Summary: Mr C complains the Care Provider has inappropriately withheld Free Nursing Care (FNC) payments. The Care Provider is at fault for failing to have a clear contract which sets out what happens to a person’s fees when FNC is awarded. The Care Provider is also at fault for delays and failures in its complaint handling. To remedy the complaint the Care Provider should apply FNC payments to the outstanding account, refund any credit and apologise to Mr C for its failures and make him a symbolic payment.

The complaint

1. The complainant who I call Mr C complains about The Grange Care Centre Limited, the “Care Provider”. Mr C complains the Care Provider has failed to reimburse Free Nursing Care (FNC) payments which his late mother, who I call Ms D, received after her death. Mr C also complains the Care Provider delayed and provided conflicting information in response to his queries and complaint which caused him time and trouble.

Back to top

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)
3. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act, section 26D and 34E, 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)

Back to top

How I considered this complaint

5. I spoke with Mr C and considered information he provided. I considered:-
• the Care Provider’s complaint response;
• contract between Mrs D and the Care Provider;
• emails between the Care Provider and Mr C;
• 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”;
• the Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of Care Providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences. I have used the fundamental standards as a benchmark for considering this complaint.
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.

Back to top

What I found

Background information

7. Mrs D paid for the full cost of her care at, Lilleybrook Care Home, registered at CQC as a nursing home. Mrs D died in March 2022 and following her death Mr C applied for retrospective payments for nursing care.

What should have happened

8. If a person does not qualify for free nursing care in a care home under NHS Continuing Healthcare (CHC), the need for care from a registered nurse must be determined. If the person has such a need, then this would lead to eligibility for NHS-Funded Nursing Care (FNC).
9. FNC is funded at a single rate, which is determined each financial year. The NHS pays FNC directly to the care home. The resident does not receive any money directly.
10. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
11. Regulation 16 says providers must have an effective and accessible system for identifying, receiving, handling, and responding to complaints. All complaints must be investigated thoroughly and any necessary action taken where failures identified.
12. Care Quality Commission (Registration) Regulations 2009: 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, treatment, and support.
13. The Competition and Markets Authority published guidance in 2017 (updated in 2021) which says ‘If you’re paying for your own care, there will be a contract between you and the care home. The terms and conditions in that contract must be written simply and clearly, avoiding jargon, so that you can easily understand your rights and responsibilities’.
14. In 2018 we published guidance for adult social care providers on funded nursing care payments. Our starting point when considering complaints about charges is to look at the contract and any standard information given to the resident or their relative before they moved 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.
15. Mrs D’s contract dated 10 September 2019 has the following clauses:
16. 10.1 The Total Fee for your Care and Accommodation is £800.00 per week, payable 4-weekly in advance.
17. The Total Fee is calculated on the basis of:
18. 10.1.1 Category of Care: Nursing, Level of Dependency: High, Room Type: Standard
19. 10.2 Where at the time of signing this agreement arrangements are in place, section 10.2.1 specifies the agreement. Where a funding plan is not in place, section 10.2.2 specifies the commitment.
20. 10.2.1 The Total Fee is to be paid for as follows:
• Payable by the Resident: £800.00 per week
• Payable by the Resident's Representative: N/A
• Payable by the Council: £000.00 per week
• Payable by the CCG (Funded Nursing Care): N/A
• Payable by [other]: N/A
21. 10.2.2 Where at the time of signing this agreement a funding plan is not in place, the contract will assume this is a self-funding agreement. If the funding source becomes a Council / CCG source, the fees will reduce to the funder's levels plus any agreed Residents Representative's contribution.
22. 10.7 If following changes in the Personal Care Plan or otherwise our assessment of your needs change, we will discuss that with you. We reserve the right to increase or decrease the Total Fee upon giving not less than 28 days' written notice if our assessment of your needs increase or decrease. If you do not agree the change in Total Fee you may terminate the agreement as set out in paragraph 15.
23. 10.9 We reserve the right to increase fees upon giving not less than 28 days' written notice if an increase is required for the provision of extra care or to comply with regulations which were not known to us at the time of the annual review. If you do not agree the increase in fees you may terminate the agreement as set out in paragraph 15.

What happened

24. Mr C received back dated payments for the following periods:-
• FNC (£187.60) between 24 May 2021 to 24 February 2022
• CHC (£898.12) between 25 February 2022 to 16 March 2022
25. In January 2023 the Care Provider wrote to Mr C saying once it received payment from the CCG it would return any credit to Mr C. In July 2023 the Care Provider wrote to Mr C saying it would not refund the FNC and there was an outstanding balance on the account.
26. On 26 July Mr C complained to the Care Provider about FNC payments and the Care Provider’s failure to provide a statement of account for £58.90 which the Care Provider still held. The Care Provider sent an acknowledgement of the complaint on 15 August. Mr C did not receive a substantive response and escalated the complaint to the Ombudsman. The Care Provider responded to the complaint on 25 January 2024. It:-
• apologised for the complaint response delay and for shortcomings in its actions. In recognition of this it agreed to reduce the outstanding debt by 50%;
• acknowledged providing conflicting information to Mr C but says this was because the original person responding was not fully aware of all the facts;
• said Mrs D’s placement was for residential care and it never increased the fees to account for the extra nursing care it provided;
• said that because the FNC decision was after Mrs D died it did not know this money may have been available for care fees and could not give the required 28 days’ notice.
27. The Care Provider has since changed its contract so there is clarity about what happens to charges when FNC is awarded.
28. Mr C has an outstanding review request for FNC payments for the period 29 November 2020 to 23 May 2021. He considers the Care Provider should apply any FNC payments it has received and may receive in the future to Mrs D’s account.

Was there fault causing injustice?

29. Both Regulation 19 of the Care Quality Commission (Registration) Regulations 2009 and the Competition and Markets Authority published guidance in 2017 (updated in 2021) stress the need for clarity and transparency in care provider contracts. The Care Provider’s contract is silent on what happens to care fees if FNC is awarded. I consider this lack of clarity is fault.
30. The Care Provider makes several arguments relying on an interpretation of the contract. The strict interpretation of a contract is a matter for the courts our role is to examine what the contract says on ordinary reading. I have considered the clauses cited above and consider the contract to say Mrs D was receiving nursing care and her full fee was £800 per week. The Care Provider did not provide 28 days’ notice for any changes in the fee; and the contract is silent on what happens to the weekly fee when a person receives FNC payments. While I have considered the Care Provider’s arguments its contract does not support them. I therefore consider the Care Provider should deduct the FNC payments from the amount outstanding on Mrs D’s account and if relevant refund her estate any surplus.
31. The Care Provider delayed in responding to Mr C’s complaint and failed to provide a statement of account for Mrs D. This is fault and not in line with Regulation 16. On considering the email exchange between Mr C and the Care Provider it also appears the Care Provider had a conflicting view about how to treat the FNC payments which was independent of information Mr C provided. It would have been helpful if the Care Provider accepted this conflict rather than saying it did not have the full picture.
32. Therefore while I welcome the Care Provider’s acknowledgment there were failings in how it handled Mr D’s complaint it does not fully remedy his time trouble, and frustration.

Back to top

Recommended action

33. I have found fault in the actions of the Care Provider which has caused Mr C and Mrs D’s estate injustice and loss. I consider the actions below are suitable to remedy the complaint:-
34. Within one month of the date of the final decision the Care Provider should:-
1. apologise to Mr C and make him a symbolic payment of £100 for his time, trouble, and frustration;
2. reissue Mrs D’s final invoice deducting FNC payments received. If these leave a credit this should be reimbursed to Mrs D’s estate;
3. provide Mr C with Mrs D’s final statement of account for the money still held by the care home.
35. Within three months of the final decision the Care Provider issues its new contract to all existing self-funding residents if it has not already done so.
36. Mr C is waiting for a FNC decision on a further period 29 November 2020 to 23 May 2021. If the Care Provider receives any further FNC payments to forward them to Mrs D’s estate once the arrears are cleared.
37. The Care Provider should provide us with evidence it has complied with the above actions.

Back to top

Final decision

38. I have found fault in the Care Provider’s actions and contract which has caused Mr C and Mrs D’s estate injustice and loss. I consider the actions above are suitable to remedy the complaint. I have now completed my investigation and closed the complaint.
39. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman