13. It is our role to decide whether the ICB acted in line with the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (2012 and 2018) when it considered Mr and Mrs T’s complaint. The National Framework sets out the principles and processes ICBs and NHS England should follow when considering whether the continuing healthcare (CHC) package meets the individual’s needs.
14. Mr and Mrs T complain they paid additional fees to the care home to cover Mr S’ care costs. They were not advised this was voluntary and unknowingly overpaid for Mr S’ care.
15. Mr and Mrs T also say they never requested any enhanced provision for Mr S and believe the services he received were standard for the home, available to all residents. They say Mr S was blind and suffering from dementia, so such extra services were not required.
16. In response to Mr and Mrs T’s complaint, the ICB confirms the CHC funding covered all of Mr S’ care plan needs. The ICB says it does not hold any evidence to show Mr S required additional needs which warranted supplementary NHS funding to be made. It also confirms it was not aware the family had been approached by the care home to pay the additional fee. The ICB could not offer any form of reimbursement as Mr S’ care costs were funded by the NHS.
17. We have considered the evidence provided by the ICB, and we can see the contracts manager at the time provided an explanation to the family.
18. In an email to the family dated 19 July 2021, the contracts manager said after a procurement exercise the care home joined the National Framework contract at the price the care home quoted which was £570 per week. They also said no price was stipulated by the ICB, and during the procurement process, all providers were asked to submit a price that covered the costs of care at the care home.
19. From the information submitted by the ICB, as well as the complaint response dated 15 March 2022 from the care home, we can see the ICB contracted the care home appropriately in line with the NHS Standard Contract which states:
‘3.2.9 The Services provided will be inclusive of the following elements:
• Residential accommodation: Fully furnished individual bedroom with access to shared dayrooms, gardens and grounds facilities. Note: Shared accommodation is permissible where this is the preference of the Service User and with the agreement of the Commissioner.
• Meals: Provision of all food and beverages (including all consumables to support the use of prescribed Enteral Feeds – where indicated as being in accordance with the Commissioner’s local protocol). Utilities: Provision of all necessary lighting, water, heating, television licensing (for communal televisions) and personal laundry.
• Care: To meet all necessary social, personal, nursing and healthcare care as assessed for the Service User and detailed within an individual Care Plan.
• Medical Devices / Equipment: Range of equipment required to support the delivery of care for the Care Categories for which the Provider is registered.
• Continence: Provision of disposable continence products, where indicated as being in accordance with the Commissioner’s local protocol on continence management.
3.2.10 The Services will also include from time to time as may become necessary to meet the needs of the Service User:
• Enhanced observation / support service – involving an increased staffing to Service User ratio as required. Associated additional costs to be agreed between the Provider and Commissioner as per 3.2.23 below and in accordance with the prices agreed within Schedule 3A (Local Prices) of this NHS Standard Contract.’
20. In terms of the additional costs, we asked the ICB to do further work based on Mr and Mrs T complaint raised to us in 2022. At the time, we could not see evidence to support the ICB had contacted the care home to consider what the ‘lifestyle choice’ fee included.
21. The ICB contacted the care home to understand the what the lifestyle choice fee included. The care home indicated this includes:
• higher Quality accommodation and facilities offering a premium lifestyle choice • the accommodation being purpose built at significant cost • spacious rooms • Wi-Fi • hair and beauty • coffee/bistro • cinema • minibus.
22. In terms of the contract held by the ICB and the care home, the service specification shows what is included and excluded. The relevant extract which is applicable in this case is within Schedule 3A (Local Prices) of the NHS Standard Contract which states:
23. The services shall not include:
Personal goods / services: Provision or procurement of goods or services for the Service User considered to be private or personal in nature and not considered to be an essential element of need being commissioned by the Commissioner including but not limited to…:
• enhanced living accommodation / facilities.
24. Based on the complaint response from the care home provider, it explains the total fee included a premium to reflect the enhanced living accommodation and facilities it provided.
25. It also refers to the contractual terms and conditions were signed by the family before Mr S was admitted to the care home, and made clear the total fee for admitting Mr S was £1,221.11 per week. It says this is itemised on the contractual documents as the ‘lifestyle choice’ fee, and the family voluntarily agreed to pay this fee by signing the documentation to confirm this was the case.
26. The evidence shows the contract between the CCG at the time, and the care home states the CCG is not commissioning enhanced living accommodation or facilities from the care home. The ICB also says in their complaint response, it was not aware the care home had approached the family to pay additional fees.
27. In the evidence file, we cannot see any communication between the care home and the ICB (CCG at the time) discussing any additional fees other than the procurement fees noted by the contracts care manager. We also cannot see any evidence to support the ICB were aware of these charges.
28. Practice guidance (PG) 96.4 of the National Framework (2012) states ‘where an individual advises that they wish to purchase additional private care or services, CCGs should discuss the matter with the individual to seek to identify the reasons for this. If the individual advises that they have concerns that the existing care package is not sufficient or not appropriate to meet their needs, CCGs should offer to review the care package in order to identify whether a different package would more appropriately meet the individual’s assessed needs.’
29. This applies where the individual informs the CCG, they wish to purchase additional private services. The guidance does not place a duty on the CCG to proactively review, approve or supervise private arrangements unless the individual brings the matter to the CCG/ICB’s attention.
30. The ICB notes in its complaint response of 14 December 2022, if it was made aware Mr S required an alternative offer of care due to be asked to pay a top up fee, its contracts team would have discussed this with the provider to ensure it was clear what was an additional service, and the team would have offered to source and commission an alternative placement.
31. In this case, we cannot see Mr and Mrs T raised this to the attention of the CCG at the time. We understand Mr and Mrs T has informed us they were not aware of these charges, and they have told us they did not sign any document to state they would agree to the voluntary ‘lifestyle choices’.
32. We cannot link this fault on the part of the ICB. The agreement between a care provider and an individual concerning accommodation terms or optional lifestyle services is a separate private contract that sits outside the CHC-funded package.
33. As noted in PG 96.4, the framework recognises than an individual may choose to purchase additional private care or services outside of the NHS funded care package. This shows private arrangements may exist alongside CHC but only where they are separate from, and do not replace, service required to meet the assessed needs.
34. The evidence provided by the ICB does not indicate it was aware of the arrangement of the voluntary 'lifestyle choices’. The ICB has stated in its response of December 2022, if it was made aware at the time, it would have discussed this with the care home and would have considered an alternative placement.
35. As such we cannot fault the ICB for this as it could only act based on the information it had at the time. We do not think it is possible to attribute the additional charges solely to the ICB, as the care home were charging these fees, without the knowledge of the ICB. We do not find the ICB has done anything wrong here.
36. We appreciate the concerns Mr and Mrs T raised about the additional fees which they were not informed about. We also recognise this has been a challenging time for Mr and Mrs T as their complaint has gone through a long and frustrating process. We can see the ICB undertook further work and contacted the care home to consider what the lifestyle fee included.
37. Our decision does not take away the importance of Mr and Mrs T’s complaint, and our awareness of the concern and distress the additional charges by the care home has caused for the family.