Summary: Miss C complained the Care Provider failed to give advice and progress Mrs X’s entitlement for Funded Nursing Care. We found the Care Provider at fault for wrongly classifying Mrs X as in residential care and it failed to provide advice and progress her application for Funded Nursing Care. It also caused significant delays in its complaints process. The Care Provider has agreed pay Mrs X’s estate the amount of Funded Nursing Care she was entitled to. It will also apologise and make payment to Miss C to acknowledge the distress its delayed complaints handling caused.

The complaint

1. The complainant, whom I shall refer to as Miss C, complained her mother’s care provider incorrectly classified her under residential care instead of nursing care when she moved in its care home in 2018. She said it did therefore not assess her entitlement for Funded Nursing Care until November 2020.
2. Miss C also complained about how the Care provider handled her complaint.
3. As a result, Miss C said she experienced distress and her mother lost out on funded nursing care contributions.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)
7. 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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How I considered this complaint

8. As part of my investigation, I have:
• considered Miss C’s complaint and the Care Provider’s responses;
• discussed the complaint with Miss C and considered the information she provided;
• considered the information the Care Provider shared in response to my enquiries; and
• considered the relevant law and guidance to the complaint.
9. Miss C and the Care Provider had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

NHS continuing healthcare and Funded Nursing Care

10. Some people with complex health needs qualify for free social care arranged and funded solely by the NHS. This is known as NHS CHC which can be provided in various settings outside hospital, such as in a person’s own home or in a care home. The initial checklist assessment can be completed by a nurse, doctor, other healthcare professional or social worker. Integrated care boards, known as ICBs (the NHS organisations that commission local health services), must assess a person for NHS CHC if it seems that they may need it.
11. The applicant should be told that they are being assessed and what this involves. This may lead to a referral for a full assessment for NHS CHC which is undertaken by a multidisciplinary team (MDT) made up of two or more professionals from different healthcare professions. The MDT usually include both health and social care professionals already involved in the person’s care.
12. The National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care states there will be many situations where it is not necessary to complete a checklist. These include where it is clear to practitioners working in the health and care system that there is no need for CHC at that time. If this is their decision, the reasons for it should be recorded. If there is any doubt between practitioners, a checklist should be completed.

Care Provider’s complaints policy

13. The Policy says it will:
• acknowledge complaints within five working days and attempt to resolve these quickly informally;
• if a complainant is not satisfied with its response, a senior manager will respond to complaints within 20 working days; and
• it will keep a complainant informed about the progress of its investigation every seven to ten working days.

What happened

14. Miss C’s mother, Mrs X, was in hospital in late 2017. She was discharged into a care home with a catheter in place. As the care home did not have registered nurses to support her with her catheter needs district nurses were overseeing her care.
15. In May 2018 Mrs X was moved to a care home (the Care Home) managed by the Care provider. Her catheter and support needs for this remained in place, and the Care Home’s assessment said this should be discussed with the district nurses.
16. The Care Home was split in sections for residents who needed residential care and those who needed nursing care. Miss C said as the Care Home had enough space, Mrs X was given the choice of a room in either section regardless of her nursing care needs.
17. In June 2018 the district nurses visited Mrs X in the Care Home to support her with her catheter care. All subsequent catheter care support was completed by the Care Home’s registered nurses.
18. In Autumn 2020 Mrs X was admitted to hospital. She was discharged two weeks later to the Care Home. The discharge notes showed she had been re-catharised and her catheter passport had been updated.
19. Six weeks later Mrs X started receiving FNC contributions which reduced her Care Home costs. This remained in place until Summer 2022 when Mrs X died, except for a short period where she wished to try to manage without her catheter.

