Summary: Mr X complaints on behalf of Mrs Y that the care provider failed to offset Funded Nursing Care payments against the fees charged for her care which she is self-funding. She was paying a higher fee to include nursing care and so expected to receive a refund and a fee reduction when she became entitled to FNC and her entitlement was backdated. The Ombudsman finds the care provider was at fault because the contract issued to Mrs Y does not explain how it treats FNC payments and information she was given at the outset led her to believe the amount of the FNC payment would be deducted from her fees. The Ombudsman has recommended a remedy for the injustice caused.

The complaint

1. Mr X complaints on behalf offices Y that the Cotswold Nursing Home Company Limited (‘the care provider’) has not offset Funded Nursing Care (FNC) payments against the fees charged for her care which she is self-funding. She paid a higher fee to include nursing care and so expected to receive a refund and a fee reduction when she became entitled to FNC in May 2019 and her entitlement was backdated to December 2018.

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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. (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. 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

5. I have considered all the information provided by Mrs Y, made enquiries of the care provider and considered its comments and the documents it provided.
6. Mrs Y and the care provider had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Care fees

7. 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 Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
8. Regulation 19 says providers “must give people information about the terms and conditions of their care, treatment and support, including the expected costs… Providers must notify people of any changes to their terms and conditions including increases in fees and give them sufficient time to consider whether they wish to continue with the service”.

Funded Nursing Care (FNC)

9. FNC payments are made by the NHS to nursing homes for the provision of nursing care by a registered nurse. Eligibility for FNC is by assessment. Payments are administered by the resident’s local clinical commissioning group (CCG) and are made directly to the care provider. FNC was funded at a single rate in 2018/2019 of £158.16 per week. This increased to £165.56 from April 2019.
10. The National Framework for NHS Continuing Health Care and NHS Funded Nursing Care November 2012 (the “National framework”) explains how FNC affects other funding for care. It says,

“The Care Home provider should set an overall fee level for the provision of care and accommodation. This should include any registered nursing care provided by them. Where a clinical commissioning group assesses the residents needs require the input of a registered nurse they will pay the NHS funded nursing care payment (at the nationally agreed rate) direct to the care home, unless there is an agreement in place for this to be paid via a third party (e.g. a local authority). The balance of the fee will then be paid by the resident, their representative or the local authority unless other contracting arrangements have been agreed”.

11. In 2011 the Department of Health published answers to frequently asked questions on FNC funding for local authorities and others. On the impact of FNC funding on self funders, the advice is:

“the specific arrangements are dependent on the terms in their contract with the care home. Depending on the terms, in some situations the overall fee would increase to reflect the increase in NHS FNC and the residents contribution would remain the same. In other situations the overall fee would remain the same and the resident’s contribution would decrease”.

12. In January 2018 the Ombudsman issued guidance for care providers on FNC payments. This set out our approach to complaints that involve care providers’ treatment of FNC funding. We will interpret contracts on an ‘ordinary reading’ and “are likely to find fault where a contract term is ambiguous, inconsistent or poorly drafted. We may also find fault where a contract… is silent on the treatment of FNC’s”.
13. We also said it was acceptable to issue a new contract if circumstances change, as long as a person has time to decide whether they can afford any increase. We said “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. The contract needs to explain how the care provider treats FNC payments”.

Key facts

14. Mrs Y was admitted to the home in March 2018 as a residential respite patient. She is self funding. A temporary contract was issued the day before she was admitted entitled “Conditions of Admission and Terms of Business”. Mrs Y only required residential care so the fees were charged as a residential bed fees not nursing bed fees and were £950 per week.
15. The care provider says its policy is to carry out an assessment after four weeks but this was not done until July 2018 because of the manager’s retirement. The new manager conducted the assessment in July 2018 and decided Mrs Y required nursing care. On 17 August 2018 the manager issued a permanent contract to Mrs Y as a general nursing patient with the increased fee of £1185 per week. Mrs Y and Mr X signed the contract five months later in January 2019.
16. In December 2018 the manager applied for FNC for Mrs Y because it was considered her nursing needs were such that she might be eligible. Mrs Y’s daughter was present at the meeting with the manager and the CCG representative. The care provider says the manager explained the FNC payments would be made directly to the home and Mrs Y’s fees would be raised the following month because she now required nursing care rather than in residential care. The care provider says Mrs Y’s daughter agreed to this. It says Mr X was invited to the meeting but did not attend.
17. On 1 April 2019 the care provider increased Mrs Y’s fees to £1273 per week to include the expected FNC contribution. It says this was as agreed at the meeting in December 2018.
18. The CCG wrote to Mr X on 10 May 2009 confirming Mrs Y’s needs met the criteria for FNC and payments would be backdated to 6 December 2018. The letter confirmed this would be paid directly to the nursing home.
19. Mr X sent a copy of the letter to the care provider and requested a refund of an amount equivalent to the backdated FNC payments. He also argued that Mrs Y’s weekly payments should be reduced by the amount of the FNC payments received by the care provider.
20. The care provider explained to Mr X that FNC payments are theirs to keep in accordance with well-established practice and that this was recognised by all relevant professional parties. Mr X disagrees with this and maintains that the amount of the FNC payment should be deducted from Mrs Y’s payment.

Analysis

21. When the Ombudsman considers complaints about FNC, we normally consider the contract between the care provider and the resident and any information provided at the start of the placement. There is no automatic right to a refund or fee reduction when FNC is awarded as this will depend on what the person’s contract says. It is a matter for the care provider how it chooses to frame its terms and conditions around FNC payments. When investigating complaints about fees, we will consider the contract on an ordinary reading.
22. I have considered the Conditions of Admission and Terms of Business issued to Mrs Y when she entered the home in March 2018. They state “Service users who are admitted to [the home] as residential may get reviewed by the NHS Continuing Health Care Team for eligibility for funded nursing care. If this is received it will be in addition to the residential fees already paid and funds the on-going nursing care”.
23. On an ordinary reading of the contract, this suggests FNC payments would cover the nursing element of the fee so this would not be paid by the resident. This led Mr X to believe the amount of the FNC payment would be deducted from the fees Mrs Y was required to pay.
24. The new contract issued in August 2018 stated, “This Contract replaces and supersedes any previous form of contract between the Home and (a) the Resident and/or his or her Representative, and/or (B) the Third Party”. However, the care provider says the contract is invalid because it was not signed by Mrs Y or Mr X until six months after it was issued. In addition, the care provider says the contract does not include the full breakdown of Mrs Y’s fees as a nursing self-funded resident and does not include the FNC contribution as it was issued before the care provider applied for FNC. The care provider says Mrs Y’s medical needs have changed since August 2018 and these should be reflected in a new contract and the amount of fees charged.
25. The August 2018 contract confirmed Mrs Y had been assessed as requiring accommodation and personal care together with nursing care and her payment was increased by £235 per week to cover ‘nursing care’. The contract is silent on FNC.
26. Whether or not the resident’s contribution decreases as a result of the FNC payment depends on the terms of their contract with the care provider.
27. I find the August 2018 contract should have explained how the care provider treats FNC payments. The wording of the temporary contract issued in March 2018 led Mrs Y and her representatives to believe she was entitled to a refund for the FNC payments. The new contract says nothing to contradict this. This is fault.
28. If a contract does not say anything about FNC’s, we take a broad view on fairness. Mrs Y suffered an injustice because the wording of the contract gives rise to uncertainty about what she or those representing her should pay. The contract could have been drafted in a way which allowed the care provider to increase fees automatically on receipt of FNC and keep payments for itself. But the care provider did not do this. Instead, the contract is silent on what happens to FNC payments and so falls short of expected standards.
29. The care provider accepts a new amended contract should have been issued when FNC was awarded/applied for setting out the appropriate fee level taking account of the current medical care requirement for Mrs Y and a breakdown of the fees. Failure to do this was fault and a breach of Regulation 19 which says service users must be given sufficient notice of a change in terms and conditions to consider whether they want to continue with the service.

Recommended action

30. To remedy the injustice caused, I recommend that, within one month of the Ombudsman’s final decision, the care provider:
• sends a written apology to Mrs Y for its failings;
• pays Mrs Y an amount equivalent to the FNC payments it has received in respect of her nursing care backdated to 6 December 2018 (£10,829.04 as at today’s date);
• issues a new contract to Mrs Y which clearly explains how it will treat FNC payments in future. It is entitled to retain those payments provided it explains this in the contract and Mrs Y is given the opportunity to decide whether to continue with the service; and
• reviews its terms and conditions in the light of these findings and considers whether it needs to make changes explaining how it will treat FNC payments. It will send the Ombudsman details of its consideration.

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Final decision

31. I uphold Mr X’s complaint. The care provider should implement the recommended remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman