The Ombudsman's final decision:
Summary: The care provider did not adhere to the terms of its 2019 contract about the payment of Funded Nursing Care (FNC) awards. It agrees to apologise to Mr X and refund the relevant amounts for 2019-2020. It did adhere to the changed terms of contract in 2020 and no injustice was caused by its actions then.
- Mr X (as I shall call the complainant) complains the care provider failed to honour the terms of his contract for his wife’s care in respect of the increase in FNC payments. He says as a result of the increase he has suffered a financial loss.
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. If they have caused an injustice we may suggest a remedy (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
- Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
How I considered this complaint
- I considered the information provided by Mr X and by the care provider. Both Mr X and the care provider had the opportunity to comment on and earlier version of this statement before I reached a final decision.
What I found
Relevant law and guidance
- The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
- Regulation 19 says care providers must give people using the service information about the costs, terms and conditions of the service, so that they can make decisions about their care, treatment or support. It also says providers must notify people of any changes to their terms and conditions including increases in fees and give them sufficient time to consider whether they wish to continue with the service.
- 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 (CHC) or for NHS-funded nursing care (FNC).
- The National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care (November 2012) (‘the National Framework’) explains how FNCs affect other funding for a care package. It says:
- FNC is a contribution towards the cost of registered nursing care;
- The issue is about how the fee is shared between the resident and the NHS;
- The care provider should set an overall fee for care and accommodation, which includes any registered nursing care provided. FNC, when awarded, is paid directly to the care home. The balance is paid by their resident or representative
- In 2019 the Ombudsman issued guidance to care providers on Funded Nursing Care payments. The Ombudsman said “We interpret contracts on an ordinary reading. If a contract does not make sense to us, then we may view it as a failure by the care provider. We are likely to find fault where a contract term is ambiguous, inconsistent or is poorly drafted. We may also find fault where a contract contains conflicting terms or is silent on how the care provider treats FNCs.”
- As long as a contract explains clearly what happens when FNC is awarded, then we are not likely to uphold a complaint. A resident’s contribution could stay the same or fall when FNC comes into effect - what happens depends on the care provider’s terms and conditions. The contract needs to explain how the care provider treats FNC payments.
- In 2020 the government increased the FNC payment amount to £165 a week and backdated the increase to 1 April 2019. There was a further increase in 2020 to £180 a week.
- Mrs X has dementia. Mr X holds power of attorney for her health and welfare, and her finances.
- Mrs X went to live permanently in the care home in April 2019. Her monthly fee at the time was £5431.55 (£1250 a week). Mr X arranged to pay the fee by direct debit.
- The terms and conditions for care in 2019 said of FNC payments, “Where you are entitled to a contribution to your fees, in the form of NHS funded services that element of your fees will be funded by the NHS and there will be a periodic assessment of your requirements by a nurse appointed by the NHS. We will credit you for any actual payment you receive from the NHS for such nursing services, which you have already paid through your monthly fee”.
- The care provider changed its terms and conditions in February 2020. It now said (paragraph 1.8) “Where the NHS increase or decrease the FNC rate, our nursing rates will move accordingly.” It added, “we will apply a credit equal to the amount of FNC payment we actually receive towards your fee.” The variation on terms and conditions was sent to residents or their representatives. Mr X signed the return slip on 21 February 2020 to indicate he understood the updated terms.
- The care provider also wrote to Mr X in February 2020 about an increase in fees. The care provider said, “the total fee for (Mrs X) will increase to £1315 effective 1 April 2020. This is the fee inclusive of any Funded Nursing Care (FNC) contribution. If you have been granted FNC, this will be taken off the amount we will invoice you for. The FNC rate for 2020-21 (applicable from April 2020), has yet to be announced.”
- In July 2020 Mr X wrote to the care provider to say the increase in FNC rates had not been reflected in the invoices. He wrote again in September to say it was apparent the new rate was not being reflected in the invoices. He also said that although the government had backdated the FNC increase to 1 April 2019, this had not been passed on to him.
- The care provider acknowledged Mr X’s complaint and said it would investigate and respond to him. Mr X wrote again in October after he received another invoice, which he said was still incorrect as it did not reflect the increase in FNC. He said he had been overcharged £384.60 for the first six months of the year. he said he believed the care provider also owed him £737 backdated fees.
- Mr X cancelled his direct debit and paid the care provider by cheque the amount of fees he calculated was correct, taking into account the increased FNC payments.
- In November the care provider responded to Mr X’s complaint. It said there was provision in the contract (at clause 1.8) for the nursing rates to increase or decrease in line with the FNC rates. It said that was because the FNC was an additional contribution paid by the NHS to care homes to reflect the additional nursing costs on top of the normal fees. It said on that basis it believed the invoices were correct and asked Mr X to reinstate his direct debit for the fee payment.
- The care provider also said the increased FNC rate reflected the higher rates care providers had been compelled to pay in recent years to cover the high costs of agency premiums and the pay rates for nurses in high demand and short supply.
- Mr X replied to the care provider that it had clearly not adhered to the part of the contract that said “We will credit you for any actual payment you receive from the NHS”.
- Mr X moved Mrs X from the home. He complained to the Ombudsman about the ambiguity in the terms of the contract. He said he had suffered actual financial loss because of the way the care provider interpreted its contract terms.
- The care provider issued a contract in 2019 which said it would credit the client for any actual payment it received from the NHS. It did not do so when the FNC payments were backdated. Mr X had a reasonable expectation he would receive a refund because of the terms of the contract. In my view the failure to provide a refund which took into account the increase in FNC rates for April 2019 – February 2020 was fault which caused Mr X injustice.
- However, the care provider changed its terms in February 2020. It wrote to residents or their representatives with a note of the changes and asked them to sign their acceptance. Mr X did so. The care provider was not act at fault in the way it handled the FNC payments from February 2020 onwards, and it was clear in the way it explained the change.
- Within one month of my final decision the care provider will apologise to Mr X for the failure to refund to him the appropriate FNC element for 2019 – 2020 as outlined in paragraph 24 above;
- The care provider will refund to Mr X the increase element of those payments, taking into account the amount Mr X underpaid for the period from when he cancelled his direct debit.
- I find the actions of the care provider caused injustice to Mr X which will be remedied by completion of the recommendations above.
Investigator's decision on behalf of the Ombudsman