Summary: The Care Provider did not explain the extra charge it made for a ‘lifestyle premium’ and we cannot be sure that the complainant, the late Mrs J, would have chosen to pay this. It has agreed to refund half the total amount to Mrs J’s estate and review the advice it gives about this. The Clinical Commissioning Group (CCG) Occupational Therapy service failed to complete an assessment and so it could not fund a specialist chair for Mrs J and she had to be nursed in bed. The CCG should refund the cost of the chair to the daughter and pay her £300 in recognition of her distress. It should also review how its OT provision is organised.

The complaint

1. Mrs B complains on behalf of her late mother, Mrs J, that the Provider, Barchester Healthcare Homes Limited (the Care Provider):
• charged for a higher cost care package without making clear that this was not a required top-up to meet Mrs J’s assessed care needs; and
• charged Mrs B for a specialist chair when this should have been met by the Cambridgeshire and Peterborough Clinical Commissioning Group (the CCG).
2. Mrs B also complains that the CCG failed to:
• explain the Continuing Healthcare (CHC) process to Mrs B and did not make her aware that she would not need to pay a top-up fee as Mrs J was in receipt of full CHC funding;
• adequately investigate Mrs B’s concerns about the top-up fees when she brought them to the CCG’s attention in August 2017; and
• fund a specialist chair for Mrs J to meet her assessed needs. Mrs B says this meant she needed to purchase the chair privately.

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The Ombudsmen’s role and powers

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 have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)
7. The Ombudsmen may investigate complaints made on behalf of someone else if they have given their consent. The Ombudsmen may also investigate a complaint on behalf of someone who cannot authorise someone to act for them, if the Ombudsmen consider them to be a suitable representative. (Health Service Commissioners Act 1993, section 9(3) and Local Government Act 1974, sections 26A(2) and 26A(1), as amended)
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 the information provided by Mrs B’s representative. I have considered the information provided by the Care Provider and the CCG, including information from their files. All parties have had a draft of this statement and I invited them to comment. The Care Provider agreed to the draft and my recommendations. The CCG did not respond and so I have issued my findings against it on the evidence available to me. Mrs B responded and I have summarised her comments below.
10. In line with our information sharing protocol, I have shared this decision statement with the Care Quality Commission.

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What I found

The law and guidance

11. Continuing Healthcare (CHC) is a package of ongoing care arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’.
12. The Department of Health’s National Framework for NHS Continuing Healthcare and NHS‑funded Nursing Care (November 2012 (Revised)) (the National Framework) was the key guidance about Continuing Healthcare at the time of the complaint. The guidance says:
• Patients should not be charged for NHS services. This means there must be a clear separation between private and NHS care.
• CCGs should make sure that care providers are aware of this.
• Where a provider receives a request from a person for additional privately funded services, and that person’s nursing care is funded by CHC, the provider should refer the matter to the CCG for consideration.
13. The Local Government and Social Care Ombudsman has issued guidance on how to remedy complaints when the person affected has since died. This says that where there is clear evidence of quantifiable financial loss, we will normally recommend a financial remedy that repays that loss to the deceased person’s estate.
14. However, we would not normally seek a remedy where the injustice is less tangible, such as distress, harm or risk.

What happened

The care charges

15. Mrs J moved into a residential nursing home in November 2012. At first, she paid for this from her own money. The amount to be paid weekly was expressed in a single figure.
16. In August 2013, the CCG assessed her and found that she was entitled to CHC funding. This meant that the CCG would meet Mrs J’s care costs. The Provider wrote to Mrs J explaining that she had been awarded CHC funding, but she would still have to pay a lifestyle top up fee of £295 per week.
17. The contract between Mrs J and the Care Provider said that the gross amount was £705 from public funding leaving her a ‘resident charge’ of £295. At this time, Mrs J also changed to a smaller room that did not have an en suite bathroom as she was unable to use this.
18. These charges continued until August 2017. The CCG reviewed Mrs J’s funding and decided that she was no longer eligible for CHC funding. Mrs B appealed against this decision with the help of a specialist advisor. The CCG reinstated the CHC funding. At this stage, the advisor questioned the CCG and the Care Provider about the additional fee. She thought that this was a top up for the nursing care which would have been unlawful.
19. Following the complaint CCG has confirmed that:
• It did not know that Mrs J was paying any additional charges.
• The CCG contacted the Care Provider but could not get further clarity about the additional fee.
• Although the advisor raised this in August 2017, the CCG did not properly respond until April 2018. Sadly by this time, Mrs J had died. The CCG decided that it could not investigate the matter because it was a private contractual matter between Mrs J and the Care Provider.
• It now sends a letter making clear that patients should not enter into a private contract for lifestyle premiums unless there is clarity about what these are supposed to meet.
20. The Care Provider responded to Mrs J’s complaint and other contact. In the correspondence with Mrs B and the advisor, it says the payment by Mrs J was a ‘user contribution’, and on another occasion that its nursing fee was £1000 per week.
21. I asked the Care Provider to explain what it provided for the lifestyle premium. It said:
• ‘Lifestyle Choice’ is a phrase used by the NHS to ensure that individuals moving into private care are able to have a personalised choice of where they would like to reside.
• CHC funding is offered by the NHS to cover healthcare needs in a standard care home setting. Often, the NHS will not fully fund a resident’s decision to stay in a particularly attractive, comfortable or well-resourced home, such as the one Mrs J stayed in.
• The courts have accepted that when the amount funded by the NHS is not sufficient to cover the full service offered, individuals are able to contribute additional funds by way of “Lifestyle Choice”
• Mrs J moved from a room with an en suite to a smaller room without this. the weekly fee charged is not dependent on the room but rather the care offered, which is dependent on each resident’s individual care needs. As Mrs J’s care needs had not changed at the time of the room transfer, the weekly fee was not altered.
22. Mrs B is very clear that the Care Provider did not explain this additional charge to her mother or to her. Her mother did not have the capacity to comment on her care. She had continued to pay the fee to top up the CHC thinking that this was required, in the same way as it might be for residents of a care home who have to contribute to funding from the local authority.

Was there fault in how the Care Provider and the CCG dealt with the care charges? Did their actions cause an injustice to Mrs J?

The Care Provider

23. I remain of the view that the Care Provider is vague about what is provided in return for the premium. It talks about the higher standard of home and then later relates the fee to the care provided (when Mrs J moved to a different room). On balance I have decided, the additional fee or lifestyle premium is not a top up for NHS care. It is related to the home and surroundings. As such, it is not covered by the rules outlined above. However, the Care Provider is still governed by principles of good administrative practice and fairness.
24. There was fault by the Care Provider because it cannot evidence that it clearly explained to Mrs J or Mrs B that the fee consisted of a premium due to the nature of the home she had chosen to stay in. The Care Provider, was also not consistent in the way it referred to the additional charge, calling it a user contribution and part of the nursing fee. This added to the confusion.
25. We cannot say that Mrs J would not have chosen this home had she known that she was paying extra in the form of a lifestyle premium. However, the lack of clarity by the Care Provider meant that Mrs J and Mrs B could not make an informed decision about whether to stay at the home.
26. Mrs B has asked for the whole of the additional fee to be refunded. However, it is not possible to say whether Mrs J and Mrs B would have decided to move, and it is likely that Mrs J did enjoy some benefits of the additional fee, even if she was in her room for much of her time there. For these reasons, I cannot say the Care Provider should refund the whole cost, but it should refund half the additional fee as set out below.

The CCG

27. The CCG took too long to reply to Mrs B’s complaint to it about the additional charges. However, it was open to it to refer Mrs B to the Care Provider as this is not a top up to NHS funded care (which would have been unlawful). For this reason, the CCG’s delay did not impact greatly on Mrs B. However, I do welcome the CCG’s new practice to explain that any additional contract alongside CHC should be not be entered into unless the person is clear about what will be provided for this. There is no further action for the CCG to take in this regard.

Mrs J’s specialist chair

28. Mrs J needed a specialist chair to be transported around the home. Without this, she had to stay in bed and was unable to take meals or socialise with the other residents. This need became apparent in late 2016 and the CCG asked the Care Provider to request an occupational therapist (OT) assessment. It says that responsibility lay with the home to make sure that Mrs J was assessed and that the correct chair was identified. The CCG needed the OT assessment to be in place before it could fund the chair.
29. The notes suggest that the Care Provider referred the case to the NHS OT for assessment more than once, but no assessment was forthcoming as the OT teams could not agree which team should carry it out. The CCG chased the Care Provider to make the referral again, and it seems it did this but there was still no OT assessment completed.
30. The Care Provider asked an external company to assess Mrs J and it provided a trial chair that Mrs J used for six months. It took back the chair and so Mrs J was nursed in bed from 2 June until 10 July 2017. Another external provider supplied a specialist chair as a trial, but by the beginning of August, it needed to take this back and so Mrs J was again being nursed in bed. Mrs B bought the specialist chair from the supplier. The CCG told her that it could not refund her without an OT assessment, but as this had been outstanding for some months, Mrs B went ahead with the purchase.

Was there fault by the CCG and did this or the actions of the Care Provider cause an injustice to Mrs J or Mrs B regarding the specialist chair?

31. I appreciate that the Care Provider was responsible for making the referral to the OT team and for making sure the assessment was completed, and I also appreciate that the CCG could not fund the chair without an assessment from the OT. However, the evidence I have suggests that the Care Provider made the referral and it was the CCG’s OT teams that failed to progress this. The Care Provider could have perhaps done more to make sure the assessment was progressed, but when it did make the referral the OT team did not assess. It is this failure that ultimately meant the assessment was not completed; Mrs J was nursed in bed; and Mrs B felt compelled to buy the chair herself. The CCG did pursue the matter, but it was its own OT service that was at fault.

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Agreed remedy

The Care Provider

32. The Care Provider will show the Ombudsman within one month of this decision that it has:
• Apologised to Mrs J for its failure to properly explain the ‘lifestyle premium’; and
• Refunded half of the additional ‘lifestyle premium’ to Mrs J’s estate over the period of her stay. This is because its failure to be clear about this additional fee means we cannot be sure that Mrs J would have chosen to contract to pay this.
33. The Care Provider will show the Ombudsman within three months of this decision that it has reviewed how it explains these additional charges to service users and their families, as well as the written material it provides about this. The Provider should make clear what the additional fee covers and that it will not be covered in the event that CHC funding is awarded,

The CCG

34. The CCG will within one month of this decision show the Ombudsman it has:
• Apologised to Mrs J for its failure to complete the OT assessment; and
• Paid to Mrs J £2,490 to refund the cost of the specialist chair, and £300 in recognition of the distress that its failures put her to.
35. The CCG will within three months of this decision show the Ombudsman it has reviewed how its OT provision is organised, so that delays are avoided.

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Final decision

36. I have completed my investigation. The Care Provider’s actions caused Mrs J injustice. There was fault by the CCG and this caused Mrs J and Mrs B injustice.

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Investigator's decision on behalf of the Ombudsman