NHS Nottingham and Nottinghamshire Clinical Commissioning Group (20 006 041a)

Category : Health > Assessment and funding

Decision : Upheld

Decision date : 18 Oct 2021

The Ombudsman's final decision:

Summary: We do not consider Nottingham and Nottinghamshire Clinical Commissioning Group acted with fault when it withdrew Mr U’s night-time funding from a jointly funded care package with Nottinghamshire County Council. However, both organisations acted with fault handling Mr U’s complaints. That caused him significant time and trouble which they should remedy with a financial payment and service improvements.

The complaint

  1. Mr U complains that Nottinghamshire County Council (the Council) and Nottingham and Nottinghamshire Clinical Commissioning Group (the CCG) reduced his jointly funded care package in 2019. They stopped his night-time care without considering advice from his GP or a Neurologist. Mr U says the reduced support has impacted his physical health (choking, mobility, hydration, nutrition needs and access to toilet) and mental health (counselling for anxiety and depression). Mr U would like the Council and CCG to apologise, provide a financial remedy, and reconsider its decision.
  2. Mr U also complains about how the Council and CCG handled his complaints. He said they have not followed the right procedures handling his complaint. Also, their communication was poor. Mr U says this compounded the distress he has suffered. He would like the organisations to apologise, provide a financial remedy and review the way it handles complaints from people with jointly funded care packages.

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The Ombudsmen’s role and powers

  1. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
  2. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
  3. The Ombudsmen cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
  4. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have considered information provided by Mr U and the organisations. Mr U, the Council and the CCG had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Key facts

  1. Since 2007, the Council funded support for Mr U’s daytime care and the CCG funded Mr U’s night care.
  2. By June 2016, the CCG funded a carer seven nights a week to support Mr U when choking (associated with excessive saliva), and to provide other personal care.
  3. Three years later, the Council and CCG carried out a joint review of Mr U’s health and social care needs using a Decision Support Tool (DST). The CCG’s Continuing Healthcare (CHC) panel could not decide if Mr U’s risk of choking was still a problem. He used medication to manage excessive saliva and had not received support from the Speech and Language Therapy (SALT) team in seven years. The panel decided to refer Mr U back to SALT to assess his night care needs, specifically his excessive saliva and choking risk. It also agreed to review 12 months’ worth of night care records to better understand his needs at night.
  4. On 27 July, the Council completed a review of Mr U’s care and support needs. It recognised Mr U’s choking risk, but the CCG did not consider it was a health need. Mr U said he needed an overnight carer if he needed to take a drink or use a urine bottle. The Council referred Mr U to a district nurse to support his toileting need. Mr U was not aware of the referral and later refused that support.
  5. SALT visited Mr U twice on 24 July and 5 August 2019. On 22 August, SALT reported that: “[Mr U’s] coughing is reported with saliva, food and drink on a daily basis.” Also, “[Mr U] reports he can wake up coughing during the night at times. He is able to roll himself onto his back and sit himself up with his profiling bed at night to take a drink.” SALT recommended that people should fully supervise Mr U when he takes food and drink.
  6. On 5 August 2019, the CHC panel decided Mr U did not have any health needs. His needs were social and the Council could meet those. SALT had not identified any choking risk associated with excessive saliva. That included a review of 12 months night-time care from Mr U’s care provider.
  7. On 13 August 2019, the CCG told Mr U it would stop funding for night care.
  8. On 30 August 2019, Mr U’s landlady and carer, Ms V, told the CCG that Mr U disagreed and wished to appeal the CCG’s decision. He was unhappy that his care provider had not been recording his choking at night. In response, the CCG attached its appeals process for CHC decisions.
  9. On 10 September 2019, the CCG tried to informally resolve Mr U’s concern. It decided to carry out another joint review of Mr U’s needs with the Council and extended its night care funding to November.
  10. On 4 November 2019, Mr U and Ms V met with the Council and CCG to discuss the result of the joint review. The CCG decided its decision to remove the night-time care stood. Ms V appealed the CCG’s decision for Mr U. In response, the CCG sent Ms V a copy of its complaints procedure. Ms V said she would like to put in a further appeal for Mr U. The CCG said there was no policy to appeal jointly funded packages of care, so she should make a complaint.
  11. At the same meeting, Mr U and Ms V discussed his night-time needs with the Council. The Council said Mr U should use his direct payments and personal assistants to support his drinking needs at night, and to use his urine bottle. Mr U rejected that idea. The Council referred Mr U for a continence assessment by a district nurse. A week later, Mr U raised his concerns about the Council’s assessment again. He queried the complaints process. The Council passed his complaint to Person 1 to investigate his concerns.
  12. On 5 and 8 November 2019, Ms V confirmed she was corresponding with the CCG on Mr U’s behalf.
  13. On 12 November 2019, Mr U registered a formal complaint to the CCG about the decision. Two days later, Mr U attached a letter from his Neurologist who had concerns about the CCG’s decision (in addition to his own).
  14. On 20 November 2019, the CCG told Mr U its investigation would consider how it carried out the June DST. A week later, Mr U confirmed his specific concerns.
  15. On 2 December 2019, the Council sent its complaint response to Mr U. It said the SALT report did not identify any choking issues at night. Its support at that time met his health and social care needs, and gave him flexibility (with a personal budget) to decide how to support himself.
  16. Mr U chased the CCG on 9 December 2019. He attached the letters from his Neurologist and GP with concerns. The same day, Mr U asked the Council to escalate his complaint to the next stage.
  17. On 13 December 2019, the Council told Mr U it had escalated his complaint to Person 2 to review, who would most likely respond in the New Year.
  18. On 15 January 2020, the CCG sought Mr U’s consent for Ms V to act for him. Ms V said she was simply the voice of Mr U; she did not have her own complaint.
  19. The next day, the CCG carried out a second DST.
  20. On 27 January 2020, the CCG sought Mr U’s consent again. Also, if the result of the DST did not change, he should appeal. Ms V attached Mr U’s consent the next day.
  21. A week later, Mr U and his MP chased a response from the Council. The Council said Person 2 had not finished the investigation but hoped to within three weeks.
  22. On 27 February 2020, the CCG told Ms V it would send its complaint response on 30 April, which was 65 working days since receipt of the signed consent form (received 29 January).
  23. In mid-April 2020, the CCG confirmed it had paused its investigation because of COVID-19 for three months. It apologised and hoped to respond by the end of July.
  24. On 2 May 2020, Person 2 asked the Council if Mr U’s complaint was closed. The Council said their response to Mr U was still outstanding.
  25. In late June 2020, a professional advocate said Ms V was confused if the CCG was formally investigating Mr U’s complaint. The CCG apologised that it did not send a letter confirming that.
  26. In late August 2020, the advocate chased the CCG’s complaint response. The CCG said it was still waiting for a response from the CHC team.
  27. In mid-September 2020, Mr U raised a new complaint to the Council. He said it had delayed responding to his complaint.
  28. On 7 October 2020, Mr U asked LGSCO to investigate his complaint against the Council and CCG.
  29. On 8 October, the Council provided its final response. It recognised it had delayed responding to his complaint. However, his care package meets his assessed needs. Mr U should complain about health issues to the CCG.
  30. In mid-October 2020, the advocate chased the CCG’s complaint response. The CCG confirmed it was drafting Mr U’s response but could not confirm when it would be sent to him.
  31.  
  32. In early December 2020, the CCG provided its final response to Mr U’s complaint. It apologised for the delay responding to him. It recognised there were discrepancies with the June 2019 DST, but the result would not have been different. The CCG also said the information from the Neurologist and GP did not change the outcome of the June 2019 DST.

Analysis

The CCG’s removal of night-time funding

  1. The Department of Health’s National Framework for NHS Continuing Healthcare and NHS‑funded Nursing Care (November 2012 (Revised)) (the National Framework) is the key guidance about Continuing Healthcare. It states that where an individual is eligible for Continuing Healthcare funding the CCG is responsible for care planning, commissioning services and case management.
  2. CHC is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. A person’s local Clinical Commissioning Group (CCG) is responsible for assessing their eligibility for CHC. A nurse will usually co-ordinate a full multidisciplinary 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, after a full multidisciplinary assessment a person disagrees with the CCG’s decision that they are not eligible for CHC or FNC, they can ask the CCG to review its decision.
  3. A local authority may carry out a needs or carer’s assessment jointly with another body carrying out any other assessment in relation to the person concerned, provided that person agrees. In doing so, the authority may integrate or align assessment processes to better fit around the needs of the individual. An integrated approach may involve working together with relevant professionals on a single assessment.
  4. Where more than one agency is assessing a person, they should all work closely together to prevent that person having to undergo a number of assessments at different times, which can be distressing and confusing. Where a person has both health and care and support needs, local authorities and the NHS should work together effectively to deliver a high quality, coordinated assessment. (Care and Support Statutory Guidance 2014)
  5. Any review of jointly funded care packages should be carried out jointly by the CCG and the Council. The National Framework does not provide detailed guidance on how to carry out jointly funded care package reviews. In 2018, the Council and the CCG developed a protocol for jointly funded reviews. It says when there is a material change to someone’s needs, they will carry out a joint team assessment and complete a new DST.
  6. By June 2019, the Council and CCG had not reviewed Mr U’s care and support for around four years. I consider the Council and CCG acted appropriately by deciding to review Mr U’s care and support in June 2019 using the DST. They recognised he had not had a joint review in several years, so they needed to ensure his support reflected his level of needs.
  7. I cannot say the CCG was wrong when it decided to withdraw funding for Mr U’s night-time support. Rather, I have focussed on the way the CCG and Council made that decision.
  8. For Mr U’s night-time needs, the Panel clearly wanted to better understand the significance of Mr U’s choking at night, in relation to his support (overnight carer). I understand why they decided to review 12 months of care records and why they also sought SALT’s view on his choking risk.
  9. The CCG said there was no evidence of Mr U choking in 12 months’ worth of night‑time records. I have reviewed those same records and I agree. Mr U disputes the accuracy of the records. He says he was choking after drinking during the night. But his care provider never recorded that. I do not doubt Mr U’s version of events. However, based on the evidence available to the CCG, I do not consider it acted with fault when it decided there was no evidence of Mr U’s choking at night.
  10. The SALT assessment noted Mr U needed to be fully supervised when eating and drinking owing to his risk of choking. The CCG recognised that risk and decided to fund three hours of support during the day, but not at night. I have seen evidence that Mr U was drinking at night (in the 12 months of care records). The CCG says there was no evidence of Mr U choking when drinking at night. It added Mr U’s choking risk was more associated with eating during the day.
  11. I consider the CCG has provided a robust explanation why it considered the risk of choking was more severe during the day. It has balanced Mr U’s views and made robust enquiries to better understand Mr U’s needs at night. While I appreciate Mr U disagrees with the CCG’s decision, I cannot say it made that decision with fault.
  12. Mr U says the CCG did not consider evidence from his GP and a Neurologist which supported the reinstatement of his night-time support.
  13. In November 2019, the Neurologist said Mr U’s excess saliva was worse than normal which meant he struggled to swallow, triggering choking episodes. Therefore, he needed 24-hour care. He said it would not be safe for Mr U to be left alone for an extended period.
  14. In December 2019, the GP said Mr U would not be able to drink if he was unaccompanied at night. So Mr U should receive full support at night. In response, the CCG said the Council supported Mr U at night through a direct payment. Mr U can manage his own support at night using that payment. The evidence shows Mr U received some support at night from Ms V.
  15. The CCG spoke with the Neurologist to discuss his letter and gain a better understanding of Mr U's medications for his excessive saliva. The CCG told me it decided to carry out a second DST to fully assess Mr U’s health and social care needs. That DST also considered the GP and Neurologist’s views.
  16. I have reviewed the January 2020 DST. That DST recognised the Neurologist’s concerns. It said: “High choke risk, excessive saliva treated with Botox (currently low local supply) waiting for appointment”. However, the CCG and Council still agreed there was little evidence Mr U was choking at night.
  17. Overall, I am not persuaded the CCG acted with fault when it decided to remove Mr U’s night-time funding. Its decision considered the relevant evidence, the views of Mr U and other professionals. It has provided a robust explanation why the Council can safely support his night-time needs. The CCG also formally documented that decision as part of a DST.

The support for Mr U’s night-time needs

  1. Where councils have determined that a person has any eligible needs, they must meet those needs. When the eligibility determination has been made, councils must provide the person to whom the determination relates (the adult or carer) with a copy of their decision.
  2. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan in the case of a carer). The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what type of care and support may be available in the local area.  When preparing a care and support plan the council must involve any carer the adult has. The care and support plan may include a personal budget, which is the amount of money the council has worked out it will cost to arrange the necessary care and support for the person.
  3. The CCG decided it was the Council’s responsibility to support Mr U’s needs at night. The Council said it provided Mr U with a direct payment to pay for his night-time support. It would not fund an overnight carer to support Mr U. As Mr U refused to employ a full-time personal assistant to support his needs at night, there was no formal plan to support his night-time needs.
  4. I have considered the Council’s assessment and support for Mr U’s needs at night. I do not consider the Council acted with fault. It carried out a robust review of Mr U’s needs in July 2019. The Council considered his views and the existing support he received. I am satisfied the Council’s suggestion that he should use his direct payment to support his night-time needs was proportionate and appropriate to meet his needs.

Complaint handling

  1. The complaints procedure for councils and NHS organisations is set out in the Local Authority Social Services and NHS Complaints (England) Regulations 2009. The provisions of the regulations mean that anyone who is dissatisfied with a decision made by the council or NHS is able to make a complaint about that decision and have the complaint handled by the council or NHS.
  2. Section 9 is about complaints that concerns more than one responsible body. It states that, in these circumstances, the responsible bodies must co-operate in handling the complaint. This includes duties to: establish who will lead the process; share relevant information; and provide the complainant with a coordinated response.
  3. The CCG told me it did not have a formal agreement with the Council to jointly handle complaints about joint health and social care packages, such as Mr U’s. It decided it was their responsibility to respond to the complaint because it was about the decision to remove night-time support.
  4. I consider the Council and CCG would have better addressed Mr U’s complaint by jointly handling his complaints. The CCG decided to withdraw night-time funding. However, before it decided that, it worked with the Council to determine Mr U’s health and social care needs. Therefore, when addressing his complaint, I consider it was a missed opportunity for both organisations to respond together. That was fault.
  5. Below I will consider how each organisation handled Mr U’s complaint separately.
  6. First, I will consider how the CCG handled Mr U’s complaint.
  7. The CCG told me it did not consider Mr U’s complaint as a formal appeal because Mr U was not contesting his eligibility for CHC. Rather, the CCG’s decision to amend an existing joint care package. Therefore, it agreed to consider his complaint under the complaint policy.
  8. I agree the appeal route would not have been suitable in Mr U’s case. The CHC appeal route is for people who wish to challenge a decision that someone is not eligible for CHC. Mr U’s main complaint was the removal of his night-time support. I am not persuaded the CCG should have considered Mr U’s communication as an appeal.
  9. Between August and November 2019, the CCG agreed to review its decision with the Council. I do not consider that was fault. That was an appropriate way to address Mr U’s concerns. Once it decided its August 2019 decision stood, it appropriately shared its Complaints Policy with Mr U. I do not consider the CCG acted with fault.
  10. I consider the CCG should have been ready to start its complaint investigation at the end of November 2019. By then, Mr U’s complaint was clear, and the CCG should have sought his consent at that time, as per its Complaints Policy. Instead, it took the CCG another two months to obtain Mr U’s consent. It was clear from November that Ms V was acting on behalf of Mr U. She specifically mentioned that. That delay was fault. I consider it should have started its investigation sooner than it did.
  11. When the CCG started its investigation (late January 2020), it should have completed its investigation by the end of April. It should have completed most of its investigation when it decided to pause its investigation for three months (from mid-April). I do not find fault with the CCG’s decision to pause its investigation. Under the circumstances, NHS complaints were not a priority and I understand its reasons for pausing all complaint work. However, after the CCG restarted complaint investigations, I am not satisfied the CCG provided its response in a timely manner.
  12. It took the CCG another five months to send its response (even with the COVID‑19 pause) which was much longer than 65 working days. That was fault. According to its Complaint Policy, the CCG should agree an extension with the complaint if its response is likely to take over 65 working days. The CCG did not do that in this case. Also, it only communicated with Mr U when his advocate chased a response from the CCG. I do not consider the onus should have been on Mr U and his advocate to chase the CCG’s final response.
  13. I understand how the CCG’s complaint handling caused Mr U frustration and time and trouble. The CCG has already apologised for the delay sending its response. However, I consider it should take further action to remedy the injustice Mr U suffered.
  14. Now I will move on to the Council’s complaint handling.
  15. I consider the Council sent its first response to Mr U’s complaint within 20 working days (of 4 November 2019). That was in line with its Complaints Policy.
  16. When Mr U returned to the Council and escalated his complaint, it should have sent its second (and final) response within another 20 working days. However, it did not and instead took 10 months. That was fault. The Council’s evidence showed that no one seemed to take control of Mr U’s complaint.
  17. The repeated delay led Mr U to raise a new complaint about the delays. Overall, I consider the Council’s lack of internal communication, and with Mr U, was fault. That caused Mr U time and trouble chasing the Council’s response.
  18. The Council has apologised to Mr U for the delays caused by ongoing assessments of his needs, and COVID-19. However, I consider it should take further action to remedy the injustice Mr U suffered.

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Agreed actions

  1. Within four weeks of this decision, the CCG and the Council should pay Mr U £200 and £300, respectively, for the injustice Mr U suffered from their handling of his complaints.
  2. Within eight weeks of this decision:
    • The CCG and Council ensure there is process so that both organisations can jointly address complaints about jointly funded care packages.
    • The Council and CCG respectively ensure all relevant staff are aware of their responsibilities to not delay complaint investigations.

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Final decision

  1. I do not consider the CCG acted with fault when it withdrew Mr U’s night-time funding from a jointly funded care package with the Council.
  2. However, both organisations acted with fault handling Mr U’s complaints. That caused him significant time and trouble which they should remedy with a financial payment and service improvements.

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Investigator's decision on behalf of the Ombudsman

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