Summary: The care provider calculated the refund to Mrs A’s estate but did not refund the whole amount she had paid for the six days between the award of full NHS funding and her death. It should reimburse the outstanding amount. It should also have explained more clearly why there was a delay between November and April in its responses. The care provider should apologise to Mr X and Mrs Y for that delay.

The complaint

1. Mr X and Mrs Y (as I shall call the complainants) say the care provider failed to calculate correctly a refund of fees to their late aunt’s estate, of which their severely disabled cousin is a beneficiary.

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

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How I considered this complaint

4. I considered the written information provided by Mr X and Mrs Y and by the care provider. Both the care provider and the complainants had an opportunity to comment on earlier draft statements and I considered their comments before I reached a final decision.

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What I found

5. 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.
6. The guidance says that care providers should give service users and their representatives timely and accurate information about the cost of care and treatment. It says care providers must make available written information 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 (Regulation 19.1)
7. The contract which was signed for Mrs A says at clause 13, “In the event of your death, any fee outstanding will be charged to your estate. If you are on a long term stay the fee will continue to be charged up to and including 14 days following the date of your death. If you are on a short term stay the fee will be charged up to and including 3 days following the date of your death.”
8. The NHS can provide continuing healthcare at home or in a care/nursing home. The NHS is responsible for meeting the full cost of care in a care home for residents whose primary need for being in care is health-based. The 2012 Regulations say the NHS should assess for NHS Continuing Healthcare (CHC) where it appears somebody may be in need of such care.
9. The NHS Regulations also say, “NHS care is free at the point of delivery. The funding provided by CCGs in NHS Continuing Healthcare packages should be sufficient to meet the needs identified in the care plan. Therefore it is not permissible for individuals to be asked to make any payments towards meeting their assessed needs.”

What happened

10. Mrs A was a resident at the Manor House care home. On 9 August 2017 she was admitted to hospital. She was discharged back to the care home (to a different room close to the nurses’ station due to her deteriorating health, the care provider says) on 23 August for palliative care. An assessment for CHC funding was completed while she was in hospital and she was deemed to be eligible. On 15 September the NHS notified the care home that CHC funding had been awarded with effect from 29 August 2017.
11. Mrs A died on 3 September. Her family had already paid her full fees for August and September 2017. Mr X and Mrs Y were the executors of her will.
12. On 15 November the care provider wrote to the family with a credit refund form for £1520.
13. On 17 November Mr X wrote to the care provider asking for a fuller explanation of the refund amount. He said CHC funding had been agreed while Mrs A was in hospital but this was not reflected in the refund. He said the room had been cleared on 4 September. He also said there was a charge for telephone line for October, after Mrs A’s death and for September when the telephone was not used.
14. Mr X did not receive a response. On 23 April 2018 Mrs Y wrote to the care provider. She said she was appalled that there had been no reply, and said it was the only outstanding matter before the estate could be settled.
15. On 25 April the care home administrator wrote to Mrs Y with a revised credit refund form. She referred to a telephone conversation she had had with Mr X some months previously. The revised form showed a refund for September 2017, and a refund for the period from 29 August when CHC funding was paid.
16. The complaints manager also responded to Mrs Y on 26 April apologising for the delay and distress caused. She undertook to investigate the complaint and respond within 20 working days.
17. Mrs Y wrote again to the care provider. She said Mrs A had been under the care of the NHS since 9 August (first in hospital, then CHC funded) so it was unclear why the refund was from 29 August. She asked why the refund was for £1531 for the remainder of the month’s fees, when Mrs A paid £3534.
18. The care provider did not respond to Mrs Y within 20 working days. Mr X and Mrs Y complained to the Ombudsman.

