Summary: Mrs X complains Wentworth Court Care Home was wrong not to refund the Funded Nursing Care paid by Gloucestershire Clinical Commissioning Group for Mr Y. Although Mr Y’s contract did not explain what would happen to Mr Y’s fee if he was awarded Funded Nursing Care, other documents show this would be in addition to his weekly fee. Nevertheless, it needs to update its standard contract to make the position clear.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains Wentworth Court Care Home (Wentworth Court) was wrong not to refund the Funded Nursing Care (FNC) paid by Gloucestershire Clinical Commissioning Group (CCG) for Mr Y.

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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 34B, 34C and 34H(4), as amended)

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How I considered this complaint

3. I have:
• considered the complaint and the documents provided by Mrs X;
• discussed the complaint with Mrs X;
• considered the comments and documents Wentworth Court has provided; and
• shared a draft of this statement with Mrs X and Wentworth Court, and taken account of the comments received.

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What I found

Key facts

4. Mrs X’s father, Mr Y, went to stay in Wentworth Court on 27 December 2019. On 30 December Wentworth Court referred Mr Y to Gloucestershire CCG for an NHS Continuing Healthcare assessment.
5. The Contract for Mr Y’s placement, says his total weekly fee was £1,200 as was his contribution. It does not identify any contribution from a local authority, the NHS (e.g. FNC or Continuing Healthcare) or a third party. It says:
• “When your placement is privately funded (sometimes known as ‘self-funded’), your contribution will be the whole amount of the weekly fee.”
6. The contract says Wentworth Court had assessed Mr Y as needing nursing care and dementia care. It says nursing care would be supplied to him as part of the weekly fee.
7. Wentworth Court’s Statement of Purpose from May 2019, which it says was given to Mr Y’s family, says the fee does not include FNC, “which is paid by Gloucestershire Clinical Commissioning Group directly to the home”. Its Resident’s Guide, a copy of which it says will have been in Mr Y’s room, says the fees do not include “Any nursing care as this is paid for by the Local Commissioning Group”.
8. On 1 April 2020 Gloucestershire CCG wrote to say Mr Y was not eligible for NHS Continuing Healthcare but was eligible for FNC of £165.56 a week. It said it would backdate this to 30 December 2019. Wentworth Court retained this money and continued to charge Mr Y £1,200 a week.
9. Mr Y died on 30 April.
10. Shortly before Mr Y died, Mrs X complained to Wentworth Court about the failure to refund the money he had paid for his nursing care. She referred to the NHS‑funded Nursing Care Practice Guidance, published by the Department of Health and Social Care in 2018, which says:
• “The care home provider should set an overall fee level for the provision of care and accommodation. This should include any registered nursing care provided by them. Where a CCG assesses that the resident’s needs require the input of a registered nurse they will pay the NHS-funded Nursing Care payment (at the nationally agreed rate) direct to the care home, unless there is an agreement in place for this to be paid via a third party (e.g. a local authority). The balance of the fee will then be paid by the individual, their representative or the local authority unless other contracting arrangements have been agreed.” (paragraph 53)
11. She also referred to the Competition and Markets Authority’s UK care home providers for older people – advice on consumer law, which says:
• “If a self-funder contract, for example, defines the overall/gross weekly fee as payment for accommodation and care to include nursing care, and your terms oblige you to deduct FNC payments from the overall fee, the resident is reasonably likely to conclude that their own contribution to the residential fees will decrease when the amount of the FNC payments increases. Particularly, in these circumstances, we are likely to object to a fee variation term which could be (or has been) relied upon to arbitrarily increase the overall/gross fee in a way that ensures that you receive the benefit of any increase in FNC payments, contrary to the resident’s reasonable expectations. Moreover, in these circumstances, we see no merit in the potential argument that the resident has suffered no detriment as their actual contribution remains the same.” (paragraph 4.67)
12. Wentworth Court told Mrs X:
• FNC is always paid to care homes;
• it does not include FNC in the contract for self-funders, such as Mr Y, because it is not paid by them but by the CCG;
• it would only pay money back to the individual if they became eligible for NHS Continuing Healthcare.
13. Wentworth Court says no one else has ever questioned the payment of FNC to it. Nevertheless, it has proposed including an additional paragraph in its standard contract which says:
• “In the event that FNC is awarded by the local authority, this payment Is made directly to the home and not deductible from the resident weekly fee.”

Did the care provider’s actions cause injustice?

14. Wentworth Court’s contract for Mr Y’s placement was not clear about the treatment of FNC and what would happen if it was awarded. It said his charge included the cost of nursing care. So it is not surprising Mrs X questioned why Wentworth Court did not refund what he had paid for nursing care and adjust his weekly charge, when the NHS backdated its payments. However, its Statement of Purpose and Resident’s Guide say the fee does not include the CCG’s contribution towards nursing costs. Within that context, while I can say there was fault over the lack of clarity in the contract, I cannot say this caused injustice. If there had been no fault it would have been clear from the contract that an award of FNC would not affect the amount Mr Y had to pay.
15. Wentworth Court has proposed an addition to its standard contract. But this is not sufficiently clear as it suggests FNC is awarded by a “local authority”, which is the term normally used to refer to a Council and not a CCG. It needs to reword the proposed addition to make it clear who pays FNC.

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Recommended action

16. I recommended Wentworth Court amends the proposed addition to its standard contract to make it clear Funded Nursing Care is paid by an NHS Clinical Commissioning Group. It has now done this.

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Final decision

17. I have completed my investigation as Wentworth Court has taken the action I recommended.

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Investigator's decision on behalf of the Ombudsman