3. Mrs R complains that NHS England’s (NHSE) independent review panel (IRP) upheld Harrow and Hillingdon Clinical Commissioning Group’s (the CCG) decision, of 20 February 2019, that her husband, Mr R, was not eligible for continuing healthcare (CHC) funding.
4. Mrs R says her husband’s estate has been financially disadvantaged.
5. Mrs R wants NHSE to reconsider its decision that her husband was not eligible for CHC funding.
6. In 2013 Mr R was diagnosed with advanced Alzheimer’s disease. In June 2016 he moved into a care home. In November 2016 he was diagnosed with dementia in Alzheimer’s disease.
7. On 18 July 2018 Mr R was awarded CHC following a fast track application. On 26 November 2018, the CCG completed a review and recommended a full CHC assessment.
8. On 30 January 2019 the CCG completed a decision support tool (DST). A DST is a document which helps to record evidence of an individual’s care needs to determine if they qualify for CHC funding. The DST found Mr R had nursing care needs and was eligible for funded nursing care if he were to move into a nursing home. Mrs R decided to keep her husband in residential care.
9. On 20 February 2019, the CCG shared its decision with Mr R. It said he was no longer eligible for CHC funding. It said on 20 March his CHC funding would be stopped.
10. Mrs R appealed the decision. In September 2019 the CCG upheld its decision that Mr R was not eligible for CHC funding.
11. On 31 October 2019, Mrs R appealed to NHSE for an independent review of the CCG’s decision. Mr R sadly died in January 2020. On 8 September 2020 the IRP meeting took place. On 6 November 2020 NHSE sent Mrs R its decision outcome letter. It upheld the CCG’s decision.
14. Before we decide if we should investigate a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We have done this and, we have not found any indications that something has gone wrong.
15. Whether or not an individual is eligible for NHS continuing healthcare funding is a discretionary decision. It is our role to decide if the IRP made its decision in line with the National Framework.
16. We cannot question discretionary decisions, including decisions about eligibility for NHS continuing care funding, unless we find some maladministration (fault) in the way those decisions have been reached. Therefore, we can only uphold a complaint about an eligibility decision for NHS continuing care if there is a fault in the way the decision is made. Such decisions are based on the individual’s clinical judgments and opinions, and the fact that someone else has a different opinion does not mean that there must have been a fault in the decision making process.
17. The purpose of the IRP is to review the procedure the CCG followed in making a decision about a person’s eligibility, or the primary health need decision by the CCG. In reaching a view about whether the CCG followed the correct process and correctly applied the eligibility criteria, the IRP can: • recommend the CCG should reconsidered the case and address any faults identified in the process, or • reach a view as to whether the individual should or should not be considered to have a primary health need.
18. When we look at a complaint about an IRP, we consider whether it took account of all the relevant information provided to it in reaching its decision. To help us reach a decision there are four key areas we consider. We also consider any procedural issues raised at the IRP.
19. First, we look at whether the IRP established all the appropriate and relevant clinical facts in line with the National Framework.
20. Paragraph 199 of the National Framework says: • ‘The key elements involved in considering requests for independent reviews of NHS Continuing Healthcare eligibility include: scrutiny of all available and appropriate evidence as described in the Local Resolution section’
21. We can see the documents NHS England provided to us included the detailed notes of the IRP held on 8 September 2020. The IRP report shows it reviewed the correspondence between Mrs R and the CCG, as well as the DST dated 30 January 2019. These are all the documents that showed how the CCG considered Mr R’s needs. We can see a local resolution meeting (LRM) took place on 15 May 2019 following Mrs R’s appeal. The IRP file includes submissions from Mrs R.
22. The IRP considered the care records, GP records and hospital records. We can see the IRP considered the evidence put forward by Mrs R, including her reasons for requesting the IRP and her opinions on the care Mr R needed.
23. Mrs R was present at the IRP meeting. She attended with her friend who acted as her advocate. It is clear from the IRP report that it heard and considered her views and those of her advocate and included these within the IRP report.
24. We can see there are no obvious omissions in the documents and evidence NHS England had. We are satisfied there is no indication of failing in how the IRP established all the appropriate and relevant clinical facts. We think the IRP acted in line with the National Framework here.
