Summary: Mr B complains on behalf of his sister in law Mrs C, that the Care Provider did not deal properly with charges for Mrs C’s care before she died. The Care Provider was not clear about its charges. The Care Provider should pay Mrs C’s estate £7275.34 and review its procedures.

The complaint

1. The complainant, who I shall refer to as Mr B, complains on behalf of his sister in law Mrs C that the Care Provider retained Funded Nursing Care and Continuing Health Care payments and did not pay them to Mrs C.

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The Ombudsman’s role and powers

2. We investigate complaints about adult social care providers. If there has been fault, we consider whether it has caused an injustice and, if it has, we may suggest a remedy. (Local Government Act 1974, sections 34H(3) and (4), as amended)
3. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

5. I have spoken to Mr B about his complaint and considered the information he has provided to the Ombudsman. I have also considered the Care Provider‘s response to his complaint and its response to my enquiries.
6. I have considered the Ombudsman’s Guidance for care providers, published in January 2018, about FNC payments.
7. I gave the Care Provider and Mr B the opportunity to comment on my draft decision. I considered the responses and additional evidence provided by the Care Provider and Mr B.

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What I found

Funded Nursing Care

8. An NHS screening assessment will establish whether a person has nursing needs. If they do, the NHS will pay for the nursing element of care in a nursing home.
9. This is referred to as a Funded Nursing Contribution to the overall cost of the care. Funded Nursing Care (FNC) is the amount the NHS pays for nursing care in a care home.
10. In some circumstances, the NHS is responsible for meeting the full cost of someone’s care in a home: this is referred to as NHS Continuing Health Care (CHC) or fully funded health care.
11. When the Ombudsman looks at complaints about FNC, we will consider the contract between the home and the resident and any information provided at the start of the placement. There is no automatic right to a refund or fee reduction when FNC is awarded as this will depend on what the person’s contract says. When investigating complaints about fees, we will consider the contract on an ordinary reading.

What happened

12. Mrs C lived with in a care home which closed, and she had to move. Mr and Mrs B looked for alternative accommodation for Mrs C and Mr B attended an open day with the Care Provider.
13. Mrs C moved in with the Care Provider in February 2018. She received FNC from the end of July 2018 until her death in March 2019.

Analysis

14. Mr B emailed the Care Provider after the open day. He stated that fees had been discussed and the Care Provider agreed it would match those currently being paid with the first week free.
15. Mr B says the Care provider told him the charges for Mrs C’s care would be the same as the home which she had to leave.
16. The Care Provider says it discussed the charges for Mrs C with Mr B at the open day. The Care Provider says it clearly explained that it would match her existing care charges before Funded Nursing Care (FNC) payments for 12 months.
17. Evidence from the Care Provider shows it replied to Mr B saying, “everything is confirmed as per your email.”
18. The Care Provider sent me an internal email dated January 2018 and indicates the Care Provider believed it had explained its charges to Mr B. The internal email does not prove that Mr B had understood the Care Provider’s charges. There is no reference to Mrs C.
19. The Care Provider also sent me screenshots of its database indicating that entries were recording stating that the family understood that the Care Provider would keep any FNC payments.
20. The contract with the Care Provider was signed by Mrs C in February 2018. Mrs C signed the contract twice which was unnecessary. She also dated her signature incorrectly as at 2008 on both occasions.
21. The manner in which Mrs C completed the contract indicates that she may possibly not have clearly understood what she was signing. I am unable to come to a conclusion about this on the evidence available. The contract was not marked as having been copied to Mrs C or her representative.
22. The contract document refers to the Care Provider’s Service User Guide (SUG). The SUG sent to me by the Care Provider is dated August 2019 and states that its fees will be £1100 plus FNC.
23. Mr B gave me a copy of the SUG that was provided to Mrs C when she signed the contract. The SUG sent to me by Mr B is dated December 2017 and states that fees will be from £1000 per week. There is no mention of how FNC payments will be dealt with.
24. Between December 2017 and August 2019, the Care Provider updated its SUG to include details of how it dealt with FNC payments.
25. The contract states that it is for nursing care and that gross fees will be £1050 per week. I consider the implication is that all cost elements were included within this amount. There is no indication that the level of care provided changed while Mrs C was with the Care Provider. The Care Provider agrees the level of care did not change.
26. The contract has a question mark by the FNC section, which has been crossed out and the amount of £155.05 inserted at a later date. Mr B says he added this information himself, in the presence of the Care Provider.
27. The contract that Mrs C signed, only stated one amount of £1050 at the time she signed it, clearly marked as the gross amount. The SUG that Mrs C was given made no reference to how FNC would be treated.
28. The later amendment to the contract did not change the gross charge stated or indicate that FNC payments were separate from it.
29. The Care Provider did not ask Mrs C to sign a new contract stating the clear total amount when Mrs C began to receive FNC payments. I have therefore used the contract signed by Mrs C in 2018 and the SUG provided at the same time as the basis for determining whether there was fault or not.
30. Information recorded by the Care Provider indicates it believed Mr B understood that it would keep FNC payments. The actual information communicated to Mr B shows FNC payments were not referenced. The Care Provider confirmed to Mr B that fess were as per his email, which referred to invoices from Mrs C previous care provider.
31. The contract and SUG given to Mrs C in 2018 did not specify how FNC payments would be treated. At the time the contract was signed, in conjunction with the earlier emails, it created an expectation that the cost to Mrs C would be the gross cost stated, less any future FNC. The later amendment to the contract did not change this.
32. Mr B says the Care provider should re-imburse him for a further period where he says Mrs C was eligible for FNC and also a CHC payment.
33. Account information from the Care Provider shows it received FNC payments totalling £7275.34 and that it did not receive any CHC payments.
34. The Care Provider did not make its charges clear or state how it treated FNC payments in its contract or SUG. Mrs C paid the full amount stated in her contract for the care and the Care Provider retained FNC payments for her amounting to £7275.34. The Care Provider has since updated its contract documentation to outline clearly how FNC is treated.

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Recommended action

35. To remedy the injustice caused by the fault I have identified, I recommend the Care Provider should take the following action within 4 weeks of my final decision:
• Pay £7275.34 to Mrs C’s estate in respect of FNC payments it retained.
• Review contracts for all residents to ensure they are clear about how FNC payments are treated and consider issuing new contracts if necessary.

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Final decision

36. I have found fault by the Care Provider in the way it dealt with charges for Mrs C’s care because it did not make its charges clear or state how it treated FNC payments in its contract or SUG. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman