19. In our conversations with Ms R, we have made clear we cannot address any issues relating to Mrs R’s eligibility for CHC funding as the CHC eligibility assessment remains ongoing. We have focused solely on the aspects of the ICB’s complaint handling in dealing with Ms R’s letters of complaint from February 2020.
Not correctly acknowledging the complaint
20. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the event complained about had a negative effect which the organisation has not put right. Having done so we consider the ICB did take action to put right the impact of these events and we have not found any indication that these issues had a negative impact on Ms R.
21. Paragraph 7.5 of the ICB’s Complaints Policy on acknowledging complaints says:
• ‘Complaints will be acknowledged in writing within three working days of receipt, explaining how the ICBs will handle the complaint e.g. redirect to a provider; redirect to a hosted service such as Continuing Healthcare or investigate directly.
• The acknowledgement will indicate when the ICB aims to respond, which is within 25 working days of receiving the complaint.
• The acknowledgement must contain an offer to discuss with the complainant the manner in which the complaint is to be handled and the likely timescales for the investigation and response.’
22. Ms R says the ICB should have offered her an opportunity to discuss her complaint when it acknowledged the complaint in writing. Instead, she says she only had a discussion with the ICB on 2 July 2020, three days before the ICB’s formal complaint response.
23. The ICB accepts that an offer to discuss was not included in the acknowledgment letter. It agrees that following Ms R’s specific request, a discussion did later take place on 2 July.
21. Having considered the ICB’s letter of response, whilst it did explain the compliant would be investigated, and set out the proposed timescale for this, it did not comply with point three of 7.5 of its Complaints Policy by offering to discuss how the complaint would be handled.
22. We have considered whether the lack of an offer to discuss how the complaint would be handled in February 2020 had a negative effect on Ms R.
24. Ms R says the effect was that the discussion she did have was too late to impact the investigation, and had she been offered the discussion earlier, in ‘an ideal world, they would have listened to my view and picked up on any evidence that was missing, so that I could have sent them evidence that was missing’.
25. 7.5 of the Complaints Policy says the complaint acknowledgment letter must contain an offer to discuss ‘the manner in which the complaint would be handled and the likely timescales for the investigation and response’. This is not an offer to discuss the substantive complaint itself, but rather to discuss the ICB’s process of complaint handling.
26. The ICB’s failure to offer Ms R a discussion, in line with 7.5, in February 2020 did deny her the opportunity at that time to verbally discuss the complaints process. It did not deny her an opportunity to discuss the substantive complaint or to impact the investigation itself. Ms R states that an early discussion could have led to her providing the ICB with missing evidence. She had set out her complaint in detail in writing. The lack of a discussion on acknowledgment of the complaint, would not have prevented the ICB from obtaining any evidence it required from her during its investigation.
27. Ms R was initially informed that her complaint was being investigated and that the ICB aimed to respond within 25 working days. The ICB did not offer her an initial opportunity to discuss the complaints process, but it did offer a later discussion when Ms R requested this. We see no evidence that Ms R was negatively impacted by the fact that discussion did not take place earlier.
Not replying to a letter from Ms R’s MP
28. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the event complained about had a negative effect which the organisation has not put right. Having done so we have not found any indication that this issue had a negative impact on Ms R.
29. Ms R says in February 2020 she received an email from her MP stating ‘To confirm, I have written to (Employee 1) to show my support for your complaint. I have asked that he gives this his prompt attention, and that I would like to be kept informed’.
30. She says that on subsequently checking with the MP’s office in January 2021, the ICB had not sent them its complaint response of 5 July 2020.
31. We understand how important it can be for complainants to be supported by their MP and we know that this support can sometimes help to prompt a complaint response from an organisation. In this case, Ms R did receive the complaint response directly herself. She has not complained about any delay in receiving this, or that the ICB failed to keep her informed. Whilst the ICB may not have kept her MP informed, this did not negatively impact Ms R herself. We see no evidence of an injustice and will not consider this further.
Not providing an equality monitoring questionnaire
32. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the event complained about had a negative effect which the organisation has not put right. Having done so we cannot link the events complained about with the negative impact Ms R has claimed.
33. Ms R complains the ICB did not send her an equality monitoring form, as it should have done under its Complaints Policy.
34. The Complaints Policy is prefaced with an Equality and Diversity statement and the most recent Equality Analysis conducted by the ICB. This analysis confirms that the impact of the Complaints Policy on protected groups will be monitored by sending equality monitoring forms to complainants and monitoring these.
35. We asked the ICB how and when equality monitoring forms would be sent. The ICB confirmed these are normally sent when the complaint is finalised, by way of a patient satisfaction survey. It provided us with a copy of that survey. The ICB also informed us that the survey was not available in the early days of home working due to COVID-19. As such Ms R would not have received a copy of one at the time of her complaint.
36. Ms R says the failure to send her this form means ‘the ICB is unable to accurately monitor the impact of its policies on individuals with severe disabilities such as my mother’.
37. We have considered the ICB’s patient satisfaction survey. Had Ms R been sent this to complete, she would have filled this in with her own details, as the person bringing the complaint, and not with reference to her mother, or her mother’s disabilities. As such, we cannot link the impact or injustice Ms R claims to the ICB’s failure to send her the equality monitoring form. We cannot see that there is any negative impact on Ms R and therefore consider there is no evidence of an injustice.
Not independently investigating the complaint
38. Before we decide if we should conduct a detailed investigation of 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 have not found any indications that something has gone wrong.
39. Ms R complains it is a conflict of interest for members of the CHC team to investigate and draft the response to a complaint about their own actions and decisions. She believes this is contrary to paragraph 5.4 of its Complaints Policy.
40. We know there is a complex background to Ms R’s complaint and understand the importance to her of the complaint being dealt with independently. We have seen emails in which she specifically asked an employee at the CHC (Employee 3) whether she was manged by, or accountable to, any staff within the CHC Team. In an email of 12 June 2020, Employee 3 confirmed ‘I am managed by and accountable for staff within the CHC team, however I will not be investigating the complaint. It has been passed on to a Senior Manager of the CHC Clinical team for investigation. It is a routine process, in all NHS organisations, for complaints to be investigated by someone familiar with the work and in a senior position.’
41. We have considered the ICB Complaints Policy as follows:
‘5.4 -Acting fairly and proportionately: Treat people without unlawful discrimination or prejudice and ensuring no conflict of interests.’
‘6.6 - Employee 3: This is a role dedicated to handling complaints, concerns, comments and compliments solely regarding NHS Continuing Healthcare (CHC) and Funded Nursing Care…. Employee 3 is responsible for handling complaints according to the procedures in this policy. This includes: • Drafting a response to the complainant following investigation by the CHC Team • Sending this to the Managing Director of the ICB that hosts the CHC team for approval.’
‘7.8- Investigation: If it is determined that a complaint needs to be investigated by the ICBs e.g. it is related to a commissioning issue or a hosted service, the Patient Experience Coordinators will redirect the complaint to the relevant senior manager to investigate the issues raised and draft a response to the complainant (and is referred to as the ‘investigating officer’).’
42. As part of our consideration, we asked the ICB to confirm who had been involved in the investigation and drafting of the response for this complaint. The ICB told us the complaint was investigated by the Employee 2. Employee 3, put the information into the response letter and assisted with pulling any information required from its shared database. The response letter was then submitted to the a more senior employee of Continuing Healthcare (Employee 4) for review and input. Following this, the response went to another senior employee (Employee 5) for final review and sign-off.
43. The ICB has complied with its Complaint Policy in terms of allocating the complaint to a Senior member of the team for investigation (7.8) and Employee 3 pulling the investigation response together and then sending the draft response to a senior leader with oversight to approve and sign off (6.6).
44. In terms of the complaint handling and investigation it is as the ICB advised Ms R, normal NHS complaint handling practice within local resolution that the complaint will be addressed by a senior person in the team. We would expect people involved in the complaint, and with knowledge of it, to respond to the complaint. We do not consider there to be any conflict of interest in this case.
45. In Ms R’s case, her complaints of 20 February 2020 relate fundamentally to the significant concerns she has around the ongoing CHC eligibility assessment. She is entitled to raise those concerns and the ICB should address and answer those points, with input from the relevant individuals concerned. We can see that the ICB has prepared a formal response to the complaint, addressing the different points of concern separately.
46. We are aware that Ms R complains several of the answers in the ICB’s response are factually incorrect. As explained previously, we cannot address that question where it relates to the substantive issue of eligibility for CHC, which is ongoing. Within the CHC assessment process, the opportunity for Ms R to have her complaints considered independently comes through NHS England and the Independent Review Panel.
47. We have not found any indications that something went wrong or that there was a conflict of interest in the ICB’s investigation of Ms R’s complaint.
False explanation for withdrawing a meeting
48. Within her complaint of 20 February 2020, Ms R complained that the ICB had cancelled a meeting previously promised within the CHC process to discuss concerns and issues around the Portrayal of Needs (PON) document. She says she was shocked to read the ICB’s response of 5 July 2020 in relation to this cancellation. The response referred to her alleged rude and aggressive behaviour during a telephone call to the ICB on 30 January 2020 and indicated this was why the meeting had been cancelled. Ms R disputes entirely that she was in any way rude or aggressive during the call. She has provided us with her detailed account of the telephone call which she says took place a day later than the ICB stated.
49. She complains that the ICB has included false information in its complaint response. She says the call cannot have been the reason for cancelling the meeting as it took place after the meeting had already been cancelled.
50. We have seen from the evidence that on 6 February 2018, the then senior employee of the CHC (Employee 6) wrote to Ms R stating that once she had completed her comments on the Portrayal of Needs (PON) document, ‘It would be beneficial for you to meet with the Clinical Team to discuss these ahead of the completion of the Retrospective Review’.
51. A subsequent letter from an employee of the CHC (Employee 7), dated 30 January 2020, stated ‘In view of the time that has now passed we will not be arranging a further meeting to discuss the PON.’ It was this that Ms R had complained about in her complaint of 20 February 20202.
52. When addressing this aspect in its formal complaint response, the ICB referred to a call that took place on 30 January 2020 between Ms R and Employee 7. We asked the ICB for details of that call and for clarification as to the date of the call. The call was not recorded, but the ICB provided us with its record of the call and confirmed that the call, in fact, took place on 31 January 2020.
53. The ICB’s record of the discussion that took place differs from that provided by Ms R. While we do not dispute Ms R’s account of the call, the telephone call was not recorded. As we were not present at the time, we cannot reach a decision as to what occurred given the conflicting accounts from Ms R and the ICB.
54. Given the ICB’s acknowledgement to us that the call took place on 31 January, we asked the ICB to clarify why the meeting previously offered in February 2018 was cancelled.
55. The ICB stated that having cross-referenced the dates on its database it can confirm that the reason the offer of a meeting was withdrawn was due to the reasons outlined in its letter of 30 January 2020, that is ‘In view of the time that has now passed we will not be arranging a further meeting to discuss the PON.’ The ICB recognised that this was not the reason given within the complaint response and confirmed that this was due to an error with dates. The ICB confirmed it understand that Ms R would be upset by the implication within its complaint response and will apologise to Ms R directly for any distress caused.
56. Given the lengthy CHC process to which Ms R has had to devote time and energy, we do not underestimate the distress such an error would have caused her. In terms of the outcome Ms R sought by bringing her complaint to us, she told us she wanted an apology from the ICB. We consider the actions of the ICB in providing this apology are sufficient to resolve this element of Ms R’s complaint.
57. Ms R also complained that had the ICB’s explanation been correct, the ICB failed to deal with the alleged termination of her call in line with its complaint policy and failed to put in writing the alleged decision to restrict her access to written communication only, as required in its complaint policy. As seen above, the ICB has now accepted that its explanation in the response letter was not correct and has apologised for this. Ms R has also told us that the ICB did not later mention there being any restrictions on how she could contact it or restrict the way in which she was able to communicate with the ICB. On this basis we do not intend to consider this aspect further.
58. For all the reasons set out above we will not be taking further action on Ms R’s complaint.