Summary: There was an error in the contract presented to Mr X which caused him to believe he would receive a refund of Funded Nursing Care (FNC) payments once paid by the NHS. The care provider has reviewed its staff training and agrees to reimburse the payments to Mr X.

The complaint

1. Mr X (the complainant) says the care provider failed to adhere to the terms and conditions of the contract for care for his father Mr Y. He says the contract, which was a factor in his choice of care home, stated he would be refunded the FNC contributions he had paid but the care provider refused to do so.

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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). If an adult social care provider’s actions have caused injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))

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How I considered this complaint

3. I considered evidence provided by Mr X and the care provider as well as relevant law, policy and guidance.
4. Mr X and the care provider had an opportunity to comment on my draft decision. I considered thei comments before making a final decision.

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What I found

Relevant law and guidance

5. Where it appears a person may be eligible for NHS Continuing Healthcare (NHS CHC), councils must notify the relevant integrated care system (ICS). NHS 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.
6. 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.
7. 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.
8. Guidance on 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. 
9. In 2018 the Ombudsman published guidance for care providers on Funded Nursing Care payments. We 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. We may also find fault where a contract contains conflicting terms.”

What happened

10. In July 2022 Mr Y moved into the care home, Aran Court, after a month in another care home to which he had been discharged from hospital. He had been assessed for NHS CHC and FNC funding while in hospital.
11. Mr X says the manager at Aran Court gave him a standard, pre-filled contract. In the contract the fees were given as:

Funding Breakdown

total gross self-funded fee - £950

less anticipated CHC or FNC - £00

self-funded fee after deduction for FNC or CHC - £950

There is an additional note saying, “the resident is liable for the full gross self-funded fees except where the FNC has been agreed and paid for by the NHS”.

Paragraph 5 of the contract said, “Where the agreed fee includes an FNC contribution, this will remain the responsibility of self-funded residents until such point that the home has received the funding from the NHS. Any payments made by self-funded residents shall be refunded should the NHS choose to backdate FNC payments”

Mr X says he checked verbally with the then care home manager if the FNC contribution would be deducted from the £950 a week if Mr Y was assessed as eligible for it, and she said it would. Mr X says the manager told him she would leave the FNC payment section blank as it had not been decided yet.

12. In November 2023 the NHS notified Mr X that FNC had been agreed for his father since leaving hospital in June 2022 but had been paid in error to the first care home. In December 2023 the NHS notified Mr X that the backdated payments for Mr Y’s nursing care would be paid direct to Aran Court.
13. In March 2024 Mr X wrote to the care home finance office to say despite the payment of the FNC by the NHS, he was still being invoiced for the £950 a week and no back payments had been made to him. As he did not receive a response, he made a complaint to the care provider asking for the refund and the deduction from the ongoing fees.
14. Mr X met officers of the care provider in August 2024. They wrote to him afterwards to confirm their view, that “The weekly fee that Avery are charging is what you had initially signed on the contract to pay. This does not include the FNC rate in the payment, this can be seen on the Appendix A in the contract. FNC is paid separately by the NHS and on top of the weekly fees”.
15. Mr X complained to us. We asked the care provider to investigate the complaint. It responded to Mr X that there was no ambiguity in the contract and no FNC repayment due. Mr X complained to us again.
16. The care provider responded to our enquiries. It says that due to human error there were two boxes completed with the same details by the home administrator. It says Mr Y was admitted as a residential placement and the home submitted a FNC application on 13 February 2023. It agrees that both the gross fee and the fee after deduction should not be the same figure. It apologises to Mr X for the confusion but says there is no reason to reimburse as it was a residential placement. It says there is no ambiguity in its terms and conditions.
17. The care provider also says it has revised its staff training to avoid a recurrence of this situation.
18. Mr X says, “Avery now contends that the FNC payments subsequently awarded and received must be added to the total weekly fee because the contract states an FNC value of zero. However, Section 5.4 of the contract does not specify that this approach applies in cases where the FNC value is listed as zero.”
19. Mr X also says, “Throughout this period, Avery continued to provide care and nursing services without the benefit of these FNC payments. This suggests that Avery deemed the agreed-upon fees sufficient to cover these services…. It is difficult to believe that Avery would have provided nursing care free of charge to a self-funded resident for such an extended period.”

Analysis

20. There is nothing in the signed contract to indicate this was a residential placement. The NHS backdated the FNC to June 2022 when Mr Y left hospital in accordance with Mr X’s statement that an FNC assessment was completed before he was discharged to the first care home. It is unclear why the care provider made a further application 8 months later but that in itself is not relevant to this matter: the application had already been made and granted although there was an error on the part of the NHS in paying it to another care home. If any confusion arose there it was between the care provider and the NHS. It was not Mr X’s fault.
21. Mr X signed the contract in the expectation that once the FNC assessment was completed, if FNC was agreed and backdated then the care provider would reimburse that amount. That was in line with the clause in the contract which says “Any payments made by self-funded residents shall be refunded should the NHS choose to backdate FNC payments”. Again, it was not Mr X’s fault that there was an administrative error on the part of the care provider.
22. The NHS did choose to backdate the payments. The care provider did not make it clear to Mr X that the amount he agreed to pay did not include the nursing contribution. In his view, according to the contract he signed, he was paying the “full gross self-funded fees” until such time as the NHS paid the FNC.

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Action

23. The care provider agrees that within one month of this final decision it will abide by the contract and reimburse the FNC payments it has received to Mr X.
24. The Care Provider should provide us with evidence it has complied with the above actions.

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Decision

25. I have completed this investigation on the basis the actions of the care provider caused injustice to Mr X, which completion of the recommendation at paragraph 23 will remedy.

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Investigator's decision on behalf of the Ombudsman