25. Secondly, we consider whether, before reaching their decision, the IRP had a clinically led discussion of the impact and interaction of the relevant clinical facts.
26. Paragraph 200 of the National Framework sets out the following ‘NHS England is responsible for convening independent review panels consisting of: • An independent chair (appointed by NHS England); • A CCG representative (who is not from the CCG that made the decision which is the subject of the review); • A local authority Social Services representative (who is not from a local authority where all or part of the CCG involved in the decision is located).
27. The records from the IRP show it had a properly constituted panel. This did include an independent chair, a CCG representative who was a registered mental health nurse/registered nurse (RMN/RGN) and a local authority representative to advise on social care issues.
28. Mrs R has not raised any specific concerns with us about the weighting of the domains. We can see at the IRP she disagreed with the weighting for the drug therapies and medication domain. Mrs R said the rating should be moderate. She said her husband needed help with taking his medication. She said his medication had to be crushed and staff struggled to give it to him.
29. It is clear the IRP discussed evidence from a number of sources. This included the submissions by Mrs R and her advocate, the care records, care plans, hospital records and GP records.
30. The IRP report confirms the panel discussed Mr R’s healthcare needs within the drug therapies and medication domain. It supported its view on those needs with evidence from a variety of the records. Within those discussions, we can see the IRP weighed up Mrs R’s view on her husband’s needs.
31. We can see from the IRP report that the panel had a clinically led discussion of the key clinical facts including the care domains. The report shows how the evidence informed its decision making process. There are clear and detailed explanations of the IRP’s view on the care domains as set out in the records. The explanation confirms the IRP agreed with the CCG’s ratings in all of the care domains.
32. We are satisfied there is no indication of a failing here in the IRP discussion about the impact and interaction of the relevant clinical facts in the domains. We think the IRP acted in line with the National Framework here.
33. Thirdly we consider whether the IRP adequately considered and explained the conclusions of the clinically led discussion in its final decision.
34. Paragraph 199 of the National Framework says when considering eligibility, NHS England should provide ‘clear and evidenced written conclusions on the process followed by the NHS body and also on the individual’s eligibility for NHS continuing healthcare, together with appropriate recommendations on actions to be taken. This should include the appropriate rationale’.
35. For someone to be found eligible for CHC funding it must be established that they have what is called a ‘primary health need’ (paragraph 58 of the National Framework). This means their primary need must be for healthcare, as opposed to social care. To determine if someone has a primary health need it must be demonstrated that an individual’s needs are of a nature, intensity, complexity or unpredictability that is more than a local authority could be expected to manage. These are known as the four key indicators. The four key indicators may alone or in combination demonstrate a primary health need because of the quality and/or quantity of care that is needed to meet the individual’s needs.
36. We can see the IRP’s decision presents and summarises the conclusions of the clinically led discussion. The IRP report shows there was consideration of and discussion around the four key indicators. The IRP provided a clear explanation for its view about Mr R’ needs. The IRP report shows the inter relationship and impact on Mr R’ daily care needs. The IRP concluded that Mr R’s needs were at a level which could be met by a local authority.
37. Therefore, we are satisfied there are no failings in this part of the IRP’s process and consider that it reached its decision in line with the National Framework.
38. Fourthly, we consider whether the IRP appropriately applied the CHC eligibility tests and reached evidence based conclusions about them.
39. Mrs R did not raise any specific concerns at the IRP, or with us, about the four key indicators. However, we understand she disputes the decision overall. The four key indicators are fundamental to the decision making, so we have looked at how the IRP considered these.
Nature
40. Section 3.3 of the practice guidance within the National Framework describes nature as ‘the characteristics of both the individual’s needs and the interventions required to meet those needs’.
41. In line with paragraph 59 of the National Framework, in the IRP’s consideration of nature we would expect to see analysis of: ‘The particular characteristics of an individual’s needs (which can include physical, mental health or psychological needs) and the type of those needs. This also describes the overall effect of those needs on the individual, including the type (quality) of interventions required to manage them’.
42. Section 3.3 also lists questions prompts for factors that should be considered (though not specifically and individually answered) for the nature indicator: • How does the individual or the practitioner describe the needs (rather than the medical condition leading to them)? What adjectives do they use?
• What is the impact of the need on overall health and wellbeing?
• What types of interventions are required to meet the need?
• Is there particular knowledge/skill/training required to anticipate and address the need? Could anyone do it without specific training?
• Is the individual’s condition deteriorating/improving?
• What would happen if these needs were not met in a timely way?
47. The IRP report shows the panel looked at the nature and characteristics of Mr R’s needs and how this impacted him. Its decision in the nature indicator is clear and presents a full picture of how Mr R’s needs were met. The IRP described the nature of his condition well. It recognised he had a range of social care and healthcare needs and needed to be looked after in a safe environment. It acknowledged Mr R’s day to day care needs arose from his cognitive impairment. Mr R’s personal care was usually undertaken by one carer but sometimes it was two.
48. The IRP recognised Mr R had dysphagia and was at risk of choking, meaning his carers needed to supervise and monitor him. Mr R was doubly incontinent and his carers manged his continence requirements with pads. Mr R had previous urinary tract infections (UTIs) and his carers would monitor him for this. He was at risk of skin breakdown, and his carers monitored his condition and, if needed, would moisturise his skin once a day. The IRP recognised Mr R had a stable and non-complex medication regime. His medication had to be administered to him and he was compliant.
49. The IRP recognised Mr R needed input to the overall monitoring of his care and planning such as for his medication, dietary intake, double incontinence, and the monitoring of his skin. The IRP acknowledged Mr R would have been eligible for funded nursing care if he had moved to a nursing home. Mrs R took the decision to keep her husband in residential care as he was settled there and the staff were familiar with him.
50. The IRP acknowledged care staff met Mr R’s day to day care needs. It recognised he was completely dependent on his carers. However, it found the care he needed was relatively straightforward. We can see it looked at the care plans to demonstrate his care could be provided routinely by the care staff. The evidence available was enough for the IRP to decide the nature of Mr R’s needs did not demonstrate a primary health need.
51. We think the IRP considered all the relevant factors when it decided the nature of Mr R’s needs did not indicate he had a primary health need. We are satisfied it acted in line with the National Framework.
Intensity
52. Section 3.4 of the practice guidance within the National Framework says intensity ‘is about the quantity, severity and continuity of needs.’
53. In line with the National Framework, we would expect the IRP’s consideration of the intensity indicator to ‘relate both to the extent (‘quantity’) and severity (‘degree’) of the needs and to the support required to meet them, including the need for sustained/ongoing care (‘continuity’)’.
54. Section 3.4 also lists questions prompts for the intensity indicator: • How severe is this need?
• How often is each intervention required?
• For how long is each intervention required?
• How many carers/care workers are required at any one time to meet the needs?
• Does the care relate to the needs over several domains?
55. We can see the IRP looked at the right things. It described how the care and help Mr R needed was in line with the care plans. It recognised his care planning in most areas had not changed since 2016. It said Mr R’s day to day care was relatively straightforward, from a professional viewpoint, and was mainly related to activities of daily living. He had cream applied as part of his continence care. He had a history of UTIs and chest infections which needed monitoring. His nutritional needs were monitored due to his dysphagia. The IRP recognised Mr R’s carers needed to have standard skills and to provide care that is regularly delivered to individuals with cognitive impairment. The IRP recognised that Mr R had a severely deteriorating health condition. However it decided his care needs did not require care or intensity of interventions over and above what a Local Authority could provide.
56. We think the IRP considered all the relevant factors when it decided the intensity of Mr R’s needs did not suggest he had a primary health need. We are satisfied it acted in line with the National Framework.
Complexity
57. Section 3.5 of the practice guidance within the National Framework says complexity ‘is about the level of skill/knowledge required to address an individual need or the range of needs and the interface between two or more needs.’
58. In line with the National Framework, in the IRP’s consideration of complexity indicator we would expect to see analysis of: ‘how the needs present and interact to increase the skill required to monitor the symptoms, treat the condition(s) and/or manage the care. This may arise with a single condition, or it could include the presence of multiple conditions or the interaction between two or more conditions. It may also include situations where an individual’s response to their own condition has an impact on their overall needs, such as where a physical health need results in the individual developing a mental health need.’
