Summary: The Ombudsman has not found evidence of fault in the way the nursing home dealt with funded nursing care, its offer of rooms and the contract. The Home has already upheld a complaint about the care and records on 21 April 2018 and has responded appropriately so the Ombudsman does not recommend a further remedy.

The complaint

1. Ms K complains on behalf of her father Mr L about Beech Lodge Nursing Home in Spalding. She says the Home received a funded nursing care fee from the NHS, but failed to deduct this from the fees that her father paid. She also complains about the care Mr L received and the Home’s offer of rooms and its contract.

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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)

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How I considered this complaint

3. I have read the documents that Ms K and the Home have sent and the relevant law, guidance and policies.

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What I found

4. The regulations are set out in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. The Care Quality Commission has provided guidance on the regulations. This says that:
• The care and treatment of service users must be appropriate, meet their needs and reflect their preferences (regulation 9).
• Service users must be treated with dignity and respect (regulation 10).
• The care and treatment must be provided in a safe way for service users (regulation 12). Risk assessments relating to the health, safety and welfare of people using services must be completed and reviewed regularly by people with the qualifications, skills, competence and experience to do so. This includes assessing the risk of, and preventing, detecting and controlling the spread of infections.
• The nutritional and hydration needs of the service user must be met. (regulation 14).
• Any complaint must be investigated and necessary and appropriate action must be taken in response to any failure identified (regulation 16).

Charging rules

5. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance 2014. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees.
6. 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 or for NHS-funded nursing care (FNC).
7. Funded Nursing Care (FNC) are payments from the Department of Health to nursing homes for nursing care. Payments are administered by the local Clinical Commissioning Group and are made to the care provider, not the resident.

Guidance on consumer law

8. The Competition and Markets Authority (CMA) has written a document ‘Care homes: consumer law advice for providers.’
9. This provides guidance on how care homes should approach FNC payments in their contracts. The Ombudsman has also written guidance on the topic.
10. The CMA guidance says contracts between residents and care homes should include transparent and fair terms governing and should explain how the care home treats FNC, when the resident is self-funded. The Ombudsman takes a similar approach. If there are no terms about FNC in the contract or if the terms are ambiguous, the Ombudsman may find fault.
11. The CMA guidance says homes can ask for a reservation deposit if it is used to protect the home against the loss it may incur as a result of the resident not moving into the home after a contract has been agreed.

What happened

12. Mr L moved into the Home in March 2017.
13. Mr L had a stroke and needed care and support in all aspects of daily living. His care plan provided details on risk assessments and how to meet Mr L’s needs in the following areas: communication, incontinence, medication, risk of falls, moving and positioning, bed safety, nutrition, personal care, risk of skin damage, sleep and rest.
14. The plan said Mr L was bedbound and incontinent. He needed the assistance of two staff to meet all his care needs, including personal care and continence. Staff had to assist him in eating and drinking. Staff had to reposition Mr L 2 hourly during the day and 4 hourly during the night.
15. Mr L was seen by a speech and language therapist in August 2017, July 2018 and October 2018 to assess and give advice regarding swallowing.
16. The Home kept daily records of Mr L’s food and liquid intake, position change and continence which recorded the times assistance was given. They also provided daily records for personal care but these did not record the times.
17. The Home showed me the contract between Mr L and the Home. This said: ‘Where Funded Nursing Care (FNC) and incontinence charges are shown these charges are between the charging Authority and Country Court Care Group, they are not included in the Resident’s charges.’
18. Ms K complained to the Home on 21 April 2018. She said she visited Mr L that evening and he had not been washed and had food dried on his face. When Ms K went to the toilet, she found wipes with faeces above the toilet and said there were no paper towels in the toilet to dry her hands. She said she found Mr L’s daily charts were screwed up in the room and covered in food.
19. The Home replied on 2 May 2018 and said:
• It apologised for the state that Mr L was in when Ms K visited him. The Home said that Mr L was reluctant to have his meal and was trying to spit the food out. As Mr L was getting distressed, the staff left him and then came back later and Mr L finished the meal. The carer said she had ensured that Mr L’s mouth was clean before she left the room, but it may be that he held some food in his mouth.
• It had changed Mr L’s care plan to ensure that care staff should always check that Mr L’s mouth was empty of food after a meal.
• It had drawn attention to the incident during a debriefing session with all staff to ensure that staff prioritised the dignity of residents.
• Staff used a basket while assisting Mr L in continence care. They had not checked the condition of the dry wipes cover after they used it for continence care. They ran out of paper towels towards the end of the shift and forgot to refill it.
• It accepted that the care charts had been screwed up and left in the room covered in food. It said staff had not been aware that the forms were detached from Mr L's folder and said the stains must have been caused by accident when staff gave Mr L his drink.
• It had spoken to all staff, following the incident, about keeping the resident’s folder in proper condition and in safe storage. It said senior carers should ensure regular record checks during their daily rounds. It started a new system where a resident’s jug and cups were kept away from the folder. Staff were reminded how to handle food so as not to cause accidents or spillages.
20. In April 2018 the Home applied for an assessment of Mr L’s eligibility for NHS continuing healthcare. The local Clinical Commissioning Group (CCG) wrote to Ms K on 31 May 2018 with the outcome of the assessment. It said Mr L was not eligible for continuing healthcare but he was eligible for funded nursing care (FNC) of £158 per week and a £8 continence payment per week.
21. The CCG said a registered nurse was involved in the assessment, care planning, monitoring and evaluation of his day to day needs, specially related to cognition, skin integrity, nutrition and administration of medicines.
22. Ms K complained to the Home on 9 December 2018, via her MP.
23. She said the Home had not deducted the FNC and continence payment from the weekly payment that Mr L made. She said she questioned this and was told that it was because he had an en-suite room. Ms K questioned why Mr L had an en-suite room as Mr L was bedbound and she asked whether he could be moved to a cheaper room.
24. The Home replied on 18 December 2018 and said:
• Mr L did not have any nursing needs when he was first moved to the Home. It said that, later on, the Home identified that Mr L started to have nursing needs and therefore made the application for the assessment which led to the payment of the FNC and continence amounts.
• The FNC paid for the nursing care that Mr L received. It referred to the contract which set out the Home’s position on FNC.
• A cheaper room was not currently available but it could prioritise Mr L when a room became vacant.
25. Ms K made an adult safeguarding referral to the council on 3 January 2019. She said Mr L had contracted scabies. She said Mr L was bedbound and did not leave the room and therefore the infection must be caused by inadequate standards of hygiene at the Home. She was aware of at least two other residents with a rash.
26. The Home responded to the council on 5 February 2019 and said that Mr L and three other residents had been diagnosed with scabies on 1 February 2019. This was not caused by poor hygiene. The Home had been proactive in managing the situation by immediately consulting the GP when staff noticed changes in Mr L’s skin and by contacting the appropriate authorities.
27. The council was satisfied with this response. It said the matter did not meet the threshold for a safeguarding investigation and closed the case.
28. Ms K contacted the Ombudsman on 3 January 2019 to complain about the Home. She said:
• Mr L moved into the Home from hospital. He had to pay for a week before he moved into the Home as his hospital stay had been extended. He was told the Home would not keep the room unless he paid.
• The family had no choice in the room he received. He moved into an en-suite room although he lacked the mobility to use the facilities.
• When Mr L visited Mr L on 21 April 2018, there were concerns about his care and poor hygiene. She had complained about this incident.
• There had been further incidents of a similar nature since then. When Mr L visited Mr L on 26 December 2018, he had not been washed and his charts had not been completed.
• Mr L received FNC but that had not affected the amount he paid to the Home.
• The Home did not employ a registered nurse.
• The Home had asked her to sign a contract for residential care, but Mr L needed nursing care.
29. The Home replied on 22 February 2019 and said:
• Mr L was admitted to the Home on 2 March 2017 and paid from 1 March 2017. When more than one person was waiting for a room, the Home would offer the room to those who paid a reservation fee.
• There were two rooms available when Mr L wanted to move in and Ms K chose the room he moved into. Two cheaper rooms became available on 18 February 2019 and Ms K then chose one of those rooms and Mr L moved into the room on the next day.
• The Home had already responded to the complaint about the visit on 21 April 2018.
• In terms of the care and the records in December, the Home said this complaint was not substantiated, but it apologised and said the manager would do regular spot-checks in the future to ensure there were no shortfall.
• The Home employed a registered nurse and she met the nursing needs of the residents who had such needs.
• FNC was paid directly to the provider to meet additional nursing needs. It did not affect the fee for the residential care. This was also set out in the Home’s contract.
• The Home had one contract for all residents, whether they had nursing needs or not. Mr L was asked to sign a new contract when Mr L moved into a different room, but the content of that contract would have been the same as the previous contract.

Analysis

30. In terms of the care provided, the Home has already upheld Mr L’s complaint about what happened on 21 April 2018 and I agree there was fault on that day. The Home acknowledged this and has taken appropriate action to remedy. It reviewed Mr L’s care plan, changed the way staff worked and spoke to all staff during a debriefing session to ensure staff understood the lessons learned from the complaint. Therefore the Home responded appropriately to the problem identified and the Ombudsman would not suggest any further remedy.
31. Mr L says there were other occasions when Mr L’s face was not clean and his records were not filled in. She says that on 26 December 2018, she visited Mr L and he had not been washed and his chart had not been completed.
32. Unfortunately, the records do not say when Mr L received personal care except to record that the main personal care was done sometime after he woke up in the morning and a more limited personal care was provided before he went to bed in the evening. I have looked at the records on 26 December 2018 and they were filled in. Mr L received personal care but I appreciate that it may have been later in the day. On the evidence that I have seen, I cannot find evidence of fault. In any event, I note the Home agreed to carry out extra spot checks after Ms K’s complaint.
33. Ms K also complains that the FNC was not deducted from the fees Mr L paid to the Home.
34. The Ombudsman’s starting point with FNC complaints is to look at the contract and any information given to the resident when they moved in. We interpret contracts on an ordinary reading, If the contract does not mention FNC or if there are conflicting terms or ambiguous or inconsistent terms, then we may find fault.
35. However, in this case there was a term about FNC in the contract. It explained clearly that the FNC was not included in the resident’s charges and was between the Home and the charging authority. Therefore, I do not find fault in the Home’s approach to FNC.
36. Finally, Mr L complains about the reservation fee and the lack of choice of room. I have not found fault in the Home’s actions relating to this. The Home charged Mr L for one night as he moved into on 2 March 2017, but the Home agreed to keep the room from 1 March 2017.
37. Mr L then wanted to move Mr L to a cheaper room but there was no room available. I cannot find fault in that. Care homes have limited availability of rooms and demand often exceeds supply. The Home could only offer the rooms that were available.
38. I also find no fault in the fact that the Home did not offer Mr L a different ‘nursing home’ contract. The additional nursing care provided may be reflected in the care plan, but it may not be reflected in the contract. The contract would set out the legal relationship between the resident and the Home, which would be standard for all residents. The care plan would give the details of the care that would be provided.

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Final decision

39. I have completed my investigation and have not found fault by the Home.

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Investigator's decision on behalf of the Ombudsman