Miss C’s complaint

20. When Miss C became aware of FNC and that this has not been assessed or applied for in 2018, she complained to the Care Provider. She said it had:
• wrongly classified Mrs X as requiring residential care when she moved into its Care Home. This was because it took over her catheter and support needs care from the district nurses which meant she should have been classed as nursing care; and
• failed to assess and progress Mrs X’s entitlement to Funded Nursing Care, and inform her and Mrs X about Funded Nursing Care entitlement.
21. Miss C also said Mrs X started receiving FNC in November 2020 during COVID-19. Her eligibility was clear and no visit to assess her was required as she had a catheter in place. She later had a visit to assess her again which confirmed her entitlement.
22. The Care Provider responses to Miss C’s complaint included:
• an acknowledgement of Miss C’s complaint which said it would respond within 20 working days;
• Miss C chasing the Care Provider for its response when the 20 working days had passed. It told her it would respond the following week;
• confirmation it would apply for FNC to be backdated with the NHS, so Mrs X can be compensation for the lost contributions;
• Mrs C chasing the Care Provider for a response to its application to backdate FNC as it had not responded as quickly as it told her it would;
• an apology for the delay in responding to Miss C.
23. The Care Provider provided its complaint response to Miss C eight weeks after it said it would. It apologised and explained it had been liaising with the NHS. It found:
• it should provide refund Mrs X’s FNC contributions entitlement from March 2020 to September 2020. This was because due to COVID-19 the district nurses could no longer attend in March 2020 and the Care Home’s nurses provided the catheter support. It agreed it should therefore have applied for FNC on her behalf at the time;
• FNC started to be paid to Mrs X in September 2020. She had therefore received her entitlement to FNC since then; and
• Mrs X was not entitled to FNC before March 2020 as she was classed as in residential care and had support from the district nurses. It had confirmed this with the NHS.
24. Miss C thanked the Care Provider for the refund for the March to September 2020 period but continued to dispute its decision and asked it to reconsider. She said the district nurses had not been involved in Mrs X’s care, as the responsibility had been transferred to the Care Home’s nurses when she moved in. She also said Mrs X’s FNC did not start in September 2020, but first two months later.
25. Mrs X died in Summer 2022.
26. Miss C chased the Care Provider several times over the following months for a response to her complaint. It apologised for the delay and said on several occasions it would review her complaint and provide its response. However, it took six months before she received its final complaint response.
27. In its response the Care provider told Miss C it believed its initial complaint response was correct and it had not changed its view.
28. Miss C asked to Ombudsman to consider her complaint.
29. In response to our enquiries the Care Provider:
• confirmed its new manager found it was responsible for Mrs X’s catheter care from May 2018 when she moved into its Care Home. This was because it had no documentation relating to district nurses’ visits and its Care Assessment form referred to its staff managing the catheter care.
• agreed there was no rationale why Mrs X had been classified as residential care, and not nursing care; and
• shared documents including its assessment form, invoices and payments information.
30. In response to my draft decision, the Care Provider shared evidence a credit note for FNC for the period between September to November 2020 was created and Mrs X’s care account was later credited with the amount.

Analysis and findings

31. Miss C complained about matters which occurred between May 2018 and November 2020. Her complaint is therefore late. However, I have decided to exercise my discretion to consider her complaint. This is because she was not informed or aware of FNC until early 2022 when she raised her concerns with the Care Provider, and she has continued to raise her concerns since.

Was Mrs X incorrectly classified as in ‘Residential care’?

32. The Care Provider agreed there was no rationale for Mrs X to have been classified under residential care when she moved into the Care Home in 2018.
33. I found the Care Provider made an error when Mrs X moved into its Care Home in 2018 as it should have registered her as requiring nursing care. The error appears to have happened as she was given the choice for which part of the building she wished to have a room as it had space available. As her room was in the residential care section, she was then incorrectly not registered as needing nursing care. This was fault.
34. While the Care provider’s fault did not cause Mrs X or Miss C an injustice, it is likely this contributed to its failure to advice about or apply for FNC on behalf of Mrs X.

Was Mrs X entitled to Funded Nursing Care?

