Summary: Mr B complains the Home did not reduce his mother’s care fees after she received Funded Nursing Care. He says when he first moved his mother into the Home, it indicated that it would work to get any benefits due to her that would reduce the costs. He says the Home continues to receive the Funded Nursing Care (“FNC”) while charging a higher fee. The Ombudsman finds fault in how the Home communicated the way it treats FNC and the impact on its fees.

The complaint

1. The complainant, who I refer to as Mr B, complains the Home has not reduced his mother’s (“Mrs C”) fees to reflect her award of Funded Nursing Care (“FNC”). Mr B says the Home indicated it would obtain any benefits it could to reduce the cost of care. He therefore expected that when the NHS awarded FNC the Home would pass on the reduction.

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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. We cannot question whether a provider’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a 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. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

6. I considered the information Mr B provided and spoke to him about the complaint. I then made enquiries of the Home. I sent a copy of my draft decision to Mr B and the Home for their comments.

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What I found

Legislation, Guidance and Policy

7. The NHS can provide continuing healthcare (“CHC”) at home or in a care/nursing home. The NHS is responsible for meeting the full cost of care in a care home for residents whose primary need for being in care is health-based. The 2012 Regulations say the NHS should assess for NHS Continuing Healthcare where it appears somebody may be in need of such care.
8. The NHS is also 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 CHC or for NHS-funded nursing care (FNC). FNC is funded at a single rate, which is determined each financial year. The NHS pays FNC directly to the care home.
9. The Ombudsman has produced a focus report called ‘Funded Nursing Care Payments: Guidance for care providers’. The report sets out our position on how care homes treat FNC payments. Our approach is that Homes may make their own decision on how to treat FNC payments. However, if the contract or information provided to the resident is not clear, we may find this caused an injustice and recommend a reimbursement of fees.
10. 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.
11. Guidance by the Care Quality Commission, ‘Guidance for providers on meeting the Regulations’, explains:
• People must receive a written copy of 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.

Background

12. Mrs C moved into the Home in mid-January 2019 after discharge from hospital. Mrs C had complex needs and it was clear from the outset she would need input from nurses with catheter changes, wound dressings and her sleep apnoea.
13. Mr B says, before Mrs C moved into the Home, he spoke to two other nursing homes. Both said that if the NHS awarded FNC, they would deduct the FNC from her fees. He said when he spoke to the Home, it said it would get everything Mrs C was entitled to, so as to reduce the cost of her care. He says he took this to mean the same thing, that it would deduct any FNC from the fees.
14. Mr B agreed an initial rate of £660pw with the Home. Mr B says he did not sign a contract with the Home until April 2019. However, the Home has provided a contract signed by Mr B dated late February 2019.
15. The NHS completed a checklist for Mrs C in February 2019, which had a positive finding. It therefore arranged to assess Mrs C in March 2019. The NHS awarded FNC in early April 2019. It backdated payments to mid-March 2019 at £158.16pw plus £7.35 in respect of incontinence. It then paid a rate of £165.56pw plus the same incontinence payment. The NHS later increased the amount for the 2019/20 financial year to £180.31 and backdated the increased payments to April 2019. It increased the rate to £183.92 for 2020/21. The Home currently receives this amount for Mrs C plus the incontinence payment.
16. In April 2019, the Home increased Mrs C’s fees to £750pw.
17. In May 2019, Mr B emailed the Home and asked it to confirm when the FNC would start so he could manage Mrs C’s finances. The Home did not respond. He chased in mid-June 2019 saying he expected to see a reduction in her fees. The Home Manager responded to say that it would not pass on FNC, for the reasons set out in Paragraph 29.
18. Mr B challenged this as he said Mrs C needed nursing care from the outset, before she was awarded FNC. He said the fees agreed were for both residential and nursing care. Therefore, the Home should deduct FNC from the fees.
19. In late July 2019, the Home offered Mr B a meeting to discuss this but he was unable to attend. The Home apologised if he had felt misled in any way and as a gesture of good will said it would reduce his fees to £725pw.
20. Mrs C’s fees have since increased again to £806.25pw.

Analysis

Nursing and residential care

21. It is first important to clarify the distinction between nursing and residential care. Mr B says Mrs C needed nursing care from the outset.
22. The distinction between nursing and residential care is primarily who funds that care. If the local authority were to fund the care, or Mrs C as a self-funder, then she would normally be a residential client. If the NHS assessed Mrs C and provided funding, she would be a nursing client. This is a generalised distinction as, for example in the case of FNC, there is a split between NHS funding and local authority funding, or self-funding.
23. Therefore, when Mrs C entered the Home as a self-funder, she was essentially a residential client. Although it was clear that she had significant needs and needed assessment for funding by the NHS. She, in effect, became a nursing client when the NHS agreed FNC funding. This does not mean her needs changed.
24. The Home does not have a clear, separate structure of fees for nursing clients and residential clients. It agrees a fee with the client in question. It is entitled to do this. The Home agreed a fee of £660pw with Mr B, which covered her accommodation and all care Mrs C received.
25. I understand Mr B’s point that, Mrs C received the same care before she was awarded FNC as she did afterwards. The award of FNC should therefore have reduced her care fees. However, as outlined in our focus report at Paragraph 8, different nursing homes treat FNC in different ways. Some pass on the award of FNC to the client by way of a reduction in their fees. Others do not. It is for the nursing home to decide their own fees and for the client to decide whether they agree to the fees. However, we may find fault if the nursing home has not properly communicated its fees or the way it treats FNC to the client.
26. The question here is whether the Home properly explained the way it treats FNC to Mr B.

