The Ombudsman's final decision:
Summary: There was some delay before Mrs X was assessed for NHS funding but that did not cause any injustice. The fee waiver already offered by the care provider is sufficient to remedy the inconvenience caused by the delay.
- Mrs A (as I shall call the complainant) complains that the care provider delayed in applying for NHS Funded Nursing Care (FNC) or Continuing Health Care (CHC) for her mother in law Mrs X. She says she believes the delay cost Mrs X financially.
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)
How I considered this complaint
- I spoke to Mrs A. I considered the information provided by the care provider. Both Mrs A and the care provider had an opportunity to comment on an earlier draft of this statement before I reached a final decision.
What I found
Relevant law and guidance
- The NHS Funded Nursing Care Practice Guide 2013 says “NHS Funded Nursing Care, introduced in October 2001 is the funding provided by the NHS to care homes providing nursing, to support the provision of nursing care by a registered nurse for those assessed as eligible.... the need for care from a registered nurse should be determined. If the individual has such a need and it is determined that the individual’s overall needs would be most appropriately met in a care home providing nursing care, this would lead to eligibility for NHS- funded nursing care. Once the need for such care is agreed, the CCG’s responsibility to pay a flat rate contribution towards registered nursing care costs arises”
- Eligibility for FNCs is by assessment. Payments are administered by a resident’s local Clinical Commissioning Group (CCG) and are made directly to the care provider. The resident does not receive any money directly.
- NHS continuing healthcare (NHS CHC) is a package of care arranged and funded solely by the health service in England for a person aged 18 or over to meet physical or mental health needs that have arisen because of disability, accident, or illness.
- Attendance Allowance is available to people who have reached State Pension age and have care or supervision needs because of an illness or disability.
- 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.
- The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative.
- Mrs X suffers from dementia and from Parkinson’s disease. After some time being cared for at home she was admitted to the Bowburn Care Centre as a self-funding resident to a residential placement.
- A pre-admission assessment was completed for Mrs X on 2 February 2018 with the involvement of her family. Mrs X’s daughter signed the care plans which were completed on admission (Mrs X’s keyworker was noted on the care plan). The records show the care plans have been reviewed on a monthly basis since. The care provider says there was no indication at admission that Mrs X had nursing needs, although visiting professionals (such as the Parkinson’s team, the mental health team, the Community Matron) were involved in her care.
- Mrs A says she asked the social worker who was involved in the home’s DoLS application for Mrs X if there was any NHS funding available for her. The social worker said she did not think so. Mrs A also asked the home manager, who told her about Attendance Allowance (which they obtained for Mrs X).
- Mrs A says at the start of 2019 Mrs X seemed to deteriorate further and become increasingly agitated. She says she asked the manager about referring Mrs X for NHS CHC funding. She says the manager told her she had made the referral but the District Nurses said they had not received anything. Mrs A says there was at least a three-month delay before the referral was made.
- A nurse assessor visited Mrs X in July 2019 and completed the checklist for her eligibility for CHC funding. She wrote to Mrs X on 9 July saying she was eligible for FNC payments (but not for CHC funding), with effect from 1 July 2019. The FNC payments were made direct to the care provider for the provision of nursing care.
- The care provider says Mrs A did not want Mrs X to move from the residential part of the home to the nursing unit. The care provider says District Nurses continued to support Mrs X instead.
- Mrs A complained to the care provider. She complained no-one had discussed financial options with the family. She complained that when she had found out about the availability of NHS funding, it had taken far too long for the care provider to make a referral (even though the care home manager said she had made it). She said there had been no proper assessments, care plans or reviews. She complained her mother in law had been paying an “inflated private funding rate” when she could have had NHS funding.
- The care provider’s regional manager responded. He said the NHS checklist process usually began when the District Nurses suggested someone needed nursing care and might be eligible for FNC funding but it could also be initiated by the GP, the family, or the care provider. He said the paper assessments which had been seen by her husband, and the pre-admission assessment which was signed by Mrs X’s daughter, had now been transferred to electronic records and relatives were being invited to review the care plans.
- Mrs A remained dissatisfied and complained to the Ombudsman. She said she felt her complaint had been minimised. She said Mrs X was paying £200 a week more than a local authority-funded resident. She said the care provider had taken advantage of their ignorance of the regulations. She said they had not seen a care plan or known who Mrs X’s key worker was until they complained.
- The care provider’s national director of care met with Mr and Mrs A in October 2019 to discuss the complaint. Following the meeting the director of care wrote to us: “We have discussed a resolve and agreed that improvements in information providing, regular communication and effective care planning with full family involvement would help to provide better assurance for the family and future people coming into the home. We discussed where developments may be required in the staff team, however it was reassuring to hear from (Mrs A) that she felt she trusted the ‘frontline’ carers in the home and felt her Mother in Law’s basic healthcare needs and well being were being supported well”. She said the family felt let down because they believed some interventions had been instigated by them and not by the care provider, and they were looking for financial compensation for their time and trouble.
- The care provider’s Chief Executive wrote to Mr and Mrs A and offered a reduction of £500 against the next invoice to resolve their complaint. Mr and Mrs A rejected the offer.
- There is no evidence Mrs X had nursing needs when she was admitted to the care home. She was under the care of a number of health professionals any of whom could have referred her for an assessment for NHS nursing funding eligibility. There is no evidence the care provider failed in this respect.
- The records show comprehensive care plans which were reviewed regularly.
- Once Mrs A had requested a referral for NHS funding it would have been sensible for the care provider to make the referral promptly and in writing. The failure to do so caused a delay and some anxiety on the part of Mrs X’s family.
- The assessment showed Mrs X was eligible for FNC funding and the CCG commenced payment: had the nurse assessor considered Mrs X had been eligible for longer she could have backdated the award, but did not. The FNC award is paid directly to the home for nursing care above the cost of the residential placement: it is not an award paid to the resident. No injustice was caused to Mrs X by the delay in the assessment; her care remained appropriate for her needs.
- The care provider offered £500 in recognition of the anxiety and inconvenience caused by the delay and the apparent failures of communication. That is sufficient to remedy the injustice caused. The care provider also noted the family’s request for closer communication.
- The sum already offered by the care provider is sufficient to remedy the injustice caused by a delay in arranging an assessment.
Investigator's decision on behalf of the Ombudsman