Summary: Mrs X complains the Care Provider failed to reduce her late mother’s care fees when it successfully applied for Funded Nursing Care contributions. The Care Provider said it did not charge for services covered by the Funded Nursing Care contribution and so it has not overcharged for its services. We found the Care Provider acted in line with its terms and conditions but the lack of clarity over charging caused an injustice.

The complaint

1. The complainant whom I shall refer to as Mrs X complains on behalf of the late Mrs Y. Mrs Y lived at the Care Provider’s Oakland’s Nursing Home, Littleton, Chester, until she passed away in January 2020. Mrs X says the Care Provider caused injustice to Mrs Y by failing to reduce Mrs Y’s care fees following her award of Funded Nursing Care contributions to her care fees.
2. Mrs X says therefore, the Care Provider financially disadvantaged Mrs Y. Mrs X says the Care Provider added to confusion by not ensuring Mrs Y had a properly signed contract governing the care she received.
3. Mrs X wants the Care Provider to refund Mrs Y’s estate the Funded Nursing Care payments it received from the local Care Commissioning Group.

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The Ombudsman’s role and powers

4. 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. If they have caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
5. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)

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How I considered this complaint

6. In considering this complaint I have:
• Contacted Mrs X and read the information accompanying her complaint;
• Put enquiries to the Care Provider and reviewed its responses;
• Researched the relevant law and guidance.
• Shared with Mrs X and the Care Provider my draft decision and considered their comments before making this my final decision.
7. 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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What I found

Funded Nursing Care and the Care Provider’s Terms and Conditions

8. The NHS is responsible for meeting the cost of care provided by registered nurses to residents in all types of care homes.
9. Funded Nursing Contribution payments (nursing payments) paid to care providers cover the added costs of residents who need nursing care besides the general care provided. Before awarding nursing payments a client undergoes an assessment. The local Care Commissioning Group (CCG) pays the nursing payment for as long as the resident needs the nursing care.
10. Guidance on how care providers should treat nursing payments is set out in:
• Guidance on NHS patients who want to pay for Additional Private Care (March 2009);
• National Framework for NHC Continuing Healthcare and NHS-funded Nursing Care (October 2018).
11. The guidance says the local CCG will pay the nursing payment direct to the care home. It says the care home should reduce the fee it charges the resident by this amount unless ‘other contracting arrangements have been agreed’.
12. 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 resident’s contribution would remain the same. In other situations, the overall fee would remain the same and the resident’s contribution would decrease”.

13. There is no automatic right to a refund or fee reduction when FNC payments are awarded, and it will depend on what the resident’s contract says.
14. Under the Care Provider’s terms and conditions, the Care Provider charged £802.00 per week for residents requiring nursing care. Within that sum the Care Provider included the contribution from the CCG of £112.00. The terms and conditions say:

“ If an amount, towards your contracted fee is contributed by the Clinical Commissioning Group (CCG), the weekly amount payable by the Client will be £690.00 per week”

Care Quality Commission and fundamental standards

15. 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.
16. Regulation 19 refers to fees. It notes that providers should give timely and accurate information about the cost of their case and treatment to people who use services.
17. 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.

What happened

18. In May 2015 Mrs Y entered Oaklands Nursing Home as a self-funded residential client and lived at the home until she passed away in January 2020. The Care Provider says it gave Mrs Y and her representative, the contract and introductory paperwork confirming the terms and conditions on which it had accepted Mrs Y on 4 May 2015. The Care Provider issued an invoice that same week which Mrs Y paid. Mrs Y continued to pay care fee invoices until she passed away.
19. In a letter dated 4 May 2015 the Care Provider says it enclosed two copies of the contract for care. It asked Mrs Y to sign and return a copy. The Care Provider says it has no record of receiving the signed copy.
20. The 2015 contract sets out the weekly fees for nursing and residential services. For nursing clients, the charge is £802 per week less any nursing payments of £112. Where there are nursing payments the charge to the client is £690. For residential clients (i.e., those not needing nursing care funded by nursing payments) the fee is £710.00 per week.
21. The Care Provider says the terms and conditions quoted in paragraph 14 make it clear it does not charge clients for nursing care covered by nursing payments. Therefore, in its view it does not need to reduce its fees.
22. The Care Provider says it applied for nursing payments in June 2018 because Mrs Y’s needs had continually increased, and she needed nursing care rather than residential care. Staff say they re-assured Mrs X that costs would not increase. They explained the nursing payments paid directly to the Care Provider would cover those costs.
23. In October 2019, the CCG confirmed to the Care Provider that it had awarded the nursing payments. The CCG backdated this to June 2018, and therefore the Care Provider says while it received this payment it had not charged Mrs Y for the nursing care portion of her care in the home.
24. Mrs X says Mrs Y did not receive a copy of the contract setting out the terms and conditions for her stay in the care home. Mrs X says this means she did not know until told by a social worker that the Care Provider should reduce Mrs Y’s fees to reflect the nursing payment. The Care Provider says it sent the contract but did not receive a signed copy.
25. In March 2016, 2017, 2018 and February 2019 the Care Provider wrote to Mrs Y through her representative explaining why it had increased its fees under a contract for residential care. This provided opportunities for Mrs Y to query the contract terms if she or her family, disputed them. The Care Provider said in answer to my enquiries the letter of February 2019 mistakenly referred to Mrs Y as a ‘residential’ client. She had in fact become a ‘nursing’ client from June 2018, although, the CCG had not yet confirmed the award. Mrs Y paid the residential client fee until the CCG awarded her the nursing payments.
26. In November 2019 Mrs X wrote to the Care Provider querying the nursing payments. The Care Provider in its response explained this is a separate payment from the home fees. The Care Provider said it charges more for clients receiving full nursing care (nursing clients) as set out in the contract terms and conditions. Where those clients successfully apply for nursing payments the Care Provider reduces the fees. Mrs Y successfully applied for and received nursing payments to cover the nursing charges. The Care Provider’s letter confirmed Mrs Y’s continued eligibility in November 2019. The Care Provider explained Mrs Y’s condition remained stable, but she still needed nursing involvement. Nurses need to monitor and assess her condition in case of any changes. Therefore, Mrs Y remained eligible for nursing payments and subject to nursing care charges.

Analysis – has the Care Provider caused injustice?

27. My role is to decide if the Care Provider has properly applied the guidance on nursing payments and acted within the terms and conditions set out in its contract. If I find it has not and this has caused an injustice, I must decide what the Care Provider should do to put that right.
28. Mrs X says she did not receive a copy of the contract signed by Mrs Y. Therefore, she believes Mrs Y never had a contract. This meant Mrs Y did not know the full terms and conditions on which she had entered the Care Provider’s care home. The Care Provider’s records show it sent out a contract for signature but did not receive a signed copy. It is now too long ago for me to decide what happened at the time. However, where someone enters a care home and pays fees, and accepts the services provided a contract clearly exists. Given the time that has elapsed it is for the courts to decide if the parties entered a binding contract. However, best practice would expect the Care Provider to follow up the missing contract. I have not seen evidence of the Care Provider continuing to seek a signed copy from Mrs Y or her representatives. I find that a fault.
29. Funded Nursing Contributions or as I refer to them, nursing payments are separate to the fees paid by residents. They cover nursing care which the local CCG assesses as eligible for payment. Complaints about the CCG’s decisions or assessments should be made to the Parliamentary and Health Services Ombudsman.
30. Charging by the Care Provider falls within our jurisdiction. The Guidance says the Care Provider should reduce care fees when a resident receives nursing payments: unless the contract sets out other arrangements. The Care Provider’s contractual terms and conditions set out the charges. They show nursing care charges reduce from £802 per week to £690 per week for clients awarded nursing payments.
31. However, I cannot see within the charging record a clear explanation of what fees the Care Provider charged. The Care Provider applied for nursing payments in June 2018. The nursing payments were awarded in October 2019 and backdated. That would mean charges could be reduced from £710 to £690 for this period unless the Care Provider charged Mrs Y only £690 anticipating the nursing payment award. The invoices lack clarity on this point. They do not clearly show whether the Care Provider charged the reduced fee of £690 and that I find a fault causing confusion.
32. What the charges should be is a matter for the courts to decide having decided whether the parties are bound by the contract. We cannot decide the issue definitively. Where we cannot put the parties in the position, they would have been but for the fault, we will recommend a symbolic payment in recognition of the inconvenience and distress the confusion has caused.
33. Applying the scale of between £100 and £300 for such distress and inconvenience as set out in our "Guidance on Remedies) I recommended a remedy and action to address the confusion.

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Agreed action

34. To address the injustice arising from the fault found the Care Provider agrees within four weeks of this final decision to:
• Apologise to Mrs X for the lack of clarity in invoices showing exactly how the Care Provider has calculated the charge;
• Pay Mrs X £300 in recognition of the confusion, inconvenience and distress caused;
• Provide a written statement setting out the charges and what Mrs Y paid for the service. This should clarify whether Mrs Y was charged at £690 per week plus other services once the nursing funding was applied to resolve the confusion and enable Mrs X to decide whether to exercise her right to challenge the issue in court.

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Final decision

35. In completing my investigation, I find the Care Provider caused an injustice to Mrs Y and Mrs X.

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Investigator's decision on behalf of the Ombudsman