Summary: Mr and Mrs X complained the care provider overcharged them for nursing care Mr X did not require. It has refunded the charges as a goodwill gesture but not accepted it wrongly charged them. The care provider was at fault. It did not inform Mrs X about differing care rates and there is no evidence Mr X had nursing needs. It should have charged Mr X at its residential rate. Mr X has since died, but the care provider should accept its mistake and apologise to Mrs X. It should pay her £250 to acknowledge the lost interest and uncertainty and distress caused by the overpaid charges and review its procedures. It should also carry out a review to see if others were affected by this fault and reimburse anyone overcharged.

The complaint

1. Mr and Mrs X complained Athena Healthcare overcharged them by more than £15,000 over a year for nursing care that Mr X did not require. They said the care provider has now refunded these costs as a gesture of goodwill but has not accepted it wrongly charged Mr X for this care. They wanted the care provider to accept it made an error, apologise to them and make a payment for lost interest.

Back to top

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).
3. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
4. The law says for the purpose of an investigation, any person must provide documents or information to us, if requested. (Local Government Act 1974, section 34G)
5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

Back to top

How I considered this complaint

7. I read Mr and Mrs X’s complaint and discussed it with their representative.
8. I considered initial information provided by the complainants and Athena Healthcare.
9. I made formal enquiries of the care provider requesting further information. The care provider did not respond. In order to carry out our statutory functions, we have the same powers as the High Court to obtain information as part of our investigations. If it refuses, we can issue a witness summons to the care provider to provide the information. We warned the care provider about this power, but still did not receive a response to our enquiries. Instead of issuing a witness summons in this case, I used the information we already had on file to reach a draft decision.
10. Mrs X and the care provider had the opportunity to comment on the draft decision. I considered comments from Mrs X but the care provider did not respond.

Back to top

What I found

Background information

11. The Care Quality Commission (CQC) (Registration) Regulations 2009 require providers to give timely and accurate information about the cost of their care and treatment to people who use services. To meet this regulation, providers must make written information available about any fees, contracts and terms and conditions, where people are paying either in full or in part for the cost of their care, treatment and support.
12. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 sets out the fundamental standards those registered to provide care services must achieve. The CQC has issued guidance on how to meet these standards. The Standards include regulation 16, which states the provider must have a system in place to handle and respond to complaints. Where complainants escalate their complaint externally because they are dissatisfied with the local outcome, the provider should cooperate with any independent review or process.

What happened

13. In 2018, Mrs X contacted an Athena Healthcare care home, Parklands Lodge, to make enquires about her husband, Mr X, becoming a resident. Mr X was a self-funder who would pay the full cost of his care.
14. The care home completed a pre-admission assessment with Mr X. The assessment document recorded:
• His care group as residential
• That he was able to communicate clearly
• He needed supervision and encouragement with meals and drinks
• He was fully continent
• His skin was intact
• He had full mental capacity
• He had no behavioural needs
• He had no community nursing needs.
15. The care provider says it assessed Mr X as needing nursing care. It drew up a resident’s agreement which said the charges would be £1150 per week. The document labelled the charges “home fees” but did not specify the level of care. Mrs X signed the resident’s agreement and Mr X moved into the care home.
16. In June 2019, Mrs X met with a social worker to discuss ongoing arrangements for Mr X’s care. She says the social worker told her the care provider was overcharging them, by charging the weekly rate for nursing care when Mr X’s care needs were residential.
17. Mrs X met with the care home manager. She says the manager agreed Mr X did not have nursing needs. The manager agreed to arrange a full reimbursement of the overpaid fees.
18. The care provider refunded the overpayment and Mr X’s care fees were reduced to the residential rate.
19. In October 2019, Mrs X complained to the care provider. She said despite it refunding the overpaid fees, it had not taken responsibility for the error and it was wrong to say her husband “no longer required” nursing care and the refunded fees were a “goodwill gesture”.
20. The care provider responded to her complaint. It said Mrs X had agreed in the contract that the care home would provide Mr X with nursing care. It said Mr X had received elements of nursing care beyond that which would have been expected for a non-nursing resident. It said it had agreed to refund all nursing care fees as a matter of goodwill, to allay Mrs X’s concerns.
21. Mrs X was dissatisfied with the response and brought her complaint to us. She said the care provider had been unable to provide her with evidence that it assessed Mr X as having nursing needs on admission. It had also not accepted it had overcharged them. She said at the time of Mr X’s admission, she was unaware there were different care levels and had relied on the care provider charging Mr X the correct rate. She said the care home had not accepted responsibility for their error which undermined its seriousness and she was concerned the care provider may be overcharging other residents in a similar way. She said the error had caused her and her husband distress, and that they had lost interest on the money overpaid.
22. The care provider provided us with some initial information which showed Mrs X agreed to the charges. However, it has not provided evidence that it assessed Mr X as having nursing level needs, that it told Mrs X this and that she agreed with this decision, or that Mrs X knew the home fees set out in the resident’s agreement were for nursing level care.
23. Mr X has since died.