35. Mrs X was found eligible by the NHS for FNC in November 2020 as she met the criteria for the support. This was because she had her catheter and required nursing support to manage this, which was provided by registered nurses in her Care Home.
36. The Care Provider agreed Mrs X was also entitled to FNC from March 2020 until September 2020, as during this period its registered nurses were managing her catheter care, but it had failed to apply for her to receive FNC. It therefore agreed to refund her the amount of FNC for this period. It initially said district nurses were responsible for her catheter care prior to March 2020.
37. The Care Provider has since agreed it was responsible for Mrs X’s catheter care from May 2018, as there are no records to show the district nurses were responsible for this since then.
38. I agree with the Care Provider’s revised view. The evidence shows:
• after Mrs X moved into the Care Home, only an initial district nurse visit took place in which her catheter care was passed on to the Care Home’s registered nurses; and
• the Care Home’s registered nurses continued to provide Mrs X with catheter care support throughout her stay.
39. I have therefore found the Care Provider at fault for failing to advice Mrs X and Miss C about FNC and to progress the application when it became responsible for her catheter care in May 2018.
40. I cannot normally say whether a person would have been entitled to FNC if the appropriate process had been followed and FNC had been applied for. This is because it may not be possible to know the outcome of the required assessment and considerations retrospectively.
41. However, in this case, I found it is clear Mrs X would have been entitled to FNC when she moved into the Care Home in May 2018. This is because:
• her catheter was in place at the time and the Care Provider was responsible for her catheter care;
• the Care Provider agreed in 2022 it should have applied for FNC for Mrs X from March 2020 until September 2022. While it initially said it was not responsible for the catheter care before March 2020, it has since agreed it was;
• when a decision was made on Mrs X’s FNC entitlement in late 2020 she was granted the support without a visit, and her entitlement was later confirmed. As Mrs X had no other changes in her care and support needs, the sole reason for her entitlement was her catheter support needs; and
• Mrs X continued to be entitled to FNC until she died.
42. The Care Provider has already refunded Mrs X’s estate with her lost FNC entitlement from March to September 2020. The evidence also shows she received FNC contribution into her care account from 30 November 2020 until she died.
43. In addition, the Care Provider shared evidence it FNC had since been credited to Mrs X’s care account for the September to 29 November 2020 period.
44. The Care provider should therefore refund Mrs X’s lost FNC entitlement from May 2018 to March 2020 when it was responsible for her catheter care and failed to provide information and progress her FNC entitlement. This should be based on the weekly contribution rates at the time.

Complaints handling

45. Miss C complained to the Care Provider in April 2022. It did not provide its stage one complaint response until June 2022, which was seven weeks longer than set out in its Policy.
46. Miss C escalated her complaint in late June 2022. The Care provider did not provide it final complaint response until December 2022, which was 20 week later than set out in its Policy.
47. The Care Provider acknowledged Miss C’s complaints. It also gave her some reassurances it would respond to her complaints when she chased it for its responses.
48. I understand the Care Provider was investigating, liaising with the NHS and some staff were unavailable. However, I found it at fault for failing to respond to Miss C’s complaints as set out in its Policy. This is because I am not satisfied its reasons for the delays justified the significant time it took for it to respond, and it only provided updates on when it may respond when Miss C requested it.
49. I found this caused Miss C some additional distress due to the uncertainty this caused her, and she had time and trouble to get the Care Provider to respond to her complaint.

Injustice to Mrs X

50. While the Care Provider’s faults may have caused Mrs X an injustice, I cannot remedy personal injustice experienced by someone who has since died.
51. However, I can remedy the injustice the Care Provider’s faults caused her estate as a result of her lost FNC contributions.

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Agreed action

52. To remedy the injustice the Care Provider caused to Miss C and Mrs X’s estate, the Care Provider should, within one month of the final decision:
1. apologise in writing to Miss C, and pay her £200 to acknowledge the distress and uncertainty its delayed complaints handling caused her. Including the time and trouble she had to get it to respond to her concerns;
2. pay Miss C, as the Executor of Mrs X’s estate, £16,322.94 which is the amount Mrs X would have received in weekly contributions, had it not been at fault for failing to give advice about and apply for Funded Nursing Care from 15 May 2018 to 19 March 2020.
53. Within three months of the final decision the Care Provider should also:
1.  
2.  
3. review how the Care Provider ensures residents are classified correctly under residential or nursing care regardless of which section of its Care Home they reside in;
4. provide training to its staff to ensure residents, who may be eligible for NHS funded care or support, receives advice about possible entitlements and applications are progressed in line with the National Framework for Continuing Healthcare and Funded Nursing Care; and
5. review its complaints handling processes to ensure complaints are responded to within the timescales set out in the Care Provider’s Complaints Policy, and it informs complainants about any delays outside its control.
54. The Care Provider should provide us with evidence it has complied with the above actions.

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Final decision

55. There was fault which caused an injustice. The Care Provider has agreed to my recommendations, it is on this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman