Humber and North Yorkshire Integrated Care Board

4. The legal firm complains the now ICB refused to complete a checklist or use a DST, contrary to the National Framework, in February 2021 at its request. The legal firm says the ICB refused an appeal of the NHS-funded nursing care (FNC) review in July 2020 on the grounds it was not an assessment.

5. The legal firm also complains the ICB has refused to conduct a previously unassessed period of care assessment covering the period 19 July 2019 to 16 July 2021.

6. The legal firm says the ICB is acting outside of the National Framework and to the detriment of Mrs A by refusing to complete a checklist or use a DST, unless notified by the care home.

7. The legal firm wants the ICB to conduct a previously unassessed period of care assessment for the period 19 July 2019 to 16 July 2021 or allow appeals of the assessments in July 2019 and July 2020. The legal firm wants the ICB to reimburse the professional costs to Mrs A’s estate, regardless of the outcome of the previously unassessed period of care assessment or appeals. The legal firm wants us to recommend the ICB amend its policies to ensure it does not repeat the same mistakes.

8. On 19 July 2019, the ICB assessed Mrs A’s eligibility for CHC funding. CHC is awarded when a person has a primary health need, and means the ICB funds all their care needs. The CHC nurse assessor used a DST. The assessor uses a DST to document the person’s needs across 12 care domains and four key characteristics (nature, intensity, complexity and unpredictability) of their needs. The DST helps the assessor decide whether a person has a primary health need. The ICB found Mrs A was not eligible for CHC but was eligible for FNC. The ICB pays FNC when the person has some nursing needs but not a primary health need, and is receiving care in a care home.

9. On 1 August 2019, the ICB advised Mrs A of the outcome and her right to appeal the decision. The ICB emailed a copy to her then representative on 19 August 2019.

10. On 14 July 2020, the ICB conducted a review of FNC for Mrs A. The nurse assessor found no significant increase of needs. They recommended Mrs A was not eligible for CHC but should continue to receive FNC.

11. On 24 August 2020, the ICB contacted Mrs A’s previous deputy to advise of the outcome of the FNC review.

12. On 17 December 2020, the legal firm contacted the ICB to say it was now Mrs A’s deputy. On 8 February 2021, the legal firm advised the ICB of its intention to appeal the decision in July 2020.

13. On 16 March 2021, Mrs A’s care home sent a change in condition application to the ICB. The ICB used a DST on 14 July 2021 and found her eligible for CHC.

14. On 23 September 2021, the legal firm requested a previously unassessed period of care assessment for the period 19 July 2019 to 16 July 2021. The ICB said this period was not a previously unassessed period of care.

15. The legal firm complained to the ICB on 15 October 2021, and the ICB responded on 22 October 2021.

16. The legal firm complained to us on 29 December 2021.

The ICB refused to complete a checklist or use a DST on request in February 2021

19. 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 signs something has gone wrong.

20. The legal firm says the ICB should have completed a checklist or used a DST at its request on 11 February 2021. The ICB explained to the legal firm on 22 February 2021 it did not need to use a new DST. The ICB explained there was no material change in Mrs A’s needs highlighted at the annual NHS-FNC review. Also, the care home where Mrs A was living had not suggested there was a change in her needs.

21. The relevant part of the National Framework 2018 is Practice Guidance 17.1. It states when an individual is in a community care setting other than a hospital, it is appropriate to complete a checklist: • as part of a community care assessment • at a review of a support package or placement • when a clinician such as a community nurse, GP or therapist is reviewing a patient’s needs • whenever there has been a reported change in an individual’s care needs, or • in any circumstances that would suggest potential eligibility for NHS-funded CHC.

22. It is clear the National Framework 2018 does not allow completion of a checklist or use of a DST based on a request by the individual (or their deputy).

23. The care home where Mrs A was living provided the ICB with a change in condition application in March 2021. There is no suggestion the ICB was informed of a change in Mrs A’s needs, which would require an assessment.

24. When we weigh up the evidence, the ICB completed a checklist for Mrs A in March 2021 in the proper manner as outlined by the National Framework 2018. We can see no signs the ICB did something wrong when it declined to complete a checklist or use a DST at the legal firm’s request in February 2021.

The ICB refused a challenge of the July 2020 FNC review

25. The legal firm says the ICB refused an appeal of the NHS-FNC review in July 2020 on the basis it was not an assessment.

26. On completion of the previous CHC assessment in July 2019, the ICB found Mrs A not eligible. Mrs A was eligible for FNC.

27. A review of FNC took place in July 2020. The purpose of the review in July 2020 was to check whether Mrs A was still eligible for FNC. The review did not include a full assessment of Mrs A’s eligibility for CHC. It did not involve a multi-disciplinary team or use of a DST.

28. The relevant part of the National Framework 2018 is paragraph 258. It says potential eligibility for CHC must be considered at an FNC review. Paragraph 259 of the National Framework 2018 states a new checklist does not need to completed or a new DST used where they have already been completed or used and there is no material change in need. The circumstances described in paragraph 258 of the National Framework 2018 detail when an individual’s potential eligibility for NHS CHC does not need consideration. Mrs A’s circumstances come under paragraph 259 of the National Framework 2018. The ICB previously found Mrs A not eligible for NHS CHC in July 2019.

29. At the time of the review in July 2020, there was no suggestion of a material change in Mrs A’s needs. During Mrs A’s FNC review in July 2020, the nurse assessor considered whether there had been a material change in Mrs A’s needs. Paragraph 261 of the National Framework 2018 says the previously used DST should be available at the review and each of the domains should be considered. We can see this happened and the nurse assessor found there was no material change in Mrs A’s needs. Mrs A did not require an assessment for NHS CHC in July 2020.

30. Paragraph 262 of the National Framework 2018 says the ICB should have provided the deputy with a copy of the annotated previous assessment. An FNC review cannot be appealed in the same way as a CHC eligibility decision can. But the National Framework says the ICB should give the person (or their representative) information about how to request a review of the outcome. We cannot see the ICB did either of those things.

31. We can see the ICB informed the deputy at the time of the outcome of the FNC review in August 2020. We cannot see the ICB sent a copy of the NHS-FNC review to the deputy. The letter the ICB sent in August 2020 states ‘a copy of the Continuing Healthcare Checklist is available on request’. The reference to a checklist is incorrect, because the assessor who conducted the FNC review had considered and annotated the previous DST, so the ICB’s letter is confusing.

32. The letter states: ‘If you have any questions regarding the content of this letter, you should contact the Continuing Healthcare Team within 6 months of the date of this letter.’ This does not provide information about how to request a review of the NHS-FNC outcome in line with paragraph 262 of the National Framework 2018.

33. The deputy at the time did not contact the ICB about the FNC review decision. But when the legal firm took over as deputy, it contacted the ICB over its concerns about the review. It did this in December 2020 and February 2021, which were both within six months of when the ICB sent the response. We can see the legal firm was asking the ICB for a DST or to ‘appeal’ the FNC review, neither of which the ICB could do. But these were simply the wrong words. We think the ICB should have understood that the legal firm was unhappy with the outcome of the FNC review and explained what it could do to challenge the decision.

34. We discussed the matter with the ICB, which agreed it did not fully follow paragraph 262 of the National Framework 2018. The ICB has agreed to write to the deputy with a copy of the July 2020 NHS-FNC review and information about how to request a review. The ICB has agreed to allow a challenge to the NHS-FNC review of July 2020, provided it satisfies the ICB’s timeframe.

35. This achieves the outcome the legal firm wanted for this part of the complaint, so it is resolved. If the legal firm is unhappy with the outcome of its challenge to the FNC review, it can pursue this as a new complaint about that decision.

The ICB refused to conduct a previously unassessed period of care assessment

36. The legal firm says the ICB refused to conduct a retrospective review of a previously unassessed period of care covering the period 19 July 2019 to 16 July 2021. The ICB says this timeframe is not a previously unassessed period of care.

37. A previously unassessed period of care is a past period where the person’s needs may have made them eligible for CHC, but those needs were not assessed at the time or have not been assessed since. The PUPoC guidance states ICBs should check if a period is unassessed.

38. The ICB considered Mrs A’s possible eligibility for NHS CHC on a yearly basis in July 2019, July 2020 and July 2021.

39. There is no suggestion from the legal firm that Mrs A’s needs changed between July 2019 and July 2020. We cannot see the ICB had evidence to suggest Mrs A should have been assessed between the reviews and did not carry out the assessments.

40. We can see the ICB notified Mrs A and her then representative about the outcome of the July 2019 assessment and how to appeal it. Mrs A and her then representative did not appeal, and the legal firm is too late to do so now. We have also explained why we think the ICB got things wrong in how it communicated the outcome of the July 2020 FNC review. The ICB will put this right.

41. The first sign there was a change in Mrs A’s needs was when the care home informed the ICB of a change in her condition in March 2021. This led to the use of a DST on 14 July 2021, when the ICB found Mrs A eligible for CHC.

42. Based on the information and the National Framework 2018, the period 19 July 2019 to 16 July 2021 is not a previously unassessed period of care. We can see no signs the ICB did something wrong when it declined to conduct a retrospective review for this period.

43. We hope our explanations help the legal firm understand what has happened. We also hope it is reassured the ICB will put things right where its mistake in how it communicated its July 2020 FNC review decision had a negative impact on Mrs A.

1. We have carefully considered the legal firm’s complaint about Vale of York Clinical Commissioning Group (CCG), which became the Humber and North Yorkshire Integrated Care Board (ICB) in 2022. We will refer to it throughout this statement by its current name, the ICB.

2. We have reviewed all the relevant evidence and are satisfied the ICB acted in line with the National Framework for Continuing Healthcare (CHC) on some parts of the complaint. We have seen no signs the ICB did anything wrong when it declined to complete a checklist or use a decision support tool (DST) at the legal firm’s request in February 2021. We cannot see the ICB did anything wrong when it declined to conduct a previously unassessed period of care assessment covering the period 19 July 2019 to 16 July 2021.

3. We do not think the ICB did not fully follow the relevant paragraph of the National Framework for CHC when it refused the legal firm’s challenge to the July 2020 decision. We have discussed this with the ICB, which has agreed to allow a challenge of this decision.