The Home’s position

27. I spoke to the Director of the Home. He said the Home would never pass on FNC to the client and that no nursing home would do so. This is not correct. Many home’s do pass on FNC to the client, which is one reason it is important that homes are clear on this point.
28. The Home’s contract with Mr B says:
• ‘Fees which are split between Local Authority/User contribution/CHC/FNC, will be dictated by an additional agreement being included in these terms and conditions, a separate information sheet as such will be attached to this agreement.
29. The Home did not attach a separate information sheet to Mrs C’s contract regarding FNC. It says this is because Mrs C was not receiving FNC at the time. However, I asked the Home to send through the additional sheet or information it would normally provide about FNC. The Home has not been able to provide this. It has also not provided any updated contract, after Mrs C received FNC, that explains how it treats the FNC payments.
30. In an email to Mr B in June 2019, the Home Manager said the Home would not pass on FNC because, beforehand, any catheter changes, dressings or other nursing care was provided by district nurses. The FNC payment now covered the Home’s nurses to provide that care.
31. I have reviewed the Home’s care records for Mrs C and there is no record of intervention by district nurses. It seems clear from the records that the Home’s nurses were involved in Mrs C’s care.

In the Home Manager’s written response to my enquiries, it says £660pw was a very low fee for a nursing bed. It says the average cost of a nursing bed in the county is between £750 and £950. Therefore, FNC provides a top up to cover the nursing care provided by the Home.

Findings

32. I do not find fault in how the Home treats FNC payments as it is for the Home to decide this. However, I find fault in how it communicated with Mr B around its fees. This caused an injustice to Mr B.
33. The first point to note is that the Home did not provide a written contract until late February 2019, more than a month after Mrs C moved in. The Guidance mentioned at Paragraph 10 is clear that care providers must provide written terms and conditions to the person before the care begins. For the Home not to have provided this until more than a month later is fault.
34. Mr B was clearly under the impression from the outset that when Mrs C received any funding from the NHS, the Home would deduct this. The Home has not provided a record of any communication it had with Mr B so I can only go on what he says it told him.
35. From Mr B’s account, it is clear the Home did not explicitly say it would deduct FNC from the fees. However, it mentioned getting any entitlements that would reduce the fees. I can therefore understand why Mr B thought this, particularly after speaking to other homes that did deduct FNC.
36. There is no record of the Home providing any other information to Mr B about how it would treat FNC. The Home’s contract with Mr B did not provide any further clarification.
37. I note the Home’s point that Mrs C was not receiving FNC at this point. However, it was clear from the start that she had a high level of needs and she would need to be assessed by the NHS. Therefore, it was relevant for the Home to provide clear information about the way it would treat any funding from the NHS, from the start.
38. The Home also did not provide clear information to Mr B when it started to receive FNC. It did not say whether or not this would lead to a reduction in Mrs C’s fees. When Mr B contacted the Home, it told him any care before was provided by district nurses, which was not accurate. It did not provide an updated contract that clearly explained how it treated FNC.
39. The Home did not address Mr B’s point that the Home was providing exactly the same care to Mrs C and yet receiving more money for that care. It did not explain that it felt it had undercharged and so was keeping the FNC as a top up. In any case, by that point the Home had increased the fees to £750pw, which is at the lower end of the normal range for nursing beds according to the Home Manager.
40. It was fault for the Home not to clearly set out the way it treated FNC from the outset, to provide a clear contract or properly explain why it did not reduce the fees after Mr B made contact. This caused an injustice to Mr B. The Home was entitled to set is own fees, but given the lack of clarity, Mr B could not make an informed decision about whether to accept the rate it charged or move Mrs C to a different Home.
41. It also caused an injustice to Mr B in terms of uncertainty about how the FNC would be treated and in the time and trouble he spent pursuing his complaint with the Home.

Consideration of Remedy

42. Mr B wants the Home to reduce Mrs C’s fees by the amount of FNC she receives, going forward. I cannot recommend this, as it is for the Home to decide its own fees and Mr B can decide whether or not to accept this. However, I recommend the Home reimburse Mrs C the FNC it received during the time it was not clear about how it treated those payments.
43. The relevant time period is 18 March to 26 July 2019.
44. The Home received £331.02 in FNC from 18 to 31 March 2019. It received £2814.90 in FNC at the higher weekly rate from 1 April to 22 July 2019. Therefore, £3,145.92 in total.
45. I have placed the cut off on 22 July 2019 because Mr B emailed the Home on this date to say he understood it would not reduce the fees. I understand Mr B still disagreed with this decision and continued to take advice and escalate his complaint to the Ombudsman. However, at that point in time Mr B could make an informed decision about whether to keep Mrs C at the Home.
46. I recommend the Home pay Mr B £200 to recognise the avoidable uncertainty and time and trouble spent in dealing with the complaint.
47. I also recommend the Home review and update the information it provides to clients, so it clearly sets out how it treats any FNC payments.

Agreed action

48. The Home has agreed to, within a month of this decision:
• Apologise to Mr B for not providing a written contract until more than a month after Mrs C moved in and for not giving clear information about how it treated FNC payments
• Reimburse Mrs C for the £3,145.92 in FNC it received between March and July 2019
• Pay Mr B £200 to acknowledge the avoidable uncertainty and time and trouble
49. The Home has also agreed to, within three months of this decision:
• Provide evidence it is has reviewed and updated the information it gives clients, so it clearly sets out how it treats any FNC payments

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Final decision

50. The Home is at fault in how it communicated the way it treats FNC and the impact on its fees.

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Investigator's decision on behalf of the Ombudsman