The Ombudsman's final decision:
Summary: The care provider acted in accordance with the signed terms and conditions in the way it treated the award of Funded Nursing Care to Mr X.
- Mrs A (as I shall call the complainant) complains that the care provider retained the award of Funded Nursing Care (FNC) instead of offsetting it against the fees.
The Ombudsman’s role and powers
- 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)
How I considered this complaint
- I considered the written information. I spoke to Mrs A. Both Mrs A and the care provider now have the opportunity to comment on this draft statement before I reach a final decision.
What I found
Relevant law and guidance
- 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.
- Regulation 19 says “People must be given a written copy of the terms and conditions that they must agree to before their care,treatment or support begins. Providers must give people using the service information about the costs, terms and conditions of the service, so that they can make decisions about their care, treatment or support. Providers must give people a written estimate of the costs of the care, treatment or support if a fixed price cannot be given. This should include details of any likely additional costs.”
- NHS Continuing Healthcare (CHC) is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care. Such care is provided to people aged 18 years or over, to meet needs arising from disability, accident or illness.
- 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.
- The National Framework says, “The Care home provider should set an overall fee level for the provision of care and accommodation. This should include any registered nursing care provided by them. Where a CCG assesses that the resident’s needs require the input of a registered nurse they will pay the NHS-funded Nursing Care payment (at the nationally agreed rate) direct to the care home…. The balance of the fee will then be paid by the individual, their representative or the local authority.”
- In 2018 the Ombudsman issued guidance for care providers on FNC payments. We said “As long as the contract explains clearly what happens when FNC is awarded, then we are not likely to uphold a complaint”. We also said, “A resident’s contribution could stay the same or fall when FNC comes into effect. What happens depends on the care provider’s terms and conditions. The contract needs to explain how the care provider treats FNC payments.”
- Mr X was admitted to the care home (initially for respite) on 24 April 2021. Mrs X had been looking after him at home until his Parkinson’s disease became too advanced. Mrs A says when the family enquired about a placement they were sent a pre-admission assessment form to complete themselves (under Covid 19 restrictions) and what she describes as a “glossy brochure”. The care provider has sent me a copy of the brochure which does not provide details of how FNC would be handled.
- Mr X settled in the home and was admitted to a permanent nursing placement. The weekly fees were £1100. Mrs A said they had to ‘chase’ the care provider for a contract.
- Mr A signed the contract for his father in law’s care on 12 May. He signed his agreement to the terms and conditions on 13 May. The terms and conditions say, “The Basic Fees charged by the home are calculated to take full account of the current nursing needs of any resident cared for and accommodated at the home. Where the Basic Fees do not, however, cover the costs of meeting the nursing needs of any resident, the home may apply for an additional Funded Nursing Care (FNC) contribution. Where such an application is successful and an FNC contribution is paid to the home, the amount of the FNC contribution will be received by the home in addition to the Basic Fees. At no time will any FNC contribution received by the home become deductible from the Basic fees being paid in respect of any resident of the home.”
- Mrs A applied for NHS CHC for Mr X. She says the care home failed to provide a member of staff to attend the assessment and Mr X was refused CHC funding. He was awarded FNC funding. Mrs A says at that point the family presumed the fees would be reduced by the amount of the FNC award because nothing in Mr X’s condition had changed, the family itself had applied for the funding and no different care was being provided. She says they were then told the weekly fee would now be £1287: the original fee and the £187 FNC. The cost to Mr X remained £1100.
- Mr and Mrs A complained to the care provider about its decision to retain the FNC award.
- Initially the care provider told Mr and Mrs A the home would retain the FNC award as that was the normal custom. On 23 September Mr A and the care provider manager discussed the FNC award on the telephone. The manager agreed to reduce the fee by a partial refund of the FNC.
- On 24 September the manager wrote to Mr A. He said “we are prepared to reduce the total weekly fee to £1,200.00 inclusive of the Funded Nursing Care enhancement. Therefore the fee of £1,100.00 that is currently being paid by (Mr X) will be reduced to £1,012.40. If you are in acceptance of the above proposal, the new fee will be backdated to 21/04/2021 when (Mr X) joined us at Downham Grange. In turn, this would result in a refund owed of £2,427.77 for the period 21/04/2021 to 31/10/2021”.
- Mr A responded to the manager accepting the offer of a refund and reduced fee but said he would continue to pursue the matter as he considered the care provider’s current practice was against guidance.
- Mr X died in November 2021.
- Mr and Mrs A complained to the Ombudsman. Mrs A said the care provider had conceded the principle by the partial refund.
- The care provider says, “As a gesture of goodwill as we considered that we had not been as clear with the family as we would have wished in hindsight regarding the FNC. We decided to reduce the fee rather than take the entire FNC on a permanent basis which was accepted as a gesture of goodwill by the family.”
- The terms and conditions regarding the FNC are clear: that the FNC is not deductible from the basic fee.
- However, Mr and Mrs A did not see the terms and conditions until Mr X was settled in the home. The care provider says it had not been as clear as it could have been about the retention of the FNC, hence the partial refund.
- Mr and Mrs A say the care provider did not apply for the FNC: they did. There was no suggestion from the care provider that the basic fee of £1100 was not covering Mr X’s “current nursing needs”. It was the decision of the local NHS that Mr X had always merited FNC, not that of the home.
- There is nothing in the guidance which requires the care provider to reduce the fee by the amount of the FNC.
- I have completed the investigation on the basis that the actions of the care provider did not cause injustice to Mr X.
Investigator's decision on behalf of the Ombudsman