The complaint response

19. The care provider’s regional director then responded to Mr X and Mrs Y on 29 August, apologising for the delay. She said the care provider had not received the letter of 28 November which queried the original refund details and she could only assume the care home administrator had been waiting to be told that probate was cleared.
20. The director said the care provider had been unable to refund the CHC money until it was received from the Clinical Commissioning Group (CCG) which was not until March 2018. She said the CHC money was £545 which was for the period 29 August to 03 September. She explained that in accordance with clause 10 of the contract, “the full fee is required to be paid by the resident however, as long as the authority pays the authority contribution, Bupa will charge the fee less the authority contribution to the resident.”
21. The director also said the discount for the second week of Mrs A’s hospital stay had now been applied, which amounted to a refund of £94. She said the telephone line refunds for September and October had now been applied to the account. In summary she said there was a refund due of £2181.84, made up of two months’ telephone charges (£21), CHC funding (£545.10), 10% reduction fee for 8 days in hospital (£94.10) and refund of overpaid fees for September (£1520.90).
22. Mr X and Mrs Y said that the refund was still incorrect. They said they had cleared Mrs A’s room on 4 September and her previous room was uninhabitable due to building works so there was no reason to charge the additional 14 days. They said the home manager had spoken to Mr X in the months between the November and April letters so it was untrue for the care provider to say it was unaware of the issues. They also asked why Mrs A had effectively been charged a “top-up” over and above the CHC funding, and said they did not understand why the CHC funding was not available from 23 August 2017 when she returned to the home.
23. The care provider says its charges (to which Mrs A was contracted before the assessment for CHC funding) were £824.60 a week: CHC funding to the home was £635.95 a week. The CCG paid to the care provider £545.10 in March 2018. The care provider says at the time of death, Mrs A was “fully self-funding”
24. The care provider says although the agreed CHC rate pays for the full cost of meeting assessed needs it does not always cover the whole cost of the room at the home: it says the home has rooms of differing standards and while some would be charged at the CHC rate, others (such as Mrs A’s room) would be charged at a higher rate. It says “At the point CHC funding is granted, usual practice is to discuss with the resident or their representative what the true cost of their room is, whether this is covered by CHC funding, or whether an enhanced fee is applicable to the room. At this point, if an enhanced fee is applicable, the resident can decide whether to stay at the Home and pay the enhanced fee for a better-quality room, move to a more basic room which is covered by CHC (if available) or to seek alternative accommodation. In this case, these conversations could not take place because Mrs A had sadly passed away by the time CHC was granted. Clause 10.3 in Bupa’s terms and conditions is specifically drafted for circumstances where CHC or LA funding is backdated”.
25. The care provider continues, “there was no opportunity or need to assess the viability of the placement continuing at the CHC rate.  Mrs A was a self funding resident for the duration of her stay, and the backdated CHC payment of £635.95 provided by the CCG was accepted as full payment of the care element and basic hotel cost only of Mrs A’s room fee of £824.60 in those circumstances.”

Analysis

26. There was a long delay between the letter which Mr X sent in November 2017 querying the refund calculation, and the written response in April 2018. Although the care home administrator had spoken to Mr X in the meantime, the care provider should have clarified the delay and the timescale for the CCG payment of the CHC funding.
27. The CCG paid the care provider for the period 29 August to 03 September. If Mr X and Mrs Y disputed the dates for which Mrs A was eligible, they were able to challenge the CCG decision. That was not a matter for the care provider.
28. However, at the point the CCG assessed Mrs A as eligible for CHC, it contracted with the care provider and paid the care fees at the rate agreed between the CCG and the care provider. The CCG’s contract with BUPA superseded the contract Mrs A had with BUPA. In effect the care contract which Mrs A had with BUPA ended when the CCG commissioned the placement. The NHS regulations are clear that someone cannot be asked to contribute towards the cost of meeting their assessed needs.
29. It is not enough for the care provider to say it would have discussed a change of room with Mrs A had she lived: no-one can determine the outcome of that conversation. Although the care provider says that CCGs can take a very long time to assess and decide eligibility, that was not the case here. It was only three weeks before Mrs A’s return to the care home and the arrival (after her death) of the letter from the CCG. However, Mrs A had paid her fees in advance: there is no reason the CCG would have been aware of that.
30. The contract with the care provider was clear there would be a fee charged for 14 days after death in the case of a long stay resident. It was not fault on the part of the care provider to adhere to that clause even though the room was cleared on the day following Mrs A’s death, and the care provider explained why in its letter to Mr X and Mrs Y.

Recommended action

31. Within one month of my final decision, the care provider should reimburse the difference between the amount Mrs A had already paid for the period 29 August to 03 September, and the amount it received from the CCG, as well as the remainder of the refund which has already been agreed;
32. Within one month of my final decision the care provider should apologise to Mr X and Mrs Y for the failure to explain clearly and in writing the way in which the refund was calculated;
33. Within one month of my final decision the care provider should review the way in which its contract is worded and ensure that it complies with the NHS regulations (see paragraph 9);
34. Within one month of my final decision the care provider should explain how it plans, going forward, to ensure that it adheres fully to the terms of regulation 19.1 which requires that it provides “timely and accurate” information about the costs of its services.

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Final decision

35. There was fault on the part of the care provider. The injustice caused will be remedied by the fulfilment of the recommendations at paragraphs 31 and 32.

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Investigator's decision on behalf of the Ombudsman