Summary: The Care Provider’s contract does not meet Competition and Markets Authority (CMA) guidelines as it charges for 28 days after a resident has died. The Care Provider has agreed to apologise to the complainant, refund fees, and review its contract for existing and future residents.

The complaint

1. The complainant, who I call Mr C complains about charges from Wayside Care Limited, the “Care Provider” for his late father, who I call Mr D. Mr C complains the Care Provider’s contract is unfair as it charges for 28 days after a resident’s death. Mr C says this is not in line with Competition and Markets Authority (CMA) guidance. Mr C also complains the Care Provider deliberately delayed completing a fast-track application for NHS funding. Mr C says had this been in place the Care Provider’s contract would have been with the NHS and no post death charges due.
2. Mr C says he has had time and trouble in getting NHS funded care and challenging the Care Provider about its contract. Mr C says the Care Provider should refund all fees paid for the period immediately after his father died.

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The Ombudsman’s role and powers

3. 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)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I spoke with Mr C and the Care Provider and considered information from both parties. This included:-
• care home contract and complaint correspondence;
• Fast-track pathway tool for NHS continuing health care guidance;
• Competition and Markets Authority (CMA), “UK care home providers for older people – advice on consumer law. Helping care homes comply with their consumer law obligations” 2021, “the Guidance”.
6. Mr C and the Care Provider had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

7. Mr D moved into Wayside Nursing Home in December 2021. In January 2022 an application for free funded care under NHS Continuing Health Care was rejected. By May 2022 Mr D’s health had worsened and he needed end of life care.

What should have happened

8. The CMA Guidance says, following a resident’s death, a care home can charge fees for a short, fixed-term period of no longer than three days. It also says contracts should be clear about when the contract ends.
9. Care providers can provide social and nursing care under section 9(3) Health and Social Care Act 2008.
10. The fast-track pathway tool for NHS Continuing Health Care guidance, the “Guidance”, applies when a person has a “rapidly deteriorating condition who may be entering a terminal phase may require ‘fast -tracking’ for immediate provision of NHS continuing healthcare.” If approved a person’s care needs are funded by the NHS.
11. The Guidance says in fast-track cases, the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (‘the standing rules’) applies and it is an “appropriate clinician” who determines that the individual has a primary health need. The appropriate clinician should decide whether a person is eligible for NHS continuing healthcare, and should respond promptly and positively to ensure the appropriate funding and care arrangements are in place without delay.
12. The Guidance says,
13. “5. An ‘appropriate clinician’ is defined as a person who is: a) responsible for the diagnosis, treatment or care of the individual under the 2006 Act the National Health Service (Consequential Provisions) Act 2006] in respect of whom a fast-track pathway tool is being completed; and
14. b) a registered nurse or a registered medical practitioner.
15. 6. The ‘appropriate clinician’ should be knowledgeable about the individual’s health needs, diagnosis, treatment or care and be able to provide an assessment of why the individual meets the fast-track pathway tool criteria.
16. 7. An ‘appropriate clinician’ can include clinicians employed in voluntary and independent sector organisations that have a specialist role in end of life needs (for example, hospices), provided they are offering services pursuant to the National Health Service (Consequential Provisions) Act 2006.
17. 8. Others – who are not approved clinicians, as defined above, but are involved in supporting those with end of life needs (including those in wider voluntary and independent sector organisations) – may identify the fact that the individual has needs for which use of the fast-track pathway tool might be appropriate.
18. They should contact the appropriate clinician who is responsible for the diagnosis, care or treatment of the individual and ask for consideration to be given to completion of the fast-track pathway tool.”

What happened

19. Mr C says on 17 May 2022 he asked the Care Provider to apply for health funding. The following day he says a nurse working at the care home agreed to make a fast track application. The Care Provider did not complete a fast track application but instead completed a Decision Support Tool (DST) for NHS Continuing Health Care. The local NHS Integrated Care Board (ICB) considered the DST on 1 June. The ICB had a conversation with the Care Provider on 6 June about Mr D’s needs and the potential need for a fast track application. On 13 June a nurse assessor from the ICB contacted the Care Provider to arrange a health assessment but Mr D had died that night.
20. The Care Provider says it could not complete a fast track application as it did not have an “approved clinician” and a GP needed to complete the application. Mr C disputes this and says both the GP and the ICB told the Care Provider it could complete the application.
21. Mr D died on 13 June without health funding in place. Mr C says the GP completed a retrospective fast track application on 7 July. Mr C says the Care Provider did not send it to the Fast Track team until 14 July, who approved it on the same day. Mr C says because of the delays the Care Provider never received fast track funding. Instead, after a successful appeal the executors received CHC funding which incorporated the fast track eligibility period. Mr C did not receive the refund until February 2023.
22. Mr C says the Care Provider’s contract is not in line with CMA guidance which says Care Providers should only charge for three days after a resident dies. He also says had the Care Provider completed a fast-track application he would not have had to pay for a notice period as NHS funding would have been in place before Mr D died. Mr C says the Individual Placement Agreement (IPA) was put in place retrospectively from 17 May 2022 and its terms do not allow for third party arrangements.
23. Mr C says the Care Provider should therefore refund money, paid in advance for care fees, from the date of Mr D’s death.
24. In response to a draft decision the Care Provider says as a gesture of good will it waived late fee payments during Mr D’s stay. These span over a six-month period. The Care Provider says it will now enforce the late fees as set out in its contract.

Is there fault causing injustice?

25. The Care Provider’s contract is not in line with CMA Guidance and the Care Provider is at fault for charging for 28 days following Mr D’s death. This has resulted in financial loss.
26. There is dispute about whether the nurse in charge could act as an appropriate clinician. The nurse in charge was a registered nurse but the Care Provider was not acting under the National Health Service Act 2006. It provided Mr D with social care under section 9(3) Health and Social Care Act 2008. As the Care Provider is an independent care provider not part of the NHS it did not meet the requirements to make a fast track application. The Care Provider could not therefore make the application.
27. Although the Care Provider could not make a fast track application it should contact the appropriate clinician. The Care Provider contacted the ICB but was unclear about the process it should follow. It completed a decision support tool for NHS Continuing Healthcare Funding rather than asking the ICB to complete a fast track application.
28. The Care Provider should have a policy which includes a procedure about when and what actions to take when it appears a resident may need fast track funding. The failure to have such a policy caused Mr C uncertainty, time, and trouble pursuing other professionals to find out about the process.
29. Mr C says had fast track funding been in place earlier Mr D’s contract with the Care Provider would have ended as the NHS would have taken over funding Mr D’s care. He says that this would have resulted in there being no notice period payable to the Care Provider. The Care Provider’s contract is silent about what should occur if a person receives NHS funding and how/when the contract should end. The lack of clarity within the contract is fault, and not in line with CMA guidance. This caused Mr C uncertainty.
30. I am however unable to say there would have been no notice period or charges payable once NHS funding was in place. This is because both the IPA and contract are silent about what happens in circumstances when there is a change of funding source for care payments. The Ombudsman can make findings around the “ordinary” meaning and clarity within a contract. However where a contract is silent this is a matter for the courts.
31. The Care Provider says it will now enforce charges for late care fees. The Care Provider’s contract allows it to take this action. However it should be mindful that complainants should not be discouraged from making complaints and act fairly when dealing with complaints. If Mr C is unhappy with any extra charges he can make a new complaint.

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Agreed actions

32. I have found fault by the Care Provider which has caused Mr C injustice. The Care Provider has agreed to take the following actions to remedy the complaint:-
33. Within one month of the final decision:-
1. apologise to Mr C for the faults I have identified;
2. refund Mr D’s estate for any money paid towards care costs from three days after his death.
34. Within three months of the final decision:-
1. review the current contract so it is in line with Competition Markets Authority Guidance on payments after a person has died; and what happens to the contract when NHS funding is in place. Once completed review all the contracts currently in place so they are compliant;
2. develop a policy so staff and family are aware of the NHS fast-track policy and the steps relevant people need to take.
35. The Care Provider should provide us with evidence it has complied with the above actions.

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Final decision

36. I have found fault in the actions of the Care Provider. I consider the actions above are suitable to remedy the complaint. I have completed my investigation and closed the complaints on this basis.
37. 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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Investigator's decision on behalf of the Ombudsman