Analysis

24. The care provider has provided no evidence that:
• It informed Mrs X prior to Mr X’s admission about the differing levels of care and the differing charges for residential and nursing care.
• It told her that it had assessed Mr X as having nursing level needs on admission, and this is what he would be charged for.
25. The CQC regulations require care providers to provide this information to prospective residents but the care provider did not do this. This is fault.
26. The care provider said Mr X had nursing needs on admission, but the evidence does not show this. The pre-assessment document:
• Lists his care category as residential.
• Records he was continent, had full mental capacity, his skin was intact and he had no behavioural or community nursing needs.
27. There is no evidence Mr X had nursing level needs. The care provider has since refunded Mrs X the nursing charges and reduced Mr X’s care level and charges to its residential rate. It has provided no evidence that Mr X’s care needs reduced between 2018-19 to explain the decision to reduce ongoing charges after Mrs X’s complaint. The evidence shows Mr X’s needs were residential at the time of admission and it should have charged him the residential rate. The care provider was at fault for charging Mr X for nursing level care.
28. The care provider has already refunded Mr and Mrs X the overpaid nursing charges. However, it has not accepted it was at fault, and says the refund was a gesture of goodwill. The failure to accept it was at fault caused Mr and Mrs X uncertainty and distress. The overcharging has also caused some financial loss due to lost interest. I have suggested a suitable remedy for this injustice below.
29. I am concerned the care provider may have overcharged other residents for nursing fees when they had no nursing need, and therefore caused them an injustice. Using my powers to investigate matters that come to our attention, I have made a recommendation to the care provider about this.
30. The care provider has failed to respond to our enquiries, despite a statutory obligation to do so. CQC guidance says care providers should cooperate with independent review processes, should a person choose to escalate their complaint externally. The care provider has not done this. This is fault and leads to uncertainty about the care provider’s complaint handling and governance processes and whether it meets the CQC fundamental standards. In line with our information sharing agreement, we will share this decision with CQC.

Recommended action

31. Within one month of the final decision, the care provider should:
• Write to Mrs X to accept it wrongly overcharged Mr X for nursing level care. It should apologise to her for this and for the uncertainty and distress caused.
• Pay Mrs X £250 as an acknowledgement of the lost interest and the distress caused to her and Mr X.
32. Within three months of the final decision the care provider should:
• review the care charges for all residents at Parklands Lodge care home to ensure all residents are being appropriately charged for their required level of care. If it finds cases where it has wrongly charged for nursing fees when there is no nursing need, it should reimburse those affected within a further month (four months in total from our final decision).
• review how it manages enquiries and admissions to the home and ensure prospective residents are provided with appropriate information about the levels of care and charges and residency terms and conditions, in line with CQC requirements.
• Review how it manages complaints to ensure it responds to Local Government and Social Care Ombudsman investigations and provides information as requested, in line with its statutory obligations.
33. We will require evidence the care provider has completed these recommendations.
34. If the care provider rejects these recommendations without providing evidence to explain why they are not appropriate, or if it agrees to them but then fails to implement the remedy as promised, we will go on to publish an Adverse Findings Notice. (Local Government Act 1974 section 34I(3))

Back to top

Final decision

35. I have completed my investigation. I have found fault and made recommendations to the care provider to remedy the injustice caused and improve its service.

Back to top

Investigator's decision on behalf of the Ombudsman