Summary: We have not upheld Mr Y’s complaint that the Care Provider charged his mother for nursing care she did not need or receive. But the Care Provider’s contract was poorly worded and there was a delay in providing Mr Y with written information about fees. It also took too long to send Mr Y information about the complaints procedure. These faults put Mr Y to some time and trouble. The Care Provider has drawn up an action plan based on its learning from this complaint and accepted our recommendations for a remedy.

The complaint

1. Mr Y complains on behalf of his mother, Mrs X, a former resident of Hallgarth Care Home. Mr Y has Power of Attorney to manage his mother’s property and financial affairs.
2. Mrs X self-funded her placement in the care home. Mr Y complains that the fees included a charge for nursing care which Mrs X did not need or receive. The contract, and terms and conditions, were not clear and unambiguous and the Care Provider did not provide timely information about fees before Mrs X’s permanent placement started. Mr Y believes his mother was over-charged.

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The Ombudsman’s role and powers

3. 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)
4. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. If the person cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (section 26A or 34C, Local Government Act 1974)
5. We normally name care homes in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home. (Local Government Act 1974, section 34H(8), as amended)
6. Under our information sharing agreement, we will share our final decision with the Care Quality Commission (CQC).

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How I considered this complaint

7. I have spoken to Mr Y and considered all the correspondence and documents he sent to us.
8. I have taken into account the Care Provider’s comments and evidence from Mrs X’s care records as well as its correspondence with Mr Y. I have read the contract and the Service User Guide.
9. I have considered comments Mr Y and the Care Provider made in response to my draft decision.

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What I found

The background

10. Mrs X entered the care home in late February 2018 for intermediate care after she was discharged from hospital. The plan was to assess Mrs X’s cognitive ability and mobility to decide whether she could return to live in her own home.
11. The Council arranged the intermediate care placement for Mrs X. She did not pay any fees for the first six weeks of her stay.
12. The intermediate care screening tool and checklist completed in February 2018 says Mrs X was admitted to a residential bed, not a nursing bed. It says she was expected to stay for four weeks.
13. A review of the care plan in late March 2018 recorded that Mrs X could manage most personal care tasks independently. She needed help from a care assistant to take showers and had to be reminded to change her clothes and take medication. The summary of her care needs did not indicate any need for nursing care.
14. Following a further assessment, it was decided Mrs X needed a permanent residential care placement. Mr Y decided it would not be in Mrs X’s best interests to move her to a different care home.
15. Mrs X self-funded her placement in the care home from 8 April 2018. The weekly fee was £720.
16. The care home is registered with the Care Quality Commission to provide accommodation for people who require nursing or personal care. The care provider’s website says Hallgarth Care Home provides nursing care, residential care and respite care.

The duties to provide information about care home fees and the complaints procedure

17. The Care Quality Commission (CQC) regulates care providers and provides advice and guidance to those providers. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 or the ‘fundamental standards’ set out basic requirements for all care providers.
18. Regulation 16 says all providers must have an “effective and accessible system for identifying, receiving, handling and responding to complaints”. Guidance issued by the CQC says providers should ensure information and guidance about how to complain is available and accessible to everyone who uses the service.
19. The Care Quality Commission (Registration) Regulations 2009 set out further requirements for care providers. Regulation 19 covers fees. It says Care Providers must give timely and accurate information about the cost of care and treatment to people who use services (or to their personal representatives).
20. To comply with Regulation 19, care providers must make written information available about any fees, contracts and terms and conditions, where people pay in full or in part for their care, treatment and support. They must give a copy of the contract to the person using the service and/or the person lawfully acting on their behalf. The statement must:
• specify the terms and conditions in respect of the services to be provided to the service user, including the amount and method of payment of fees; and
• where applicable, the form of contract for the provision of services by the service provider;
• be in writing and, as far as reasonably practicable, provided before the services commence.

What happened

21. The Care Provider says the home manager should have discussed the weekly fees in a meeting with Mr Y when Mrs X’s permanent placement began. However, it cannot provide any evidence to confirm this happened. Mr Y says he queried the fees when Mrs X’s permanent placement started. He says he was told that nursing care was included in the standard weekly fee whether the resident needed it or not.
22. Mr Y says he received some terms and conditions in early May but did not receive the contract until 16 May. The Care Provider used the same contract for residents who receive residential and nursing care.
23. The first page of the contract sent to Mr Y states the total fee payable is £720 per week. A note says:

“You may qualify for a contribution towards the nursing element of this fee (see pages 2 and 3 of the contract)”

24. Pages 2 and 3 state that when a resident requires nursing care, the health authority will arrange for a Registered Nursing Care Assessor to assess the resident's eligibility for a Nursing Care contribution. It says any such contribution, whether paid to the home or the resident, is paid in addition to the fees for accommodation and social care.
25. The contract says if a resident chooses to enter a home that provides nursing care, but does not qualify or apply for a Nursing Care contribution, the fees will include the additional cost of nursing care commensurate with the resident’s dependency as decided by the home manager.
26. The contract says:

“You should read and make sure that you have understood the attached Contract of Admission and Residence and the Service User Guide before signing below to confirm your agreement”.

Mr Y says he did not receive a Service User Guide with the contract.He contacted the care home in June to request one but it did not reply. For this reason, he did not sign and return the contract because he could not confirm he had received and read the Service User Guide.

27. The contract says fees must be paid in advance on the first day of the month by direct debit or standing order. Non-payment of fees is a breach of contract. The Care Provider reserves the right to charge interest, on a daily basis, at 2% per annum over the Bank of England base rate from the date the fees become overdue.
28. Mr Y set up a direct debit in July 2018 to pay the care home fees. He paid the charges due for April to July 2018 in the first payment. The full monthly charge was then paid monthly from August 2018 until February 2019.
29. The contract says the Care Provider will review fees annually. Any increase comes into effect from 1 February. It must give the resident or personal representative one month’s written notice of the increase.
30. On 18 December 2018 the Care Provider wrote to Mrs X (care of Mr Y) to give notice of an annual increase in fees from 1 February 2019. The new weekly rate would be £758.16 (a 5.3% increase). The letter explained that the bulk of the additional costs were to cover staff pay awards and the employer’s contribution to staff pensions. The letter included a breakdown of its cost inflation calculation. This gave different weightings for five components, including a weighting of 24.4 out of 100 for nursing staff pay inflation.
31. In early January 2019, Mr Y wrote to query the calculation of the inflation increase. He also said Mrs X should not be charged for nursing care because she did not receive this service. He referred to the statement in the contract:

“You may qualify for a contribution towards the nursing element of this fee” (my emphasis).

Mr Y assumed the 24.4 weighting for nursing staff pay used to calculate the inflation increase applied to Mrs X’s fees. On this basis, he calculated she had been charged £175.68 per week for nursing care (24.4% of the total £720 weekly fee). He said she had been overcharged because she did not need nursing care.

32. Following reminders from Mr Y, the Care Provider responded in late January. The regional manager had reviewed Mrs X’s care records and confirmed Mrs X received residential care only. The letter said Mr Y may have been confused by the fee increase notification letter because of the reference to the increased cost of nursing staff in the inflation calculation. The Care Provider offered to waive the inflation increase for Mrs X from 1 February because of the delay in replying to Mr Y’s enquiry. The Care Provider later explained this offered as a goodwill gesture.
33. Mr Y was not satisfied with this reply. He asked for a breakdown of the £720 weekly fee. He also repeated his request for the Service User Guide which included details of the complaints procedure.
34. In late January the Care Provider sent Mr Y a service user guide and complaints leaflet. The guide was out of date.
35. Mr Y pursued a complaint through the two stages of the Care Provider’s complaints procedure between January and March 2019. He reiterated the point that the wording in the contract indicates the £720 fee included an element for nursing care. He said staff at the care home had previously told him there was a standard fee regardless of whether a resident needs nursing care.
36. In late January the Care Provider wrote to Mr Y to confirm the £720 fee was for residential care only. The letter said the £720 fee may include an element for nursing costs but only when a resident requires it, and receives it. This did not apply in Mrs X’s case. If she became eligible for funded nursing care in future, a payment of £158.16 would be made to the Care Provider on top of the £720 fee specifically to meet the cost of registered nursing care. The letter explained that Mr Y’s right to complain to the Ombudsman.
37. In early February 2019 Mr Y contacted the Care Provider to complain that it had applied the increased fee to that month’s direct debit despite telling him it would waive the increase.
38. In mid-February 2019 Mr Y met two senior managers from the Care Provider’s regional office. In early March 2019 the Care Provider sent Mr Y its final response to his complaint. It apologised for the error with the February direct debit and confirmed the extra amount had been reimbursed. It also apologised that the home manager had not discussed the terms and conditions with Mr Y at the start of Mrs X’s permanent placement in April 2018. It said there was no evidence that Mrs X needed nursing care, or that an assessment for Funded Nursing Care had been requested. The £720 fee did not include any element for nursing care and was solely for residential care.
39. Mrs X moved to another residential care home on 23 April 2019. The Care Provider adjusted the final invoice to disregard her final day in the care home. There is an outstanding balance of £2262.86 for 22 days in April 2019.

The Care Provider’s action plan

40. Following its investigation of Mr Y’s complaint, the Care Provider drew up an action plan to implement some changes. The plan includes the following:

Actions already completed

• Review and update the resident contract and welcome brochure and ensure the wording about residential and nursing placements is clear;
• Remind all home managers to discuss the need for good record-keeping and communication with all staff;
• Remind all home managers to inform appropriate relative, person with power of attorney or next of kin of Deprivation of Liberty safeguard referrals and to involve them in the assessment.

Due for completion by 31 October 2019

• Home managers and administrators to be trained on the new contract and ensure the terms and conditions are fully discussed with residents (or their relatives) and contracts are signed before the placement starts;
• Issue a welcome brochure to all residents (or their representatives) with the contract;
• Destroy all previous versions of the Service User guide, contract and welcome brochure.

Analysis

41. I found fault because the Care Provider did not meet the requirements in Regulation 19 of the 2009 Regulations:
• It did not give Mr Y a written statement explaining the fee structure and terms and conditions before Mrs X’s permanent placement started;
• It did not send Mr Y a contract until five weeks after Mrs X’s permanent placement began.
42. We also find fault when a contract is ambiguous, inconsistent or poorly drafted. I consider the wording on page 1 of Mrs X’s contract is misleading when it says:

“You may qualify for a contribution towards the nursing element of this fee….”

An ordinary reading of this sentence is that the £720 fee included an element for nursing care for which a Funded Nursing Contribution may be paid. This lack of clarity is caused by the Care Provider using the same contract for people in residential and nursing placements.

43. It was several months before the Care Provider acted on Mr Y’s request for a copy of the Service User Guide. This means he did not have access to information about the Care Provider’s complaints procedure from the time Mrs X’s placement began. This was fault and falls short of the standard required by Regulation 16 of the 2014 Regulations.
44. Although I find fault, I have seen no evidence that the Care Provider charged Mrs X for nursing care while she was a resident in the home. The care records show she was admitted to a residential bed, not a nursing bed, in February 2018. The care review records from late March 2018 do not indicate any need for nursing care and she remained in a residential bed. Pages 2 and 3 of the contract explained that if a resident required nursing care, the Care Provider would make a referral to a Registered Nursing Care Assessor. If Mrs X had needed nursing care, the health authority would have made a Funded Nursing Care payment to the Care Provider on top of the weekly £720 residential fee. This did not happen.
45. The Care Provider waived the increase in Mrs X’s fees as a goodwill gesture to recognise its delay in responding to Mr Y’s complaint. The value of this waiver is just below £360 for the period 1 February to 7 April 2019. This benefited Mrs X rather than Mr Y.
46. Before Mr Y complained to us, the Care Provider had identified learning points from his complaint and drawn up an action plan. Having seen the action plan, I see no need to recommend any additional service improvements.

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Recommended action

47. The Care Provider should apologise in writing to Mr Y for the delay in sending the contract and service user guide. It should pay him £150 to recognise his time and trouble in pursuing this complaint.
48. By 15 November the Care Provider should send us:
• a copy of the new Welcome Brochure and contract;
• evidence that it has completed all the points in the action plan by 31 October 2019.

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Final decision

49. I have upheld Mr Y’s complaint. The Care Provider acted with fault causing some injustice to Mr Y. I have completed the investigation because the Care Provider has accepted my finding and agreed to provide the recommended remedy.

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Investigator's decision on behalf of the Ombudsman