Summary: The Ombudsman will not investigate Mr X’s complaint. This is because the Parliamentary and Health Service Ombudsman is better placed to consider his complaint.

The complaint

1. Mr X complains that NHS England’s Independent Review Panel (IRP) upheld Thanet Clinical Commissioning Group’s decision that his mother, Mrs Y, was not eligible for continuing healthcare (CHC). Mr X is unhappy with how Kent County Council (the Council) and the CCG interpreted guidance and legislation when they decided Mrs Y did not have a primary health need. Mr X also disagrees with how the CCG scored Mrs Y in the Decision Support Tool domains.
2. Mr X says Mrs Y should not have paid towards her social care support. He also says the decision and appeal caused him distress and time and trouble.
3. Mr X would like apologies from the organisations, a refund of care fees Mrs Y has paid and improvements to avoid similar fault happening again.

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The Ombudsman’s role and powers

4. The Ombudsman provide a free service but must use public money carefully. They may decide not to start or continue with an investigation if they believe there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I have considered information Mr X has provided in writing and by telephone. This includes documents by the organisations complained about. Mr X had an opportunity to comment on my draft decision.

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What I found

6. NHS Continuing Healthcare (CHC) is a package of care arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. The Department of Health’s National Framework for NHS Continuing Healthcare and NHS‑funded Nursing Care (the National Framework) is the key guidance about CHC.
7. A person’s local CCG is responsible for assessing their eligibility for CHC or funding nursing care (FNC) and providing the funding. CCGs sometimes commission other NHS organisations to carry out the assessments on their behalf. In this case, the CCG asked the North-East London Commissioning Support Unit (NELCSU) to carry out the assessment.
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. If the completed CHC Checklist suggests the person may be eligible for CHC, the next step is a full assessment. A nurse will usually coordinate the assessment and complete a Decision Support Tool (DST) form. The DST is a record of the relevant evidence and decision-making for the assessment. 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. If they disagree with the result of the review, they can appeal to an IRP organised by NHS England. The third stage is to refer the case to the Parliamentary and Health Service Ombudsman (PHSO) for an independent investigation.
9. In May 2018, NELCSU held a meeting with the Council and Mr X to complete Mrs Y’s DST. The CCG later decided Mrs Y did not have a primary health need, so was not eligible for CHC, but would receive FNC.
10. Mr X was unhappy so complained to the Council and CCG. The Council said it was involved in the decision, but the CCG was responsible for deciding Mrs Y was not eligible for CHC. After reviewing its decision in December 2018, the CCG referred Mr X to the IRP at NHS England.
11. The IRP met Mr X in September 2019. Two months later it decided the CCG’s decision (that Mrs Y was not eligible for CHC) was sound.
12. The Ombudsman will not investigate this complaint. Mr X’s complaint is fundamentally that the CCG wrongly decided Mrs Y was not eligible for CHC. The Council could not decide that. The CCG was ultimately responsible for making that decision. Also, because NHS England has already heard Mr X’s appeal, PHSO is better placed to consider Mr X’s complaint.
13. Mr X has concerns about how the Council and CCG applied the National Framework and other legislation in May 2018. Neither the Ombudsman nor PHSO could challenge the use of the National Framework as the key document when deciding a CHC applicant’s eligibility. Mr X can approach the Department of Health if he has concerns about the use of the National Framework when deciding eligibility for CHC.

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Final decision

14. The Ombudsman should not investigate this complaint. This is because PHSO is better placed to consider Mr X’s complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman