Summary: Ms X complains Superior Care (Midlands) Limited (the care provider), has failed to refund money her mother paid for her care when it received backdated payments for NHS Funded Nursing Care. The evidence does not support the claim that her mother was paying for Funded Nursing Care, so there are no grounds to ask the care provider to refund money to her. Nevertheless, the failure to provide a contract for her care for over a year caused avoidable confusion and contributed to the time and trouble Ms X has been put to in pursuing the complaint. The care provider needs to apologise and make a symbolic payment.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains the care provider has failed to refund money her mother paid for her care when it received backdated payments for NHS Funded Nursing Care.

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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. 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)

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How I considered this complaint

3. I have:
• considered the complaint and the documents provided by Ms X;
• discussed the complaint with Ms X;
• considered the Ombudsman’s guidance on remedies; and
• shared a draft of this statement with Ms X, the care provider and the local authority, and taken account of the comments received.

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What I found

Key facts

4. Ms X’s mother, Mrs Y, moved to a care home run by the care provider in October 2021. The care provider did not provide a contract for her placement. Mrs Y paid £900 a week for the placement. She funded it herself as she had over £23,250 in capital, the threshold below which someone is eligible for funding from their local authority for their care.
5. Ms X says the care provider told Mr Y to look for another placement, as its care home was struggling to meet Mrs Y’s needs. She says Mr Y learned about NHS Funded Nursing Care when he visited another care home, which asked if she was receiving it. The care provider disputes the claim that it was struggling to meet Mrs Y’s needs and denies advising Mr Y to look for another care home.
6. In the summer of 2022 Mrs Y’s capital was reducing towards the level at which she would be eligible for local authority funding. Her family therefore contacted her local authority, which agreed to take over funding her placement while it did a financial assessment to work out when her money would fall below £23,250. The local authority funded her placement from 21 July 2022, paying £900 a week.
7. In August the NHS assessed Mrs Y for Continuing Healthcare. While it decided she was not eligible for Continuing Healthcare, it decided she was eligible for Funded Nursing Care. It decided to backdate the funding to 24 February 2022.
8. The local authority administers Funded Nursing Care payments to care homes, on behalf of the NHS. It wrote to the care home on 4 October. It said from 24 February to 20 July 2022 it would pay £209.53 a week, reducing to £209.19 from 1 April (£4,394.74). It said: “If you had not already reduced the weekly fee payable by [Mrs Y], please ensure you reimburse her with the above amount. May I remind you that you are contractually obliged to do this, in accordance with the terms and conditions of your contract”.
9. The care provider continues to receive £900 a week for Mrs Y’s placement, which includes the payments for Funded Nursing Care.
10. The care provider did not refund any money to Mrs Y for the period 24 February to 20 July 2022. This means for that period it has received £900 a week plus the payments for Funded Nursing Care.
11. In November Ms X asked the care provider to refund the money. The care provider said:
• most care homes charged self-funders Funded Nursing Care on top of the care home’s rate, so the cost of Mrs Y’s care should have been £1,109.53 a week (£900 plus £209.53);
• as a small family provider, it charged a flat rate of £900 a week;
• the NHS should have paid Funded Nursing Care from the day Mrs Y arrived, but it was not paid until 24 February 2022;
• the local authority’s letter could be confusing as it was a “standard letter”, which did not take account of the fact it had never charged Mrs Y for Funded Nursing Care; and
• it had returned fees owed to the local authority from 21 July when it started funding Mrs Y's care.
12. Ms X was not satisfied with its response so asked the care provider some questions. When it replied, the care provider:
• confirmed it was currently receiving £900 a week for Mrs Y’s placement, inclusive of Funded Nursing Care; and
• said it did not have a signed copy of Mrs Y’s contract but provided an unsigned contract.
13. The contract included these statements:
• “You agree to make a payment of £900.00 which excludes the FNC (free nursing contribution) instalment.
• “The FNC which is to be paid in respect of your nursing care is £209.19 per week. It will be paid from Sandwell CCG. This sum will be in addition to the total care paid to [the care home] agreed above.”
14. Ms X pointed out:
• Funded Nursing Care was not in place when Mrs Y moved to the care home, so the contract it had provided did not reflect her circumstances when she moved there; and
• it was odd that it was now happy to accept £900 a week, while claiming the payments for Funded Nursing Care were in addition to the £900 her mother had been paying.
15. The care provider said Funded Nursing Care was applied for from the day of admission but was not necessarily paid from that day. It would receive payment from the date of the assessment for Funded Nursing Care, not the date of admission. It had accepted a lower rate from the local authority on the basis the family would not have wanted her to move to another care home.
16. Ms X made a formal complaint on 5 January 2023. The care provided invited her to a meeting to discuss her concerns. Ms X’s confirmed her understanding of what they had discussed in an e-mail on 23 January:
• the care provider intended to keep the £4,394.74 paid for Funded Nursing Care form 24 February to 20 July 2022, despite the family not agreeing with this;
• it accepted not having provided a contract or information about fees when Mrs Y moved to the care home;
• it had applied for Funded Nursing Care and would provide evidence of this (Ms X said the family applied for Funded Nursing Care in September 2022); and
• if they could not reach an agreement, the family would complain to the Ombudsman.
17. When the care provider replied it:
• confirmed it did not provide a contract when Mrs Y moved to the care home;
• it applied for Funded Nursing Care on the day of admission but Mrs Y did not qualify; and
• the local authority’s letter would only have been relevant if the care home had charged Mrs Y for Funded Nursing Care.

Did the care provider’s actions cause injustice?

18. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers that meet the fundamental standards of care, inspects care services, and reports its findings.
19. The Care Quality Commission (Registration) Regulations 2009 set out the registration requirements. Regulation 19 relates to the need to provide timely and accurate information about the cost of someone’s care. CQC guidance says: “people must be given a written copy of the terms and conditions that they must agree to before their care, treatment or support begins”.
20. The care provider did not give Mrs Y or her family a written copy of the terms and conditions or seek their agreement to them when she moved to the care home. It only provided a contract over a year after Mrs Y had lived there. That was an unacceptable delay. This contributed to the confusion over whether she should receive a refund when the NHS decided to backdate Funded Nursing Care to February 2022. The retrospectively issued contract added to the confusion, as it did not reflect Mrs Y’s circumstances when she moved to the care home.
21. However, there is not enough evidence to say the care provider should refund Mrs Y for the payments it received for Funded Nursing Care between 24 February and 20 July 2022. She paid £900 a week when she moved to the care home. That did not include Funded Nursing Care as she did not become eligible for it until February 2022. It therefore makes sense that Funded Nursing Care would be in addition to what she was already paying.
22. When the local authority started funding Mrs Y’s placement the care provider agreed to accept £900 a week including Funded Nursing Care, in effect a lower rate than it had received for the previous four months. However, there is nothing unusual about local authorities negotiating lower rates with care providers than those offered to self-funders. It does not mean the care provider has to extend that rate to the earlier period.
23. Nevertheless, the failure to seek agreement to the terms and conditions by providing a contract when Mrs Y moved to the care caused avoidable confusion. It also contributed to the time and trouble Ms X had been put to in pursuing the complaint. That is an injustice which requires a remedy.

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Recommended action

24. I recommended the care provider within four weeks:
• writes to Ms X apologising for the failure to provide a written contract when her mother moved there and the confusion this has caused;
• pays her £150; and
• takes action to ensure it provides a written copy of the terms and conditions people must agree to before their care, treatment or support begins.
25. The care provider has agreed to do this and should provide us with evidence it has complied with the above actions.
26. Under the terms of our Memorandum of Understanding and information sharing agreement with CQC, I will send it a copy of my final decision statement.

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Final decision

27. I have ended my investigation on the basis the care provider’s actions have caused injustice. I have made recommendations to remedy the injustice which the care provider has agreed to carry out.

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Investigator's decision on behalf of the Ombudsman