Summary: Ms B complained on behalf of her father about charging and the way the care provider treated funded nursing care payments. She considered the contract the family signed meant the payments should have been used to reduce the fee but instead they had been retained by the care provider. Mr X had, therefore, paid too much for his care. There was fault by the care provider which caused injustice to Mr X.

The complaint

1. I refer to the complainant as Mr X. His daughter, who I call Ms B, complained on his behalf about charging and the way the care provider treated funded nursing care (FNC) payments. She considered the contract the family signed meant the payments should have been used to reduce the fee but instead they had been retained by the care provider. Mr X had, therefore, paid too much for his care.

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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))

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How I considered this complaint

4. I considered the complaint and documents provided by Ms B and spoke to her I asked the care provider to comment on the complaint and provide information. icons. I sent a draft of this statement to Ms B and the care provder and considered their comments.
5. 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

6. Mr X went into the home in December 2019. He was assessed by the home manager and a care plan and charge agreed. The family signed a contract which specified the charge and shortly afterwards FNC was awarded.
7. There were email exchanges between the family and the care provider and its accountants over April and May 2020. The family had asked if FNC was being paid and said that should mean their contribution was reduced by that amount. In the final email at the end of May the accountant said that the FNC payment was on top of the amount paid by the family which did not change.
8. The next recorded contact was in January 2021 when Ms B’s brother wrote to the care provider asking whether FNC was being paid. There was then telephone contact between the family and the care provider about the FNC payment. The care provider sent a final response to the complaint in May.

Analysis

9. Our starting point with FNC complaints is to look at the contract and any standard 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 to us, then we may view it as a failure by the care provider. We are likely to find fault where a contract term is ambiguous, inconsistent or is poorly drafted. We may also find fault where a contract contains conflicting terms or is silent on how the care provider treats FNCs. We issued guidance to care providers in 2018 on how FNC should be treated in contracts.
10. The contract the family signed states:

“[the home] hereby agrees to refund to the resident any payments it receives from any external agency whether it be the National Health Service, a primary Care Trust or any other source in payment or part payment of the costs of nursing the resident, within 14 days of receipt of same by us, should there have been an overpayment or a change in circumstances to the financial assessment of the resident.”

There is a table in the contract which provides a breakdown of how the fee is calculated. The fee is shown as client contribution. There is a line in the table for FNC which is blank.

11. The care provider accepts the contract does not make explicit reference to what will happen if FNC is awarded.
12. The Care Quality Commission’s guidance on Fundamental Standards is clear that clear written information should be given to people so they can decide whether they wish to use, or to continue to use, the service. This contract does not meet that standard.
13. The care provider has said its new contracts do state that FNC will be retained and will not go to a reduction in the fees paid by the resident. It said that it was made clear in conversations with Mr X’s sons at the time he moved in that it was expected FNC would be awarded. And an application would be made and it would be paid to, and retained by, the home. The family state that there was no conversation or information about FNC payments.
14. I have not come to a view on what was said at the time of the placement. The requirement is that information should be given in writing and any discussion cannot replace that.
15. The care provider said if it had not expected to receive FNC the care charge would have been higher to reflect Mr X’s care needs. I can accept that would be the case, but Mr X and the family made the decision for him to move there based on the written information provided. The paragraph I quote above gave an expectation the FNC would be used to reduce the fees. The care provider said that paragraph was intended to only apply where the NHS takes on full payments and there had been overlap in payments made so there was an overpayment by the resident. The paragraph is poorly drafted and it is understandable why the family would see it as referring to FNC payments.
16. Where there has been fault we look to the responsible body to put the person back in the position they would have been had the fault not occurred. Here it should have been clear to the family what the fees were and what would happen if FNC was awarded. They would then have been able to decide whether the home was right for Mr X. However, it would have been possible for the care provider to issue a new contract when FNC was awarded. The key point is the family should be given adequate notice of proposed changes. When the family started to question the FNC payment the care provider could, and should, have reissued a contract which clearly stated what would happen to the FNC payments. The original, flawed, contract did not bind the care provider forever.
17. A proportion of the FNC payments made should be refunded to Mr X and a new contract issued. The care provider’s position has been clear since the end of May 2020. I understand the family still disagreed and did follow it up again in January 2021. But I consider from May 2020 the family was on notice and could have decided to move Mr X if it was unhappy with the way the care provider was interpreting the contract. That would inevitably have taken some time and I consider it would be fair to allow two months for a move to have happened. I consider, therefore, that the FNC payments up to the end of July 2020 should be refunded.

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Agreed action

18. The care provider will, within a month of the final decision, refund the FNC payments made to the end of July 2020 and reissue a contract to the family.

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Final decision

19. There was fault by the care provider which caused injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman