Summary: We will not investigate Mr G’s complaint that the Council failed to complete an NHS Continuing Healthcare Checklist for his late father. We are unlikely to find fault by the Council on the key issues, and we are unlikely to be able to achieve the outcome Mr G wants.

The complaint

1. Mr G complained that Warrington Council (the Council) failed to screen his late father Mr P for eligibility for NHS Continuing Healthcare (CHC) in autumn 2024, when he was receiving respite care in a care home. Mr G said his father had complex needs and should have been screened and then referred for a full CHC assessment. Mr G also complained the Council did not tell him it had decided not to complete a CHC checklist.
2. Mr G said the Council’s actions meant his father was denied the opportunity to return home with a care package, which he wanted so he could die at home. He also said a home care package would have been significantly cheaper than care home fees. He wants the Council to consider waiving or reducing the outstanding care home fees, and an assurance that the Council is carrying out CHC screening in line with relevant law and guidance.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:
• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• we cannot achieve the outcome someone wants.(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I considered evidence provided by Mr G and the Council as well as relevant law, policy and guidance. I also considered the Ombudsman’s Assessment Code.
6. Mr G had the opportunity to comment on my draft decision, and I considered his comments before making my final decision.

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What I found

Key law and guidance

NHS Continuing Healthcare

7. NHS Continuing Healthcare (CHC) is care that is fully arranged and funded by the NHS for people assessed as having a ‘primary health need’. The National Framework for NHS Continuing Healthcare and NHS funded Nursing Care (2022) (the National Framework) is the key guidance about CHC.
8. For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC checklist. The checklist threshold is low, to make sure that people who need full assessment of eligibility for CHC are referred on for full assessment.
9. The National Framework says a CHC checklist should normally be completed when “there may be a need” for NHS CHC. However, it is not required if the practitioner is clear that there is no need for NHS CHC at that point in time. If so, the practitioner should document the decision not to complete a checklist and the reasons.
10. When a checklist has been completed, the person and/or their representative should be told the outcome and whether they will be referred on for full assessment. If the outcome is “negative”, they should also be given the Integrated Care Board (ICB’s) complaints process so they can challenge it.
11. A person can ask an ICB for a retrospective review of a previously unassessed period of care (PUPoC) if they think they should have been considered for CHC, and can request reimbursement for that period.
12. Fast Track CHC can be put in place when someone has a rapidly deteriorating condition and may be entering a terminal phase. An “appropriate clinician” (a doctor or nurse) can recommend immediate eligibility for CHC, removing the need for a checklist or full assessment.

What happened

13. Mr P was receiving respite care in a care home after a period in hospital due to falls. He had also been diagnosed with bladder cancer.
14. Mr P’s care was initially funded under Discharge to Assess arrangements, but when that ran out the Council started the process of a financial assessment to look at how much Mr P would have to pay towards the costs of his care. People who have more than the “upper capital limit” have to pay the cost of their care home fees.
15. Mr G asked the Council to screen his father for eligibility for CHC funding due to the complexities of his medical conditions.
16. A social worker visited Mr P on 31 October to assess his needs, and emailed Mr G about financial matters. The social worker also spoke with Mr G. Her records say that she told Mr G that his father would have to pay for the full cost of his respite care due to him being over the financial threshold. The records also say the social worker discussed the CHC checklist and that “at this moment I don’t think his father meets the criteria, but this might change quickly given his diagnosis”. The social worker said she would email Mr G a copy of the CHC checklist to review.
17. The social worker emailed Mr G but attached a different document – a blank CHC Decision Support Tool rather than a completed CHC checklist.
18. Mr G contacted the social worker again on 14 November and asked her to repeat the CHC checklist. He said his father had been reviewed by his cancer team, had a terminal prognosis, was doubly incontinent and was very frail.
19. There is no record that the social worker considered CHC again until 6 December, when she liaised with staff at the care home and a GP to discuss a significant deterioration in Mr P’s health. The GP arranged for Fast Track CHC to be put in place for Mr P. Mr P died a few days later.
20. Mr G complained to the Council. He said his father should have been screened for eligibility for CHC and referred for a full CHC assessment, due to his complex health needs and an end-of-life prognosis. He said the social worker did not tell him at the time that she had decided not to complete a CHC checklist. Mr G asked the Council to waive the outstanding fees for his father’s respite care.
21. The Council said the social worker did not complete a CHC checklist because she “did not believe there was a need for NHS Continuing Healthcare based upon the information available to her at the time”. The Council noted that Mr G disagreed with the social worker’s professional opinion, and had asked her to revisit the issue of the CHC checklist. The Council said the social worker spoke with Mr G again by phone, suggested he Googled the CHC checklist criteria, and said she would be willing to discuss this again if Mr G felt the criteria were met. The Council acknowledged that this second conversation was not recorded in Mr P’s notes, due to an oversight. The Council said events then moved on because Mr P deteriorated and Fast Track CHC was put in place.
22. The Council said even if Mr P had been referred for a full CHC assessment, it is unlikely that CHC would have been awarded earlier than 6 December (when Mr P was put on the Fast Track CHC pathway).

Analysis

23. As outlined earlier in this decision, it is not our role to substitute our judgement for that of the professionals involved in a person’s care. We are not an appeal body. We look at the processes an organisation followed to make a decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong.
24. I have considered the steps the Council took to decide whether to complete a CHC checklist for Mr P.
25. The social worker said she had reviewed Mr P and had discussed his needs with the care home staff before deciding not to complete a CHC checklist. She said she had spoken with Mr G about this again in mid-November, and had offered to discuss the issue again if Mr G still felt his father met the criteria for a checklist to be completed. The social worker acknowledged that she had not documented this second conversation. In addition, when the social worker reviewed Mr P on 29 November she discussed a potential move to a residential care placement, rather than a nursing placement, which suggests she did not consider his needs would require CHC-level care at that time.
26. The Council has provided a rationale for the social worker’s decision not to complete a CHC checklist. While I accept Mr G does not agree with this decision, I consider it unlikely that an investigation by the Ombudsman would identify fault in the way the social worker made the decision. This was a decision made using her professional judgment, based on the available information at the time. As outlined earlier, a health or social care professional can decide not to complete a CHC checklist if they feel there is no need for CHC at that point in time.
27. Mr G said he was concerned that the Council may not be screening people for CHC in line with relevant law and guidance. I have not seen anything to suggest the Council is not aware of its responsibilities relating to CHC checklists. The Council has explained why the social worker took the course of action she did, based on the information available to her in the circumstances of this case, and using her professional judgement.
28. I have also considered whether we are likely to be able to achieve the outcomes Mr G wants if we were to investigate the complaint. Mr G wants the Council to reduce or waive the outstanding care home fees, as he thinks his father may have been found eligible for CHC if a checklist had been completed.
29. If a positive CHC checklist had been completed on or around 31 October, a full DST assessment should have taken place within 28 days under the National Framework, i.e. by 28 November. However, I am aware that DST assessments often take longer than the 28-day target. Mr P might have been assessed for eligibility for CHC sooner than 6 December, when Fast Track CHC was put in place, but it might have taken longer. Even if he had been assessed for CHC by that date, we do not know whether he would have been found eligible. The evidence suggests there was a significant deterioration around that time, which means the likelihood of Mr P being eligible for CHC may have changed over a short period.
30. There are too many uncertainties for us to say, even on balance, what would have happened if the social worker had completed a CHC checklist and referred Mr P for a full DST assessment. Mr G thinks his father is likely to have been found eligible for CHC, but it is also possible that Mr P might have been assessed and found not eligible at that point. There are too many uncertainties here and we are unlikely to be able to achieve the outcome that Mr G wants in terms of a reduction or waiving of care fees.
31. Mr G is entitled to ask the ICB to carry out a retrospective review of his father’s eligibility for CHC. If the ICB then decided Mr P would have been eligible for CHC at an earlier date, Mr G can ask the ICB to reimburse the costs of Mr P’s care for that period.

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Decision

32. We will not investigate this complaint, as we are unlikely to find fault by the Council on the key issues, and we are unlikely to be able to achieve the outcome Mr G wants.

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Investigator's decision on behalf of the Ombudsman