Summary: Mr X complained about how the Care Provider charged his mother, Mrs Y, for care during her stay at its Care Home. There was fault in how the Care Provider gave Mrs Y’s family information about its terms, conditions and fees, and how it investigated Mr X’s complaint. This caused financial loss and distress to Mrs Y, and distress to Mr X and Mrs Y’s other close relatives. The Care Provider agreed to apologise, pay a financial remedy and review how it considers complaints.

The complaint

1. Mr X complains, on behalf of his mother Mrs Y, about how the Care Provider charged Mrs Y during her stay at its Riverview Nursing Home from September 2022. He says the Care Provider:
• misled Mrs Y and her family about the cost she would need to pay and how NHS Funded Nursing Care would be treated;
• did not provide written information about the costs or terms and conditions for its services;
• increased its fees despite assurances that it would not;
• wrongly accused him and other family members of not visiting Mrs Y;
• told them it was considering taking safeguarding action without justification; and
• dismissed their complaint.
2. As a result, Mr X says Mrs Y chose a care home which was more expensive than she expected, paid more in fees than she would have done and had to move care homes at short notice after the Care Provider served notice. He also says this caused significant distress to him, Mrs Y and her family.
3. Mr X wants the care provider to apologise, provide records of Mrs Y’s visits and refund the fees he says she overpaid.

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The Ombudsman’s role and powers

4. 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)
5. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. If we are satisfied with an organisation’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)

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How I considered this complaint

8. I considered:
• the information Mr X provided and discussed the complaint with him;
• the Care Provider’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
9. Mr X and the Care Provider had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
10. 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.

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What I found

Care Quality Commission Regulations and Fundamental Standards

11. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (‘the 2014 regulations’) and Care Quality Commission (Registration) Regulations 2009 (‘the 2009 regulations’) set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.
12. Regulation 19 of the 2009 regulations says that care providers must give people responsible for paying for their own care or treatment a written statement of:
• the terms and conditions of the services to be provided, including the amount and method of payment of fees; and
• if used, the form of the contract between the care provider and the person.
13. This statement must be provided to the person, where possible, before the start of any services or care.
14. Regulation 16 of the 2014 regulations says that care providers should properly investigate complaints they received and take necessary and proportionate action in response to those complaints. As part of this, care providers should make sure they have effective systems to:
• decide the level of investigation needed for each complaint; and
• make sure appropriate investigations are caried out into complaints.

NHS Funded Nursing Care

15. NHS-Funded Nursing Care (FNC) is the funding provided by the NHS to care homes providing nursing, to support the cost of nursing care delivered by registered nurses. If a person does not qualify for NHS Continuing Healthcare, the need for care from a registered nurse must be determined. If the person has such a need and it is determined their overall needs would be most appropriately met in a care home providing nursing care, then this would lead to eligibility for NHS-Funded Nursing Care.
16. The Competition and Markets Authority issues advice (‘UK care home providers for older people – advice on consumer law’) to care providers about how to comply with their consumer law responsibilities. This includes advice about how to treat Funded Nursing Care.
17. The advice makes it clear that care providers are free to decide whether to adjust someone’s fees if the receive FNC. However, the advice says that care providers must treat their customers fairly and should ensure that:
18. ‘Your terms, together with the upfront information you provide to residents about your fees, should clearly explain what FNC is, the resident’s potential entitlement to it, and how you treat FNC payments when the eligible resident is self-funded. In particular, you should clearly set out:
1. The relationship, if any, between FNC payments and a self-funded resident’s own contribution to their overall residential fees (ie very clearly defining the services that are paid for by the FNC payments and those paid for by the resident)
2. What will happen to a resident’s own contribution to their fees if there is a change in the amount of the FNC payment (ie where it increases, decreases or ceases).

What happened

19. Mr X’s mother, Mrs Y, has dementia. Until 2022, Mr H had been caring for Mrs Y at home.
20. In mid-2022, Mrs Y’s family decided that she needed care in a care home. They contacted their local council which agreed this would be best for Mrs Y. Because of Mrs Y’s assets, she was not eligible for any council help with her care fees and needed to pay the full cost of her own care. The local council helped Mrs Y’s family make contact with some local care homes, but made it clear that it was Mrs Y’s family that was choosing and arranging her care home place.
21. In late August 2022, the Care Provider confirmed it had space available for Mrs Y. In an email to Mrs Y’s social worker and Mr X, the Care Provider said that it would charge £950 a week for Mrs Y’s care.
22. Mr X and other family members met the Care Provider at the start of September 2022 to further discuss Mrs Y’s needs and finances. Mr X said they asked, at the meeting, how the Care Provider would treat any Funded Nursing Care Mrs Y was entitled to. Mr X said he and other relatives explained their understand that, if Mrs Y received FNC, then her care fees would be refused by that amount. However, Mr X says the Care Provider did not say this was not the case or offer a different explanation about the fees.
23. The following day, the Care Provider asked Mrs Y’s family to decide whether Mrs Y wanted to take the place it had offered. Mr X said the family felt that the Care Provider was pressuring the family to make a quick decision.
24. Mrs Y’s family decided to accept the place and Mrs Y moved into the Care Home in the first week of September 2022.
25. A few days after Mrs Y moved in, the Care Provider sent her family an invoice for Mrs Y’s remaining fees for 2022/2023. In the covering email, the Care Provider said that “We set [the fees] each financial year in line with the local council up lifts and does not increase throughout that time.”
26. In October 2022, the Care Provider wrote to Mrs Y’s family telling them that it was increasing Mrs Y’s fees from December 2022. Around this time, Mrs Y’s family also realised the Care Provider did not intend to reduced Mrs Y’s fees based on the FNC she was now receiving.
27. Mr X and the Care Provider met at the beginning of December 2022 to discuss the family’s concerns about the fees. Mr X’s notes from the meeting say the Care Provider told the family, during the meeting, it had not been clear enough about Mrs Y’s fees and FNC before she moved into the Care Home. It said it did not often have privately paying residents and needed to do more to make sure it shared accurate information with such residents in future. Mr X told the Care Provider he wanted to make a complaint about the fees and FNC.
28. Around a week later, the Care Provider wrote to Mr X to tell him it was not upholding his complaint. It told him:
• it does not deduct FNC from its fees and denied giving the impression that it would do so in Mrs Y’s case;
• demand for placements was high and it could not hold offers for beds open for long;
• it did not issue written contracts for placements at its Care Home;
• the local council had increased its standard fees in October 2022, backdated to April 2022. The Care Provider had only increased its fees in line with this increase, but had only applied the increase from December 2022;
• it did not uphold Mr X’s complaint and expected Mrs Y or her family to pay the fees it was charging.
29. In early January 2023, the Care Provider gave Mrs Y’s family 28 days’ notice that it was ending her placement based on two weeks arrears of fees from the start of Mrs Y’s stay and further arrears from the fee increase from December 2022.
30. A few days later, the Care Provider wrote to Mrs Y’s social worker informing them it had issued notice to end Mrs Y’s placement. The Care Provider told the social worker it was “considering Safeguarding [Mrs Y]” and copied the message to Mr X. Mr X said he and Mrs Y family found the allegation that Mrs Y needed ‘safeguarding’ was very upsetting.
31. Mrs Y’s family paid the outstanding fees for the first few weeks of Mrs Y’s stay but did not agree to pay the increased rate from December 2022 because of the outstanding dispute about funded nursing care.
32. The Care Provider did not withdraw the notice so, over the next month, Mrs Y’s family and her social worker arranged for Mrs Y to move to a new care home. This happened in mid-February 2023. Mr X said Mrs Y found this second move to be very distressing and this caused further distress to her close family.

My findings

33. Because of her health conditions, Mrs Y cannot authorise someone to bring a complaint on her behalf. I am satisfied that Mr X is a suitable person to complain on Mrs Y’s behalf.

Information about fees, terms and conditions

34. I accept the Care Provider’s policy is that any Funded Nursing Care is paid on top of any fees agreed with self-funding residents. Therefore, the Care Provider expected Mrs Y’s family to pay the full £950 a week throughout her stay.
35. I also accept that the issue of fees and how the Care Provider would treat any FNC Mrs Y received was important to her family, who were responsible for managing Mrs Y’s limited income.
36. Based on Mr X and the Care Provider’s accounts of the first meeting in September 2022, I am satisfied Mrs Y’s family directly asked about how Mrs Y’s fees would change if she was awarded FNC. On the balance of probabilities, I am satisfied the Care Provider did not properly address this issue and did not correct the family’s clearly stated understanding about how it treated FNC. There is no evidence the Care Provider followed up on this issue with Mrs Y’s family.
37. As a result of that meeting, I am satisfied that:
• Mrs Y’s family reasonably believed that Mrs Y’s fees would be reduced by any FNC she received;
• this believe was caused or contributed to by the Care Provider’s actions; and
• this belief led to Mrs Y’s family choosing the Care Provider for Mrs Y.
38. This caused Mrs Y an injustice because she was charged higher fees than her family expected. Therefore, I am satisfied that how the Care Provider provided information at September 2022 meeting was fault.
39. The Care Provider also failed to provide written terms and conditions of Mrs Y’s stay as required by the CQC regulations. The CMA advice says that information should including clear details about FNC and how this affects the fees someone needs to pay.
40. If the Care Provider had provided the written information required and followed the CMA advice, I am satisfied that Mrs Y’s family would have chosen a different care home. For the same reasons given above, I am satisfied this caused an injustice to Mrs Y and was therefore fault.
41. I do not, however, consider the Care Provider was at fault for only giving Mrs Y’s family a short period of time to confirm whether she wanted the available bed. I am satisfied the Care Provider did this because of the high demand for beds, rather than to put any artificial pressure on Mrs Y’s family.

December 2022 fee increase

42. Shortly after Mrs Y moved in, the Care Provider stated, in writing, that its fees would not increase before April 2023. However, it then told Mrs Y’s family it would be increasing her fees a month later.
43. I am satisfied the clear statement by the Care Provider led Mrs Y’s family to believe that the Care Provider would not increase Mrs Y’s fees until April 2023. Although the local council increased the standard fees it paid to care providers in October 2022, the Care Provider had effectively guaranteed to Mrs Y’s family that her fees would not increase.
44. When Mrs Y’s family did not pay the increased fees, the Care Provider gave Mrs Y notice to leave. Based on the family’s continued refusal to pay the increased fees, refused to withdraw this.
45. I am satisfied that this caused Mrs Y to have to go through a second move within six months of first moving into a care home. Given Mrs Y’s dementia I am satisfied that this move caused her significant avoidable distress. Therefore, I am satisfied the Care Provider’s decision to charge increased fees after stating it would not, was fault. I am also satisfied this caused avoidable distress to Mr X and Mrs Y’s close family, given their close relationship with Mrs Y.

Safeguarding concerns

46. The Care Provider has not provided any evidence to show that Mrs Y’s family failed to visit her during any period. I am satisfied that Mr X and other close relatives of Mrs Y visited her regularly, apart from times when the Care Home stopped visits due to illness.
47. I appreciate that Mr X found the Care Provider’s concerns, as it mentioned them to Mrs Y’s social worker, upsetting. However, I accept the Care Provider’s explanation that its main concern, at the time, was that Mrs Y’s place at the care home was threatened by her family’s refusal to pay the fees it had demanded.
48. While I have found fault with the Care Provider’s demand for the increase in fees, there was no fault in it raising these concerns with Mrs Y’s social worker, based on its beliefs at the time. Ultimately, the Care Provider did not make a safeguarding referral.

Complaint handling

49. Following its meeting with Mr X in December 2022, the Care Provider sent him its final decision on his complaint around a week later. However, in its response to my enquiries the Care Provider said it did not know Mr X wanted to make a complaint until the end of that meeting. Mr X disputes this and said it was the Care Provider which suggested he make a formal complaint early in the meeting Despite the Care Provider’s view of when Mr X complained, it sent its final response to Mr X’s complaint without discussing this with him further or seeking any further information.
50. When Mr X sent the Care Provider his notes of the meeting, which clearly conflicted with its final decision, the Care Provider refused to consider them. The Care Provider’s response to the complaint also suggest that the final decision was made by someone which had had no contact with Mr X and had not discussed the complaint with him at any point.
51. In my view, the Care Provider did not properly consider Mr X’s complaint, or the evidence he provided, before making its decision. I am satisfied this caused Mr X avoidable frustration and was therefore fault.

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Agreed action

52. Within one month of my final decision the Care Provider agreed to:
• apologise to Mrs Y and her family for the fault and injustice I have found;
• cancel any outstanding invoice for the increased fees from December 2022;
• refund £5,591.36 in fees to Mrs Y, based on the FNC she received during her stay;
• pay Mrs Y £300 to recognise the distress caused by having to move care homes a second time; and
• pay Mr X, on behalf of him and Mrs Y’s close family, £600 to recognise the distress and avoidable frustration caused to them.
53. Within three months of my final decision the Care Provider agreed to review how it investigates and responds to complaints. It should ensure that complaint decision makers ensure they have properly understood any complaint being made and proportionately investigates those complaints before making their final decision.
54. The Care Provider should provide us with evidence it has complied with the above actions.
55. Since Mr X made his complaint, the Care Provider has changed its processes for providing information to potential self-funding residents. I am satisfied I do not need to make further recommendations about this.

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Final decision

56. I have completed my investigation. There was fault in how the Care Provider gave Mrs Y’s family information about its terms, conditions and fees, and how it investigated Mr X’s complaint. This caused financial loss and distress to Mrs Y, and distress to Mr X and Mrs Y’s other close relatives. The Care Provider agreed to apologise, pay a financial remedy and review how it considers complaints.

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Investigator's decision on behalf of the Ombudsman