Summary: Dr X complained about delay in arranging a fast-track continuing healthcare assessment for her father. We did not find fault by a Council or a Trust in considering referral for a continuing healthcare assessment sooner. However, we found fault with the Council’s complaint handling. We recommended a financial payment to recognise the additional distress this caused.

The complaint

1. Dr X complains about Staffordshire County Council (the Council) and Midlands Partnership NHS Foundation Trust (the Trust). In particular she complains about Council and the Trust’s failure to consider referral for Continuing Healthcare (CHC) funding for her father, Mr Y, after his discharge from hospital in June 2019.
2. Dr X says the delays meant Mr Y had to pay the Council for care that should have been CHC funded. She says this caused her and her father distress as they had to spend his final weeks trying to sort out financial aspects of his care rather than enjoying any quality time left with him.
3. Dr X also complains about the time it took for the Council and the Trust to respond to her complaint. This has added to her frustration.

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The Ombudsmen’s role and powers

4. 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).
5. 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.
6. 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

7. In reaching this decision, I considered information Dr X provided to the Ombudsmen in addition to information from the Council and the Trust, including complaint correspondence and relevant health and social care records. All parties had the opportunity to comment on a draft of this decision statement.

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What I found

What happened

8. Mr Y had been diagnosed with lung cancer and had been receiving chemotherapy. However, he had decided to stop receiving active treatment because of the side effects. He lived at home with his wife.
9. In May 2019 Mr Y went into hospital with pneumonia. After his treatment, he returned home under a ‘discharge to assess’ pathway. This meant he received support from the Trust’s ‘Homefirst domiciliary care team’ free of charge until the Council could complete a social care assessment for long-term chargeable support. He received one 45-minute visit a day to support Mr Y with personal tasks.
10. The Council completed a care needs assessment on 25 June 2019 to consider his longer term support. This established Mr Y needed one 45‑minute visit, seven days a week. This was to help with personal care tasks in the mornings, including monitoring and maintaining Mr Y’s general health and well-being. The assessment noted Mr Y had the support of family and friends at other times.
11. The Council completed a financial assessment in July 2019 which confirmed Mr Y would need to pay £87.89 a week towards the cost of his care.
12. The records show Mr Y was managing his medication, eating small amounts and was still mobile. He had not needed medication which is usually prescribed in anticipation of someone experiencing distressing symptoms towards the end of life.
13. A district nurse reviewed Mr Y at the end of July 2019. They did not consider he met the criteria for fast track CHC of ‘rapidly deteriorating and entering the terminal phase’. However, Mr Y’s family felt he had declined rapidly over the last few weeks and asked the district nurse to arrange a CHC assessment.
14. Although Mr X was not complaining of increased pain, the district nurses and GP agreed to arrange for anticipatory medication to be prescribed. The district nursing team also referred Mr Y for a Fast-Track CHC assessment. This determined Mr Y’s care should be fully CHC funded.

The complaint

15. Dr X complained to the Council in September 2019 about the time it took to complete a financial assessment. She sent a further email to the Council a couple of weeks later, raising concerns about CHC funding. In March 2020, Dr X contacted the Council because she had still not received a response to her complaints.
16. The Council apologised and said it had drafted a response in September, but there was no record it sent this to Dr X. It sent Dr X a copy of the response.
17. Dr X made a further complaint in April 2020 as the response did not address any of the issues about CHC funding or assessment. The Council and the Trust provided a joint response in September 2020. The Council has advised it received a response from the Trust in May 2020.

Legal and administrative context

Community Care Assessment

18. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment of any adult who appears to need care and support. They must assess anyone, regardless of their finances or whether the council thinks they have eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must involve the individual and where appropriate their carer or any other person they might want to be involved.
19. An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs. Councils should let the individual know of the proposed timescale for when their assessment will be conducted and keep the person informed throughout the assessment process.
20. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
21. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25%. The Council can take a person’s capital and savings into account subject to certain conditions. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)

Continuing Healthcare Funding

22. NHS Continuing Healthcare (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’. 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.
23. 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. However, individuals with a rapidly deteriorating condition that may be entering a terminal phase, may require ‘fast tracking’ for immediate provision of NHS Continuing Healthcare.
24. The Fast Track Pathway Tool must only be used when the individual has a rapidly deteriorating condition and may be entering a terminal phase. An ‘appropriate clinician’ determines that the individual has a primary health need. An ‘appropriate clinician’ is defined as a person who is responsible for the diagnosis, treatment or care of the individual under and a registered nurse or a registered medical practitioner.
25. Clinical Commissioning Groups (CCGs) should have processes in place to enable care packages to be commissioned quickly. Given the nature of the needs, this time period should not usually exceed 48 hours from receipt of the completed Fast Track Pathway Tool.

Complaint regulations

26. Under The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 (the ‘Complaints Regulations’) there is a duty to investigate complaints properly and in a way that will resolve them speedily and efficiently.
27. For complaints that concern more than one organisation, the complaints regulations say 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.

Analysis

Assessment and CHC

28. The records show the Council completed a care needs assessment in a timely manner following Mr Y’s return home. The assessment considered Mr Y’s medical history, diagnosis and prognosis. The records show the Council appropriately involved Mr Y and his wife in the assessment. Mr Y was clear he only wanted one morning visit and that his family would provide any additional support.
29. The discharge information in the records notes that Mr Y was receiving palliative care, but it does not state he was ‘end of life’.
30. The Council’s care assessment recognised that Mr Y’s illness would progress and specifically noted that he would need further assessments to ensure his care package continued to meet his needs. The assessment was comprehensive and considered all relevant information for the Council to reach a decision about the care package needed.
31. Mr Y had mental capacity to make decisions about his care. The social worker involved him in the assessment and he said he could manage his medication himself, with his wife’s help. The only support identified was help with his personal care in the mornings. Mr Y’s assessed needs at this stage were therefore only for social care.
32. The social worker completed the assessment in line with the Care Act and considered all relevant information in agreeing a care package with Mr Y. I therefore find no fault by the Council in this regard.
33. The records show the Council followed-up the care package with Mr Y and the care agency in early July 2019 to check how it was working. Mr Y’s wife reported that she and Mr Y were happy with the carers and support. The Council noted it would follow-up again in a few weeks. The care agency also reported it had no concerns. This indicates the social care package was working well and the Council did not identify any additional needs.
34. The district nursing team also visited Mr Y during this time. The records show Mr Y was not complaining of additional pain and he was still eating and drinking small amounts before August 2019. He was managing his medication and the records do not suggest there were signs Mr Y’s condition was worsening significantly. Based on this, the district nurse’s professional view was that Mr Y did not have a primary health need and there was little evidence he was rapidly deteriorating and entering a terminal phase.
35. Based on Mr Y’s clinical presentation at the end of July 2019, the district nurse did not consider this indicated Mr Y needed a CHC referral. However, it is evident the district nurse took Mr Y’s family’s concerns into account and agreed to refer Mr Y for a fast-track CHC assessment.
36. Although the CCG agreed CHC funding, this does not mean the Council or the Trust should have made a referral sooner. The district nurses and social workers did not find Mr Y had declined significantly and the records show he reported he was managing well. I have seen no information to suggest it was fault for the Council or the Trust not to have made an earlier referral for fast-track CHC funding. It is evident from the records the Council and the Trust considered Mr Y’s prognosis and determined his needs were still for social care based on this information available to them. I therefore do not find fault by the Council or the Trust.

Charging

37. The records show the Council explained to Mr Y that social care would be chargeable and subject to financial assessment. It is recorded that Mr Y understood and accepted this. The Council completed a financial assessment shortly after. There are no specific timescales in which a council must complete a financial assessment. The Council started the financial assessment soon after it completed the care assessment and it completed this within a month. I consider this was within an acceptable timeframe after the Council had completed the care assessment.
38. As noted above, I have not found fault by the Council or the Trust in referring Mr Y sooner for fast-track CHC. Therefore the care Mr Y received between completion of the care needs assessment and the start of CHC funding would be chargeable by the Council.

Complaint handling

39. There were significant delays in the Council’s complaint handling. It did not send its response to Dr X until around 6 months after she had made the complaint, and after Dr X chased this up. It also appears the Council did not deal with Dr X’s email in September 2020 about CHC funding until she pointed this out after she received the Council’s response. The Council should have noted the extra issues and involved the Trust earlier.
40. When Dr X made her further complaint in April 2020, the Council also delayed sending a response until around four months after the Trust had shared its response to these issues with the Council. The Council has not given a reason why there was such a long delay in sending a response.
41. The Trust does not appear to have caused any significant delay in responding to the complaints via the Council. However, the delays by the Council and its failure to consult other relevant organisations sooner is not in line with the complaint regulations. There is therefore fault by the Council. This caused Dr X additional distress and she has had to chase the Council and point out its failings more than once. The Council has apologised to Dr X for the delay. However, given the repeated failings and significant delays, I consider the Council should make a financial payment to Dr X in recognition of the time and trouble the fault has caused.

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Agreed actions

42. Within one month of the Ombudsmen’s final decision statement, the Council will:
• Apologise to Dr X for the additional distress caused by the faults with its complaint handling;
• pay Dr X £150 in recognition of the time and trouble caused by failings in the Council’s complaints handling.

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Decision

43. I have not found fault by the Council or the Trust in relation to the assessment of needs and timeliness of arranging a fast-track CHC referral. However, there was fault by the Council with the way it handled Dr X’s complaint. The Council has agreed actions recommended by the Ombudsmen to remedy the injustice this caused to Dr X. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman