she complains:
• The care provider had no written contract with her father
• Its standard contract did not state how funded nursing care payments (FNC) were treated in relation to the fees, it has therefore charged the wrong fees as it has not passed on the FNC payments by reducing the residential fees
• It issued an invoice for over £30,000 in November 2017 without warning, causing distress to her late mother and the family
• It tried to coerce her into signing a revised contract
2. Ms D also complains the care provider failed to follow its complaint procedures.

Back to top

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. (Local Government Act 1974, sections 34B and 34C)
4. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
5. 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.

Back to top

How I considered this complaint

6. I spoke to Ms D about her complaint and considered the information she sent and the care provider’s response to my enquiries.
7. I sent Ms D and the care provider my draft decision and considered the comments I received.

Back to top

What I found

8. The Care Quality Commission (Registration) Regulations 2009 require 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.
9. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The CQC has issued guidance on how to meet these standards. The standards include Regulation 16, the provider must have a system in place to handle and respond to complaints.

NHS-funded nursing care

10. The NHS is 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 a comprehensive assessment to identify any nursing needs, including the possible need for NHS-funded continuing healthcare (CHC) or for NHS-funded nursing care (FNC).
11. The National Framework for NHS Continuing Healthcare and NHS Funded Nursing Care says the care provider should set an overall fee level for the provision of care and accommodation. This should include any registered nursing care provided by them.
12. Where the NHS assess the resident as requiring registered nursing care, it will normally pay the FNC payment (at a nationally agreed rate) direct to the care provider. The balance of the fee will then be paid by the resident.
13. A resident’s contribution could stay the same or fall when FNC comes into effect. What happens depends on the care provider’s terms and conditions. Its contract with the resident needs to explain how the care provider treats FNC payments.
14. The Ombudsman has issued guidance to care providers on how to approach FNC and ensure contracts properly reference it. This says our starting point is to look at the contract and any standard 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 to us, then we may view it as a failure by the care provider. 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 terms or is silent on how the care provider treats FNC.

Complaints procedure

15. The care provider’s complaint policy says written complaints will be responded to by an acknowledgement letter within two days. The home will then investigate the complaint and send the complainant a letter outlining the result within 28 days. If the matter is complex and cannot be resolved within 28 days the complainant will be informed. The policy says if the complaint cannot satisfactorily be resolved within the home it will be referred to the Care Quality Commission or Social Services if appropriate.

What happened

16. Mr F is elderly. In 2016 he suffered a severe stroke and went into hospital.
17. There is an unsigned individual placement agreement which says Leicester City Council agreed to place Mr F in Acorn Hill Nursing Home (the Home), run by GB Care Ltd (the care provider). The agreement says the Council would pay £448 per week from until 2 June 2016. Mr F’s contribution to the care fees was to be calculated and he was also to receive FNC. In response to my draft decision, Ms D sent evidence that Mr F had paid the Council a contribution of £266.34 per week from 5 May 2016 to 1 June 2016. She also said the document was an overall contract between the Council and the care provider, rather than specific to Mr F.
18. On 26 April 2016 the NHS assessed Mr F for CHC. He was not eligible, but he was eligible for FNC.
19. Mr F was discharged from hospital to the Home on 5 May 2016. The NHS started paying the care provider FNC contributions of £156.25 per week. It is unclear whether the Council paid any funding; it appears Mr F was deemed a self-funder. The care provider has accepted that Mr F or his wife, Mrs F, did not sign a contract when he was admitted. In response to my enquiries, the care provider said this was because there had been confusion about who was paying Mr F's fees, so a private contract was not issued. It has sent me its standard terms and conditions, which say the fees include the cost of nursing care, but I have seen no evidence these were given to Mrs F at the time.
20. Mr F became eligible for CHC funding from 15 June 2016 to 14 December 2016. There is an NHS individual placement agreement dated 15 June 2016, which indicates the NHS had agreed to place Mr F in the Home at a weekly rate of £742, funded by CHC. From 15 December 2016, Mr F was eligible for FNC, which the NHS paid to the care provider.
21. No invoices were issued to Mrs F until 1 November 2017, when the care provider issued an invoice for £30,084.21 for 351 days of care (£599.97 per week). Mrs F paid the invoice. Ms D says this was the first time Mrs F was aware of the cost of Home.
22. In December 2017 Mrs F sadly passed away. The care provider started issuing monthly invoices to Ms D. Ms D applied to the Court of Protection to become Mr F’s deputy. She asked the care provider for a copy of Mr F’s contract and asked why the FNC contributions were not shown in the invoices or why Mr F’s care fees had not been reduced. She told the care provider she could not pay any invoices until the deputyship was granted as she was unable to access Mr F’s bank account.
23. Ms D asked again for a copy of the contract in February 2018. The care provider said it could not be found. It sent her a copy of a contract in April 2018, which said the fees were £600 per week plus FNC. Ms D says her solicitor advised her not to sign it because it was not provided when Mr F was admitted and therefore the terms did not apply. The solicitor had advised that if the original contract could not be found, no written contract existed and a reasonable sum should be paid.
24. Ms D says the Home’s managers asked her repeatedly to sign the contract, including twice in front of Mr F in his room and once when the manager said Mr F’s care review could not be completed until the contract was signed. The care home manager says she asked Ms D to sign the contract, but disputes this was done forcibly. She says Ms D was aggressive and the care review could not be completed as family members disagreed with it. Ms D disputes she was aggressive.
25. Ms D received the deputyship in July 2018. Mr F left the care home on 3 August 2018 and Ms D wrote to the care provider querying the invoices, which totalled £24,193.39. Ms D said they had not been itemised; some showed the fee as £600 per week, without reference to FNC, whilst others said the cost was £755 per week, with FNC paying £155. They also went up to 16 August 2018. Ms D said that as there was no contract that stated a notice period, fees were only due up to and including 3 August 2018. She calculated that, as FNC had paid £14,187.62, the outstanding balance was £8,891.42.
26. The care provider responded to Ms D on 15 August 2018. It said Mr F had been placed and funded by the local authority. When his funding stopped there was confusion about who was paying which had taken a long time to resolve. The care provider accepted that Mrs F had not signed a contract. It said it always charged weekly fees plus FNC and its standard notice period was four weeks. The care provider attached amended, itemised invoices which totalled £22,199.89.
27. Ms D was dissatisfied and made a formal complaint to the care provider on 1 September 2018 which received no response. The care provider applied to a county court to claim the debt it says was owed by Mr F.
28. Ms D complained to the Ombudsman, but because the case was before the Court we could not consider it. The Court then agreed to stay its consideration to enable an investigation by the Ombudsman.

