Summary: Mrs C complained the Council failed to put her mother on the NHS Continuing Health Care (CHC) Fast Track Pathway. As a result, her mother had to pay for her nursing home care, rather than it being free of charge. We found fault, because there were missed opportunities to refer Mrs C’s mother for a CHA reassessment. The Council has greed to apologise and pay a remedy for Mrs C’s distress.

The complaint

1. The complainant, whom I shall call Mrs C, complained to us on behalf of her (late) mother, whom I shall call Mrs M. Mrs C complained the Council failed to put her mother on the NHS Continuing Healthcare Fast Track Pathway. As a result, she was charged for the cost of her nursing home placement, even though this should have been free for her.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word 'fault' to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

5. I considered the information I have received from Mrs C and the Council. I shared a copy of my draft decision statement with Mrs C and the Council and considered any comments I received, before I made my final decision.

Back to top

What I found

Relevant legislation and guidance

6. NHS continuing healthcare (CHC) is a free package of care arranged and funded by a person’s Clinical Commissioning Group (CCG) when a person has been assessed as having a primary health need. Continuing healthcare funding can be provided in any setting and can be used to pay for a person’s nursing home fees or for a package of care in their home.
7. A health or social care professional will complete a checklist which may lead to a full assessment called a Decision Support Tool, which contains a recommendation about eligibility at the end. The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care October 2018 (Revised) says that: individuals should be assessed for NHS Continuing Healthcare in all cases where it appears that there may be a need for such care.
8. A health or social care professional will complete the checklist, which may lead to a full assessment called a Decision Support Tool, which contains a recommendation about eligibility at the end. The decision on eligibility is subsequently made by the CCG. If a person disagrees with the CCG’s decision that they are not eligible for CHC, they can ask the CCG to review its decision.
9. Individuals with a rapidly deteriorating condition that may be entering a terminal phase, may require ‘fast tracking’ for immediate provision of NHS Continuing Healthcare. The fast-track tool is completed by a clinician. It is the responsibility of the appropriate clinician to make a decision based on whether the individual’s needs meet the Fast Track criteria. On receiving a completed fast track tool, the CCG must decide the person is eligible for CHC. Not everyone at the end of their life will be eligible for, or require, NHS Continuing Healthcare.

What happened

10. Mrs M was living in a nursing home. She was awarded full CHC funding in January 2018 via Islington CCG, which meant Islington CCG arranged and paid for the full cost of her care. However, following a review in November 2019, the CHC panel decided that Mrs M was no longer eligible for full CHC funding. Islington CCG advised Mrs C of the decision and provided details to her on how she could appeal it. However, Mrs C did not appeal the decision. Ms C told me she did not appeal because it appeared from information she obtained that the correct procedure had been followed.
11. As Mrs M’s GP was located in the Enfield area, the responsibility for future decisions about CHC eligibility passed to Enfield CCG. Islington CCG subsequently informed the Council and Mrs M’s Nursing Home about its decision, at the end of November 2019.
12. The Nursing Home said it was not aware that NHS CHC funding from CCG Islington had stopped. It said there is no record in its files that shows it was told about this. The home said that, as a result, it continued to invoice Islington CCG for the full cost of Mrs M’s care. However, the Council has provided a copy of an email sent by Islington CCG to the nursing home on 26 November 2019, to inform them of the decision about the transfer of funding, that Mrs M was awarded Funded Nursing Care (FNC), and that the social care component of her care was to be funded by the Council.
13. The Council said the officer who was notified about the decision, soon left the Council. It then reallocated the case and contacted Mrs M on 12 December 2019. It told Mrs C about the CCG’s decision, explained it would need to review her mother’s placement and refer her for a financial assessment as soon as possible. However, I have found no evidence in the records the social worker made any efforts to try and arrange a care review, until 29 January 2020.
14. At the end of December 2019, the Nursing Home and Mrs M’s GP told Mrs C that her mother’s health had deteriorated. The records indicate there were regular visits by health professionals during the second half of December, who all concluded her health was deteriorating. However, the GP did not complete a CHC checklist to see if Mrs M could be eligible again, nor did the nursing home ask the GP to do this.
15. When Mrs C found out about the CCG’s decision, she says she contacted the Council who advised her to contact Enfield CCG. Mrs C emailed Enfield CCG and asked how she could appeal the CHC decision of November 2019 and arrange a reassessment of her mother’s needs in view of the information she had received. Enfield CCG told Mrs C it had not received a copy of the November 2019 CHC Outcome letter yet. It advised that, if professionals felt the deterioration in Mrs M’s health warranted a fresh assessment, they would need to refer Mrs M to the CCG. Mrs C told me she did not subsequently go to the GP and/or Nursing Home to ask them to do this.
16. Mrs M went into hospital in early January 2020 and remained there for two weeks. The home said it did not inform the Council of Mrs M’s hospital admission, because it was not aware the Council was involved in funding Mrs M’s placement.
17. On 14 January 2020, Mrs M was discharged from hospital. The hospital did not involve the Council in this. Mrs M returned to the Nursing Home with an End-of-Life care plan with palliative care. The nursing home said that Mrs M’s condition had deteriorated to such an extent that the hospital discharge note said “for comfort care with anticipatory medication towards End of Life. Not for further readmission to hospital”. The nursing home did not take steps to determine if Mrs M would be eligible for NHS CHC via the Fast-Track process.
18. Mrs M’s social worker emailed Mrs C on 29 January 2020 to arrange a placement review and said this was long overdue. The plan was to meet mid-February, but sadly Mrs M had passed away by then.
19. Mrs C complained to the Council, who said it fairly charged Mrs M for her care between 28 November 2019 and February 2020. It said Mrs M was not receiving CHC during this time and the relevant information had been provided to Mrs C about CHC funding decisions and how to challenge them.

Analysis

20. The Council was told on 26 November that (funding) responsibility for Mrs M would move from Islington CCG to the Council. As such, the Council had to promptly carry out a review of the placement. However, it took two months before the social worker started to organise this. This was an unreasonable delay, which is fault. An earlier care review would have resulted in a discussion as to whether Mrs M should be reassessed for CHC. This was a missed opportunity.
21. When a council commissions another organisation to provide services on its behalf, in this case the nursing home, it remains responsible for those services and for the actions of the organisation providing them. Despite Mrs M’s deterioration during December 2019 and being discharged on an end-of-life care plan mid-January 2020, the nursing home failed to initiate a reassessment of Mrs M for CHC. As referred to in the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care, the threshold for such a referral has intentionally been set low. This was a missed opportunity. It has come to light that the nursing home did not do this, because it wrongfully believed Mrs M was still receiving free CHC via CCG Islington.
22. While a CHC reassessment should have taken place, it is not my role to determine if the outcome of this would have meant that Mrs M was eligible again for free CHC funding, either at the end of December 2019 or mid-January 2020. Not everyone at the end of their life will be eligible for, or require, NHS Continuing Healthcare. Mrs C can approach the Enfield CCG to ask for a retrospective NHS CHC assessment.
23. However, the missed opportunities referred to in paragraph 20 and 21, and therefore not knowing if Mrs M could have received free CHC again, would have resulted in distress and frustration to Mrs C.

Back to top

Agreed action

24. I recommended that, within four weeks of my decision, the Council should:
• Apologise to Mrs C for the faults above and the distress these have caused her and pay her a financial remedy of £200.
25. The Council has told me it has accepted my recommendations.

Back to top

Final decision

26. For reasons explained above, I upheld Mrs C’s complaint.
27. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case

Back to top

Investigator's decision on behalf of the Ombudsman