Summary: The complaint is about allegedly unpaid nursing home fees. The Ombudsman will not investigate this complaint because the main points are more properly for the courts.

The complaint

1. Mrs X complains about how Avery (‘the Care Provider’) acted about nursing home fees it says are owed from when Mrs X’s mother, Mrs Y, lived in one of its homes and about Avery’s actions on funded nursing care (FNC) payments. Mrs X says this has caused her stress and anxiety and she has been to time and trouble pursuing matters.

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The Ombudsman’s role and powers

2. We investigate complaints about adult social care providers. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe the action has not caused injustice to the person who complained or there is another body better placed to consider this complaint. (Local Government Act 1974, sections 34B(8) and (9))
3. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, section 34B(8), as amended)

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How I considered this complaint

4. I considered the information Mrs X provided. I also obtained from the Care Provider copies of correspondence between it and Mrs X. I shared my draft decision with Mrs X and considered her comments on it.

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What I found

5. Mrs Y lived in one of the Care Provider’s nursing homes, Home Z, for several years. The NHS agreed to pay the Care Provider funded nursing care (FNC) payments for Mrs Y. Mrs Y moved out in mid-2018. Sadly, Mrs Y has since died. Mrs X was an executor of her mother’s estate.
6. The complaint stems from nursing home fees the Care Provider says were unpaid and from Mrs X’s argument that the Care Provider had not properly followed its contract with Mrs Y by deducting the value of the FNC payments from the amount it charged Mrs Y. The correspondence between the Care Provider and Mrs X covered several matters. The main points of the complaint are that the Care Provider did not pursue the matter with Mrs X for over a year, the Care Provider’s calculation of the amount owed (including whether it properly took off the value of the FNC payments) and how the Care Provider demanded, the amount it seeks.

The Care Provider not pursuing the matter for over a year

7. In May 2018 Mrs X disputed an invoice from the Care Provider, saying it was wrong. Her reasons included that the invoice did not take account of the FNC-related amounts the Care Provider owed Mrs Y. On 29 June 2018 Mrs X wrote to the Care Provider expressing concern at not having a response on this and other matters.
8. In August 2019 the Care Provider wrote to Mrs X demanding payment of over £15,000 it said related to Mrs Y’s fees in Home Z. By then, Mrs Y had died and the executors, including Mrs X, had settled the estate. Mrs X is dissatisfied the Care Provider had not pursued the matter meanwhile.
9. The Care Provider had up to six years to claim any money it believed Mrs Y owed. When Mrs X became an executor of her mother’s estate, the most recent position she knew of about the Care Provider was that there was a disputed invoice about which she had not received a final reply. Executors must establish whether any debts are owed before finally settling an estate. I have not seen any evidence Mrs X, after becoming an executor, chased the matter with the Care Provider or received any assurance from the Care Provider that no debt remained.
10. Responding to a draft of this decision, Mrs X argued the onus was on the Care Provider to advise of any change in the situation because she had understood the Care Provider would decide what FNC-related money it owed Mrs Y before calculating anything Mrs Y might owe it. I note this point. However, it does not alter the position that the question of what Mrs Y might owe had been unresolved. The onus was on the executors to find out that the matter was resolved rather than make an assumption from the lack of further contact. So this argument does not alter my view.
11. I appreciate receiving the demand in August 2019 might well have surprised Mrs X. However, it is not the Care Provider’s fault the executors settled the estate before then without establishing clearly with the Care Provider whether Mrs Y might have owed the Care Provider anything. The Care Provider’s delay did not directly cause the estate to be settled before the Care Provider’s demand in August 2019. So I shall not pursue this point.

Disputes about the demanded payment

12. Mrs X has queried both whether the Care Provider demanded the correct amount and whether the Care Provider has set out its demand(s) in a format the executors or anyone else can take as a legitimate basis on which to pay.
13. The Care Provider demanded over £26,000 in May 2018. In August 2019, it reduced this to over £15,000. After Mrs X argued this was wrong, the Care Provider reduced the amount again to almost £11,000 in November 2019. These changes took account of the FNC.
14. The Care Provider and Mrs X disagree about whether a contractual provision needing 30 days’ notice before someone is liable for increased fees applies to part of the period for which the Care Provider is demanding payment. This point could also affect the amount of any debt.
15. Mrs X also argues the Care Provider has not sent any demand in the proper form, since she says the Care Provider has not cancelled previous invoices that now appear wrong and has not issued a formal invoice explaining the amount now demanded. So she believes neither the executors nor the beneficiaries of Mrs Y’s estate can properly pay anything currently. As the estate has no funds now, Mrs X is unclear if any amount owed should come from the executors or the beneficiaries and about the implications for any inheritance tax already paid.
16. These points turn on the questions of how much the Care Provider should be paid and by whom. The Care Provider cannot force anyone to pay without a court order. If the Care Provider decides to take court action, Mrs X and anyone else involved can argue all the relevant points. It will be for the court to decide how much any debt is, whether the Care Provider has properly set out and invoiced for it and who is liable for any debt. Probate law, which is not straightforward, would apply to some of those points.
17. Therefore I do not consider it appropriate for the Ombudsman to seek to decide these matters. Instead, if Mrs X cannot agree with the Care Provider about what is required, she can reasonably wait to see if the Care Provider takes court action. If it does, Mrs X can argue her case. I appreciate this is a difficult situation for Mrs X but it is more appropriate for the courts than the Ombudsman to rule on such matters.
18. I recognise Mrs X has been to some time and trouble pursuing matters with the Care Provider, which resulted in the alleged debt reducing significantly. However, as the main substantive points are for the courts, it would not be proportionate for us to consider this point separately.

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Final decision

19. The Ombudsman will not investigate this complaint. This is because:
• there is not enough evidence of fault by the Care Provider directly causing an injustice in terms of the time taken to demand payment and
• the questions related to the demanded payment are more properly for the courts than for the Ombudsman.

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Investigator's decision on behalf of the Ombudsman