The Ombudsman's final decision:
Summary: Mrs X complains about the Care Provider’s treatment of her late husband, Mr Y’s, funded nursing care payments. Mrs X says this caused Mr Y a financial loss and caused her additional upset and distress while grieving for him. We find the Care Provider at fault in the way it dealt with Mrs X’s complaint and in its contract which was unclear. The Care Provider has agreed to pay Mrs X £450 for the stress and uncertainty it caused. It has also agreed to review its complaints handling, and to make sure its contract is clear.
- The complainant, whom I shall refer to as Mrs X, complains on behalf of her late husband, Mr Y. Mrs X says Health and Care Services (NW) Limited:
- did not deduct the funded nursing care contribution from Mr Y’s care fees as the fees included basic nursing costs.
- did not deal properly with her complaint about this.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
- We may investigate a complaint on behalf of someone who has died or 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). We consider Mrs X to be a suitable person to complain on Mr Y’s behalf.
How I considered this complaint
- I considered information from the Complainant and from the Care Provider.
- I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.
What I found
Funded nursing care (FNC)
- NHS-funded nursing care (FNC) is the funding provided by the NHS to residential nursing homes that also provide care by registered nurses. FNC funding is set at a weekly rate.
- The National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care (November 2012) (‘the National Framework’) 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 the resident or representative.
The Competition & Markets Authority
- In November 2018, the Competition & Markets Authority (CMA) issued guidance “Helping care homes comply with their consumer law obligations”. The complaint handling section of the guidance says:
- “You should acknowledge complaints quickly”.
- “You should set out clear and reasonable timescales within which residents can expect to hear back about their complaint at each stage of the procedure”.
- “You should clearly explain your decision in writing (so there is a record), giving details of the outcome of the complaint and any action taken”.
- “You should clearly explain how and when the complaint can be escalated to the…relevant Ombudsman”. “you should explain the Ombudsman’s role and remit”.
- “Failing to follow your complaints handling procedure in practice (for example, by failing to respond to complaints or not properly investigating them)…is likely to mean that you are not acting in accordance with the standards of ‘professional diligence’ required under consumer law”.
While this guidance is currently suspended for unrelated reasons, this remains good practice.
- Our “Quality Matters” good practice guide about acting on compliments, feedback and complaints about adult social care is aimed at care providers among others. Find it here under “Single Complaints Statement (Providers and practitioners): Adult Social Care resources - Local Government and Social Care Ombudsman. It says care providers should:
- “deal with compliments, feedback and complaints in an open and transparent way without being defensive”.
- “explain what steps you will take to resolve the problem when something has gone wrong”.
- “learn from compliments, feedback and complaints and make meaningful changes so services can improve”.
- The contract applying to Mr Y’s residency at Orchid Lawns nursing home said:
- “to provide care and treatment”.
- “The Fee only includes the provision of accommodation, basic nursing care, heat, lighting and power, laundry and meals.”
- “The Provider will maintain and operate a complaints procedure in accordance with applicable statutory requirements.”.
- Mr Y was admitted to Orchid Lawns nursing home run by the Care Provider, in August 2018. Around two weeks later, Mr Y was awarded FNC. Sadly, Mr Y died in May 2020.
- In January 2021, Mrs X contacted the Care Provider to ask why the award of FNC had not reduced Mr Y’s fee. She got no reply and in February, made a formal complaint to the Care Provider. Mrs X contacted the Care Provider again in March and April but got no reply.
- In May, Mrs X complained to us. The Care Provider told us Mrs X had been told at the time she made the complaint that Mr Y was not entitled to a refund of the FNC; it did not put this in writing.
- In July, the Care Provider sent us an explanation from their contracts team which had been sent internally, in March. This explanation said:
- “care is supervised and aided by qualified nurses on duty 24 hours a day who are able to cascade knowledge and experience to the team members providing niche care for various ailments and illness that doesn’t need hospitalisation, per specific need Frontline qualified staff, can assess and diagnose often before a doctor is available to do the same for example.”.
- “In addition some residents will be assessed and awarded FNC to reflect the fact that the cost of a NHS district nurse is not required to attend as the patient nursing need is met by the qualified nurse only in Orchid lawns”.
Did the Care Provider’s actions cause injustice?
- The Care Provider’s contract did not provide sufficient information about what happens when a person is awarded FNC. It should state clearly how this will be treated. The FNC is a contribution to the nursing costs and not necessarily the full cost. It is paid direct to the Care Provider and is not intended to reduce a person’s fees. Additionally, the contract is not clear on what is “basic nursing care”. This is not adequate. However, on the balance of probabilities, if the Care Provider had properly updated its contract, it would have made it clear that the FNC would not reduce the fee.
- Mr Y, or his representative, signed the contract based on the quoted fee which did not change (aside from any uplift), and neither did the care he received for the fee. The only change here was that he qualified for FNC. I do not consider that Mr Y should have a refund of the fees because the Care Provider’s contract was poor.
- The Care Provider should have recognised the problem with its contract and could have set this out clearly to Mrs X at the start of her complaint. This would probably have been sufficient to remedy the injustice caused at that point.
- However, the Care Provider caused Mrs X significant and avoidable uncertainty and stress at a difficult time for her. It did this by not responding to her complaint clearly in writing and because its contract was not clear about what service Mr Y would receive for the fees he paid. It was also not clear about what happens when someone is awarded FNC.
- To remedy the injustice identified above, I recommended the Care Provider:
- Apologise to Mrs X setting out the faults identified above and actions it will take to put these right;
- Pay Mrs X £450 to recognise the uncertainty and stress it caused her;
- Review its contract to ensure it is clear, for all residents, how FNC will be treated and what is included in the fee;
- Review its complaints process and ensure staff are adequately trained to provide a full, written response to all complaints and acknowledge where there have been failings; and
- Complete these remedies and provide evidence to me within two months of the final decision. Suitable evidence would include confirmation of the payment, a copy of the apology, details of changes to the complaint process and/or training completed. It should also provide a copy of the revised contract and details of how it has rolled this out.
- I have completed my investigation and uphold Mrs X’s complaint that the Care Provider did not deal properly with her complaint.
- I do not uphold Mrs X’s complaint that the Care Provider did not deduct the funded nursing care contribution from Mr Y’s care fees as the fees included basic nursing costs.
Investigator's decision on behalf of the Ombudsman