Summary: Mrs B complained about a funding dispute between the Council and the Clinical Commissioning Group which prevented her daughter from moving to a suitable placement in 2019. On the evidence available now, we found fault by the Council and the Clinical Commissioning Group as they delayed in following their local dispute resolution policy. This impacted on Mrs B’s daughter’s independence and caused avoidable frustration and time and trouble to Mrs B. To put things right the authorities have agreed to apologise to Mrs B and her daughter and make acknowledgement payments to them. The Council and the Clinical Commissioning Group will work together to agree a suitable placement for Mrs B’s daughter and agree funding in line with the relevant laws and their local policies.

The complaint

1. The complainant, who I shall refer to as Mrs B, complains about a funding dispute between Derbyshire County Council (the Council) and NHS Derby and Derbyshire Clinical Commissioning Group (the CCG) which started in September 2015. As a result, she says her daughter, Miss F, missed out on a placement the Council agreed she could move to. She also says the CCG refused to accept all her daughter’s health needs when it assessed her and its communication about healthcare funding was poor. Mrs B feels the ongoing dispute is preventing her daughter from moving to a suitable placement, having one-to-one support, and having all her needs considered within a holistic assessment.
2. To put things right the complainant wants the Council and the CCG to work together to agree a sufficient personal budget to meet her daughter’s health and social care needs within a residential setting. She also says the Council should properly assess her and her husband’s needs as carers. Mrs B wants the authorities to apologise and make an acknowledgement payment for the alleged injustice caused.

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The Ombudsmen’s role and powers

3. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
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)).
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. I have considered information provided by the complainant in writing and by telephone. I have considered information provided by the Council and the CCG in response to my enquiries. I have also considered the law and guidance relevant to this complaint.
8. All parties have been given an opportunity to comment on a draft of this decision.

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What I found

Law and guidance relevant to this complaint

9. 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.
10. The eligibility threshold for adults with care and support needs and carers is set out in the Care and Support (Eligibility Criteria) Regulations 2014. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. For a person to have needs which are eligible for support, the following must apply:

1. The needs must arise from or be related to a physical or mental impairment or illness.
2. As a result of the needs, the adult must be unable to achieve two or more of the following outcomes:

• managing and maintaining nutrition;
• maintaining personal hygiene;
• managing toilet needs;
• being appropriately clothed;
• being able to make use of their home safely;
• maintaining a habitable home environment;
• developing and maintaining family or other personal relationships;
• accessing and engaging in work, training, education or volunteering;
• making use of necessary facilities or services in the local community including public transport and recreational facilities or services; and
• carrying out any caring responsibilities the adult has for a child.

3. As a consequence of inability to achieve these outcomes, there is likely to be a significant impact on the adult’s well-being.

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.

11. A council 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. 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)
12. The Care Act 2014 makes clear the local authority may meet the carer’s needs by providing a service directly to the adult needing care. In these cases, the carer must still receive a support plan which covers their needs, and how the Council will meet them. The carer’s personal budget must be an amount that enables the carer to meet their needs to continue to fulfil their caring role. It must also consider what the carer wishes to achieve in their day-to-day life. Part of the planning process should be to agree the way the carer will use the personal budget to meet his or her needs. (Care and Support Statutory Guidance 2014)
13. The Department of Health’s National Framework for NHS Continuing Healthcare and NHS‑funded Nursing Care (October 2018 (Revised)) (the National Framework) is the key guidance about Continuing Healthcare (CHC). It states that where an individual is eligible for Continuing Healthcare funding the CCG is responsible for care planning, commissioning services and case management.
14. 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’. 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 threshold for meeting the CHC Checklist is set low.

If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment. This assessment is completed using a decision support tool (DST). The DST is a record of the relevant evidence and decision-making. The DST should be completed within 28 days of the CHC Checklist unless there are ‘valid and unavoidable’ reasons for it taking longer.

15. The DST makes a recommendation about whether a person is eligible for CHC or for NHS-funded nursing care, which is set at a weekly rate. The relevant CCG will then make a final decision which must uphold the recommendation of the DST in all but exceptional circumstances.
16. The decision-making rationale should not marginalise a need just because it is

successfully managed: well-managed needs are still needs. Only where the

successful management of a healthcare need has permanently reduced or

removed an ongoing need, such that the active management of this need is

reduced or no longer required, will this have a bearing on NHS Continuing

Healthcare eligibility.

17. An example of the application of the well-managed needs principle might occur in the context of the behaviour domain where an individual’s support plan includes support/interventions to manage challenging behaviour, which is successful in that there are no recorded incidents which indicate a risk to themselves, others or property. In this situation, the individual may have needs that are well-managed and if so, these should be recorded and taken into account in the eligibility decision.
18. Practice Guidance within the National Framework says, The DST (paragraph 21 of the user notes) advises practitioners to move to the higher level of a domain where agreement cannot be reached but there should be clear reasoned evidence to support this. If practitioners find themselves in this situation. they should review the evidence provided around that specific area of need and carefully examine the wording of the relevant DST levels to cross-match the information and see if this provides further clarity. Additional evidence may be sought, although this should not prolong the process unduly. If this does not resolve the situation, the disagreement about the level should be recorded on the DST along with the reasons for choosing each level and by which practitioner. This information should also be summarised within the recommendation so that the CCG can note this when verifying recommendations.
19. The practice of moving to the higher level where there is disagreement should not be used by practitioners to artificially steer individuals towards a decision that they have a primary health need where this is not justified. It is important that this is monitored during the CCG audits of recommendations and processes so that individual practitioners found to be using the ‘higher level’ practice incorrectly can be identified. Discussion may need to take place with these practitioners and further training may be offered.
20. If practitioners are unable to reach agreement, the higher level should be accepted and a note outlining the position included within the recommendation on eligibility. As part of CCGs’ governance responsibilities, they should monitor occurrences of this issue. Where regular patterns are identified involving individual teams or practitioners this should be discussed with them and where necessary their organisations to address any practice issues.
21. If a person is not eligible for NHS Continuing Healthcare, they may potentially receive a joint package of health and social care. This is where an individual’s care or support package is funded by both the NHS and the local authority. This may apply where specific needs have been identified through the DST that are beyond the powers of the local authority to meet on its own. This could be because the specific needs are not of a nature that a local authority could be expected to meet, or because they are not incidental or ancillary to something which the Local Authority would be doing to meet needs under sections 18-20 of the Care Act 2014. It should be noted that joint packages can be provided in any setting.
22. CCGs should work in partnership with their local authority colleagues to agree their respective responsibilities in such cases. These should be identified by considering the needs of the individual. Where there are overlapping powers and responsibilities, a flexible, partnership-based approach should be adopted, including which party will take the lead commissioning role.
23. Jointly coordinated CCG and local authority reviews should be considered for any joint package of care to maximise effective care and support for the individual.
24. The CCG and the Council have Local Dispute Resolution Policy in place which sets out timescales. This policy says a dispute should not delay the provision of care and support. ‘If the funding of the care of any individual becomes the subject of a dispute to which this Dispute Resolution Policy applies, the parties agree that unless otherwise agreed between them in any individual case:
• Where the parties had each been funding a proportion of the care of any individual prior to the dispute arising, the parties will continue to fund that care in the same proportions as they were funding it prior to the dispute arising until such time as the dispute is resolved;
• The parties expressly agree that no dispute between them as to the funding of the care of any individual should prevent or delay the provision of an appropriate care package to the individual patient or service user concerned.
25. The Telford Matrix is a tool designed to consider integrated packages of care. The CCG uses the Telford Matrix, which is an algorithm to identify the level of joint funding. The tool has different gradients covering each DST Domain (e.g. Behaviour) Level 1 through to Level 4 and this scoring is then attributed in funding aggregation terms to either the Council or the CCG.

Background

26. Mrs B’s daughter, Miss F, is an adult with a learning disability. From an early age she received formal support from children services throughout school and college.
27. Since transitioning to adult services, Miss F has remained living at home with her mother and father. Mrs B says she and her husband’s caring roles have become increasingly difficult and she remains concerned about her daughter’s future care needs. Although it is a difficult decision she feels her daughter’s need would best be met in a residential placement.
28. The Council has been involved with Miss F since 2011. It completed an Assessment of Needs in May 2015 which provided an indicative budget. It applied an inflation so Miss F could have one-to-one support to attend day centres and day activities. It then requested a CHC checklist and nursing assessment from the Learning Disability Team.
29. The checklist and nursing assessment led to a consideration for continuing healthcare funding. The CCG arranged the CHC eligibility assessment meeting for September 2015 and attendees included Mrs B as well as representatives from health and social care.
30. During the CHC eligibility meeting held in September 2015 the CCG and the Council disagreed with Miss F’s level of need across some of the domains listed in the DST form. The CHC assessor asked for further evidence to show the incidents Miss F had been involved which related to her behaviour with other clients. The CCG wrote to Miss F to confirm the outcome.
31. The CCG organised a further CHC eligibility meeting in August 2016. Following completion of the DST Miss F did not have primary health need and was not eligible for CHC funding. The CCG wrote to Miss F to confirm the outcome.
32. The Council’s Learning Disability Team completed a CHC checklist again in
    July 2017. It said the CCG’s CHC team declined to complete a further DST as they did not feel Miss F’s needs had changed since the last DST. The Council said it provided Mrs B with information about an organisation which could help her appeal the CCG’s CHC decision.
33. In March 2018, the Learning Disability Team completed another CHC checklist and nursing assessment. Following this the CCG completed a DST in June but declined funding. The Council said it disputed the decision.
34. In July, the Council held a high-cost placement review meeting to consider a
    long-term placement for Miss F at the family’s preferred choice, Home X. This was because Mr and Mrs B found their caring roles more difficult due to their age.
35. The CCG reviewed its CHC decision made in June, but the CCG did not agree to contribute to the cost of the Miss F’s care package. The Council said it continued to dispute the decision. The CCG said the Council only disputed the level of funding and not the decision.
36. In February 2019, the CCG completed the Telford Matrix, the tool agreed between the Council and the CCG, and agreed to fund 19% of Miss F’s care costs. The Council said the percentage calculated by the CCG did not cover the actual care costs relevant to Miss F’s health needs.

The CCG’s view

37. The CCG said it considered Miss F’s health needs on three different occasions when deciding whether she presented with a primary health need. The dates occurred between September 2015 and September 2018. It said the DST considered the views of health and social care representatives.
38. The CCG said Mrs B was aware of the CHC dispute process as she appealed the first DST outcome after it was completed in 2015. The CCG wrote to Mrs B and Miss F after each CHC funding consideration, and its letters set out the appeals process.
39. The CCG said it considered the guidance set out in the National Framework when the multi-disciplinary team disagreed on the scoring domains with the DST. It said the differing scores were noted when it made the eligibility recommendation. Also, it said it had considered the nature, intensity, complexity, and unpredictability of Miss F’s needs when applying the primary health need test.
40. Following the DST completed in September 2018 the CCG said it recognised there was an element of care that required additional health funding. It said it used the Telford Matrix tool to consider an integrated care package. The CCG calculated its contribution using the matrix as 19% of the total cost of the care package.
41. The CCG said the dispute between it and the Council related to the level of funding. it said the Council felt the one-to-one support it provided was more than what it should provide under the Care Act 2014. However, the CCG said there was no ongoing dispute between it and the Council. It felt the matter had been resolved at the dispute meeting held in November 2019.

The Council’s view

42. The Council said it disputed the CCG’s position taken in 2015, June 2016 and September 2018 when the CCG declined any funding. A social worker was involved in the CHC eligibility decision and disputed the CCG’s recommendation. The Council said the social worker provided the following information to the CCG to support why it disputed the decision:
• a copy of Miss F’s needs assessment and discussed the difficulties managing Miss F’s behaviour; and
• examples of Miss F’s challenging unpredictable behaviour which had resulted in harm to others including Mrs B. It also meant Miss F was expelled from college due to incidents involving physical challenge behaviour.
43. The Council said the CCG then used the Telford Matrix to identify the level of joint funding. The CCG offered to fund 19% of the placement from February 2019. The Council said this did not properly reflect the degree of Miss F’s health needs around her challenging behaviour identified in her positive and proactive support plan. The support plan identified that Miss F’s challenging behaviour was dramatically reduced during periods of one-to-one intensive interaction.
44. The Council said the CCG only accepted the percentage the Telford matrix generated. It said it has found the results produced by the Telford Matrix may not always be person-centred and often does not reflect someone’s actual practical needs.
45. The Council reached the view that Miss F would benefit from a residential placement following a multi-disciplinary meeting on 14 November 2019. The notes of the meeting showed a difference of opinion between the Council and the CCG about whether Miss F’s challenging behaviour was a health or social care need. The Council said the CCG considered that Miss F’s behavioural needs were due to her communication needs and felt a supported living placement would be appropriate.
46. The notes referred to the residential placement, Home X, which was the family’s and the Council’s preferred option. The Council said it had explored the option of supported housing with the family. This was not considered a viable option because of Miss F’s night-time needs and her ability to maintain a tenancy.
47. The CCG had concerns about Home X because of the Care Quality Commission’s inspection report. The CQC’s report highlighted concerns about Home X and at the time had rated the service as ‘requires improvement’ which later changed to ‘inadequate’ in December 2019. Despite this Mrs B did not want to pursue supported housing as she felt Miss F would not cope in this environment.
48. The Council confirmed it told Mrs B that it would fund Miss F’s placement in
    Home X for an initial period of three months to allow for review of Miss F’s needs. However, it said because of concerns Mrs B raised about the temporary arrangements and personal allowance the placement did not proceed. The Council’s view is that Miss F needs to move to a residential placement which should be funded jointly by the CCG.
49. The Council said it disputes the amount calculated by the CCG as the contribution towards Miss F’s care and support package. It believes the CCG should reassess its contribution using a different matrix. The Council said it has assessed Miss F’s needs in line with the Care Act 2014 and her behavioural needs are of a nature that a council is not permitted to provide as an eligible social care need. The Council confirmed the dispute is ongoing.

The Council’s assessment of Mr and Mrs B’s needs

50. The Council said it carried our carers assessments for Mrs B and her husband in and their needs are identified within Miss F’s assessment. It provided a copy of carers reviewed completed on its behalf in October 2020.
51. Mrs B receives funding via the carers budget annually which amounts to £300 to provide respite.

Findings

52. The Council has provided evidence to show it has properly considered and assessed Mrs B’s and her husband’s carer’s needs. It provides a payment which Mrs B can use for respite. It is likely that Mrs B and her husband may not experience the full benefit of respite because Miss F has not yet moved to a suitable placement due to the funding arrangements dispute in the main. However, I do not find fault in the way the Council assessed Mrs B’s and her husband needs as carers.
53. The evidence available supports the view that Mrs B and her husband have a demanding caring role when providing informal care to their daughter, Miss F.
    Mrs B is keen for her daughter to develop her independence and would prefer to see her move to a suitable permanent placement.
54. The CCG said the DSTs completed since 2015 showed little difference in Miss F’s needs and she was not eligible for CHC on these occasions. The Council said it disputed the decision from as early as 2015. Mrs B disputed the CCG’s eligibility decision when she wrote to the CCG in October 2015. Although the letter refers to disagreeing with the CCG’s decision not to fund one-to-one care the CCG was not providing any funding at the time. Mrs B said, ‘I wish to appeal against your decision’. So, it is likely, on balance, that Mrs B was referring to the eligibility decision. Therefore, the CCG should have acted to review the eligibility decision in line with the National Framework.
55. The CCG has not provided evidence to show it dealt with Mrs B’s request in line with the National Framework to review the eligibility decision. On the evidence available now, I find the CCG at fault. However, the CCG completed another DST in 2016 which arrived at the same decision. Therefore, any omission is likely to have caused no injustice.
56. In response to our enquiries the Council said it disagreed with specific domain levels on each occasion the CCG organised the MDT to complete the DST. It said the CCG agreed to escalate the matter in June 2016. It is apparent the dispute resolution policy may not have been in place on this date. However, both the Council and the CCG have not provided evidence to show how this dispute was dealt with. This is likely to have contributed to a delay in agreeing joint funding.
57. The National Framework sets a process which could be followed when the MDT disagrees on the domain levels within the DST. It advises practitioners to move to the higher level of a domain where agreement cannot be reached. The practice guidance says, ‘If practitioners are unable to reach agreement, the higher level should be accepted and a note outlining the position included within the recommendation on eligibility.’ The CCG has not provided evidence to show how it considered this guidance. I therefore find the CCG fettered its discretion to follow the guidance.
58. The documentary evidence provided shows the Lead CCG Officer recorded the differing opinions of the relevant domain levels and the differing views on severity of need. However, when completing the Telford Matrix it appears the CCG defaulted to its lower level decision on the disputed domains although the Council continued to dispute this. This approach is not in line with the guidance set out in the National Framework. It is unclear if this impacted on the percentage split generated by the matrix.
59. The Council agreed to fund the placement in Home X and provide one-to-one provision for an initial period of two months pending a review by the CCG. It said due to concerns raised by Mrs B about this temporary arrangement and the impact of the coronavirus pandemic the placement did not go ahead. Mrs B was concerned about the temporary arrangement of the placement as she wanted Miss F to have settled accommodation. Considering the date joint funding was agreed it is likely a trial of the placement could have commenced sooner.
60. Although joint funding has been agreed on a 19% and 81% split the Council continues to dispute the percentage split. The CCG says there is no ongoing dispute but the evidence available does not support this view. Both the Council and the CCG agree that Miss F should move to either a supported living or residential placement. The CCG believes that Home X is unsuitable, but it appears this continues to be Mrs B’s preferred option for Miss F. The Council supports the family’s preferred option.
61. The Ombudsmen cannot decide on the percentage split or comment on which of Miss F’s needs fall under health or social care responsibilities. We must consider the way the Council and the CCG made their decisions.
62. The local dispute resolution policy confirms any ongoing dispute should not prevent or delay the provision of an appropriate care package to the individual patient or service user concerned.
63. The Council’s officer completed the dispute resolution form in October 2018 and the form provides timescales for each stage of the process. Stage 1 should be completed within 20 days of completion of the DST and the form shows this happened. Stage 2 should be completed in 10 days and Stage 3 should be completed within 10 days. The evidence provided shows the form was not completed with any detail at sage 2 and stage 3. There is no documentary evidence to show the case was escalated to stage 4 which is ‘Referral for Independent Disputes Panel. The decision of the panel should be reached within eight weeks. The failure of the Council and the CCG to follow their policy meant an opportunity was missed to resolve the dispute fairly and robustly to ensure a balance between health and social care perspectives.
64. The evidence available supports the view the dispute between the Council and the CCG has prevented Miss F’s placement from proceeding. The Council is reluctant to proceed with the placement unless the CCG agrees to fund the one-to-one element. The CCG says it will contribute the 19% contribution pending the outcome of a review after three months.
65. The authorities’ local resolution policy sets out the funding process that should be followed when a dispute is ongoing. It is likely, on balance, if this had been followed sooner Miss F could have moved to a placement before now. I find the Council and the CCG at fault for this delay. The delay is likely to have impacted on Miss F’s independence. Mrs B was likely put to avoidable frustration and time and trouble which was likely exacerbated by her demanding caring role.
66. The Council says the CCG should provide one-to-one funding when Miss F moves to the placement; then after a period of three months the CCG should review the DST considering evidence gathered in the placement. The Council says the CCG now uses the Devon Matrix and it should use this to calculate the percentage split.
67. The CCG says it has opened discussions with the Council to complete the outstanding annual CHC Framework Nursing review. It said it will discuss and agree future joint care and support arrangements for Miss F. However, it is unclear whether any progress has been made with this.

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Agreed Recommendations

68. Within two months of our final decision the Council and the CCG should:
• jointly write to Mrs B and Miss F and apologise for the impact the delay in following their dispute resolution policy had on them. The letter should confirm what action the Council and the CCG will now agree to arrange a placement for Miss F as soon as practicably possible and confirm how it will involve Mrs B in discussions.
• jointly pay Mrs B £250 for the impact the faults had on her and for her avoidable frustration and time and trouble. Jointly pay Miss F £400 for the impact on her independence.
• meet to discuss and agree the funding arrangements for Miss F’s move to a suitable placement which should be the family’s preferred choice. Both the Council and the CCG should have regard to their local dispute resolution policy during the discussion as well as the Care Act 2014 and the National Framework.
69. The Council and the CCG should remind their staff of the importance of following the local dispute resolution policy when it becomes necessary to do so. They should also ensure that relevant paperwork is completed with as much detail as required and provide training to their staff as required.
70. The CCG should review its communication with Mrs B and confirm if it dealt with her CHC appeal. In the event it did not it should apologise to Mrs B and confirm what improvements it will make to ensure similar fault does not occur.

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Final decision

71. The Council and the CCG have agreed to our recommendations and already acted to complete the agreed actions. This remedies the injustice caused. I have completed the investigation.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman