Summary: The care provider did not act in accordance with the admission agreement the late Ms X signed. Its explanation of its actions did not accord with the contract. The care provider will reimburse the FNC payments received.

The complaint

1. Ms X (as I shall call the complainant) says the contract her late mother signed with the care provider implied that Funded Nursing Care awards would be deducted from the gross amount of the payable fee, but that did not happen.

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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. 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)

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How I considered this complaint

3. I considered the information provided by Ms X and by the care provider. I spoke to Ms X. Both Ms X and the care provider had an opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.
4. Under our joint memorandum of understanding we will share the final decision with the CQC.

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What I found

Relevant law and guidance

5. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.
6. Regulations 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.

7. The Fundamental Standards explains that:

“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.”

8. NHS-Funded Nursing Care (FNC) is the funding provided by the NHS to care homes providing nursing, to support the cost of nursing care delivered by registered nurses. If a person does not qualify for NHS Continuing Healthcare, the need for care from a registered nurse must be determined. If the person has such a need and it is determined their overall needs would be most appropriately met in a care home providing nursing care, then this would lead to eligibility for NHS-Funded Nursing Care.
9. In 2018 we produced guidance for care providers on handling Funded Nursing Care payments. We said “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.”

What happened

10. Mrs X had some periods of respite care in the home in 2012 and 2015. In July 2020 she arranged another period of respite care which was extended several times. In September 2020 she became a permanent resident at the home and Ms X signed the contract on her behalf. The signed agreement states Mrs X was in a nursing placement.
11. Section 5.14 of the contract terms and conditions said, “If the resident is eligible for any other contributions towards the cost of care (e.g. NHS funded nursing care) and the company receives income from an NHS or other body, this amount will be shown on the invoice as a deduction for as long as it continues to be paid. However, the resident/guarantor will be liable for the full gross fee should the contribution cease for any period or the resident becomes ineligible for the contribution. If such contribution increases to cover the cost of providing care, then the resident’s gross fee will automatically increase by the same amount with effect from the date of the increase”. Ms X says she understood from this paragraph that any FNC award would be deducted from the gross fee.
12. In March 2021 Mrs X was awarded FNC, after Ms X applied through an external agency. Ms X says that the care provider increased the fee by the amount of the FNC. At about the same time the care provider also increased the basic fees by £75 a week. She complained to the care provider.
13. The care provider replied to the complaint. The complaint handler said all fees had been increased as a result of increased running costs across the company. She went on, “FNC is a payment which care providers receive for delivering nursing services by a registered nurse on behalf of the NHS. We provide you with the total cost of the care you receive, including FNC if you are entitled to receive it. However, the cost of nursing care has always been calculated and paid separately by the NHS…. the total overall fee will increase but the resident’s contribution remains the same.” She said however that having reviewed the increase it had been agreed to reduce it by £50 a week.
14. Ms X remained unhappy and complained again. A manager responded. He said “Our usual process when there is a change in care needs, for instance changing from residential to nursing, is for the care home to advise of the change and the increase in fee for nursing care. An assessment for FNC funding would then be arranged, and if awarded, this would be deducted from the new higher fee”.
15. The manager went on: “If a resident is admitted into the home for nursing care the fee is agreed at the nursing rate and historically at this time it would have been decided whether the FNC would be added or deducted dependant on the agreed fee from admission.” He added, “Receipt of FNC is an acknowledgement that there has been an increase in the care needs of (Mrs X) which increases the overall fee, it should be noted that the resident contribution does not change”.
16. The manager apologised that there had not been a discussion about what would happen if FNC was awarded. He said in future “written confirmation will always be sent once we are aware that FNC is to be received and how it will affect the overall fee”.
17. Ms X complained to the Ombudsman. She said the way the care provider was applying the terms of its contract was incorrect and it should reimburse the FNC payments it had received.
18. The care home manager says Ms X was advised that because Mrs X’s care needs had been confirmed as nursing, as a result of the FNC award, the weekly rate would increase to £1712.60 per week.  She says when Ms X complained it was agreed to reduce the uplift (the increase in the basic fee) to £1525 per week from 1 April pending the complaint investigation.  The care home manager says, “Following this she was advised by legal that the fee would be £1712.60 as from 1 April but that obviously with the £187.60 we would receive from the NHS she would actually be paying £1525 as previously advised- still slightly less than she was paying on admission.  The actual FNC was backdated to 2nd Feb at a rate of £183.92 until 31st March.  As a gesture the fee rate of £1550 wasn’t adjusted at all for that period so in reality she only paid £1366.08 per week for that 8 weeks or so”.
19. The care home manager also says, “Our assessment indicated that she was residential so when we received confirmation that she was nursing… her fees needed to increase to take this into account.”
20. Ms X says Mrs X’s needs and care did not change after her admission to the home.
21. Sadly Mrs X died in January 2022.

Analysis

22. The care provider says Mrs X was assessed as a residential placement, but in fact her admission agreement clearly states she was for nursing care.
23. The phrase used in the contract in respect of FNC awards - “this amount will be shown on the invoice as a deduction for as long as it continues to be paid” – was understood by Ms X to mean the FNC amount would be deducted from the fee.
24. In my view the care provider’s description of what would happen does not match what is said in the contract or what happened. Mrs X was admitted as a nursing placement according to the written agreement but there was no discussion about what would happen in respect of the FNC. The care home manager’s assertion that Mrs X was assessed as a residential placement and therefore the fee needed to increase when her needs changed and FNC was awarded is not evidenced by the contract which was signed.
25. It would not have been wrong for the care provider to retain the FNC award if the contract had clearly said it would do so.
26. The care provider did not provide clarity about the FNC payments. That was fault which led to injustice to Mrs X.

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Agreed action

27. Within one month of my final decision the care provider will reimburse to Mrs X’s estate the FNC payments it received for her care from April 2021.

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Final decision

28. I find that the actions of the care caused injustice to Mrs and Ms X, which the agreed completion of the recommendation at paragraphs 26 will remedy.

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Investigator's decision on behalf of the Ombudsman