Summary: There is no evidence that the care provider’s actions in respect of the Funded Nursing Contribution (FNC) payments caused any injustice to Mr X or his family.

The complaint

1. Mr A (as I shall call him) complains the care provider failed to refund FNC payments to the family when his father Mr X was deemed eligible for nursing 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 injustice, or could have caused injustice, to the person complaining. I have used the term fault to describe this. (Local Government Act 1974, sections 34B and 34C)
3. 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

4. I considered the information provided by Mr A and by the care provider. Both parties had an opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.

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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. Regulation 19 says “Providers must give people information about the terms and conditions of their care, treatment or support, including the expected costs and the requirement to pay for their care, treatment and support.”
7. 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.
8. In 2018 the Ombudsman issued guidance to care providers on FNC payments. He 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.”
9. The care provider’s terms of service says in respect of FNC payments, “Any RNCC (the term used for FNC prior to 2007) payable in respect of your nursing care will be paid directly to the home by the NHS: however, you will be responsible for paying the RNCC until such a time as the payment has been received by the home and then all RNCC payments made by you will be refunded.”

What happened

10. Mr X became resident in the care home in April 2022. The invoices issued by the home show he was paying a standard residential rate of £1500 a week.
11. The care home manager says she explained to Mr X’s daughter (who has Lasting Power of Attorney for finance for Mr X: her husband, who has joint Lasting Power of Attorney for finance, signed the contract) that she would apply for FNC if Mr X’s needs required but that it was not an automatic award. She said she explained if the FNC was granted then the fees for Mr X’s care would remain the same to the family, as the NHS paid the award direct to the home for the nursing care it considered Mr X required.
12. The local NHS nurse assessor assessed Mr X in July. She wrote to the care provider on 29 July confirming that Mr X was eligible for FNC payments of £209 which would be backdated to 22 April.
13. Mr A (who has Lasting Power of Attorney for health and welfare for Mr X) emailed the care home manager on 11 August. He said he was aware that conditions he understood the home would refund the payments it received from the NHS to the family.
14. The manager replied. She said “FNC payments are paid directly to the home for the additional nursing element of Dad’s care needs and therefore it is paid on top of private or local authority fees. Therefore there will be no change to dad’s weekly fees.”
15. Mr A continued to query the refund. The manager explained that the refund only applied to residents who had paid the additional nursing element of the fee while they were awaiting a FNC assessment. That had not happened in Mr X’s case. She said however that the care provider had redrafted the contracts to clarify the FNC payments.
16. The care provider has provided examples of invoices for weekly fees with and without FNC contributions. The invoices showing FNC contributions show the award separately from the overall bill to the resident.
17. Mr A said he believed the £1500 weekly fee was inclusive of FNC payments which should now be refunded.
18. Mr A complained to the Ombudsman.
19. The care provider says Mr X’s daughter and her husband who held power of attorney for finance, and signed the contract for care, said they were happy they knew the fee process.

Analysis

20. The terms of service in respect of the FNC contributions are not ambiguous as drafted, in my view, although I note the care provider has sought to explain them more clearly in the aftermath of the complaint by Mr A.
21. No injustice was caused to Mr X or his family as they had not paid an additional nursing element in advance of the receipt by the home of the FNC award from the NHS. Therefore, there was nothing to refund.

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Final decision

22. I have completed this investigation as the actions of the care provider did not cause injustice. There was no refund to pay.

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Investigator's decision on behalf of the Ombudsman