Summary: Mr X complains the care provider failed to deduct funded nursing care payments from his mother’s weekly care charges. We find fault with the care provider as it has failed to provide clear written information about how it will treat FNC payments. We have made recommendations for the care provider to remedy the injustice caused.

The complaint

1. Mr X complains the care provider failed to deduct funded nursing care payments from his mother’s weekly care charges. He says the package of care has not changed and the care home is receiving additional funding but not providing his mother with any additional care. Mr X would like the care provider to deduct the FNC funding from his mother’s weekly care fees.

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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. (Local Government Act 1974, sections 34B and 34C)
3. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
4. We may investigate complaints from the person affected by the complaint issues, or from someone they authorise in writing to act for them. If the person affected cannot give their authority, we may investigate a complaint from a person we consider to be a suitable representative. (section 26A or 34C, Local Government Act 1974)

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How I considered this complaint

5. I spoke with Mr X and considered the information he provided.
6. I considered the information provided by the care provider and made enquiries with the Council.
7. I sent a draft decision to Mr X and the care provider and considered their comments.

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What I found

The Ombudsman’s Funded Nursing Care (FNC) Payments: guidance for care providers

8. FNCs are payments from the Department of Health to nursing homes for nursing care. Eligibility for FNCs is by assessment and payments are administered by a resident’s local clinical commission group. The payments are made directly to the care provider.
9. We issued guidance on FNCs in 2018. Our guidance highlights that our starting point with FNC complaints is to look at the contract and any standard information given to the resident or their representative before they moved in. It notes we interpret contracts on an ordinary reading and if a contract does not make sense to us, then we may view it as a failure by the care provider.
10. It also notes we are likely to find fault where a contract is silent on how the care provider treats FNCs.
11. Our guidance gives examples of FNC complaints we have previously investigated. One given example is the care provider’s written contract did not explain how the provider would treat FNCs. We found fault with this as the contract could have been drafted in a way which allowed the care provider to increase fees automatically on receipt of FNC and to keep the payments for itself. Instead, the contract was silent on what happened to FNC payments, and this fell short of expected standards.
12. The guidance highlights that if the contract explains clearly what happens when FNC is awarded, then we are not likely to uphold a complaint. We also note it is acceptable to issue a new contract if circumstances change if the person has time to decide whether they can afford any increase.
13. Finally, the guidance notes that a resident’s contribution could stay the same or fall when FNC is awarded. What happens will depend on the care provider’s terms and conditions and so the contract needs to explain who the care provider treats FNC payments.

Care Quality Commission (Registration) Regulations 2009

14. Regulation 19 says care providers should provide the resident or their representative with a written statement, ideally before the resident moves in. The statement should:
• Set out the terms and conditions of service, including the amount and ways to pay the fee.
• Include a contract.
15. Guidance by the CQC, Fundamental Standards, explains:
• People must receive a copy of the contract and they must agree to the terms before their care and support begins.
• Care providers should tell people about any changes in terms and conditions in advance, including increases in fees. This is so people have time to consider whether to continue with the service.
16. The point of Regulation 19 and the fundamental standards guidance is to ensure care providers give timely and accurate written information about any fees and terms and conditions in a contract where people are paying either in full or in part for their care.

What happened

17. Mr X’s mother, Mrs Y, went into a nursing home in October 2020.
18. In January 2021, Mrs Y’s care home sent her a contract which set out the fees Mrs Y had to pay for the provision of care services. The listed fee was £680 per week. The contract did not set out what the care provider would do with FNC payments or whether it would affect the fees she had to pay.
19. In May 2021, the NHS agreed to pay a FNC contribution of £187.60 per week directly to Mrs Y’s nursing home. The NHS backdated this, with a start date of April 2021.
20. Mr X told us he had been deducting the FNC payments from the nursing home’s weekly fees from April 2021.
21. The care provider told us its private resident fee was £680 and this was stated in the contract it sent to Mr X. The care provider said it did not deduct FNC payments from its care fees as FNC payments were to pay for nursing care. The care provider said this was separate to the fees paid by the resident.

Analysis

22. The care provider’s contract with Mrs Y is silent on how it treats FNC payments. This is fault. This is because the care provider should provide Mrs Y and Mr X with clear written information about any fees and terms and conditions in the contract, in line with Regulation 19. This includes how FNC payments will affect a service user’s care fees.
23. We consider the fault identified caused Mr X distress. This is because as Mrs Y’s representative, he had a reasonable expectation the FNC payments would reduce Mrs Y’s weekly fees.
24. Ordinarily, we would recommend the care provider refund the FNC payments for the whole period where the contract was silent on how the care provider treats FNC payments. However, as Mr X has been deducting the FNC payments from Mrs Y’s weekly fees, we do not consider this necessary in the circumstances.

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Recommended action

25. To remedy the injustice caused by the fault identified, we recommend the care provider complete the following:
• Apologise to Mr X for the distress caused by the fault identified.
• Adjust Mrs Y’s account to waive £187.60 from her weekly care charges from the date the FNC payments started to when it issues a new contract.
• Revise its contracts to include information about how the care provider will treat FNC payments. If FNC payments will not affect a service user’s weekly care charges, this should be clearly reflected in the contract. The care provider should issue a new contract to Mrs Y and give her a reasonable amount of time to consider whether she would like to continue with the service under the new terms and conditions.
26. The care provider will complete the above within four weeks of the final decision.
• The care provider should review its other contracts with service users to identify whether the same fault has occurred in other cases. The care provider should also identify whether an injustice has occurred and, if so, remedy the injustice. The care provider should write to the affected service user(s) and make them aware of their right to raise a complaint with the care provider and to the Ombudsman if they are unhappy with the action taken by the care provider. The care provider will provide the Ombudsman with evidence of its review and action taken.
27. The care provider will complete the above within eight weeks of the final decision.

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Final decision

28. I find fault with the care provider for not having clear written information about how it will treat FNC payments. I have made recommendations to remedy the injustice caused by the fault identified.

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Investigator's decision on behalf of the Ombudsman