The 26 July 2019 checklist shows Mrs O needed a full CHC funding assessment, but the ICB refused to do a full assessment
16. Mr O says Mrs O should have had a full CHC funding assessment because the July 2019 checklist shows she needed one, with scores of two As, five Bs and four Cs for the care domains.
17. The ICB says Mrs O had a full CHC funding assessment on 30 October 2018, which showed she was eligible for funded nursing care but not CHC.
18. The ICB refers to paragraph 259 of the National Framework. This says if a person has had a previous checklist or DST and was found not eligible for CHC, and there is no substantial change in their needs, it is not necessary to repeat the checklist or DST.
19. The ICB says, technically, it did not need to complete the checklist in July 2019. But when it did so, it compared it to the previous DST assessment and did not identify any material change in needs.
20. The CHC checklist looks at a person’s needs in 11 areas of care and gives them a score for each from A (the highest level of need) to C (the lowest).
21. The National Framework guidance says a positive checklist is when a person scores two or more As, five Bs, or one A in a priority domain and four Bs. Mrs O met these criteria in the July 2019 checklist, with two As and five Bs.
22. Paragraph 260 of the National Framework says a positive checklist means the person needs a full CHC funding assessment. In line with paragraph 259, if the ICB believed there was no material change in Mrs O’s needs in July 2019, it did not need to do the checklist. But, having done it, paragraph 260 applies and the ICB should have then done a full CHC funding assessment. It did not do that, which suggests a failing.
23. We cannot say if a full assessment would have found Mrs O eligible for CHC funding and whether she has had to pay care costs she should not have had to. But her eligibility was not fairly considered because the ICB failed to do a full assessment. We have looked at what the ICB could do to put things right.
24. Our principles say if an organisation has made a mistake, it should put the complainant back in the position they would have been if it had not made that mistake.
25. ICBs can do CHC assessments retrospectively, so we have asked the ICB if it will do a retrospective review for the time in question.
26. The ICB has confirmed it will do this for the time between 26 July 2019 and 2 February 2021 (the date it did the next funded nursing care review and so next considered Mrs O’s eligibility for CHC funding).
27. We are satisfied this will put Mrs O and Mr O back in the position they would have been in, as far as possible, if the ICB had acted as it should have done on the July 2019 checklist. It achieves the outcome Mr O tells us he wants.
The ICB did not involve Mr O in his wife’s assessments on 26 July 2019 and 2 February 2021, the assessor did not discuss the findings with him and the ICB did not tell him how he could appeal the outcome of any negative checklist
34. We are very sorry Mr O and his wife have gone through a very difficult time. We outline the evidence associated with each assessment below.
July 2019 review
35. Mr O is unhappy the ICB did not involve him in the July 2019 assessment and did not tell him about the outcome or how to challenge this. He later discovered that Mrs O had needed a full CHC funding assessment, but the ICB refused to do one. For context, the National Framework (2018) says: ‘Eligibility for NHS continuing healthcare must be first considered, and a decision made and recorded (either at the checklist or DST stage), prior to any decision on eligibility for NHS-funded nursing care.’
36. The complaint response from the ICB dated 17 June 2021 says its records show it sent a letter to Mr O telling him about the funded nursing care review and there is also documentation written by the registered nurse who completed the review which refers to liaising with Mr O about it.
37. The National Framework says: ‘Assessments of eligibility for… NHS-funded nursing care should be organised so that the individual being assessed and their representative understand the process and receive advice and information that will maximise their ability to participate in the process in an informed way. Decisions and rationales that relate to eligibility should be transparent from the outset for individuals, carers, family and staff alike.’
38. The records show the ICB completed a CHC checklist when it did the funded nursing care review on 26 July 2019. We can see the ICB wrote to Mr O on 6 August 2019 with details of the outcome of this. We can also see from the checklist Mr O was there when it was completed. So, we can see no signs of failings in how the ICB involved him in this review.
39. We have looked at whether the ICB gave Mr O enough information about how to challenge its decision in July 2019. Mr O complains he did not see a copy of the CHC funding assessment done on 26 July 2019 and the findings of the assessment were not discussed with him or Mrs O.
40. We can see the ICB sent Mr O a copy of the CHC funding assessment on 28 July 2019 and a letter confirming the outcome of the funded nursing care review on 6 August 2019. This was sent again in response to Mr O’s complaint on 18 May 2021.
41. In the ICB’s complaint response of 17 June 2021, it accepts ‘there is no evidence to support that the nurse who completed the review clearly explained the process and outcome, although [Mr O] received an outcome letter advising that the decision of the [ICB] was that [Mrs O] remained eligible for NHS-FNC [funded nursing care]’.
42. The letter of 6 August 2021 explains the outcome but we can see it does not explain how Mr O can challenge the decision. We can see the actions of the ICB fall short of the National Framework guidance, which says: ‘A clear and written response should be given including the individual’s (and, where appropriate, their representatives) rights under the NHS complaints procedure if they remained dissatisfied with the position.’
43. We have looked at the way in which the ICB has taken steps to put right its mistakes here and in the February 2021 review, which Mr O is also unhappy about. We consider this separately below.
February 2021 review
44. The records show the ICB did a virtual funded nursing care review on 2 February 2021. It was completed alongside a nursing needs assessment and a checklist. But the ICB accepts there is no evidence it told Mr O this was happening or invited him.
45. So, we know the ICB did not act in line with the National Framework here as it did not involve Mr O in the 2021 review as it should have done.
46. We have looked at whether the ICB gave Mr O enough information about how to challenge its decision in February 2021.
47. The National Framework guidance says, ‘Whatever the outcome of the checklist… the outcome must be communicated clearly and in writing to the individual or their representative, as soon as is reasonably practicable.’ Paragraph 103 of the National Framework guidance is also applies here.
48. The letter of 2 February 2021 informs Mr O of the outcome of the review, but it does not tell him how he can challenge the decision following the funded nursing care review in February 2021. So, he may have lost an opportunity to challenge the decision. This is a sign of a failing.
49. We have looked at how the ICB has made efforts to put things right in its communication in both July 2019 and September 2021.
Resolution
50. Our principles say if an organisation has made a mistake, it should put the complainant back in the position they would have been in has the mistake not been made.
51. In its complaint response, the ICB responded to Mr O’s concerns about the inadequate communication he received about appealing the decision. It accepts Mr O did not receive enough information about how NHS-funded nursing care works and how it is reviewed. The ICB gave him an explanation and an information leaflet. We can see this is in line with our principles.
52. The ICB has made efforts to put right the communication failures of the July 2019 review by starting a new NHS-funded nursing care review and making sure Mr O is fully involved in the process. As we have already said, the ICB confirms it will do a retrospective review for the time between 26 July 2019 and 2 February 2021. We can see this is in line with our principles.
53. In its efforts to put right the failure of the February 2021 review, the ICB has thought about ways to address Mr O’s concerns about poor communication and accepted its mistake in not giving him the opportunity to represent his wife.
54. It says, ‘It would be fair to ask the team to carry out a new NHS-FNC review, and fully involve [Mr O] in this process and [it] will be asking the team to do this.’ We can see this is in line with our principles which say, 'Where a public body had failed to get it right and this has led to injustice or hardship, it should take steps to put things right.’
55. We contacted the ICB on 30 September 2022 to see whether it had done a new NHS-funded nursing care review. The ICB has confirmed, in an email dated 6 October 2022, the review was completed on 27 June 2022. A family friend attended the review as Mr O was unable to do so. The nurse also contacted Mr O to explain the outcome to him.
56. So, we are satisfied the ICB has addressed Mr O’s concerns by accepting the lack of information it gave him and put right its failure by giving him satisfactory information. We can also see a new review was undertaken on 27 June 2022 in recognition of the funded nursing care review which took place in February 2021. We hope this reassures Mr O about his concerns.
57. For these reasons, we will close this part of the complaint as we consider the ICB has taken sufficient action to put things right. We hope the ICB’s acceptance of its mistakes and the carrying out of a new NHS-funded nursing care assessment with the full involvement of Mr O reassures him it has taken steps to put things right.
The ICB did not consider Mrs O’s changing needs and told Mr O she was not eligible for CHC funding, but it did not complete the CHC checklist
58. We understand Mr O’s is unhappy with the assessment that was carried out on 2 July 2021 as he says his wife’s changing needs were not considered. This is shown in the incomplete checklist.
59. The records show the ICB completed a further checklist at the 2 July 2021 review. This says there were no significant changes since the DST assessment on 23 August 2018.
60. The National Framework guidance says: ‘Practitioners should compare the domain descriptors to the needs of the individual and select level A, B or C, as appropriate, choosing whichever most closely matches the individual. If the needs of the individual are the same or greater than anything in the A column, then ‘A’ should be selected. Practitioners should briefly summarise the individual’s needs which support the level chosen, recording references to evidence as appropriate.’
61. We have asked our CHC adviser about the adequacy of the checklist.
62. Our adviser informs us the checklist is not completed correctly. We can see it does not include any evidence, comments, scoring or reasons other than saying there had been no change in Mrs O’s needs.
63. So, the ICB did not act in line with the National Framework and there is a sign of a failing. Mrs O and Mr O were denied a proper consideration of Mrs O’s needs.
64. So, in line with our principles, we have asked the ICB whether it will do a new CHC assessment for July 2021. It agreed in an email of 16 December 2022.
65. We think this puts Mrs O and Mr O back in the position they would have been if the ICB had not made the mistake. So, this put things right for them in line with our principles.
66. Understandably, this has been a distressing experience for both Mr and Mrs O, and we do not want to underestimate the stressful experience they have had. We hope the outcomes we have achieved brings them closure in this matter.