Decision Date: 06/01/2020
Mr B complained on behalf of his deceased father, Mr A.
Mr A originally went into a care home in May 2017 for respite care costing £980 per week. It is not clear whether that was private respite care or contracted for by a local authority.
In June 2017 he signed a residential contract at the rate of £850 per week to become a permanent resident.
Mr A was assessed on the 12th Feb 2018 (the report does not make clear by whom) to see if he met the criteria for nursing care (FNC), but sadly died shortly after, on the 27th.
On the 9th March 2018 the care provider was notified Mr A had been awarded FNC, backdated to 13th July 2017.
Mr B thought that the care provider should refund the backdated FNC payments. He thought that the level of care assessed by the home in May 2017 was fully covered by the weekly fee of £850, so any FNC award should have been offset against the fees and returned to his father.
The care provider said the contract did not include FNCs, as it was signed for ‘residential care’.
What was found
The Ombudsman’s guidance to care providers on FNC fees says that they are likely to find fault if a contract is silent on how the care provider treats FNCs.
In this case, there was no evidence to the LGO that the care provider ever told, or even attempted to explain to Mr B and his family that their practice was to keep the FNCaward when a resident needs nursing care.
The LGO stated that it is reasonable for residential care contract to explain what may happen in the future if a resident needs nursing care, because it is not unusual for a person’s needs to increase.
The LGO recommended that the care provider refund the FNC it received from the NHS to Mr A’s estate, and review its information for residents in regards to FNC.
Funded Nursing Care payments are payment from the Department of Health to nursing homes for nursing care. Eligibility for FNCs is by assessment and they are made directly to the care provider. The resident does not receive any money directly.
The son’s understanding was the level of care as assessed by the home in May 2017 was fully covered by the weekly fee of £850 and it included all his father’s nursing, care needs and expenses. But it isn’t even clear that this was a home that only provided nursing care; there is plenty of reference to the contract being a contract for residential care.
The council (if one was involved at all) is not even identified but is mentioned, so this could possibly or even MUST have been a contract made between the council and the provider. It is poor complaint adjudication that the report does not make that clear, to our minds.
It is clear that a council can contract for the whole amount, as agent for the NHS for the FNC part, paying the whole amount and then getting the FNC back from the NHS – OR the council can contract for the residential care part, leaving the NHS part to be dealt with separately because the NHS responsibility IS a contract for services.
However it’s organised, though, the client isn’t a party to the contract for that element of the case and can’t be charged for it. The FNC is not a payment as such FOR the registered nursing care, but a contribution towards it, whatever that might mean!
We do not understand why the LGO investigator made no reference to the relevant guidance in the National Framework for CHC and FNC:
“In England, the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care from the Department of Health and Social Care makes clear that contracts between residents and care homes should include transparent and fair terms governing how FNC payments are treated, explaining what will happen if a resident is admitted to hospital or what happens if a resident dies.”
“In England, the guidance states that the care home provider should set an overall fee level for the provision of care and accommodation, which should include any registered nursing care provided by them. Where a Clinical Commissioning Group assesses that the resident’s needs require the input of a registered nurse, they will pay the NHS-funded Nursing Care payment (at the nationally agreed rate) direct to the care home and the balance of the fee will then be paid by the individual or their representative, unless other contracting arrangements have been agreed (for example, where the care home’s contract states that the provision of registered nursing care covered by the FNC payment is completely separate to the fees paid by the resident, meaning a change in the FNC is a separate matter that will not impact on the fees the resident is paying).”
We do not understand why the LGO made no reference to the relevant CQC regulations:
Care Quality Commission (Registration) Regulations 2009: Regulation 19
To meet this regulation, providers must make written information available about any fees, contracts and terms and conditions, where people are paying either in full or in part for the cost of their care, treatment and support.
- Where a service user will be responsible for paying the costs of their care or treatment (either in full or partially), the registered person must provide a statement to the service user, or to a person acting on the service user’s behalf—
- specifying the terms and conditions in respect of the services to be provided to the service user, including as to the amount and method of payment of fees; and
- including, where applicable, the form of contract for the provision of services by the service provider.
- The statement referred to in paragraph (1) must be—
- in writing; and
- as far as reasonably practicable, provided prior to the commencement of the services to which the statement relates.
The CQC Guidance on this is as follows:
- People must be given a written copy of the terms and conditions that they must agree to before their care, treatment or support begins.
- Providers must give people using the service information about the costs, terms, and conditions of the service, so that they can make decisions about their care, treatment or support.
- Providers must give people a written estimate of the costs of the care, treatment or support if a fixed price cannot be given. This should include details of any likely additional costs.
Furthermore, the CMA (Competition and Markets Authority) makes these stipulations:
Key information that you should provide on first contact
- You provide indicative fees for each type of care service you offer – for example, residential care, nursing care, specialist dementia care and respite care, making clear which type of service each indicative fee applies to.
- You provide indicative fees for each of the different types of room the fees apply to – for example, single, shared, en-suite.
- For nursing care, you make clear the relationship between the indicative fees quoted and the NHS Funded Nursing Care contribution (or HPSS payments for Nursing Care in Northern Ireland) some residents may be eligible for. This relationship may be determined by the relevant policy guidance in each country (see paragraphs 4.61 – 4.69).
- For example, in England you could say: ‘Your nursing care may be funded in part by a contribution from the NHS (known as Funded Nursing Care and in 2018/19 was £156 a week). If you are eligible for this contribution, it will be paid directly to us by the NHS and will be deducted from the weekly fees quoted when paid.’
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The full Local Government Ombudsman report of Countrywide Carehome’s actions can be found here