23. It is our role to decide whether NHS England’s IRP acted in line with the National Framework when it considered Mr L’s eligibility for CHC. The National Framework sets out the principles and processes CCGs, which are now known as integrated care boards (ICBs), and NHS England should follow when considering whether someone is eligible for CHC. Please note we refer to the CCG (rather than the ICB) throughout this decision, as it was a CCG at the time.
24. We cannot consider the discretionary decisions the IRP made when it decided on eligibility. This includes the decisions it makes based on clinical judgement and clinicians’ opinions. We can only consider whether the IRP followed the National Framework. This means we can only uphold a complaint about a CHC eligibility decision if we find the IRP did not follow the National Framework when making its decision.
25. The IRP reviews whether the CCG should have found the person to have a primary health need making them eligible for CHC. It also reviews the CCG’s procedures when making its eligibility decision to make sure it was acting in line with the National Framework. If the IRP does find the CCG made a mistake, it can:
• recommend the CCG reconsider whether the patient had a primary health need • recommend the CCG address any procedural faults the IRP identified.
26. When we look at a complaint about an IRP, we consider whether it took all the relevant information into account when making its eligibility decision. To help us to make a decision, we consider four key areas, which we outline below.
Did the IRP get all the relevant evidence?
27. Paragraph 199 of the National Framework says that: ‘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’.
28. We have reviewed the information provided to us in NHS England’s case file and we can see the IRP had access to the following:
• a summary of Mr L’s case, including a chronology of events • CHC assessment • IRP questionnaire • minutes of the LRMs on 10 June 2019 and 18 July 2019 • decision letter from the CCG following the LRM on 18 July 2019 • nursing care plans • nursing home records • GP records • social services records.
29. We also have a copy of the IRP’s report, which documents the submissions from Mrs U.
30. It is clear the IRP had access to all the information the CCG used in making its decision on 21 April 2021. It gave Mrs U an opportunity to provide verbal evidence during the meeting on 15 March 2021. The IRP also reviewed the relevant medical records, which demonstrated Mr L’s needs during the review period.
31. We can see no obvious omissions in the documents and evidence NHS England considered. We are satisfied there are no signs of a failing in how the IRP established all the appropriate and relevant clinical facts. The IRP had access to information clearly detailing Mr L’s needs during the reviewed period.
32. We think the IRP acted in line with paragraph 199 of the National Framework.
Before it made its decision, did the IRP consider all the relevant evidence?
33. We have looked at the information in the IRP report and considered how the panel discussed all the available evidence when it was weighing up the disputed domains. We can see the IRP discussed Mrs U’s verbal submissions relating to Mr L’s needs. This is clearly detailed in section 3, where the IRP invites Mrs U to give a background on Mr L. We can also see the IRP goes on in section 5 to discuss the reasons why each care domain is being disputed.
34. We can see the IRP also considered the information in Mr L’s medical records. When explaining its weighting for each domain, it refers to specific pieces of information from the medical records. We can also see the IRP had the National Framework in mind when discussing its weighting of each domain and key characteristic. It outlined how it weighted each domain and explained how its weighting was in line with the National Framework.
35. Paragraph 199 of the National Framework is also relevant to this part of the IRP’s considerations and we think it acted in line with this guidance.
Did the IRP clearly explain how it had reached its decision?
36. We can see in the IRP report that Mrs U, on behalf of Mrs L, disputed three of the domains the health service uses to determine a person’s care needs. We will go on to consider these.
Mobility
37. The CCG awarded a moderate weighting for this domain in the DST but changed it to high following the local appeal. Mrs L says her husband’s needs were severe in this domain. The IRP weighted this domain as high.
38. We can see in the report that Mrs U explained Mr L was able to transfer standing on a swivel board and the staff used slings when he could no longer do that. He then had a pulmonary embolism (PE) (a condition in which one of the arteries in the lungs gets blocked by a clot) and could no longer bear his own weight. His joints also became unreliable. Mrs U explained Mr L did make very clear he was in pain. She said he was likely to experience pain from poor moving and handling because he has osteoporosis (a condition that weakens bones) and spinal compression (when there is pressure on the spinal cord).
39. She says he was at a high risk of harm, specifically due to his shoulder subluxation (this is when there is partial or incomplete dislocation of the joint) when it was moved into position, and there was a risk of pain.
40. The DST defines a high level of need in the mobility domain 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.’
41. The IRP report shows a detailed discussion of Mr L’s mobility needs at the IRP meeting. Mrs U explained Mr L’s needs and the IRP assessed whether this indicated a higher weighting.
42. The IRP noted there were no moving and handling risk assessments in the case file and no signs Mr L required the use of wedges to keep his limbs in one position. We acknowledge the concerns Mrs U has raised to us and at the IRP meeting that Mr L should have been ‘subject to a targeted risk assessment’. The National Framework says in paragraph 199 the IRP should scrutinise ‘all available and relevant’ evidence. We consider the IRP acted in line with this and considered the available evidence, which did not include risk assessments.
43. There is evidence the IRP took Mrs U’s submissions into account, as it acknowledged Mr L’s osteoporosis and went on to consider his resulting mobility needs.
44. We think the IRP acted in line with the National Framework when it considered Mr L’s mobility needs. We acknowledge Mrs U’s submission for a higher weighting of severe, which the DST defines 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’.
45. We can see evidence that when Mr L went into the care home, he was able to use a standing hoist, but over time he was unable to move himself and was hoisted by two carers. The IRP acknowledged he experienced pain on movement and evidence of this is shown through ‘grimacing and making sounds’.
46. There was no evidence to suggest he had a clinical condition causing moving or transferring to pose a high risk of serious physical harm or that his position was ‘critical’. This is shown by no evidence he required wedges to keep his limbs in one position. There was also no evidence of risk assessments or the requirement of three staff to transfer. This supports the IRP’s rationale that there was no evidence to show Mr L had a high risk of serious physical harm relating to mobility, as is needed for a severe level of need.
47. We can see no signs of failings in how the IRP considered this domain.
Psychological and emotional needs
48. Mrs U reports Mrs L says her husband had a high weighting in this domain. The CCG said his needs were low, and the IRP weighted it as moderate.
49. Mrs U says Mr L was calmer if he was listening to music he liked or golf was on television. He had no history of depression but did appear distressed at times regarding his condition. She says when he talked it was staccato (short and distinct) and, before going into the care home, he would say he wanted to run away with his wife. She says Mrs L disputes the statement in the care notes that he was ‘content and peaceful’.
50. The chair noted the family’s written submissions that Mr L had periods of distress which affected his health, and we can see the IRP invited further discussion around this. Mrs U explained that he was fine when Mrs L visited him, but he would become very distressed when she left.
51. The IRP considered Mr L’s needs were consistent with the DST’s moderate definition of the psychological and emotional domain. The DST says this means:
‘Mood disturbance, hallucinations or anxiety symptoms, or periods of distress, which do not readily respond to prompts and reassurance and have an increasing effect on the individual’s health and/or well-being.
OR
Due to their psychological or emotional state the individual has withdrawn from most attempts to engage them in care planning, support and/or daily activities.’
52. We can see the report shows the IRP had a detailed discussion about Mr L’s needs. It discussed his mood, activities and episodes of hallucinations. It weighed up Mrs L’s and Mrs U’s verbal and written submissions in considering whether a higher weighting would be appropriate.
53. The panel accepted Mr L’s anxiety did seem to affect him, as there was evidence he would begin resisting personal care by, for example, pushing staff away. It said there was no evidence this has a severe effect on his health or wellbeing. The IRP’s rationale is supported by the records, as there is no evidence Mr L had depression or required mood stabilisers.
54. We have also reviewed the records and found no evidence of hallucinations. This supports the IRP’s conclusions.
55. We think the IRP followed the National Framework when considering Mr L’s psychological and emotional needs. The difference between the moderate and high descriptors in this domain is the effect of the mood and anxiety on the person’s health or wellbeing, and how far they have withdrawn from attempts to engage them. The IRP acknowledged Mr L did have periods of distress and low mood, and he would sometimes respond to assurances, but overall there was no evidence to suggest a severe effect on his health or wellbeing.
56. We can see no signs of a failing in how the IRP considered this domain.
Altered states of consciousness
57. The CCG awarded this domain a low weighting. Mrs U submitted that Mrs L argues her husband had a high level of need. The IRP concluded he had a moderate level of need.
58. In the IRP meeting, Mrs U explained why the family feels Mr L had a high level of need. This was because of his seizures. She says Mr L had a consultant neurologist assessment on 15 October 2019 confirming he had seizures typical for this stage of his vascular dementia. She says treatment was recommended, including medication and a referral to the epilepsy nurse.
59. The DST describes a moderate level of need as: ‘occasional (monthly or less frequently) episodes of ASC that require the supervision of a carer or care worker to minimise the risk of harm’.
60. The panel noted the consultant neurologist assessment Mrs U referred to occurred eight months after the DST (which took place in February 2019) and was outside of the review period. We have reviewed the records, specifically the assessment, and can see it is dated 15 October 2019. The end of the review period was 10 October 2019. We consider the IRP acted in line with paragraph 199 of the National Framework, as it considered ‘the relevant evidence’ relating to the claim period.
61. We think the IRP followed the National Framework when it considered Mr L’s need in this domain. The difference between a moderate and high level of need is the frequency of the episodes and the level of supervision required to ‘minimise the risk of harm’.
62. In considering how frequent the episodes were, the IRP acknowledged Mrs U’s and Mrs L’s submissions. Mrs L says these were ‘often’. The chair referred to the LRM held on 10 June 2019 to understand the family’s submissions in relation to the ASC at that stage. On pages nine and ten it records Mrs L reported ‘frequent episodes of TIAs [transient ischaemic attacks]. [Mrs L] advised that she notices a change in [Mr L’s] facial expression – dropped lip’.
63. The IRP says there was no record of occurrence or frequency in Mr L’s records, but Mrs L had video recorded a seizure in 2019 to support her request for the referral to the consultant neurologist. From that, the panel inferred the ASC deterioration that prompted Mrs L to video the seizures for the purpose of persuading the care home to make a neurology referral occurred after June 2019 (within the claim period). It then concluded there was evidence of ‘occasional’ episodes of ASC. This would be in line with the descriptor for a moderate level of need.
64. We can see the panel also discussed the effect of the seizures on Mr L. It found no suggestion skilled interventions were required to manage this, but it went on to consider the likely risks. For example, if these occurred when Mr L was eating, he would be at a risk of choking. It found this could be managed with the resources available in the care home. This was in line with the descriptor for a moderate level of need. For a higher weighting, skilled intervention would need to be evidenced.
65. We find no signs of failings in the IRP’s consideration.
Did the IRP apply the eligibility tests properly and reach an evidence-based conclusion about them?
66. The IRP also applies an eligibility test to help it make a decision about a person’s CHC eligibility. The National Framework separates this test into four key characteristics: nature, intensity, complexity and unpredictability. This test is used to establish whether the quantity or type of a person’s care needs are more than what the local authority can provide. This shows whether they have a primary health need, which in turn shows whether they are eligible for CHC.
67. The National Framework sets out questions for the IRP to consider in establishing a person’s level of need. They are outlined in ‘Practice Guidance 3: When identifying a primary health need, how should the four key characteristics be approached?’ (PG3). The National Framework is clear the questions it provides are not meant to be strictly applied and are there to guide the IRP’s considerations. We use these questions when looking at whether the IRP properly considered the four key characteristics of Mr L’s needs.
68. Mrs U has told us Mrs L disagrees with the IRP’s consideration of each of the four key characteristics. We can see she gave her view on each key characteristic directly to the IRP as her views are recorded in the IRP’s report.
Nature
69. The National Framework says this characteristic should ‘describe the particular characteristics of an individual’s needs (which can include physical, mental health or psychological needs) and the overall effect of those needs on the individual, including the type (“quality”) of interventions required to manage them.’
70. Mrs U told the IRP she had no specific concerns relating to the ‘nature’ key indicator but was dissatisfied with how it was considered.
71. We can see the IRP considered the nature of Mr L’s needs at a level of detail we would expect to see and with PG3 in mind. The IRP focused on Mr L’s needs rather than his diagnosed medical conditions. It commented on his needs relating to his breathing, skin, transfers, continence, choking concerns, communication, medicine and states of consciousness. It discussed the effect of his needs on his health and wellbeing, as detailed in sections 9.3-9.10 of the IRP report.
72. The IRP also looked at the types of care Mr L needed to keep him safe and well. The report sets this out in detail. It includes needs such as monitoring and administering aperients (drugs used to relieve constipation), as were prescribed for his continence, or the use of an enema (an injection of fluids used to cleanse or stimulate the emptying of the bowel). It also includes needs such as using a wheelchair, observing his skin condition and managing his medication.
73. The report shows how the IRP discussed the levels of training Mr L’s carers needed. We can see the panel acknowledged Mr L was seen by the speech and language therapy (SALT) service in relation to dysphagia (difficulty in swallowing) associated with his stroke. The IRP acknowledged his dysphagia required some skilled interventions to ensure adequate nutrition and hydration to minimise the risk of choking.
74. It thoroughly considered all Mr L’s needs and found no evidence to suggest he needed any additional skills or knowledge, other than for the dysphagia, to manage his need. The use of enemas required no skilled interventions and could be carried out by the carers and district nursing staff.
75. The IRP weighed everything up before it concluded the nature of Mr L’s needs was within the remit of social services, with the support of CHC services and the GP.
76. We think the IRP acted in line with the guidance set out in the National Framework when it considered the nature of Mr L’s needs.
Intensity
77. The National Framework says this characteristic ‘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”).’
78. Mrs U told the IRP that Mr L’s needs were intense, because at times three carers were required to meet his needs. She also says he required assistance with eating, which would take more than an hour.
79. The IRP’s report shows a detailed discussion about the intensity of Mr L’s needs. This included consideration of how intense his needs were in the areas Mrs U mentioned. It acknowledged Mr L’s feeding could take around an hour, but his nutritional care was routine and therefore was within the remit of the local authority.
80. It also acknowledged his osteoporosis occasionally caused him to require additional staff, but they were not routinely required for moving and handling interventions.
81. The IRP considered the amount of time needed to provide the care, how much planning was involved and how many carers were needed. It acknowledged Mr L needed care 24 hours a day, but this alone does not signify a primary health need.
82. The report shows the IRP weighed up all the evidence before it concluded the levels of care and monitoring required in these domains were not severe enough to determine a primary health need.
83. We think the IRP acted in line with the National Framework when it considered the intensity of Mr L’s needs.
Complexity
84. The National Framework says: ‘this 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’. We have seen evidence the IRP carefully considered the complexity of Mr L’s level of need.
85. We can see Mrs U explained to the IRP that Mr L had unmanaged needs in relation to his TIAs and seizures. A TIA is caused by a temporary disruption in the blood supply to a part of the brain and is sometimes referred to as a mini stroke. Mrs U also says his continence care was not managed well and he had fluctuating weight loss. She says this all evidenced he had a primary health need because of the complexity of these issues.
86. The report shows the IRP considered how Mr L’s needs were managed overall, including in the areas Mrs U complains about, specifically continence, seizures, TIAs and nutrition.
87. The report shows us the IRP considered the difficulty for the carers of managing Mr L’s needs, and it established the care was not complex to deliver. The IRP report shows how the IRP considered the interaction of various combinations of Mr L’s needs. It specifically discussed the interaction between his cognition, continence, nutrition and ASC episodes.
88. The panel concluded Mr L’s bowel management was not complex or problematic and that the carers mainly dealt with this. They also had access to the district nurses. The panel acknowledged Mr L also had access to SALT for any swallow issues. It found this was due to dysphagia related to his stroke, but the care home was not required to employ any skilled interventions to manage this, and no hospital admissions were noted because of Mr L’s nutrition.
89. It also found the ASC episodes did not result in the need for a skilled and/or immediate response during the claim period. This suggests the carers were able to manage this.
90. We can see the IRP weighed up all the evidence before they decided this key characteristic did not indicate a primary health need for Mr L. It set out why it thought the level of skill needed to manage the interaction of his needs was not complex and that the interactions did not pose a significant barrier to the carers looking after him.
91. We think the IRP acted in line with the National Framework when it considered the complexity of Mr L’s needs.
Unpredictability
92. The final key characteristic of a person’s level of need is unpredictability. The National Framework defines it as: ‘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. An individual with an unpredictable healthcare need is likely to have either a fluctuating, unstable or rapidly deteriorating condition.’
93. Mrs U told the IRP Mr L’s seizures evidenced a deteriorating situation putting him at ‘a real risk of harm’. She also says that, because of Mr L’s constipation concerns, he needed constant invasive enemas. For this reason, she submits Mr L’s needs were unpredictable.
94. The IRP has provided a detailed review of the unpredictability of Mr L’s needs in its report, and we can see the panel had PG3 in mind to inform its discussions. The report acknowledges he had progressive dementia, which meant he deteriorated gradually. It also acknowledged Mr L had two cerebrovascular accidents (CVAs) or seizures and experienced periods of constipation. A CVA is an interruption in the flow of blood to cells in the brain.
95. The carers knew what to expect, and his needs were managed with input from the district nursing team. We would consider this to be within the remit of the local authority. The IRP referred to Mr L’s care plans, noting they were not subject to much change. This is a key piece of evidence showing the IRP that, while Mr L’s needs fluctuated, they were predictable and suggested he had a stable level of need.
96. We can see the panel also considered whether Mr L presented a rapid change. It found no evidence of this. We think the records support the IRP’s rationale. There is no evidence of skilled interventions required to manage these needs, changes to care plans or medications. This suggests Mr L’s needs were managed and practicable.
97. We think the IRP acted in line with the National Framework when it considered the unpredictability of Mr L’s needs.
98. We are satisfied there were no failings in how the IRP considered the four characteristics of Mr L’s needs. We think it acted in line with the National Framework. This does not take away from the account provided by Mrs L and Mrs U or the challenges Mr L faced. We appreciate Mr L was entirely reliant on the care he received, and we are pleased to hear he had a well-trained and dedicated team around him. The IRP’s conclusion that his care did not indicate a primary health need and fell within the remit of the local authority appears to be in line with the National Framework.
Procedural concerns
99. Mrs L also raises procedural concerns. She says there were delays between the checklist being completed and a DST being arranged. We appreciate this must have been frustrating for Mrs L.
100. Having reviewed the evidence, we can see the panel considered this in section 4 of the report. It acknowledged there were delays between 30 May 2018 and 18 February 2019. We can see the CCG also said it ‘could not dispute anything that was said about the delays or the process’, so it has acknowledged these.
101. In section 4.3, the CCG said its process at the time was for a community team to conduct the assessment on behalf of the CCG. The process has since been changed, with the CCG’s own team now completing the process in-house. As a result, the CCG hoped the standard and quality of assessment had improved. The CCG apologised to Mrs L and Mrs U.
102. It is evident the delays caused Mrs L distress. There is no evidence to suggest the delays had an effect on the eligibility decision for the reviewed period. This is because the IRP confirmed in paragraph 4.1 the period being reviewed is 6 November 2017 to 10 October 2019, which includes the period of the delays.
103. We consider the CCG’s actions of apologising to be in line with the ‘Principles for Remedy’, which say ‘where maladministration or poor service led to injustice, public bodies should try to offer a remedy that returns the complainant to the position they would have been in otherwise’. This can include an apology. We consider there are no signs of failings in NHS England’s consideration of this issue.