Summary: Ms B complains about the Home’s communications with her about Funded Nursing Care and says its contract did not say how Funded Nursing Care was dealt with. We have found fault in the Home’s contract and the Home has agreed to make amendments to the contract.

The complaint

1. Ms B complains on behalf of her father, Mr C, who has died. She complains about the Allenbrook Nursing Home (the Home) in Halesowen. She complains about the Home’s communications with her about Funded Nursing Care (FNC) and says its contract does not say how the Home treats FNC.

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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 an adult social care provider’s actions have caused injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
4. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.
  (Local Government Act 1974, section 26A(2), as amended)

5. 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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What I have and have not investigated

6. I have investigated the actions of the Home. I have not investigated the actions of the NHS or the Integrated Care Board (ICB) as these are outside of the Local Government and Social Care Ombudsman's jurisdiction. The Parliamentary and Health Ombudsman investigates the actions of the NHS.

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How I considered this complaint

7. I have discussed the complaint with Ms B. I have considered the information that she, the Home and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.
8. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I found

Law, guidance and policies

NHS funded care

9. NHS Continuing Healthcare (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’.
10. NHS-funded nursing care (FNC) is the funding provided by the NHS to residential nursing homes that also provide care by registered nurses.
11. A person’s local Integrated Care Board (ICB) is responsible for assessing their eligibility for CHC or FNC and providing the funding. ICBs sometimes commission other NHS organisations to carry out the assessments on their behalf.
12. For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC Checklist. If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment.
13. If the outcome of the Checklist is not to carry out a full assessment, the ICB should write to the person and tell them they have a right to ask the ICB to reconsider it. If they disagree with the outcome once the ICB has reconsidered the decision, they can complain to the ICB. There is no further right of appeal.
14. A nurse will usually co-ordinate a full multidisciplinary assessment and complete a Decision Support Tool (DST) form. The DST is a record of the relevant evidence and decision-making for the assessment.
15. If, after a full multidisciplinary assessment a person disagrees with the ICB’s decision that they are not eligible for CHC or FNC, they can ask the ICB to review its decision. If they disagree with the outcome of the review, they can appeal to an Independent Review Panel (IRP) organised by NHS England. The third stage is to refer the case to the Health Service Ombudsman for independent investigation.
16. A person can make a claim for CHC funding after a period of care has elapsed, for example, on behalf of someone who has died. The Department of Health published guidance in December 2023, to help organisations determine whether an assessment should be carried out for previously unassessed periods of care. It also introduced set timescales for people to notify the NHS that they should have been assessed for eligibility for NHS CHC funding with respect to that care.

Contract terms

17. The Care Quality Commission (CQC) is the statutory regulator of care services. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The CQC has guidance on how to meet the fundamental standards.
18. Regulation 19 says providers must give timely and accurate information about the cost of their care and treatment to people who use services. Providers must make written information available about any fees, contracts and terms and conditions, where people are paying either in full or in part for the cost of their care.
19. The Competition and Markets Authority (CMA) has written advice on consumer law to help care home comply with their obligations. This says the care provider’s contract and its upfront information should explain what FNC is, potential entitlement to FNC and how FNC is treated when a resident self-funds their care. In particular, the care provider should set out the relationship between the FNC and the fees and what happens if there is a change in FNC.
20. The Ombudsman wrote guidance in 2018 on FNC. The Ombudsman’s starting point is to look at the contract and any standard information given to the resident or their representative when they move in. We interpret contracts on their ordinary reading. We are likely to find fault where a contract term is ambiguous, inconsistent, or poorly drafted. We may also find fault where a contract contains conflicting information or is silent on how the care provider treats FNCs. If a contract explained how the care provider treats FNC then we would be unlikely to find fault.

Care Act 2014

21. I will summarise the Council’s duties in terms of charging and funding insofar as they are relevant to Mr C and necessary to understand what happened.
22. The Care Act 2014, the Care and Support Statutory Guidance 2014 and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties and its powers to charge.
23. Generally speaking, if a person has capital over £23,250 they will have to self-fund the care at a care home. The Council must disregard a person’s home in its calculation of capital for the first 12 weeks when the person first enters the care home as a permanent resident. This is known as the 12-week disregard.
24. The Council should also offer a person a deferred payment agreement which, generally speaking, means that the Council takes over the funding of the care home fees but places a charge on the person’s home and the debt is repaid when the property is sold or the person dies (or in certain other circumstances).

What happened

25. Mr C moved into the Home on 23 March 2023 after a stay in hospital. He had been diagnosed with a terminal illness. Mr C self-funded his care for the first 3 weeks of his stay. Mr C had the mental capacity to make decisions about his care.
26. The contract between the Home and Mr C said:
• Nursing care fees: £1,400 per week (Excl. FNC).
• There was also a further paragraph which said the fees covered nursing and personal care, accommodation, light, heat and so on but not things like clothing, toiletries, magazine, hairdressing, chiropody etc.
27. Ms B contacted the Council in April 2023 and asked the Council to carry out a financial assessment. She said Mr C needed the Council’s assistance to pay the Home’s fees as he was unable to continue to pay. The Council sent the financial assessment documents to Ms B. The social worker spoke to Ms B on 12 May 2023 and said he would carry out an assessment of Mr C’s needs for care and support and discussed costs of care and eligibility criteria.
28. A CHC nurse assessor visited Mr C on 28 April 2023 and carried out the CHC checklist. The checklist was negative so Mr C was not eligible for NHS continuing healthcare funding.
29. The Home asked for a review from Dudley Integrated Health and Care on 13 July 2023 as it said Mr C now had higher nursing needs linked to his medical condition. It is not clear from the Home’s response when the review happened but the review concluded that Mr C was eligible for FNC funding and this was backdated to 13 April 2023.
30. The family says it was not informed of this decision until later when Dudley Integrated Health and Care wrote to Ms B informing her of the outcome of the three month review.
31. The Council carried out the assessment of Mr C’s needs and the financial assessment. The Council granted funding in July 2023 and backdated this to April 2023. The Council noted that Mr C owned a house so he had capital over £23,250 and would be a self-funder once the 12-week disregard period had ended. The Council paid the Home’s fees (subject to a contribution from Mr C’s income) during the 12-week disregard period. The Council then offered Mr C a deferred payment agreement which he accepted and the Council continued to pay the fees once the 12-week disregard period had ended.

Ms B’s complaint – November 2023

32. Ms B complained to the Council in November 2023 and said:
• Neither the hospital staff, nor the Council nor the Home had ever explained FNC funding to her.
• The Home had been paid FNC, but she did not know when these payments started as they were not informed.
• She had a lot of questions about the FNC assessment, when it took place, who carried out the assessment, why the family was not present and so on.
• The Home’s contract was silent on FNCs and did not explain anything about FNCs.
33. The Council responded and said:
• The Home’s contract said the FNC was excluded from the fee.
• The Home’s manager explained the fee when the Home was viewed by the family and she made it clear that the fee the person pays and the nursing element which is paid by the NHS and how this was paid directly from the NHS.
34. Ms B responded and said:
• The manager did not explain the FNC to her.
• She was not informed that FNC was granted until she received a letter which was addressed to her and posted to Mr C’s previous address.
• She questioned why this letter was not sent to Mr C at the Home. Mr C still had mental capacity so the letter should have been sent to him.
• FNC should be deducted from the fees as Mr C was a self-funder.
35. The Council did not really respond further as it said this was a dispute between her and the Home. Mr C then died on 18 April 2024.
36. In its response to the Ombudsman the Home said it had never experienced any problems or received any complaints about the wording of its contract but would be happy to implement any new wording upon the Ombudsman’s recommendation.

Analysis

37. Ms B says the Home failed to notify her when FNC was granted and the ICB did not write to her until later. I have set out the process of assessment for CHC and FNC in paragraphs 8 to 15. I have not investigated the actions of the ICB as these are outside of the LGSCO’s jurisdiction. I also do not know what information the ICB sent to which member of the family. Ms B has not appealed the ICB’s decisions, as far as I am aware.
38. However, it is the duty of the ICB to inform the resident or their representative of any decisions regarding the CHC checklist and the FNC or CHC decisions and any appeals that can then be made via the ICB. It was not the Home’s duty to inform the family of the outcome of the ICB’s assessments so I cannot say there was any fault in that respect.
39. However, the Home should have terms in its contract about the fees and the treatment of FNC and it should explain the fees to the resident.
40. The Home says the manager explains the fees and FNC when a person comes to view a room, but Ms B says this did not happen in Mr C’s case. It is impossible for me to say what was discussed in that initial meeting as there is no record of the meeting. The Home did not give out any leaflets to Mr C about the funding, as far as I am aware, and it would have been good practice to do so.
41. I have considered the contract between the Home and Mr C. Ms B said the contract did not include information about FNC but that is not the case. The contract said the fees excluded FNC. It was therefore clear that the fee was set and the possibility of the Home receiving FNC at some point in the future was addressed. The fees were payable regardless of whether FNC was granted later or not.
42. There was also reference to the fees including nursing fees. My reading of this clause was that the Home tried to distinguish the costs included within the monthly fees (payable by the individual, the local authority or the NHS) and the additional costs which had to be paid by the individual for items such as toiletries or hairdressing.
43. I do agree that this clause is not clear and could have been explained better so there is fault in that respect. However, I cannot say that, on an ordinary reading of the contract, a person would conclude that the contract said that the fees included the FNC when the contract expressly stated that the fees excluded the FNC. So overall I am of the view that there was no significant injustice to Ms B in that respect and the remedy Ms B seeks, which is a refund of the FNC to the estate would be disproportionate.

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Agreed action

44. The Home has agreed to take the following actions within one month of the final decision:
• It will review the information it provides about the fees and FNC in the contract or in any other written information that it provides to residents.

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Final decision

45. I have completed my investigation and the Home has agreed a service improvement.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman