Summary: Mrs C complained about the care and support provided to her friend, Miss D, for whom she acts as an attorney. She complained about a lack of support and information sharing by the Integrated Care Board (ICB) when Miss D had to move from a residential care home to a nursing home. She said the Care Provider consistently failed to share information with her about Miss D’s care and support arrangements. She also complained about a top-up fee the Care Provider charged for the health-funded placement. We found fault in the way the ICB supported Mrs C when Miss D moved to the Care Provider’s nursing home. This likely caused Mrs C avoidable distress. We also found fault in the way the ICB and the Care Provider followed established guidance relating to care fees. This meant Miss D paid towards her care fees when the ICB was responsible for funding the placement. The ICB and the Care Provider have agreed to our recommendations and will apologise to Mrs C for the avoidable distress she experienced and arrange to reimburse her for the fees she paid on behalf of Miss D. The ICB and the Care Provider will act to improve their processes relating to top-up payment arrangements when a person’s nursing home placement is health funded.

The complaint

1. The complainant, who I shall refer to as Mrs C, complains about the actions of Malhotra Care Homes Limited (the Care Provider) and North East and North Cumbria Integrated Care Board (the ICB) after her friend, Miss D, was assessed for healthcare funding and placed in Melton House Nursing Home (the Home). Mrs C says the ICB did not provide sufficient information to her during the continuing healthcare assessment process or adequate support when Miss D had to move to the Home from her previous placement. The complainant says the ICB and the Care Provider consistently failed to share information with her about
   Miss D’s care and support arrangements from when Miss D first moved to the Home. Mrs C also complains about a top-up payment the Care Provider charged Miss D when the placement started despite the ICB being responsible for funding her placement in the Home.

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The Ombudsmen’s role and powers

2. The Ombudsmen have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
3. The Local Government and Social Care Ombudsman investigates complaints about adult social care providers. We decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. Where something has gone wrong we refer to those actions as ‘fault’. (Local Government Act 1974, sections 34B, and 34C, as amended)
4. The Health Service Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’ in the delivery of health services. We use the word ‘fault’ to refer to these. If there has been fault, the Health Service Ombudsman considers whether it has caused injustice or hardship. (Health Service Commissioners Act 1993, section 3(1))
5. If the actions of a health and social care provider have caused injustice, the Ombudsmen may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
6. The Ombudsmen cannot question whether an organisation’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, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
7. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened.
8. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

9. I have considered:
• information provided by the complainant in writing and by telephone;
• information provided by the Care Provider and the ICB in response to my enquiries; and
• the law and good practice guidance relevant to this complaint.
10. All parties had an opportunity to respond to a draft of this decision.
11. Under our information sharing agreement, we will share this decision with the Care Quality Commission.

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What I found

The law and guidance relevant to this complaint

12. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
13. There are two types of LPA.
• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.
14. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
15. The Department of Health and Social Care’s National Framework for NHS Continuing Healthcare and NHS‑funded Nursing Care - July 2022 (Revised) (the National Framework) is the key guidance about Continuing Healthcare. It states that where an individual is eligible for Continuing Healthcare funding the Integrated Care Board is responsible for care planning, commissioning services and case management.
16. Where an individual is eligible for NHS Continuing Healthcare (NHS CHC), the ICB is responsible for care planning, commissioning services, and for case management. It is the responsibility of the ICB to plan strategically, specify outcomes and procure services, to manage demand and provider performance for all services that are required to meet the needs of all individuals who qualify for NHS Continuing Healthcare. The services commissioned must include ongoing case management for all those eligible for NHS Continuing Healthcare, including review and/or reassessment of the individual’s needs.
17. The NHS care package provided should meet the individual’s assessed health and associated social care needs as identified in their care plan. The care plan should set out the services to be funded and/or provided by the NHS. It may also identify services to be provided by other organisations such as local authorities, but the NHS element of the care should always be clearly identified.
18. The decision to purchase additional private care services should always be a voluntary one for the individual. Providers should not require the individual to purchase additional private care services as a condition of providing, or continuing to provide, NHS-funded services to them. The ICB should make this clear when negotiating terms and conditions with the provider.
19. Where an individual advises that they wish to purchase additional private care or services, ICBs should discuss the matter with the individual to seek to identify the reasons for this. If the individual advises that they have concerns that the existing care package is not sufficient or not appropriate to meet their needs, ICBs should offer to review the care package in order to identify whether a different package would more appropriately meet the individual’s assessed needs.
20. The PHSO’s report called ‘Continuing Healthcare: Getting it right first time’ was published in November 2020. The report is the result of a detailed look at complaints PHSO handled about NHS CHC. The objective is to support those on the frontline of NHS CHC to learn from mistakes, improve quality, and consistently apply national guidance to deliver care packages that meet people’s needs.
21. In 2017 the Competition and Markets Authority published consumer law advice for care home providers.

Background

22. Mrs C is Miss D’s attorney for her health and personal welfare and for her property and financial affairs. They have been close personal friends for many years. It is likely Miss D cannot make specific decisions relating to her finances and her care and support arrangements.
23. Miss D previously lived in her own home and was diagnosed with Alzheimer’s Disease. By December 2018 her symptoms associated with the disease had worsened and her needs could not be met at home. Because of this she moved into a residential home.
24. Miss D moved to a different residential home in August 2020. Mrs C said this was following advice from the Care Quality Commission (CQC) and the Council. By December 2021 Miss D started to exhibit challenging behaviour that needed intervention from the Behaviour Support Service to assist the residential home. In March 2022 the manager at this residential home suggested contacting the ICB (then clinical commissioning group) so it could consider Miss D’s eligibility for CHC funding.
25. The ICB decided Miss D had a primary health need in April and because of her increased needs it assessed she needed Elderly Mentally Infirm (EMI) nursing care. The residential home she lived at could not meet her needs so
    Miss D moved to Melton House Nursing Home in May 2022.
26. Miss D had a fall in the Home five days after the placement started and she was admitted to hospital with a broken hip. Mrs C felt the care in the Home did not meet expected standards and said she asked the ICB for advice in July. She said she did not receive a response to her emails.
27. Mrs C complained to the Care Provider and the ICB in August about Miss D’s care and support arrangements and about the organisations communication with her. After receiving responses from the Care Provider and the ICB she remained dissatisfied so asked the Ombudsmen to consider a complaint.

Information and support provided to Mrs C by the ICB about NHS CHC

28. Miss D lived in a privately arranged residential placement before the ICB became involved in assessing her needs. Mrs C said the manager at this residential home suggested the application funding should be submitted to the ICB.
29. Mrs C said when she received the funding decision in April 2022 she did not realise Miss D would have to move to a different home which could meet her needs. She also said the residential home had told her the ICB would allocate a care coordinator to assist her with the move.
30. The ICB said once its CHC Team recommended EMI Nursing for Miss D they provided advice and guidance to Mrs C. When responding to her complaint the ICB said it had offered support to assist Mrs C in finding a new care home at a meeting held in May 2022. It told her it was the relative or patient’s representative responsibility to identify and secure a further placement.
31. Mrs C also complained the ICB had not involved her in the three-month review for CHC funding. In response to her complaint the ICB said it completed the review of Miss D’s care package in July 2022 which was six days outside of three months. It said the National Framework ‘does not require a review of eligibility to involve families or representatives…’.
32. Mrs C asked the ICB what the CHC Team looked for when completing the
    three-month review. The ICB said it was not unusual for reviews to be completed by telephone following restrictions due to Covid. It said the DST was used as a point of reference to identify any potential change in need. It also said it was ‘not ordinarily necessary for the reviewer to meet the individual, instead information is gathered from the care home staff who know the individual and can describe how the person’s needs are currently met.’

Findings

33. Mrs C was not familiar with the NHS CHC process before the ICB became involved. Therefore, it was important for the ICB to provide information and support to her in line with the National Framework.
34. The National Framework makes clear that the assessment of eligibility and decision-making should be person-centred. It says, “There are a number of principles which underpin the NHS Continuing Healthcare process: most importantly that assessments and reviews should always focus on the individual's needs and follow a person-centred approach. The individual should be fully informed and empowered to participate actively in the assessment process and any subsequent reviews, and their views should be considered. In addition, there are a number of legal requirements when it comes to an individual's consent for parts of the NHS Continuing Healthcare process.”
35. This means placing the individual and/or their representative at the heart of the assessment and care-planning process. This includes “ensuring that the individual and/or their representative is fully and directly involved in the assessment process”. As Miss D’s attorney the ICB should have consulted with Mrs C in the first instance.
36. Mrs C confirmed she was invited to the DST meeting by the ICB and that it provided her with a leaflet which explained NHS CHC. This is good practice. Unfortunately, Mrs C could not attend the DST meeting due to other commitments she could not rearrange. It is likely the DST meeting would have provided an opportunity for Mrs C to ask any questions she had about the CHC process. Because she could not attend the meeting, she would not have known about any discussions during the meeting about how the CHC eligibility decision could impact on Miss D having to move to a different home that provided nursing.
37. The ICB could not know the outcome of the DST before it had properly considered Miss D's eligibility for healthcare funding. Therefore, it would not have told Mrs C about Miss D moving until after its decision. Miss D needed to move homes because she had a primary health need and her current home did not provide nursing care. The ICB had no control over the outcome of the DST or what information it could have shared with Mrs C before its decision and therefore is not at fault regarding this part of the complaint.
38. When making her complaints to the ICB Mrs C consistently said she was not provided with a list of homes as referred to in its complaint response. Mrs C said she came up with a list of potential homes herself. She then shared this with the ICB’s officer at the time of looking for homes. Based on the evidence I have considered it is likely this was the case. This is because Mrs C has provided documentary evidence to show she had sent the ICB a list of homes she had identified.
39. The ICB has not said what specific advice and guidance it provided to Mrs C when it was known Miss D would have to move to a new home that provided EMI nursing care. When it responded to her complaint it told her it was the relative’s or patient’s representative responsibility to secure a further placement. This is fault and not in line with the guidance set out in the National Framework.
40. The National Framework sets out that once someone is eligible for NHS CHC it is the ICB’s responsibility for their case management. It says, “best practice would be for ICBs to assign a named care manager or point of contact… the individual should be encouraged to have an active role in their care, provided with information of signposting to enable informed choices, and supported to make their own decisions”. It is the ICB’s responsibility to negotiate terms and conditions with the provider.
41. The ICB did not allocate a case manager, and this is not in line with best practice as defined by the National Framework. Mrs C did not have one single point of contact and the evidence available suggests she had to deal with different people from the CHC team as the team had said it was a busy period.
42. I have not seen documentary evidence to show the ICB acted in line with the guidance set out above or that it properly supported Mrs C to make an informed choice on behalf of Miss D. This formed the basis of her complaint. I therefore find the ICB at fault as it did not provide adequate support to Mrs C when she had to find a new placement for Miss D. The fault is likely to have caused Mrs C avoidable distress and led to her time and trouble in securing a suitable placement for Miss D.
43. The ICB did not invite Mrs C to the three-month review and said it relied on information from the Care Provider to inform its view. The ICB said the National Framework did not necessarily require a review to include relatives or a person’s representative. This is not in line with the National Framework.
44. The National Framework says, “ICB’s should operate a person-centred approach to all aspects of NHS Continuing Healthcare, using models that maximise personalisation…and that reflect the individual’s preferences, as far as possible…”.
45. Miss D could not participate in the review because of her limited capacity to make decisions and retain, weigh up and understand information. Mrs C is her court appointed attorney as she holds LPA also she has been Miss D’s friend for many years. She was therefore in a good position to represent Miss D’s views to reflect her preferences. These reviews should primarily focus on whether the care plan or arrangements remain appropriate to meet the individual’s needs.
46. The ICB said it involved the Care Provider in the review because its staff could describe how’s Miss D’s needs were being met. While it was not wrong for the ICB to seek information from the Care Provider as part of the review, any information from the Home was limited and provided just the Home’s view and not the views of Mrs C or Miss D.
47. The ICB should have included Mrs C in the review as she is Miss D’s attorney. This would have been in keeping with the model of personalisation the National Framework encourages. The ICB did not do this and is at fault. The fault is likely to have caused Mrs C to experience frustration and likely meant Miss D had no suitable person who could represent her voice during the review.

