8. Dr P says ICB one did not pay Mrs F’s FNC to her care provider or refer Mrs F to ICB two to pay her FNC for the care period.
9. Mrs F paid full care fees with no FNC contribution for the care period. Mrs F missed opportunities to be reviewed and have full CHC funding reinstated. Mrs F was not assessed for fast track CHC when her health deteriorated.
10. Dr P wants the care fees to be reimbursed, an apology and service improvements.
11. Mrs F had a fall in December 2010 and fractured her spine. She had Alzheimer’s disease (a common type of dementia). She moved to a care home within ICB two’s catchment area on 19 January 2011 and was assessed by ICB one in February 2012 as not eligible for funding.
12. This decision was overturned at a local resolution meeting (LRM) on 8 August 2013. Mrs F was eligible for CHC funding from 17 September 2011.
13. ICB one reviewed Mrs F on 29 August 2017 and decided she was no longer eligible for CHC funding. Full CHC funding stopped on 27 September 2017. Dr P expected Mrs F to get FNC when full funding stopped, but no payments were made.
14. Dr P asked ICB one for an appeal of the CHC eligibility decision in 2017. She said after a meeting in April 2019 they found out the lack of FNC was a separate issue to the eligibility appeal.
15. Neither ICB would agree it was responsible for Mrs F’s care, including paying FNC payments, despite Dr P’s complaints. Mrs F died in March 2019 and payments have still not been made five years later.
20. Before we decide if we should do a detailed investigation of 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 have seen signs that something has gone wrong.
Responsible commissioner
21. Practice Guidance (PG) 96.4 of the National Framework says, ‘when patients are transferred from one NHS organisation to another, it should always be clear which clinician/care provider staff and which organisation is responsible for the assessment of the patient, the delivery of any care and the delivery of any follow-up care’.
22. Dr P says neither ICB accepted responsibility for the commissioning of Mrs F’s FNC contributions, leaving a gap in her funding which Mrs F had to pay. This gap is still unresolved five years after Mrs F’s death.
23. Paragraph 160 of the National Framework says:
‘[The] ‘responsible commissioner’ guidance sets out expectations for when there is a dispute between CCGs as to responsibility. The underlying principle is that there should be no gaps in responsibility – no treatment should be refused or delayed due to uncertainty or ambiguity as to which CCG is responsible for funding an individual’s healthcare provision. CCGs should agree interim responsibilities until the dispute is resolved. Where the CCGs are unable to resolve their dispute the matter should be referred to the Board.’
24. The Who Pays guidance helps decide who is responsible for commissioning an individual’s care from the NHS.
25. This guidance says the NHS is responsible for the nursing care provided by a registered nurse to all care home residents (including those placed by local authorities). The guidance explains:
‘The general rules – subject to the rules on emergency care set out below and the other exceptions set out in section C – are as follows:
• where a patient is registered on the list of NHS patients of a GP practice, the responsible commissioner will be the CCG of which the GP practice is a member;
• where a patient is not registered with a GP practice, the responsible commissioner will be the CCG in whose geographic area the patient is ‘usually resident’.’
It adds:
‘Where (generally as a result of a patient decision to be nearer family or other support networks) a person moves to a care home outside the area of the CCG in which he or she was originally registered with a GP practice (but still within England), that CCG should notify the CCG in whose area the patient will be registered when they enter the care home. This will assist the receiving CCG in funding and planning the nursing care services for its area. The patient would generally register with a new practice in the area of the care home and the receiving CCG would then become the responsible commissioner.’
26. This means ICB one should have told ICB two when Mrs F moved to the care home in its area. ICB two would then take responsibility for the commissioning of any NHS services Mrs F needed, including FNC payments to her care home if she was eligible. This did not happen.
27. The Who Pays guidance clearly says, ‘where […] a person moves to a care home outside the area of the CCG in which he or she was originally registered with a GP practice (but still within England), that CCG should notify the CCG in whose area the patient will be registered when they enter the care home.’
28. ICB one did not do this and continued to fund Mrs F’s care. It assessed Mrs F and said she was not eligible for CHC funding on 29 February 2012. It is not clear why the ICB completed this assessment when Mrs F was already living in ICB two’s catchment area. It also considered an appeal of this decision on 8 August 2013 and found Mrs F eligible for CHC funding from 17 September 2011. Mrs F’s care was funded by ICB one until 27 September 2017, after a review on 29 August 2017. ICB one could have referred Mrs F to ICB two at any time during this period, but it did not.
29. ICB one also wrongly told Dr P on 25 August 2022 that it was the nursing home’s responsibility to tell ICB two about Mrs F’s needs. It said it was ‘usual practice’ for nursing homes to do this. The Who Pays guidance says the ICB is responsible for telling the relevant ICB that it will become responsible for the individual’s care due to moving area and GP, not a ‘care provider’ or any other organisation or individual.
30. While we accept it may be common in ICB one’s area to receive referrals from nursing homes when a new resident moves into it, Mrs F was a resident at the nursing home for six years and it had received payments from ICB one for this time. We can see no reason why the care provider would expect that ICB one would not pay FNC when eligibility for full CHC funding ended.
31. The nursing home did contact ICB two as advised, but ICB two told it that it had not got a referral from ICB one for Mrs F, so it would not accept responsibility for Mrs F’s FNC payments. When this was questioned, ICB one said because the case was subject to appeal, nothing could be done until the appeal was heard. After the appeal, ICB one said it was no longer responsible.
32. On 25 August 2022, ICB one apologised for incorrectly telling Dr P and the nursing home that FNC could not be paid while appealing the eligibility decision, but it still said it was not the responsible commissioner. It said this was ICB two.
33. Finally, we also considered ICB one’s assessment outcome letter dated 30 August 2017 which said, ‘the NHS will continue to take responsibility for their registered nurse care needs either via the Department of Health’s pre-set rate if they are residing within a nursing home or via our community services if they are living within the community’. This letter does not state a referral needed to be made to a different ICB or that there would be any change in commissioning body. The only recommended action in the letter was to contact the Department of Work and Pensions to advise about the change in funding status.
34. Overall, this shows that ICB one made things confusing and neither Dr P, the care provider or ICB two knew whose responsibility it was to fund Mrs F from 27 September 2017. ICB one discharged its responsibility without acting in line with the guidance, leaving a funding gap until Mrs F’s death in March 2019.
35. While Dr P has not complained about ICB two, during our enquiries into her complaint about ICB one, ICB two accepted it added to Dr P’s difficulties because it repeated incorrect information about the payment of FNC while an appeal was ongoing and it also did not consider whether it should be the responsible commissioner, despite there being no referral from ICB one. Although ICB two could have assumed responsibility after Dr P requested it make FNC payments, we can see why it did not automatically do this. ICB one had continued with commissioning responsibility for six years without referring Mrs F to it and told it that it was still considering Dr P’s appeal at the time.
36. After speaking with both ICBs, ICB two has accepted responsibility for commissioning Mrs F’s care in the disputed care period. It will retrospectively review the period (go back and look at it), which means Mrs F’s eligibility for full CHC funding will be considered. If Mrs F is found not eligible for full CHC funding, we would expect ICB two to consider her eligibility for FNC payments and to reimburse these retrospectively if it finds Mrs F eligible. This is subject to assessment. If Dr P is unhappy with ICB two’s consideration of Mrs F’s eligibility, she will be able to make an appeal following the ICB’s usual process in line with the National Framework.
Complaint handling
37. The NHS complaint standards framework expects organisations to provide effective complaint handling that promotes a culture that is open and accountable when things go wrong. Complaint handling should empower people to complain, making sure the complaint will be taken seriously, looked at with empathy and answered as quickly as possible.
38. We think there are signs that ICB one did not listen to Dr P and take appropriate action to address the concerns she raised. It did not work in partnership with ICB two to agree who was responsible for Mrs F’s FNC and instead Dr P was left to speak with both ICBs separately about her concerns. Neither ICB accepted responsibility for commissioning Mrs F’s care which left Dr P with confusion, frustration and distress. Dr P has continued to need to complain for over five years since Mrs F’s death. This is not in line with the complaint standards.
39. Dr P believes ICB one continued to be the responsible commissioner of Mrs F’s care due to it not making a referral to ICB two, so she complained to ICB one.
40. Practice Guidance (PG) 72 of the National Framework says if a dispute involves two ICBs, it is recommended to use the disputes process for the CCG area where the individual is living, which would have been ICB two. But, it says ‘if CCG A have made a placement in CCG B’s area, it is CCG A’s dispute process that should be used, even if the person is now physically residing in ICB B’s area’. It also says, ‘both CCGs should be able to play a full and equal role in the dispute resolution’ and it goes on to say consideration could be given to whether an independent person should oversee the dispute resolution.
41. The Who Pays guidance includes dispute resolution guidance and includes the option to ask NHS England for support if the ICBs are unable to resolve the dispute themselves.
42. As there was disagreement about which ICB was the responsible commissioner for Mrs F’s care, ICB one should have followed the National Framework and Who Pays guidance about dispute resolution to resolve this. We have not seen evidence that this happened.
43. When Dr P complained to ICB one about the lack of FNC payments, it told her the ICB responsible for the commissioning of a patient’s care is the one for the area where their GP is. Mrs F was registered to a GP in ICB two’s area on 20 January 2011. This means ICB one was correct to tell Dr P the responsible commissioner should have been ICB two.
44. ICB one also said that when it found Mrs F not eligible for CHC funding, it told her care provider on 30 August 2017. It said it was the care provider’s responsibility to contact ICB two to apply for FNC funding, but it did not make a referral to ICB two for Mrs F’s FNC.
45. Dr P asked for an appeal of the CHC decision in 2017, but this did not happen until 10 October 2022. Between March and September 2020, CHC assessments were paused due to the COVID-19 pandemic. There was then a period of recovery between September 2020 to March 2021.
46. Dr P’s representative requested a CHC assessment from ICB two on 11 July 2018. On 18 July 2018 ICB two said ICB one was the responsible commissioner for Mrs F’s care. It explained the evidence of this was eligibility letters from ICB one dated 24 October 2012 and 8 August 2013. Dr P was also told, because of incorrect information from ICB one, that FNC payments could not be considered while ICB one’s CHC appeals process was ongoing. We have already considered the confusion this caused for Dr P, the care provider and ICB two.
47. A meeting in April 2019 made Dr P aware that FNC payments were a separate issue to the CHC appeal. She questioned whether ICB one had referred Mrs F to ICB two and on 19 November 2019, ICB one told Dr P it had no record of contact with ICB two.
48. Dr P complained to ICB one on 21 November 2019. She told the ICB it was neglectful to not listen to the concerns raised by ICB two about the lack of referral and for misunderstanding this as a query about full CHC funding. She also shared her concerns about Mrs F’s missed opportunities for further reviews and monitoring. She said the delays in the CHC appeals process meant the failings continued for longer than they should have. Dr P thought ICB one was still responsible for the FNC funding because it did not refer Mrs F.
49. Dr P requested FNC payments from ICB two on 29 January 2020. It replied to her to say it could not progress any CHC assessments while ICB one was considering her appeal, which is what ICB one had advised. It also said as ICB one had not referred Mrs F, it was not the responsible commissioner for FNC for the care period.
50. ICB one acknowledged Dr P’s complaint on 10 December 2021 and replied on 25 August 2022. It apologised for the delay in responding but provided no explanation for this. It said it was working hard to improve internal systems to prevent this happening in future. It apologised for incorrectly telling Dr P that FNC could not be paid while waiting for an appeal of the eligibility decision. But, it said it was not the responsible commissioner and since 19 January 2011 this had been ICB two, so it would not pay FNC contributions.
51. ICB one also said regardless of CHC eligibility, Mrs F would have been entitled to access the full range of primary, secondary and other health services available to all individuals through her GP and it would have expected the nursing home staff to make appropriate referrals to services.
52. Dr P replied on 7 September 2022. She said ICB one’s response caused confusion by saying ICB two was the responsible commissioner from 19 January 2011 because ICB one paid Mrs F’s CHC funding to the care provider until September 2017.
53. ICB one confirmed to us on 18 December 2023 that there was no communication with ICB two after the CHC outcome letter, until an appeal was submitted in July 2019. At this time ICB one said it was no longer involved with Mrs F’s care and was unaware of an issue with FNC payments. It said there was no dispute with ICB two and confirmed it did not tell ICB two about its responsibility to Mrs F as a resident in its catchment area. It still said it was the care provider’s responsibility to refer to ICB two for FNC payments and it was not responsible for FNC payments.
54. It said had it been contacted, it would have redirected Dr P to ICB two because under the National Framework there is no requirement to fund or monitor FNC or get involved in any care in an out of area placement. It apologised to us for any confusion caused by the CHC decision letter dated 14 December 2023.
55. This approach would not be in line with the complaint standards framework because the ICB did not show how it listened to and understood Dr P’s concerns. It would also not be in line with the National Framework or the Who Pays guidance because the dispute resolution process to clarify who was the responsible commissioner was not followed.
56. After a discussion with ICB one, it has agreed to apologise to Mrs F’s family for the delay, distress and confusion that came from the way it handled Dr P’s request for FNC payments and the later complaint. It has also reassured us that it will consider service improvements to make sure these problems do not happen again for other families. ICB one’s resolution is in line with the complaint standards framework because it shows it is now taking responsibility for what went wrong and trying to put this right with an apology and service improvements.
Resolution
57. We have seen signs of these failings:
• ICB one did not refer Mrs F to ICB two when her funding status changed in 27 September 2017 • ICB one gave incorrect information to Dr P, ICB two and the care provider about FNC payments being paid during the appeals process • ICB one did not communicate with ICB two to resolve the dispute about the responsible commissioner or consider using the dispute resolution process outlined in the Who Pays guidance.
58. We discussed the impact of these failings with both ICBs because we think ICB two should have been the responsible commissioner for Mrs F’s care when she moved into its catchment area (in line with the Who Pays guidance). While we have not investigated ICB two, it has been necessary to speak to it and to refer to it in this statement for clarity and to make sure the correct action is taken to resolve this situation for Dr P going forward. As a result of our contact, ICB two recognised it had contributed to failings in the handling of Dr P’s FNC request.
59. ICB two has agreed to retrospectively review the care period. This will mean Mrs F’s eligibility for full CHC funding is considered. Where someone is not eligible for full CHC funding, but is or was getting registered nursing care in a care home, they may be eligible for FNC. This is usually decided by a nursing needs assessment. We are confident this will resolve the dispute about FNC payments, but if Dr P is unhappy with the outcome of the retrospective review, she can appeal the decision using ICB two’s appeals process and return to us with a further complaint if needed.
60. ICB two also apologised to Dr P for its role in giving incorrect information about not being able to consider FNC payments while the CHC appeals process was ongoing.
61. We recognise this did not resolve Dr P’s complaint about ICB one’s handling of Mrs F’s FNC request and the gap in funding that came from a lack of referral and communication with ICB two.
62. We asked ICB one if it would apologise to Dr P for its handling of her request for FNC payments and her complaint. We also asked it if it would make service improvements to make sure all assessments and decisions are in line with the relevant guidance. We told the ICB that Dr P described her experience as:
‘a very frustrating process with very poor communication and apparent lack of understanding of what [they] were trying to convey, and seemingly inadequate or no attention to the details of the appeal, the complaint or the processes involved. [Dr P] would like to know that taxpayers and vulnerable patients are not being let down by poor training and indifference.’
63. ICB one agreed to apologise to Dr P and make service improvements to make sure it does make similar failings in future. We are assured that ICB one understands the impact on Mrs F and Dr P, and it will take appropriate steps to prevent this happening again. These actions are in line with the NHS complaint standards framework to promote a culture of openness, accountability and learning. We know we cannot change the experience Dr P and her family had, but we hope this will assure her that her complaint will result in improvements to benefit other families using the ICB’s services in future.
1. We have carefully considered Dr P’s complaint about Herefordshire and Worcestershire Integrated Care Board’s (ICB one) decision not to reimburse her mother’s, Mrs F, funded nursing care (FNC) from 27 September 2017 to 14 March 2019 (the care period).
2. FNC is a fee contribution for registered nursing care, made directly from an ICB to the care provider.
3. In this statement we will also refer to ICB two. Dr P did not complain about ICB two so we have not investigated it. It has been included to explain our decision.
4. Mrs F sadly died in March 2019. We appreciate it has been upsetting and frustrating for Dr P and her family to have needed to pursue this complaint for so long.
5. ICB two has agreed to a retrospective review of the care period. This means it will consider Mrs F’s eligibility for continuing healthcare (CHC) funding, including FNC. We are confident that this will resolve the funding dispute.
6. We asked ICB one if it would put right the impact of Dr F’s ongoing complaint about its handling of her FNC request and complaint handling which caused delays, confusion and distress. Dr P asked for an apology and service improvements and ICB one has agreed to look at these issues and provide these outcomes.
7. We have decided these actions will put things right for Dr P.