13. CHC describes care given over an extended period of time to meet physical or mental health needs as a result of disability, accident or illness. If someone meets the criteria to receive CHC funding, their care will be funded by the NHS.
14. It is our role to decide whether NHS England’s IRP made the decision Mrs L was not eligible for CHC in line with the National Framework. We cannot question discretionary decisions when they have been made without maladministration (fault). This includes decisions about eligibility for CHC funding. So, we can only uphold a complaint about an eligibility decision if there is some specific fault in the way the IRP reached the decision. Such decisions are based on clinical judgements and opinions.
15. The purpose of the IRP is to review the procedure followed by the CCG in making a decision about a person’s eligibility or primary health need. In reaching a view about whether the CCG followed the correct process and correctly applied the eligibility criteria, the IRP can:
• recommend the CCG reconsider 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.
16. When we look at a complaint about an IRP, we consider whether it took account of all the relevant information it received in reaching its decision. To help us reach a decision, there are four key areas we consider. We will consider each key area below.
Did the IRP establish all the appropriate and relevant clinical facts?
17. Paragraph 199 of the National Framework sets out the following:
18. ‘the key elements involved in considering requests for independent reviews of NHS Continuing Healthcare eligibility include:
• scrutiny of all available and appropriate evidence’.
19. Based on the information given by NHS England, we can see the IRP considered the following:
• 19 November 2015 DST • 4 April 2016 DST • 13 December 2017 needs portrayal document (NPD) • care home records • GP records • Social Services records • district nursing records • hospital records • 12 November 2015 nursing needs assessment • 15 February 2016 nursing needs assessment and • general correspondence, including submissions made by Mrs A.
20. We note the IRP took into account Mrs A’s views and submissions for a review request. We refer to the following examples:
• Mrs A said Mrs L suffered frequent pressure sores, but the IRP found no evidence of pressure sores in the period leading up to the assessment • Mrs A felt Mrs L’s withdrawal from all interaction should be reflected in the level of need • Mrs A said the nursing needs assessment conducted on 12 November 2015 was contrary to the National Framework as eligibility for funded nursing care should only be considered after eligibility for CHC and • Mrs A reported one carer found Mrs L difficult and Mrs L could tell people to leave her alone.
21. The available evidence shows the IRP considered all the evidence made available to it, including the views of Mrs A.
22. Mrs A explains the IRP made a mistake in that her mother did not have osteoporosis but, in fact, had osteoarthritis. We have reviewed the IRP report and found no reference to osteoporosis or osteoarthritis.
23. There are no obvious omissions evident in the IRP’s consideration of Mrs L’s eligibility for NHS CHC funding. As such, we have not seen any indication of failings in this part of the IRP’s consideration for either DST.
Before it made its decision, did the IRP have a clinically led discussion about the impact and interaction of the relevant clinical facts?
24. We note Mrs A disputes the scoring for the mobility domain.
25. She says she felt her mother should have scored as severe as she suffered from osteoarthritis and not osteoporosis.
26. We will consider whether the IRP had a clinically led discussion about the impact and interaction of the clinical facts within this domain below.
27. For both periods, the CCG assessed this level of need as high. The IRP agreed with its assessment. Mrs A disagreed and felt the level of need should be severe.
28. The DST descriptor describes a high need as:
‘Completely unable to weight bear and is unable to assist or cooperate with transfers and/or repositioning. OR Due to risk of physical harm or loss of muscle tone or pain on movement needs careful positioning and is unable to cooperate OR At a high risk of falls (as evidenced in a falls history and risk assessment). OR Involuntary spasms or contractures placing the individual or others at risk.’
29. It describes a severe need as:
‘Completely immobile and/or clinical condition such that, in either case, on movement or transfer there is a high risk of serious physical harm and where the positioning is critical.’
30. For this domain, we can see a clinically led discussion took place, and the IRP made reference to evidence to support its view. In that discussion, we can see the IRP weighed up Mrs A’s views on the domain.
31. The IRP report shows a detailed discussion of Mrs L’s mobility needs. The panel took into consideration Mrs L’s social work assessment and noted the pain Mrs L experienced when being moved. We can see from Mrs L’s risk assessments she had to be regularly repositioned to limit the breakdown of her skin, but there was no indication positioning was critical or she was at serious risk of harm when being repositioned.
32. The DST defines the severe level of need in the mobility domain as ‘completely immobile’. We can see Mrs L needed a lot of support to mobilise, but there is no indication she was completely immobile. This is reflected in the nursing assessment and risk assessment the IRP had access to.
33. We can also see from the IRP report the panel had a clinically led discussion around the key clinical facts. The report shows how the evidence determined the IRP’s decision-making process. We have seen no evidence to suggest any facts were overlooked, disregarded or not adequately considered during the IRP process.
34. Our view is the IRP considered Mrs A’s submissions. It recognised her account and the evidence she submitted alongside the medical evidence. The report shows a clinically led discussion of the key facts took place. The IRP explained the evidence it used to inform its decision-making. The IRP explained the reasons for its views on the levels of need for this domain. For this reason, we have seen no signs of failings in this part of the IRP’s process.
35. We recognise Mrs A’s account and that she disagrees with the IRP’s scoring for the mobility domain. We do not wish to take away from her account or what she has told us about her mother’s need for CHC.
Did the IRP’s final decision adequately consider and explain the conclusions of the clinically led discussion?
36. Paragraph 150 of the National Framework sets out the following:
‘Where an MDT [multidisciplinary team] recommends an individual is not eligible for NHS Continuing Healthcare, a clear rationale that considers the four key characteristics must still be provided. This must be based on the primary health need test.’
37. The IRP report shows a discussion and consideration of the four key characteristics (nature, complexity, intensity and unpredictability). We can see the IRP considered all the available evidence, including Mr A’s submissions.
38. The IRP concluded, after considering the four key characteristics, there was not a primary health need. The IRP looked at the totality of Mrs L’s needs and felt her needs were at a level which could be met by a local authority.
39. Upon review of the evidence available to us, such as care home and GP records, we consider the IRP’s rationale is consistent with Mrs L’s records and the descriptors of the four key characteristics, which is in line with the National Framework. We cover the specific considerations made by the IRP in further detail below.
Did the IRP apply the appropriate eligibility tests?
40. Paragraph 124 of the National Framework sets out the following:
‘establishing whether an individual has a primary health need requires a clear, reasoned decision, based on evidence of needs from a comprehensive range of assessments relating to the individual. A good-quality multidisciplinary assessment of needs that looks at all of the individual’s needs ‘in the round’ – including the ways in which they interact with one another – is crucial both to addressing these needs and to determining eligibility for NHS Continuing Healthcare. The individual and (where appropriate) their representative should be enabled to play a central role in the assessment process.’
41. We will consider each key indicator below.
Nature
42. ‘Nature describes 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’ (the National Framework).
43. Paragraph 3.3 of the National Framework sets out the following questions to consider when considering this need:
• ‘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 well-being?
• 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?’
44. Mrs A has not explained why she disagrees with the IRP’s conclusion on the nature of Mrs L’s needs. We have considered the IRP’s rationale alongside the records and the National Framework.
45. We have reviewed the information made available to the IRP. We can see the IRP report includes the level of detail we would expect. Its decision on the nature indicator is clear and presents a full picture of how Mrs L’s needs were met and what daily interventions were needed. The IRP acknowledged in its report Mrs L had a wide range of social care and healthcare needs and needed to be looked after in a safe environment.
46. It acknowledged the clinical evidence supplied by the CCG, the views of Mrs A and her specific concerns. The IRP acknowledged Mrs L did not need any specialist care that was above and beyond what the local authority could give. As such, we have not seen any signs of failings in its reasoning. It was in line with the National Framework and the records support it.
Intensity
47. ‘Intensity relates 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”)’ (the National Framework).
48. Paragraph 3.4 of the National Framework sets out the following questions to consider when considering this need:
• ‘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 needs over several domains?’
49. Mrs A has not explained why she disagrees with the IRP’s conclusion on the intensity of Mrs L’s needs. We have considered the IRP’s rationale alongside the records and the National Framework.
50. We have reviewed the information available to the IRP. We are satisfied there was no evidence to suggest Mrs L’s needs required intense input to manage. While there is a need for close and careful monitoring of Mrs L’s needs, there is no record of a departure from her care plan.
51. Given the above, we do not consider there to be any signs of failings in the IRP’s decision-making process about the intensity of Mrs L’s needs. The IRP’s reasoning is supported by the records and is in line with the National Framework.
Complexity
52. ‘Complexity is concerned with 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’ (the National Framework).
53. Paragraph 3.5 of the National Framework sets out the following questions to consider when considering this need:
• ‘How difficult is it to manage the need(s)?
• 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 need(s)?
• How much skill is required to address the need(s)?
• How does the individual’s response to their condition make it more difficult to provide appropriate support?’
54. Mrs A has not explained why she disagrees with the IRP’s conclusion on the complexity of Mrs L’s needs. We have considered the IRP’s rationale alongside the records and the National Framework.
55. We have considered the information made available to the IRP. From the available evidence, we acknowledge there were interactions between some areas of Mrs L’s healthcare needs.
56. We are satisfied with the IRP’s finding that Mrs L’s care could be anticipated and planned accordingly without the need for complex care planning. Her care was reviewed frequently, but there is no evidence carers had to depart from the care plans. As such, we are satisfied there is no indication of maladministration in the IRP’s decision-making process regarding the complexity of Mrs L’s needs. The IRP’s reasoning is supported by the records and is in line with the National Framework.
Unpredictability
57. ‘Unpredictability describes the degree to which needs fluctuate and thereby create challenges in managing them. It also relates to the level of risk to the person’s health if adequate and timely care is not provided. Someone with an unpredictable healthcare need is likely to have either a fluctuating, unstable or rapidly deteriorating condition’ (the National Framework).
58. Paragraph 3.6 of the National Framework sets out the following questions to consider when considering this need:
• ‘Is the individual or those who support him/her able to anticipate when the need(s) 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 respond spontaneously and appropriately?
• What level of monitoring/review is required?’
59. Mrs A has not explained why she disagrees with the IRP’s conclusion on the unpredictability of Mrs L’s needs. We have considered the IRP’s rationale alongside the records and the National Framework.
60. We have considered the evidence made available to the IRP. We acknowledge Mrs L had needs that did not follow a predictable pattern. However, we are satisfied there was no evidence to suggest her carers had to depart from the care plans, which shows they had considered what Mrs L required. The IRP considered Mrs L’s needs individually and interactively, which is in line with the National Framework.
61. Given the above, we do not consider there to be any signs of failings in the IRP’s decision-making process about the unpredictability of Mrs L’s needs. The IRP’s reasoning is supported by the records and is in line with the National Framework.
62. We acknowledge the distress pursuing this appeal has caused to Mrs A and we are grateful for the information she has shared with us to help in our consideration of her complaint. As we have explained above, we have seen no signs of failings in the IRP’s actions. We hope we have explained our reasoning clearly.