The Care Provider’s and the ICB’s response to Mrs C’s concerns about
Miss D’s care and support arrangements

48. The Care Provider said it involved Mrs C in its pre-admission assessment before Miss D became a resident. The assessment document provided by the Care Provider does not record if Mrs C attended the assessment in the relevant part of the document as this area is blank. It is also unsigned by the manager to confirm the home could meet the residents needs from admission.
49. The Care Provider said Mrs C shared information about Miss D such as her background history to inform its assessments. Information provided by Mrs C shows she visited the Home before Miss D became a resident and communicated with the Home’s manager. However, Mrs C later complained the Home had not shared a copy of the Residents Handbook with her and she felt this would have been beneficial.
50. When Miss D had a fall in the Home five days after the start of the placement the Care Provider contacted Mrs C to tell her Miss D was in hospital. Mrs C said the Care Provider gave her brief details regarding the circumstances of the fall and did not mention whether a safeguarding alert had been made. Mrs C had concerns about Miss D returning to the Home.
51. Once Miss D was discharged from hospital and returned to the Home Mrs C raised several issues with the staff and the manager about Miss D’s care and support. This resulted in her contacting the Care Provider’s Head of Care to raise her concerns in July 2022. The Care Provider agreed to visit Miss D to check her file and then contact Mrs C with an update. The evidence available suggests this happened.
52. Communication continued between Mrs C and the Care Provider’s staff throughout July and August. The details of the communication and emails suggest there was a breakdown of relationship between Mrs C and the Care Provider.
53. Mrs C emailed the Home’s manager on 19 August with a list of actions following a meeting she had attended the same day. Mrs C confirmed she had found the meeting with the manager helpful. She acknowledged she and the Home had different opinions about “the way things are undertaken in Melton House” but summarised she was happy with the care Miss D had received.
54. In October the Care Provider made a safeguarding adults enquiry to the local Council which related to a different resident as the adult at risk. Mrs C was mentioned in the information provided to the Council and was aware she was the subject of an investigation by the Council. Mrs C said from this date she was concerned about her visits to the Home as she had been wrongly accused and had only received limited details about the alleged incident.
55. Mrs C continued to communicate with the Home’s manager and in December she wrote a further email outlining more concerns. She also sent an email to the ICB outlining her concerns. The Care Provider said it asked the ICB to get involved because of a breakdown in the relationship and communication the Home had with Mrs C.
56. Representatives from the ICB met with Mrs C in December to discuss her concerns relating to Miss D’s placement in the Home. Following this meeting the ICB agreed to speak to the Care Provider about some of the issues and arrange a meeting between Mrs C and the Home.
57. The ICB’s officer emailed Mrs C in January 2023 to confirm he had met with the Care Provider to discuss the issues she had raised. The ICB officer said the Care Provider felt because of the communications from Mrs C about Miss D’s care it could not reach an agreeable solution. As such the Care Provider decided to service notice to end the placement. The officer said he would contact the CHC team to support with Miss D’s move to an alternative placement.
58. The Care Provider wrote to Mrs C on 20 January to notify her it was terminating in February 2023. It said Miss D’s placement had been subject to continued disruption beyond which it considered reasonable and appropriate. Miss D has since moved to a different nursing home.

Findings

59. The evidence available strongly suggests Mrs C was involved in the pre-admission process and so could share information about Miss D and ask questions of the Care Provider. She later complained she did not receive a copy of the residents’ handbook which the home said was left in Miss D’s room. It is likely that Mrs C would have had access to this.
60. Miss D’s fall in the home is likely to have affected Mrs C’s confidence about
    Miss D’s safety in the home. Mrs C had a responsibility to ensure the placement continued to be the best option for Miss D because she was her attorney for health and welfare. Although Miss D had a fall in the Home I have not seen evidence to find this was because of fault by the Care Provider.
61. The Home’s manager met with Mrs C and she was able to discuss her concerns in July 2022. Following this meeting Mrs C expressed her satisfaction with the care Miss D was receiving. This shows that for this period Mrs C was happy with the care provided. The Care Provider dealt with a complaint and apologised to Mrs C for any frustration she experienced.
62. From the information Mrs C provided it is likely her dissatisfaction with the Home increased following the safeguarding report it made to the local council about her. The Care Quality Commission expects care providers to have procedures and processes in place to prevent vulnerable using the service from being abused. It is good practice for care providers to report concerns they have about vulnerable adults to the Council.
63. I can understand why Mrs C may feel aggrieved. In her view she did not do anything wrong and could not understand why she was named in the safeguarding report the Home made to the local council. The threshold for an organisation or person to report concerns about a vulnerable adult to a council is low. The Care Provider acted in line with its procedures and followed good practice when making the report. Therefore, I cannot say it is at fault.
64. When making safeguarding reports organisations may only share limited information with those named as alleged perpetrators to ensure the adult at risk is safeguarded from any potential abuse. It is then up to the relevant council to decide whether the threshold for a safeguarding enquiry has been met. I do not find the Care Provider at fault in the way it followed its safeguarding procedures.
65. Mrs C has made a separate complaint about the safeguarding process to the relevant council. If Mrs C has concerns about how the Council followed its safeguarding procedures she can ask the LGSCO to consider a complaint once she receives a final response to her complaint.
66. There is evidence to show the Care Provider and the ICB responded to Mrs C’s concerns to try and resolve the issues she had raised. The ICB offered to facilitate a meeting between Mrs C and the Care Provider and although this did not go ahead it was not because of fault by the ICB. It also confirmed to Mrs C it had made four unannounced visits to the Home to obtain a true reflection of care being provided. The ICB did not have any concerns following these visits. Therefore, I cannot say it is at fault.
67. As attorney for health and welfare Mrs C could have decided whether it was better for Miss D to move to a different home. The Care Provider served notice due to the breakdown in relationship between it and Mrs C. This was a decision the Care Provider was entitled to make. When this happened the evidence available supports the view the ICB acted to support Mrs C and arranged for
    Miss D to move to a different home.

The top-up payment charged by the Care Provider and the ICB’s role

68. Mrs C said when Miss D lived in her previous care home she had a room with an ensuite bathroom. When she visited the Home she told the manager she wanted Miss D to have the same type of room.
69. When responding to our enquiries the Care Provider said Melton House is a premium rate facility which offers different rooms. It said Mrs C opted for a premium room for Miss D’s placement. It said the total fee of £1469.59 weekly reflected the higher quality accommodation. This consists of a contribution third-party top up from Mrs C of £477.34 weekly and £994.02 funding from the ICB weekly. The Care Provider said the funding from the ICB was not enough to cover the premium care facility.
70. The Care Provider said Miss D had received CHC funding in her last placement and said it had worked closely with the ICB to alleviate any concerns Mrs C had. Mrs C said she did not understand the funding arrangements and referred to a lack of support from the ICB when she was looking for a nursing home for Miss D when she had to move to the Home.
71. The ICB confirmed it paid weekly fees to the Care Provider for an EMI nursing bed at Melton House. In response to our enquiries, it said the Care Provider may have had a separate private arrangement for top-up fees in place with Mrs C or Miss D that it was not aware of.

Findings

72. The National Framework sets out that the role of ICBs is to assess a person’s eligibility for NHS CHC funding. Once eligibility is confirmed, the ICB must put in place an appropriate care plan and commission care provision. This must all be done with the involvement of the person, or their appropriate representative.
73. The funding provided by ICBs in NHS Continuing Healthcare packages should be sufficient to meet the needs identified in the care plan. Where an individual indicates a preference for higher-cost accommodation or services, the ICB should liaise with the individual to identify the reasons for their preference.
74. The ICB said it does not complete care and support plans for care home residents. It said the Home would have determined a care and support plan. The ICB had a responsibility to ensure the care plan met Miss D’s needs. The National Framework says, where the care plan includes access to non-NHS services, ICBs should ensure the arrangements for these are in place and are working effectively. Therefore, the ICB should have been aware of any private arrangement in place between Mrs C and the Care Provider.
75. The lack of support by the ICB when Mrs C was finding the placement for Miss D likely meant it did not discuss with her the type of room Miss D needed. Miss D had challenging behaviour which required the involvement of the Challenging Behaviour Team. Mrs C asked for a room with an ensuite bathroom as she felt this was more suited to Miss D’s needs. Miss D had moved from a residential home where she had an ensuite bathroom and Mrs C said this was helpful when dealing with her challenging behaviour.
76. The information in the DST completed by the ICB provides evidence to show
    Miss D had challenging behaviour that needed intervention from the Behaviour Support Service. Her previous residential home could not cope with her challenging behaviour and contacted the ICB so it could consider her eligibility for CHC funding.
77. When the ICB completed the DST, it assessed Miss D as having a high level of need for behaviour and noted that she was aggressive to staff and presented a risk to other residents as she wandered in and out of their rooms. The documentary evidence suggests she became more aggressive when receiving personal care. The MDT summarised that Miss D presented with intense, complex, and unpredictable needs in relation to cognition, psychological needs and behaviours.
78. The evidence available suggests it was more likely than not, on balance, that Miss D’s needs were of a nature which would be best met by being placed in an EMI placement which could offer a room with an en suite bathroom. This is because she had challenging behaviour and the evidence states she would wander into other residents’ rooms and could show signs of aggression when receiving personal care.
79. The ICB said Miss D needed an EMI placement but failed to consider the impact of her challenging behaviour on the type of room she required. The ICB had a responsibility to ensure the fee requested by the Care Provider was allowed given the ICB’s statutory position under the NHS Act 2006. If it decided the room with the en suite bathroom was not an assessed need it should have then followed the criteria outlined in the National Framework.
80. The CMA’s guidance says, care providers should ensure the terms and business practices they use with CHC residents are consistent with NHS rules, relevant policy guidance and the contract with the NHS funding body commissioning the placement. The Care Provider said its terms and conditions in place comply with the CMA’s guidance.
81. The CMA guidance says care providers “are not allowed under NHS rules to ask residents in receipt of CHC or their families to make top-up payments towards the cost of the care package that has been agreed between you and the appropriate NHS funding body… Where a CHC resident voluntarily expresses a preference for, or requests higher-cost accommodation (for example, a room in a home that is more expensive than the NHS would normally pay in that locality) and/or additional services, in line with the relevant policy guidance in England and Wales, you should first refer the matter to the appropriate NHS funding body which has placed the resident to consider.”
82. Mrs C was not familiar with the healthcare funding process and it was usual for her to pay Miss D’s residential care fees in the previous placement. She did not know to refer the request for an ensuite room to the ICB. In line with the CMA’s guidance the Care Provider should have referred Mrs C’s request to the ICB first before asking her to sign a separate agreement. It did not do this and therefore the Care Provider is at fault.
83. The placement agreement the Care Provider asked Mrs C to sign says, “if you are in receipt of CHC funding the Total Weekly Fee Payable by the Client is to reflect the Higher Quality/Accommodation/Service costs.” The agreement also says the client will remain liable for the Total Fee in this case £1,469.59 weekly.
84. The ICB assessed that Miss D had a primary health need making her eligible for healthcare funding to cover the costs of the type of accommodation she needed. This was EMI nursing accommodation. It was the ICB’s responsibility to procure the accommodation and the contract for the accommodation to meet
    Miss D’s assessed needs was between the ICB and the Care Provider. The ICB was responsible for the fee agreed with the Care Provider for EMI nursing accommodation and not Mrs C. The Care Provider should have made this clear in its terms and conditions. It did not do this and this is fault.
85. Section 3 of the Care Provider’s terms and conditions refers to the payment schedule and should have been completed to show the total fee and any CHC payment. This section is blank and instead the Care Provider completed section 4 which refers to local authority funding. The Care Quality Commission, the regulator for the Care Provider requires care providers to keep accurate records. The evidence available strongly suggests the Care Provider did not act in line with the CQC’s fundamental standards when completing the details within its terms and conditions.
86. The ICB was not aware of the additional charges Mrs C was asked to pay by the Care Provider. It is the ICB’s responsibility to make sure care providers are aware of the principles around additional charges. Where additional charges are proposed, the ICB should discuss this with the person using care to assure itself that the care plan and package is appropriate to meet their needs.
87. The ICB should have properly explained the charging process to Mrs C and told her what the CHC funding covered. The ICB did not act in line with the National Framework. This is fault. If the ICB had acted in line with the National Framework this would have ensured it was aware of any private arrangement between Mrs C and the Care Provider. This is would have then allowed a proper process to be followed in the event the top-up payment was considered permissible.
88. The fault by the ICB has meant Mrs C made top-up payments to the Care Provider on behalf of Miss D when it is likely the costs for her accommodation should have been met in full by the ICB. As a result, Miss D is left out of pocket by a substantial amount of money equal to the weekly top-up fee she paid from
    May 2022 to the date she left the Care Provider’s Home.

