The Ombudsman's final decision:
Summary: There was a lack of clarity on the care provider’s part in drafting the contract for Mrs X which led Mr X to believe it would refund the backdated Funding Nursing Care (FNC) payments. The care provider should reimburse the payments as the original signed contract said.
- Mr X (as I shall call the complainant) complains that the care provider increased the fees for his mother’s care significantly over a twelve-month period and failed to honour the terms of the contract which said that it would reimburse FNC payments once awarded.
The Ombudsman’s role and powers
- 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. (Local Government Act 1974, sections 34B and 34C)
- If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
How I considered this complaint
- I considered the written information provided by the care provider and by Mr X. I spoke to the care provider. Both parties had an opportunity to comment on this draft statement and I considered their comments before I reached a final decision.
What I found
- The NHS is responsible for meeting the cost of care provided by registered nurses to residents in all types of care homes. Council funded and self-funding residents who need to move into care homes with nursing should have a comprehensive assessment to identify any nursing needs, including the possible need for NHS-funded continuing healthcare (CHC) or for NHS-funded nursing care (FNC). FNC was funded at a single rate in 2017/2018 of £155.05 per week
- 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.
- The CQC guidance says that providers “must give people information about the terms and conditions of their care, treatment and support, including the expected costs…providers must notify people of any changes to their terms and conditions including increases in fees and give them sufficient time to consider whether they wish to continue with the service”.
- In January 2018, the Ombudsman issued guidance for care provides on FNC payments. We said, “we are likely to find fault where a contract term is ambiguous, inconsistent or poorly drafted”. We also said it was acceptable to issue a new contract if circumstances change, as long as a person has time to decide whether they can afford any increase. We said “A resident’s contribution could stay the same or fall when FNC comes into effect. What happens depends on the care provider’s terms and conditions. The contract needs to explain how care providers treat FNC payments.”
- Mrs X moved into the care home in November 2016, for residential dementia care. Mr X says although he kept asking for a contract it was not until April 2017 that the care provider issued a contract. The terms of the contract said the fees would be £600 a week. In the section “pre-admission” it said, “You consent to undergo an assessment in respect of Free (sic) Nursing Care. Any resulting Free Nursing care payments will be remitted to you up to one month after receipt of any such payments to us.”
- In July 2017 the care provider increased Mrs X’s fees to £850 a week. The care provider says when the new management had taken over the home in January 2017 its CQC rating was “bordering on inadequate”. The care provider says to improve the home, this meant “increasing staffing levels, refurbishing the building, investing in staff training, equipment and other operational necessities. In order to make these drastic improvements, the baseline cost of care was increased to align with the regulatory requirements.” The care provider says the initial fee of £600 for Mrs X was no longer viable.
- On 1 March the care provider wrote to Mr X and said the fees would be increased again to £950 a week.
- Mrs X’s needs increased and the care home manager asked the NHS to undertake an assessment for FNC. The Nurse Assessor wrote to Mr X on 27 March and said that Mrs X was eligible for FNC payments which would be backdated to 20 September 2017.
- In April the care provider sent Mr X an invoice at the increased rate of £950 a week. Mr X wrote to the care provider querying the invoice, which was incorrectly calculated. The care provider responded that she would recalculate the invoice. She said she understood the fee rise was “disappointing” but said the cost of care had risen dramatically. She added, “the FNC for (Mrs X) has not come through.” She added that Mrs X had not moved into a larger room as planned because of delays on necessary works and so for that reason she would reduce the fees to £900 a week until the move.
- Mr X wrote on 23 April and asked that the FNC be included on the next invoice. He also spoke to the care provider by telephone on 25 April. He emailed afterwards and said he understood from the conversation that the care provider would be updating the contract in respect of the FNC payments. He added, “The main point I want to make sure that the contract is clear not ambiguous as to the costings”.
- The care provider reissued the contract on 6 May, which Mr X received on 18 May. The contract now said, “Once approved for Nursing care as approved by the NHS, the weekly fee rate will be £900 a week, which would be exclusive of the “Funding Nursing Care” component paid by the NHS to Diva Care”.
- Mr X contacted the care provider on 4 June by email. He said, “our original contract did include Free NHS care”. He said he would not sign the new contract or agree the new terms until the refund of FNC (which he calculated as £5,316 between September 2017 and May 2018) had been paid. He described the care provider’s approach to funding as “a finger in the air”.
- The care provider emailed Mr X on 25 June. She said, “I understand there has been a misunderstanding over the wording of the contract however I have amended it and also explained the stance regarding the fees many times.”
- Mrs X moved from the home. Mr X complained to the Ombudsman that the care provider had failed to honour the original contract and that its approach to invoicing was poor.
- The care provider says she contacted Mr X to explain “that the wording of the contract is not relevant to (Mrs X's) case as she was not classed nursing when she was admitted. Therefore her invoices did not account for any FNC that could be refunded then. I also explained that the FNC element is free of cost to (Mrs X) as Diva Care Ltd. did not charge her separately for FNC. Her weekly fee of £950.00 was exclusive of FNC. Therefore the refund was not applicable. I spent a long time over the phone explaining to (Mr X) on 04/06/2018 the rationale behind the fee increase and he confirmed that he was satisfied with the cost”.
- The care provider says between September 2017 and March 2018 it was providing nursing services to Mrs X for free as it did not increase her fees then. The care provider says the fee increase to £950 a week from April (which it then reduced to £900) was to take into account the increase in the wage bill and living costs.
- The care provider says that its business should not be penalised for what it calls a “small ambiguity” in the contract terms.
- The contract which Mr X and the care provider signed in April 2017 clearly said that FNC payments would be remitted if awarded after an assessment. The care provider says this did not apply to Mrs X because she was not a nursing patient at the time. While I understand the contract was written on the general basis that nursing care would be provided to a resident in the interim, before the award of FNC, that is not what Mrs X’s contract says. Either the contract itself was ambiguous, or the care provider issued the wrong contract: the care provider was at fault either way. Mr X was entitled to understand the contract as it was written.
- The care provider altered the contract once it had confirmation the FNC payments had been granted. That does not comply with the regulations which say people must be given sufficient notice of a change in terms and conditions to consider whether they want to continue with the service.
- Within one month of this final decision the care provider should honour the terms of Mrs X’s contract and pay to Mr X the amount of FNC payments it received between September 2017 and May 2018.
- The care provider should ensure in future that its contracts are unambiguous. Within one month of this final decision it will explain to me the system it will put in place to ensure that it gives people sufficient notice about charges to terms and conditions.
- There was fault on the part of the care provider which caused injustice to Mr X.
Investigator's decision on behalf of the Ombudsman