Summary: Ms X complains that the care home should have deducted funded nursing care payments from its fees. She complains that the care home did not explain funded nursing care, and the contract is not transparent about it. Ms X says this has left her father out of pocket, and it has caused upset and worry about his ability to pay for his care. The Ombudsman does not find fault.

The complaint

1. The complainant, who I refer to here as Ms X, complains on behalf of her father, Mr F. Ms X complains that the care home received funded nursing care payments for Mr F, and this should have been deducted from his fees. Ms X complains that the care home did not explain funded nursing care when Mr F was first admitted. She also complains that the care home’s contract is not transparent when it comes to funded nursing care.
2. Ms X says this has left her father out of pocket, and it has caused upset and worry about Mr F’s ability to pay for his care.

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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 a complaint on behalf of someone 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)

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)

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How I considered this complaint

6. Mr F lacks capacity to make certain decisions for himself. I find that Mr F’s daughter, Ms X, is a suitable person to represent the complaint on his behalf.
7. I considered the information and documents provided by Ms X and the care home. I spoke to Ms X about the complaint. Ms X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
8. I considered the relevant legislation and statutory guidance. I also considered the Ombudsman’s focus report “Funded Nursing Care payments: guidance for care providers”, published in January 2018.

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What I found

What should have happened

9. 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.
10. Funded nursing care is a contribution from the NHS to meet the nursing element of a person’s care if their needs are such that they must be met in a nursing home, but do not trigger the full NHS funding. Payments are administered by the local Clinical Commissioning Group and are made to the care provider, not the resident. The amount a care provider receives in funded nursing care is a set amount per week.
11. The Ombudsman published a focus report in January 2018, “Funded Nursing Care payments: guidance for care providers”. This report says where a contract is ambiguous, inconsistent or poorly drafted, we are likely to find fault. It says we may also find fault if a contract contains conflicting information or is silent on how the care provider treats funded nursing care.
12. This report says that as long as the contract explains what happens when funded nursing care is awarded, we are unlikely to uphold a complaint.

What happened

13. In October 2018, Mr F was admitted to the care home. The admission schedule set out the fees Mr F would pay. The total fee was £1200 per week. Ms X, as Mr F’s representative, signed the admission schedule on Mr F’s behalf.
14. Ms X also signed a contract with the care home on behalf of Mr F. This contract said:

“If you have been assessed as eligible for funded nursing care, the funding is received by us and is in addition to the fee set out in your Admission Schedule.”

15. In November, the care home applied to the NHS for funded nursing care for Mr F.
16. In December, Mr F was assessed for funded nursing care.
17. In February 2019, the NHS wrote to Ms X and the care home to confirm that Mr F had been awarded funded nursing care. It said this funding would be paid to the care home and would be backdated to Mr F’s admission to the care home.
18. In August, Ms X complained to the care home. Ms X said that because the contract’s clause about funded nursing care was in the past tense, this suggested it related to new admissions who were already in receipt of funded nursing care.
19. Ms X complained that the contract did not explain what would happen if a resident was assessed for funded nursing care later on. She said that funded nursing care is paid to acknowledge the nursing care provided for Mr F, so the amount of funded nursing care that was paid to the care home should be deducted from his fee.
20. Ms X said that she had done some research and found out that funded nursing care payments should be deducted from fees.
21. At the end of August, the care home sent its response to Ms X’s complaint. It was unable to say if it did or did not discuss the gross fee (Mr F’s full fee plus the funded nursing care payment) with Ms X. The care home said that despite this, it quoted Ms X the fee of £1200 per week which is the amount she was invoiced for Mr F’s care. It said that at no point had she been asked to pay more than this.
22. The care home acknowledged that while it may not have discussed funded nursing care payments with Ms X before Mr F’s admission, the contract clearly states that the care home would retain funded nursing care payments. It also said that the contract is clear that funded nursing care is in addition to the fees set out in the admission schedule.
23. The care home said that Ms X was correct that the fee in the admission schedule had been adjusted down to allow for funded nursing care. It said the gross fee at the time of Mr F’s admission would have been £1358.16 per week, but as stated in the admission schedule, Mr F’s weekly fee was £1200.
24. The care home said it is usual for some care homes to require the resident or relative to fund the gross fee up to the point that funded nursing care is awarded. It said once funded nursing care is awarded, those care homes then pass this on to the relative. The care home said that, in effect, it took the financial risk (by assuming Mr F would be awarded funded nursing care) and this meant Mr F was not charged the gross fee from the start.
25. In October, Ms X complained to the Ombudsman.
26. Mr F then moved to another care home.

Analysis

Deducting funded nursing care payments from fees

27. Ms X complains that the care home received funded nursing care payments for Mr F, and this should have been deducted from his fees.
28. The admission schedule states how much Mr F was expected to pay for his care. Funded nursing care payments are between care homes and the NHS, so I do not find fault that the admission schedule did not say how much the care home would receive in funded nursing care on top of Mr F’s fees.
29. Also, the contract says that funded nursing care payments will be in addition to the fee set out in the admission schedule.
30. Furthermore, I do not find any injustice here. Funded nursing care payments are between the NHS and care homes: the payments have nothing to do with residents or families.
31. I find that Mr F was only ever charged what he should have been, which were his care costs. I do not consider that Mr F or Ms X are out of pocket because of this.
32. Ultimately, the admission schedule set out the correct amount for Mr F to pay for his care. The care home is entitled to apply for funded nursing care, which it did. Residents and families are not entitled to receive this money.
33. Ms X believes that the care home was “pocketing” the funded nursing care payments, and that the £1200 per week fee was actually the gross fee for Mr F’s care.
34. I have seen Mr F’s pre-admission assessment which says Mr F’s fees were “£1200 per week plus funded nursing care”. Also, as the contract states, funded nursing care was in addition to the fees.
35. For this reason, I do not agree that the care home was “pocketing” the funded nursing care payments. I also do not find fault with the care home for not telling Mr F or Ms X the gross fee, when there was no expectation that Mr F would have to pay the gross fee.

Explanation and the contract

36. Ms X complains that the care home did not explain funded nursing care when Mr F was first admitted. She also complains that the care home’s contract is not transparent when it comes to funded nursing care.
37. The Ombudsman’s starting point with funded nursing care 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 funded nursing care or if there are conflicting terms or ambiguous or inconsistent terms, then we may find fault.
38. In this case there was a clause about funded nursing care in the contract. It explains that funded nursing care is in addition to the fees set out in the admission schedule.
39. Further to this, the contract also has a clause which says, “The fee payable from your admission to the Home is the Total Fee set out in the Admission Schedule”. I find that the total fee on the admission schedule was the amount Mr F was expected to pay.
40. I do not find this contract to be ambiguous, inconsistent or poorly drafted.
41. While it may be the case that the care home did not provide further explanation of funded nursing care to Ms X when Mr F was admitted, it is stated in the contract which Ms X signed.
42. For these reasons, I do not find fault.

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Final decision

43. I have completed my investigation. I do not uphold Ms X’s complaint because there is no fault.

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Investigator's decision on behalf of the Ombudsman