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Recommendations

89. The ICB and the Care provider have agreed to our recommendations and will take the following action within six weeks of our final decision:
• The ICB will apologise in writing to Mrs C for the avoidable distress she experienced because of its failure to provide her with enough support when Miss D had to move to Melton House Nursing Home. It will also apologise for the frustration she experienced when it did not invite her to the three-month review.
• The ICB will pay Mrs C £250 to acknowledge the avoidable distress and frustration she experienced.
• The ICB will confirm the amount of top-up payments Mrs C paid to the Care Provider and will then arrange for her to be reimbursed for the weekly top-up payments of £477.34 weekly she paid from May 2022 to when the placement ended. The ICB will also apply an appropriate rate of interest in line with the NHS Continuing Healthcare Redress Guidance.
• The ICB will act to ensure the Care Provider and other providers it commissions are aware of the principles around additional charges to ensure best practice. It will also remind its officers of the importance of ensuring that where additional charges are proposed, these should be discussed with the person using care or their representative to assure the ICB the care plan and package is appropriate to meet the person’s needs.
• The ICB will remind its staff who deal with CHC arrangements and who complete CHC reviews of the importance of adhering to the principles of personalisation outlined in the National Framework.
• The Care Provider will review its terms and conditions for care fees and ensure there is a process in place which enables requests for ‘premium accommodation’ to be considered by the relevant ICB before the Care Provider enters a private agreement with a resident or their representative when the resident is eligible for CHC funding.
• The Care Provider will remind its staff of the importance of good administration and accurate record keeping within documents that relate to care fees. It will provide training to its staff if necessary.
90. The ICB and the Care Provider should provide evidence to the Ombudsmen to show the recommendations have been completed.

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Final decision

91. I have found fault causing injustice by the ICB and the Care Provider. The ICB and the Care Provider have agreed to our recommendations. This is a suitable remedy for the injustice caused. I have now ended my investigation.

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Investigator's decision on behalf of the Ombudsman