My findings

29. The 2009 Regulations require providers to give residents written information about any fees, contracts and terms and conditions. The care provider has accepted that Mrs F did not sign a contract when Mr F was admitted, and I have seen no evidence she was provided with a copy of the terms and conditions. This is fault.
30. It was also fault for the care provider to issue a single invoice for over £30,000 in November 2017 without prior warning. Whilst Mrs F was aware she would need to pay fees, I have seen no evidence of any discussions about the amount due, or notice being given that the invoice was to issued, or discussions about whether a payment plan could be entered into. Nor was there a cover letter explaining the invoice. This is poor practice which would cause distress to a family member, especially one who was elderly and frail.
31. Whilst the copy of the contract the care provider asked Ms D to sign referred to FNC payments, the standard contract did not. In response to my enquiries, the care provider said this was because FNC is a separate payment received from the NHS. As set out in paragraph 14, the Ombudsman considers it to be fault for contracts to be unclear or silent on what happens when FNC is awarded.
32. It was also fault for the invoices issued in 2018 to be unclear and inconsistent.
33. It is not fault for a care provider to issue a new contract to a resident, as long as the person has time to decide whether they can afford any increase in fees. If Ms D was unhappy with the revised contract she could have considered whether to move Mr F. However, Ms D says the care provider tried to coerce her into signing a revised contract. There are conflicting accounts about what happened, so I am unable to make a finding on this point.
34. I have seen evidence that Ms D made a formal complaint on 1 September 2018. The care provider did not respond to that, which is fault.
35. The care provider’s complaint procedure is not clear about the role of the Ombudsman in complaints against care providers, despite our jurisdiction in these matters having been established in 2010. This is fault. I note there has been another decision by the Ombudsman in October 2018, which requested the care provider change its complaint policy to reflect our role.
36. In response to my draft decision Ms D said there was no evidence Mr and Mrs F, or the Council, had seen the 2016 individual placement agreement as it was unsigned. I have not investigated what happened in 2016, but note Ms D has sent evidence Mr F made contributions to the Council for the cost of his care in May 2016.

Did the fault cause injustice?

37. I consider the care provider’s actions have caused significant injustice to Ms D as they have caused anxiety, confusion and distress. She has also had the time and trouble of pursuing her complaint to the Ombudsman and has had court action started against her.
38. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong.
39. If a care provider’s contract does not say anything about FNCs, we may consider a complainant has suffered an injustice if he or she reasonably believed they were entitled to a refund.
40. In Mr F’s case, the Home’s advertised fees at the time he was admitted were £600 to £650 per week for “nursing care”. Ms D says this means the fee applies to all service users, regardless of their eligibility for FNC, which would imply that FNC contributions were to be deducted. I disagree. The website says the advertised fees are a guideline only, dependent on the outcome of any assessment and I have seen no evidence that Mrs F or the family expected to pay £445 per week or to have FNC deducted from the £600 per week fee.
41. I therefore find that the fault in not having a written contract did not cause the injustice Ms D claims. My view is that, if there had been no fault, the contract would have said the fees were £600 per week plus FNC and that this would have been paid by Mrs F. I find that, in the absence of a contract, £600 per week for the actual period Mr F was a resident at eth Home is the reasonable sum to be paid.
42. I have calculated this as a daily rate of £85.71 per day from 1 December 2017 to 3 August 2018 inclusive, which totals £21,084.66. Ms D should now settle the outstanding fees.

Agreed action

43. Within a month of my final decision, the care provider has agreed to:
• Apologise to Ms D and pay her £500 to acknowledge the distress and time and trouble she has been put to as a result of its actions.
• Review all documents relating to its complaint procedure to ensure they refer to the role of the Ombudsman.
• Amend its standard contract terms and conditions to include reference to FNC payments, in line with the Ombudsman’s guidance
• Amend its invoicing to ensure that FNC payments are clearly set out
• Send evidence it has completed these actions to the Ombudsman

Back to top

Final decision

44. There was fault by the care provider which caused injustice to Ms D. The actions the care provider has agreed to take remedy the injustice caused. I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman