Summary: Mr X complained on behalf of his father, Mr Y, that fees paid to Hollow Oak Nursing Home were not reduced following an NHS funding award. He said the home’s information about fees was unclear. The Ombudsman found the home’s contract could have been clearer. However, it did not suggest fees would reduce following an award of funded nursing care.

The complaint

1. Mr X complained on behalf of his father, Mr Y, that fees paid to Hollow Oak Nursing Home (the home) were not adjusted or reduced following an NHS funding award. He said the home’s information about the fees payable for Mr Y’s care was unclear.
2. Mr X said the home’s contract and terms were not in line with CMA guidelines. This caused frustration and uncertainty.

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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 or others. 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. 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)
6. 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:
7. their personal representative (if they have one), or
8. someone we consider to be suitable.

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

9. 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

10. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the home and its comments in response to my enquiries.
• The National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care (November 2012).
• Funded Nursing Care Payments: Guidance for Practitioners (January 2018).
• The Care Quality Commission (Registration) Regulations 2009.

Mr X and the Council now have an opportunity to comment on my draft decision.

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What I found

Regulations and guidance

11. 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.
12. 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.
13. 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.

NHS funded nursing care

14. 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 an assessment to identify any nursing needs, including the possible need for NHS-funded nursing care (FNC).
15. FNC payments are payments from the Department of Health to nursing homes for nursing care. Eligibility for FNC is by assessment and payments are made directly to the care provider. The resident does not receive any money directly.
16. The National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care (November 2012) (‘the National Framework’) explains how FNC affects 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.
17. We issued guidance in 2018 (Funded Nursing Care Payments: Guidance for Practitioners) after seeing a rise in complaints. When we investigate complaints 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.
18. 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 FNC payments. New residents should get a clear written contract, setting out exactly what happens to FNC payments.

The home’s Resident’s Handbook

19. The home’s Resident’s Handbook at the time stated that professional fees will be discussed prior to admission. NHS funded nursing care in a care home with nursing is paid direct to the home and is not included in professional fees. The handbook is kept inside the home and can also be found on the home’s website.

The home’s Resident’s Contract

20. The Resident’s Contract (the contract) in use at the time said if there is a shortfall in meeting the homes costs after an award of continuing NHS healthcare the resident is liable to pay the difference. On nursing care, the contract said the amount of nursing care funded by the NHS is assessed periodically. NHS funding does not extend to nursing care provided by care assistants or to personal care services. Any FNC paid for nursing care will be paid directly to the home by the NHS and this will not be included in the weekly charge payable by you to the home.

What happened

21. Mr Y suffered from several conditions, including dementia and cancer. His mobility was severely reduced. He went to live in a residential home in February 2018 as he could no longer live on his own. In May 2019, the residential home told Mr Y’s children, Mr X and Mrs A, they could no longer look after Mr Y due to his increased medical and behavioural needs.
22. Mrs A met with the manager of Hollow Oak Nursing Home in early June 2019 to discuss a placement for Mr Y. The manager of the home told Mrs A the fees to look after Mr Y would be £1,010.00 per week. FNC was discussed but was not in place for Mr Y at the time. It is unclear whether the home confirmed what impact FNC would have on the fees Mr Y had to pay.
23. The home’s initial assessment confirmed it could look after Mr Y and he was admitted on 24 June 2019 on a fully self-funding basis. On the same day, Mr X contacted the NHS to request a continuing healthcare (CHC) assessment for Mr Y.
24. The director of the care home wrote to Mrs A on 16 July 2019. The letter states ‘as discussed, our fees are in total £1,010.00 per week’. There is no mention in this letter about FNC and there is no breakdown of the home’s fees to say what they include.
25. Mr Y’s CHC assessment took place on 10 September 2019. He was not eligible for CHC funding, but he was eligible for FNC. It was confirmed the funding would be paid directly to the home. Mr X asked the home’s manager if the NHS funding would reduce Mr Y’s fees, but the manager said it would not.
26. Mr X sent an email to the home on 11 September stating his surprise at learning the FNC funding would not reduce Mr Y’s fees. The home responded by providing a copy of its Resident’s Contract.
27. Mr X wrote to the home again on 16 September 2019. He said:
• The home accepted Mr Y as a resident on 24 June 2019. At that time there was no FNC in place and it was not known if he was eligible. They entered into a contract at £1,010 per week on a fully funded basis.
• The FNC assessment on 10 September found Mr Y was eligible for the flat rate of £165 per week, paid direct to the home.
• He received a letter from the NHS on 11 September confirming the funding and advising him to seek confirmation with the care home that the NHS contribution has been deducted from the nursing home’s fees.
• The home’s contract states the FNC is paid direct to the home and there is no need to include this amount in the weekly charge payable to the home. The conclusion he draws from the contract is that the home’s fees should now reflect the NHS funding award.
28. In its response dated 20 September 2019, the home referred to its resident’s handbook, which confirms professional fees will be discussed prior to admission. And NHS Funded Nursing Care in a care home with nursing is paid direct to the home and is not included in professional fees. It said it believes it makes its charges and practices very clear from the outset so that any potential client knows exactly what is expected.
29. In Mr X’s reply, dated 21 September 2019, he again referred to the home’s contract. He said it was reasonable to assume the fees quoted by the home before FNC was applied for represented the full costs incurred by the home for Mr Y’s care. He said it is equally reasonable to assume, in line with the letter from the NHS, the home’s fees should now reflect the FNC award.
30. The home replied on 16 October 2019, enclosing a letter from its solicitors. The Letter refers to Ombudsman guidance, which confirms care homes may retain FNC payments and not reduce the fees payable to the resident, providing their terms are clear this is what will happen. The home told Mr X it had made changes to its Contract of Residence to avoid future miscommunications. It apologised for any confusion.
31. Mr X replied on 16 October 2019. He accepted the contract states FNC funding is paid directly to the home. However, he said this is not enough. The home should account for the payments in its professional fees. He said it was far from clear the home intended to continue to charge Mr Y the same amount after an FNC award. He said Mrs A, who attended the initial meeting with the home’s manager, thought any future NHS funding would reduce the overall charges.
32. The home wrote back to Mr X on 1 November 2019. It offered a 50% refund of FNC payments the home had received. It also proposed a new contract which confirmed FNC payments support nursing care provided by the home and will not be deducted from Mr Y’s weekly charge.
33. Mr X declined the home’s offer, because the new contract did not alter the way the home intended to treat FNC payments.
34. Mr X brought his complaint to the Ombudsman on 11 November 2019. He said Mrs A was not told prior to signing the contract that NHS funding would be treated in this way. He told us the home’s contract does not make it clear that if an FNC award is made the home is entitled not to pass any benefit on to the resident.

Response to my enquiries

35. The home told me it runs a flat rate fee level to meet the needs of all privately funded residents. If nursing needs exceed the home’s abilities, the placement will be reviewed.
36. The home discusses fees and FNC at first enquiry. It explains verbally that FNC payments come direct to the home and will not reduce the fees charged to the resident. The home provides nursing care to meet resident’s needs regardless of the NHS assessment and FNC eligibility.
37. The home gave me a statement from its manager. They said they explained to Mrs A the fees were £1,010.00 per week and if Mr Y was eligible for FNC there would be a £156.56 contribution from the NHS. This would be paid direct to the home for nursing care.
38. To settle the complaint, the home proposed to refund 50% of the £7,071.77 FNC payments it received for Mr Y. It said Mr Y’s standing order was stopped before his final fees were paid, leaving a balance of £1,817.14 owed to the home. The home therefore offered to refund £1,718.75 to Mr Y’s family.

My findings

39. I understand Mr X feels it is unfair for the home to keep FNC payments and not pass the benefit on to residents. The home can do so, providing its terms and conditions are clear.
40. We expect care providers to explain how they treat FNC payments. In this case, the home clearly confirmed in its contract that FNC payments are made directly to the home and are not included in the weekly charge payable by the resident.
41. I agree the contract could have been clearer about exactly what happens to a resident’s fees after FNC is awarded. This was open to interpretation. The fact the home’s contract said FNC was ‘not included’ could leave it open to the home to then increase fees after FNC was awarded. It didn’t do this, but the terms were not clear this would not happen.
42. However, I do not consider the contract suggests or implies that FNC payments will be used to reduce the overall fees which a resident must pay.
43. The home responded to Mr X’s complaint by amending its contract. The new contract spells out more clearly that not only are FNC payments made to the home, but they will not be added to or deducted from the fees a resident already pays.
44. I consider the home’s contract was a little ambiguous and could have been clearer about how FNC payments affect a resident’s ongoing fees. That was fault.

Injustice

45. Our guidance confirms we may ask a care provider to apologise and repay any FNC payments received if its terms are not clear. The home has already apologised to Mr X for any confusion caused. It has also amended its contract, which is welcome.
46. I do not consider it would be suitable in this case for the home to refund all FNC payments received. There was some uncertainty, but the contract was not so ambiguous as to lead someone to believe they would definitely get a refund after an award of FNC. It follows therefore that I do not consider the injustice caused by the minor ambiguity would warrant a full repayment.
47. Mr Y’s family confirmed they were happy with the care the home provided to Mr Y. At the time Mr Y entered the home, his family was unaware if he was even eligible for FNC. They agreed to the home’s weekly charge on that basis. In the circumstances, I have not seen evidence to suggest Mr Y’s family would not have agreed to home’s terms if they had known an FNC award would not lower Mr Y’s fees.
48. The home offered to refund 50% of FNC payments, minus the outstanding fees owed. I consider this to be a suitable remedy.

Recommendations

49. Within four weeks of my final decision, Hollow Oak Nursing Home agreed to refund 50% of the funded nursing care payments it received (minus the outstanding fees owed) to Mr Y’s estate.

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Final decision

50. I have completed my investigation. The nursing home’s contract could have been clearer. However, it did not suggest fees would reduce following an award of funded nursing care.

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Investigator's decision on behalf of the Ombudsman