59. Section 3.5 lists the question prompts for the complexity indicator: • How difficult is it to manage the need?
• How problematic is it to alleviate the needs and symptoms?
• Are the needs interrelated?
• Do they impact on each other to make the needs even more difficult to address?
• How much knowledge is required to address the needs?
• How does the individuals response to their condition make it more difficult to provide adequate support?
60. We can see the IRP recognised Mr R had needs in all the care domains. Again, it recognised Mr R’s care planning had not changed since 2016 and that his needs were not complex. It described clearly how his needs were interrelated between his cognition and dysphagia. It acknowledged the Speech and Language Therapy (SALT) team provided instructions for the care staff to follow, in relation to Mr R’s diet. However, Mr R could feed himself with prompting and if he was given time. Mr R’s double incontinence and skin put him at risk of skin breakdown. But the IRP recognised Mr R was mobile and could position and reposition himself in bed and had a regime of monitoring and moisturising to help keep his skin and pressure areas intact.
61. The IRP did not consider the interaction between Mr R’s needs to be complex requiring increased skill on the part of his carers. His needs were straightforward from a professional viewpoint and were mainly related to his social care needs.
62. The IRP considered and weighed up the evidence before making its decision. We consider the IRP considered all the relevant factors when it decided the complexity of Mr R’s needs did not suggest he had a primary health need. We are satisfied it acted in line with the National Framework.
Unpredictability
63. Section 3.6 of the practice guidance within the National Framework says unpredictability ‘is about the degree to which needs fluctuate and thereby create challenges in managing them.’
64. Section 3.9 lists the question prompts for the unpredictability indicator: • Is the individual or those who support him/her able to anticipate when the needs might arise?
• Does the level of need often change? Does the level of support often have to change at short notice?
• Is the condition unstable?
• What happens if the need isn’t addressed when it arises? How significant are the consequences?
• To what extent is professional knowledge/skill required to response spontaneously and appropriately?
• What level of monitoring/review is required?
65. The IRP considered Mrs R’s comments that her husband’s health was deteriorating and his condition fluctuated. She said it was unpredictable when her husband would next be in hospital.
66. The IRP considered the care home records. It said Mr R was at a high risk of falls and required support and supervision to prevent or reduce such risks. He was at risk of UTIs which on occasion required hospital admission and treatment with antibiotics. The IRP said there were no clinical symptoms or unstable conditions which created any challenges in the management of Mr R’s needs. His care needs were subject to standard care planning and routine risk management. The IRP recognised Mr R’s’ health was declining slowly due to his dementia and this was in a predictable way.
67. The IRP found no evidence in the records of fluctuations or significant changes in Mr R’s condition at the time of the DST or in the months leading up to it. The IRP found no evidence of frequent changes to the care plans. If a person has unpredictable needs, we would expect to see their care plans needing frequent or sudden changes. That was not the case for Mr R. The IRP clearly described why his needs were not unpredictable.
68. We think the IRP considered all the relevant factors when it decided the unpredictability of Mr R’s needs did not indicate he had a primary health need. We are satisfied it acted in line with the National Framework.
69. We are satisfied there are no failings in how IRP considered the four key indicators. We think the IRP acted in line with the National Framework when it decided he did not have a primary health need.
Summary
70. The IRP showed that it applied the National Framework when it considered Mr R’s CHC eligibility.
71. We recognise that Mrs R disagreed with the IRP’s decision. We do not wish to take away from her account or what she has told us about her husband’s needs.
72. We have not found any reason to question the decision the IRP reached. There is nothing to suggest the IRP recommendations were not based on the evidence or clinically unsound. It explained in detail how it weighed up all of the evidence and came to its decision in line with the National Framework.
1. We have carefully considered Mrs R’s complaint about how NHS England (NHSE) looked at her NHS continuing healthcare (CHC) claim for her husband, Mr R. We have seen no indication that anything went seriously wrong when NHSE made its decision.
2. We are sorry to hear NHSE’s decision that Mrs R’s husband was not eligible for CHC funding left her husband’s estate financially disadvantaged. We have reviewed all the relevant evidence and we are satisfied NHSE acted in line with the National Framework for continuing healthcare.