21. Before we explain our decision, we will outline how we look at complaints like this for clarity.
22. NHSE guidance says an individual receiving care, or their representative, may apply for an IRP to review an ICB’s decision to decline funding. Whether an individual has a primary health need and is eligible for NHS CHC funding is a discretionary decision, meaning a decision based on reason, judgement and opinion. It is our role to review the available evidence to decide whether decisions were made in line with the National Framework. We will refer to the 2012 National Framework as this is the version of the guidance NHSE used in reaching its decision.
23. The National Framework says NHSE can decide not to hold an IRP if the individual falls well outside the eligibility criteria or where the case is very clearly not appropriate for the IRP to consider. Paragraph 206 of the National Framework says:
24. ‘NHS England does have the right to decide in any individual case not to convene an independent review panel. It is expected that such a decision will be confined to those cases where the individual falls well outside the eligibility criteria, as set out in the standing rules, or where the case is very clearly not appropriate for the independent review panel to consider (see Annex D).’
25. The eligibility criteria, or four key characteristics, is the consideration of the nature, intensity, complexity and unpredictability of a person’s needs. In line with the National Framework, we would only expect NHSE to look at the eligibility criteria when deciding whether to hold an IRP and not the care domains or concerns the applicant may have about the ICB’s process.
26. We are aware the majority of Care Cost Ltd’s concerns are in relation to the ICB – it’s consideration of Mrs E’s CHC eligibility and its process. As NHSE decided not to hold an IRP, these matters were not considered. Again, if a decision is made at an IR and an IRP is not held, we would not expect NHSE to consider these.
27. We have not ignored Care Cost Ltd’s specific concerns, but as an IRP was not held to discuss these, we cannot look at these issues. We can only look at its decision not to hold an IRP.
28. As Care Cost Ltd completed the appeal process and escalated its complaint to NHSE, it is NHSE we investigate. It was the last organisation responsible for considering the complaint. We cannot decide on eligibility or award funding. If we find failings in NHSE’s consideration, we will ask it to reconsider its decision.
29. We reviewed the evidence the IR considered. This includes the questionnaire Care Costs Ltd completed to apply for an IR.
30. The National Framework says, ‘Before taking such a decision, NHS England should seek the advice of an independent review chair who may require independent clinical advice. In such cases where a decision not to convene an independent review panel is made the individual, their family or carer should receive a clear written explanation of the basis for this decision.’
31. NHSE’s report page one and the introductory paragraphs show an IR chair and clinical adviser were involved in the decision-making. This is in line with the above guidance.
32. Paragraph 1.2 of the report says the report explains why it has decided not to hold an IRP. The report says it gives a brief summary of its findings. We are satisfied the report gives a clear, written explanation of its decision. We will explain why below in considering each of the four key characteristics.
Nature
33. The National Framework states the ‘nature’ indicator describes the characteristics of an individual’s needs (physical, mental health and psychological) 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.
34. Care Costs Ltd said Mrs E required help with washing and dressing and maximum help with her nutrition needs.
35. It said Mrs E was registered blind and was hard of hearing. She required hearing aids but refused to wear them, which could make communication more difficult.
36. Lastly, it said Mrs E was undernourished and required support and encouragement during mealtimes. She also developed swallowing difficulties and was under the care of speech and language therapy (SaLT) services.
37. NHSE acknowledges Mrs E had cognitive impairment, Lewy body dementia, challenging behaviours and deteriorating mental health and physical well-being. It included Mrs E’s past medical history and her conditions which impacted her ability to undertake daily living activities.
38. The IR referred to the care notes when noting Mrs E’s needs. It explained the interventions that were required to help manage her challenging behaviours, including the medication which was given to help Mrs E with her mental health. It explained she was reviewed by the mental health team as required, and it considered how carers could help her comply with care and medication.
39. The report describes Mrs E’s needs as being non-complex. It also states she needed two carers for moving and handling. It recognised she needed regular monitoring for her cognition, behaviour, continence, nutrition, skin, mobility, communication and behaviour needs, but felt these were met by the care home with the oversight of a GP and a mental health nurse.
40. It did not find her needs to be of a nature over and beyond what a local authority could legally give.
41. We have looked at the available records, and the care plans show Mrs E needed help with most aspects of her day-to-day care and well-being. There is no evidence of serious resistance - this means care could be given.
42. From viewing the records, it is clear there was outside intervention from her GP, SaLT, the mental health team and a social worker. While this is a lot of outside help, Mrs E’s day-to-day care and the services she needed were not above what the local authority could give.
43. We acknowledge, due to Mrs E’s conditions, there was a gradual decline in her health and well-being. However, her symptoms were indicative of her medical conditions. There is nothing to suggest carers were unable to give the level of care Mrs E needed or specialist intervention was required above what the local authority could give.
44. We have seen no evidence to suggest Mrs E’s needs were not met in a timely way or they were above what can be given in a care home. The appropriate level of support was given throughout the review period.
45. We have seen no evidence to suggest NHSE did not properly consider the nature indicator. We do not think it missed any evidence or did not consider it properly. It referred to the available evidence throughout its consideration of this descriptor, which correlates with the records available to us.
Intensity
46. Intensity relates to the extent (quality) and severity (degree) of the needs and to the support required to meet them. This includes the need for sustained or ongoing care (continuity).
47. Care Costs Ltd made no specific comments in relation to this indicator.
48. The report identifies Mrs E required support and reassurance from the carers, but there was no evidence of any 1-1 input. She was cared for within normal staffing levels.
49. It acknowledged Mrs E had needs in most of the care areas, but she did not need sustained care interventions over and beyond what a local authority should legally give.
50. NHSE concluded there was little evidence of intensity during the review period and Mrs E did not have a primary health need.
51. We have considered whether NHSE looked at the severity of the needs appropriately, how frequent the needs were, to what extent they varied and what level of support was needed.
52. As Mrs E was blind, along with her other conditions, she needed constant support in every aspect of her life. As such, she needed her care needs anticipated. It is clear there was interaction between her needs across several domains.
53. NHSE’s report does show it understood Mrs E’s needs, but it did not find evidence of intensity.
54. From viewing all the available evidence, NHSE looked at this indicator appropriately. It explained how the staff needed to care for Mrs E and the frequency of the care. The care plan shows there were no significant variations to the care planning, and the level of support Mrs E needed did not drastically change throughout the review period.
55. From what we have seen, although a great deal of care was needed, there is nothing to suggest Mrs E’s care needs went beyond what could be managed by a local authority.
Complexity
56. Complexity is about 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 could include the presence of multiple conditions or 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 physical health results in the individual developing a mental health need.
57. Care Costs Ltd made no specific comments in relation to this indicator.
58. NHSE said Mrs E’s needs were not complex. It said the district nurse, SaLT, GP and psychiatric services were all involved in her care.
59. It noted that although Mrs E had a low body mass index (BMI) and poor nutritional intake, this did not impact her recovery from several skin conditions.
60. As carers would be expected to have knowledge of dementia and her needs were routine, carers could meet them. The report says Mrs E was largely compliant with care. The evidence indicates Mrs E was not particularly difficult to manage.
61. We have looked at whether NHSE appropriately considered how different needs interact with each other to increase the knowledge and skills staff needed to care for Mrs E.
62. NHSE acknowledged Mrs E had numerous day-to-day needs. It observed there were some interactions, but this alone does not indicate complexity. As such, we consider if this meant the level of skill and knowledge required to manage the needs was above what the local authority could give.
63. From viewing the inter-agency care notes, there was a great deal of input from Mrs E’s GP and occasional input from the mental health team and a dietician. We have not seen any evidence to suggest it was difficult for the care home staff to meet the care plans put in place by any of the local authority services.
64. We understand, due to Mrs E’s medical conditions, there were risks if her needs were not fully managed. We have not seen any evidence to show the care home or local authority could not meet these needs, skilled input was needed or that Mrs E was difficult to manage.
65. The IR looked at this indicator, as we would expect, in line with the National Framework.
Unpredictability
66. Unpredictability is the degree to which needs fluctuate and result in challenges in managing them. It relates to the level of risk to the person’s health if carers do not give adequate and timely care. A person with an unpredictable healthcare need is likely to have a fluctuating, unstable or rapidly deteriorating condition.
67. Care Costs Ltd made no specific comments in relation to this indicator.
68. NHSE says Mrs E had several urinary tract infections (UTI) and chest infections, but the GP and other appropriate services managed these episodes.
69. It said Mrs E suffered from a deteriorating illness and, as time progressed, she became frailer, but she had a gradual deterioration. Carers were able to deliver care throughout the appeal period safely.
70. From viewing the available records, we can see there was a gradual decline in Mrs E’s overall health. There is no evidence of there being challenges to meeting her needs, her needs rapidly changing or her condition being so unstable her needs could not be routinely met.
71. Due to Mrs E’s conditions, we understand if timely care was not given, there was a risk to her health and well-being. However, we cannot see any evidence of the care home being unable to give timely care to Mrs E.
72. The care home was able to anticipate Mrs E’s needs and give the appropriate care. Despite this being achieved by continuous monitors, this is to be expected when the care home is giving 24-hour care.
73. We do not think NHSE failed to consider this indicator appropriately or missed evidence suggesting unpredictability.
74. The evidence suggests Mrs E’s needs were not of a nature, complexity, intensity or unpredictability to indicate a primary health that carers could not care for in routine social care. Therefore, NHSE acted appropriately in not convening an IRP in line with paragraph 206 of the National Framework. For these reasons we are not investigating this complaint further.