Summary: We will not investigate this complaint about privately arranged nursing care fees. The complainant argues the Care Provider should reduce the amount the resident pays following an award of NHS Funded Nursing Care. The contract does not specify this will be the case, so it is unlikely an Ombudsman investigation would achieve the outcome the complainant wants. It is reasonable to expect the complainant to take the matter to court, to decide the legal interpretation of the contract terms.

The complaint

1. Ms B says the Care Provider has failed to reduce the weekly care fees once NHS Funded Nursing Care was awarded. Ms B claims a financial injustice of over £11,000, which is growing each week Mr C lives there.

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The Ombudsman’s role and powers

2. We investigate complaints about adult social care providers. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we could add to any previous investigation by the care provider, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, sections 34B(8) and (9))

3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.
6. I considered the Care Quality Commission (Registration) Regulations 2009: Regulation 19 relating to fees.

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My assessment

7. Ms B’s father, Mr C, lives in a nursing home run by Brunelcare (the Care Provider). The terms of agreement specify how much Mr C will pay each week for his care.
8. Funded Nursing Care (FNC) is funding provided by the NHS to care homes with nursing, to support the provision of nursing care by a registered nurse for those assessed as eligible. The NHS makes the payment directly to the nursing home.
9. Ms B argues when the NHS awarded FNC for Mr C’s nursing care, the Care Provider should have reduced Mr C’s weekly charge by the FNC amount. The Care Provider made it clear to Ms B the weekly charge would not change, and the Care Provider would receive the FNC on top of what Mr C pays.
10. There is no specific law or guidance that requires care providers to pass on an award of FNC to residents by reducing their fees. How a care provider treats an award of FNC depends on the terms of their contract.
11. The Ombudsman can interpret contracts on their ordinary reading, but the strict interpretation of a contract is for the courts. There is nothing in the terms of Mr C’s agreement which says if FNC is awarded Mr C’s weekly fee will reduce, so it is unlikely an Ombudsman investigation would reach a different outcome.
12. Ms B claims a significant financial injustice, which is continuing. It is reasonable to expect Ms B to go to court to challenge the contract terms. A court can decide if the Care Provider should reduce Mr C’s weekly fees because of the award of FNC.

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Final decision

13. We will not investigate Ms B’s complaint because it is unlikely an Ombudsman investigation would lead to a different outcome. It is reasonable to expect Ms B to go to court to challenge the legal terms of Mr C’s signed agreement with the Care Provider.

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Investigator's decision on behalf of the Ombudsman