Summary: Mr X complained the Council and ICB gave him conflicting information about how his relative, Mrs Y’s, care should be funded, and did not review Mrs Y’s care needs. We found the Council and ICB failed to work together to decide how Mrs Y’s care should be funded, and the ICB did not review Mrs Y’s care needs. We found this caused uncertainty and avoidable distress to Mr X. The Council and ICB agreed to take action to remedy the injustice caused.

The complaint

1. Mr X complains that North Northamptonshire Council (the Council) and NHS Northamptonshire Integrated Care Board (the ICB) gave him conflicting information about how Mrs Y’s care should have been funded. He said that although he was Mrs Y’s next of kin, the organisations did not tell him of any problems with funding until after she had passed away. Mr X said there were then delays while the organisations tried to establish how the care should be funded.
2. Mr X also has concerns about whether Mrs Y’s care plan met her needs. He says Mrs Y had delirium when she first went to the care home, and that she should have had a further assessment to establish her longer-term care needs. However, Mr X queries whether a reassessment took place.
3. Mr X said this has left him with questions about whether Mrs Y received the care she needed. He also said the process of trying to clarify the funding situation was distressing and time-consuming for him.

Back to top

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)
7. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

Back to top

How I considered this complaint

8. During my investigation, I have considered information from Mr X, the Council and the ICB. I have also considered the relevant legislation and guidance.
9. On 1 July 2022, NHS Clinical Commissioning Groups were replaced by integrated care boards (ICBs). For clarity, I will refer to the ICB throughout this draft decision statement, including when writing about the period before 1 July 2022.

NHS Continuing Healthcare

10. The Department of Health and Social Care’s National Framework for NHS Continuing Healthcare and NHS funded Nursing Care (the National Framework) is the key guidance about Continuing Healthcare (CHC). The Framework was revised in July 2022. However, the Framework in place at the time of the events complained of was the 2018 version. This states that where an individual is eligible for Continuing Healthcare funding, the Integrated Care Board (ICB) is responsible for care planning, commissioning services and case management.
11. 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.
12. 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.
13. 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 ICB will then make a final decision which must uphold the recommendation of the DST in all but exceptional circumstances.

NHS-Funded Nursing Care

14. The NHS is also responsible for meeting the cost of care provided by registered nurses to residents in all types of care homes. Council funded and self-funding residents who need to move into care homes with nursing should have a comprehensive assessment to identify any nursing needs, including the possible need for NHS-funded continuing healthcare (CHC) or for NHS-funded nursing care (FNC).
15. The NHS-Funded Nursing Care Practice Guidance 2018 is relevant to this complaint. The Guidance sets out the principles and processes of NHS-funded nursing care.

COVID-19

16. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council and ICB followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

Care and Support

17. The Care Act 2014, Section 6, says a local authority must cooperate with each of its relevant partners, in the exercise of their respective functions relating to adults with needs for care and support.
18. Mr X, the Council and ICB had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

What happened

19. In March 2021, Mrs Y was admitted to hospital with confusion and an injury to her arm. When Mrs Y was ready to be discharged, she was noted to have “likely delirium”, but with no diagnosis of dementia. Mrs Y had previously lived independently at home with some support from her family members. However, the hospital discharge notice says Mrs Y needed one to one care on leaving hospital, as her confusion meant she was at risk of falling.
20. Mrs Y left hospital in May 2021, under COVID-19 discharge to assess arrangements. This meant the NHS initially funded Mrs Y’s care home placement until she had an assessment of her longer-term needs.
21. In June 2021, the ICB completed a checklist for NHS Continuing Healthcare (CHC) funding for Mrs Y. This found she was not eligible for a full CHC assessment, but she was eligible for NHS Funded Nursing Care (FNC).
22. The ICB said it only became aware of Mr X after he contacted its complaints team to raise concerns that he had not been given any information about the CHC checklist. As the ICB did not have Mr X’s details as next of kin at the time the checklist was completed, it could not have been expected to contact him about the decision at the time. Therefore, the ICB was not at fault for not contacting Mr X at the time the checklist was completed.
23. The ICB contacted the Council and Mrs Y’s care home to tell them the outcome of the CHC assessment. The ICB said its funding of Mrs Y’s care would stop from 16 June 2021, and FNC contributions would start from 17 June.
24. The Council then arranged a social care assessment for Mrs Y. A social worker visited her on 23 June, but there were no notes of this visit. A further visit took place on 14 July. The social worker recorded Mrs Y was continuing to experience delirium and was very confused and disorientated. The Council advised the ICB of this and said the Council would not be assessing Mrs Y because of ongoing delirium. The Council also contacted Mr X to explain this to him and said the delirium symptoms meant it could not make a decision about what support Mrs Y would need in the longer term. The Council told Mr X the ICB would be responsible for funding Mrs Y’s care until the delirium had resolved or she was assessed as having a longer term cognitive impairment. The Council record says it told Mr X as a result Mrs Y would not be required to pay until a social care assessment had been completed.
25. It is not clear from the records what happened after the July 2021 visit from the social worker, until January 2022, when a new social worker was allocated to Mrs Y.
26. The Council assessed Mrs Y’s needs in February 2022, and found she had eligible care and support needs. Mr X was told of this, and he completed a financial assessment on Mrs Y’s behalf which indicated she would be self-funding.
27. The Council said it had made Mr X aware of potential charges in a conversation in January 2022, where it was documented that he was asked about Mrs Y’s finances and confirmed her savings were above the financial threshold. The Council’s record of its conversation with Mr X in February indicates the Council explained to Mr X that NHS funding had stopped in June 2021 and “there is quite a large backdated payment required.” However, Mr X told us that he understood the charges would apply only to care from February 2022 onwards. He said he was not made aware of any backlog of fees at that time. Mr X explained it was not until after Mrs Y died, in May 2022, that he was made aware there were any issues with funding for her care going back to June 2021.

Analysis

Funding for Mrs Y’s care

28. The information I have seen indicates a clear difference of opinion between the Council and the ICB as to how Mrs Y’s care should have been paid for, after the initial period of discharge to assess funding ended. The Council said that because Mrs Y had ongoing delirium, the ICB should not have carried out a CHC assessment, and should have continued funding her care until her longer-term needs were clear. The FNC Practice Guidance says that assessment of eligibility for both CHC and FNC should be undertaken when an accurate assessment of ongoing needs can be made. In July 2021, the Council advised Mr X and the care home of this and said the ICB would continue to fund Mrs Y’s care until the delirium had resolved, at which point the Council would carry out a social care assessment. Therefore, it seems reasonable that Mr X understood from this, that funding would continue to be covered by the ICB at that stage, even though this was not the case.
29. The Council later acknowledged its communication with Mr X was unclear at times as it had said the ICB would continue to fund, when it should have said “it is our view the ICB should fund”. The Council apologised to Mr X for any confusion caused.
30. The ICB said that Mrs Y’s diagnosis of delirium did not impact its funding decision, because the assessment is based on the person’s needs rather than symptoms. However, from the information I have seen, it did not provide this information to the care home until September 2022, at which point the care home advised Mr X of this. However, the Council continues to disagree with this view. In response to my enquiries, the Council said it strongly felt Mrs Y should not have paid for her care whilst she was experiencing delirium, as this should be the responsibility of relevant ICB.
31. The ICB and the Council have an Inter-Agency Disputes Resolution policy, which sets out the local arrangements for disputes related to NHS CHC eligibility decisions. The purpose of the policy is to ensure disputes over an individual’s eligibility for CHC are resolved as quickly as possible. However, despite the disagreement between the organisations, there is nothing in the information I have seen to indicate they used this policy to try and reach a resolution for funding of Mrs Y’s care. In its response to his complaint, the Council told Mr X there was no formal dispute process for Mrs Y’s circumstances as a CHC checklist was completed, rather than a full CHC assessment. However, the National Framework does not differentiate between full CHC assessments and checklists, in terms of when a formal dispute process should be used. I recognise Mrs Y left hospital under discharge to assess arrangements, but as a CHC checklist was then completed for Mrs Y, it is not clear why the dispute process for CHC could not be used to resolve the funding issue.
32. As noted above, Section 6 of the Care Act, on cooperating generally, says a local authority must cooperate with each of its relevant partners. The Care and Support Statutory Guidance 2014 (CSSG 6.82) says: “if, following an assessment for NHS CHC, a person is not found to be eligible for NHS CHC, the NHS may still have a responsibility to contribute to that person’s health needs – either by directly commissioning services or by part-funding the package of support.” The CSSG also says local authorities and ICBs must agree a local disputes resolution process to resolve cases where there is a dispute between them about eligibility for NHS CHC. The CSSG also says the process should make clear how funding will be provided pending resolution of the dispute.
33. The ICB was aware the Council disputed its decision to assess Mrs Y given her diagnosis of delirium, and that the Council had decided not to assess Mrs Y until her delirium had resolved. Therefore, in line with the CSSG, the National Framework and the FNC Practice Guidance, the Council and ICB had a duty to cooperate at the time the Council raised its concerns, to resolve the dispute over which of them should have assessed and met Mrs Y’s needs. Not doing so meant that Mr X has been left without an explanation for how Mrs Y’s care should have been funded, and meant he had to try and obtain explanations from the organisations after Mrs Y died. Mr X explained this caused him a great deal of distress at a time when he should have been able to remember Mrs Y’s life, rather than having discussions about how her care should have been funded.
34. The lack of cooperation between the Council and ICB on this point was fault. I recognise the Council explained it made numerous efforts to engage with the ICB to try to find a resolution. As noted above, it is not clear why the organisations did not follow the dispute resolution process given Mrs Y had had a CHC checklist.

Care assessment and planning

35. Mr X raised concerns about whether Mrs Y received the care she needed. He says Mrs Y had delirium when she first went to the care home, and that she should have had a further assessment to establish her longer-term care needs.
36. As noted above, Mrs Y received NHS FNC from 17 June 2021 until her death in May 2022. The FNC practice guidance says that where someone is found eligible for FNC, a review should be undertaken within three months of the eligibility decision being made. However, the ICB said it did not carry out a review of Mrs Y’s needs after the FNC decision was made in June. This was fault by the ICB. Had a review been carried out in September 2021, this may have helped to answer Mr X’s concerns about whether Mrs Y’s needs had changed and therefore whether the level of care she received was sufficient. This has caused avoidable uncertainty and distress to Mr X. Without a review, we are unable to say whether the care provided met Mrs X’s longer-term needs, particularly as she was continuing to experience delirium at the time of the June 2021 assessment.

Complaint handling

37. Neither the Council nor the ICB responded to Mr X’s concerns through their formal complaints processes before he approached the Ombudsmen. The Council did respond to him after we contacted it as part of our consideration of his complaint. However, Mr X was dissatisfied with the Council’s response at that stage, as it presented only the Council’s view rather than giving a full picture of what happened. The Council told us it had been actively trying to engage with the ICB to resolve the funding issues but did not receive a formal response. It said that while the ICB later put in place nursing home placements to support people with delirium on discharge from hospital, this did not resolve the situation for Mr X, because it only came into force after the events he complains of.
38. However, based on the information I have seen, including correspondence between Mr X and the Council and ICB, it is apparent that Mr X was raising a complaint about what had happened. His initial contact with the Council and ICB in July 2022 could be viewed as a query about funding. However, as time went on it becomes increasingly clear from the correspondence I have seen that Mr X was dissatisfied with what had happened and was raising a complaint. He referred to a breakdown in communication between the organisations that needed to be resolved, and set out the conflicting views he had received from the Council and ICB about how the care would be funded. He said the funding situation should have been managed between the organisations, and requested an explanation for what had happened. Mr X also said he was considering contacting the Ombudsmen. However, still his concerns were not handled as a complaint. I also note that in August 2022, the care home where Mrs Y had been resident contacted the ICB complaints team and sent them the email trail between Mr X and the organisations. I understand from the information I have seen that the ICB was due to contact Mr X about his concerns, but it is not clear whether this happened. I understand Mr X received email contact from the ICB, but he did not receive a formal complaint response. Mr X continued to correspond with the organisations until October 2022 to try and obtain a clear response about funding.
39. Where a complaint is about more than one responsible body, each organisation must co-operate when handling the complaint. They must decide who will lead the process, share relevant information and give the complainant a coordinated response. (Reg 9, Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)
40. I recognise the Council social work team did respond to Mr X several times about funding, and the Council also said it tried to engage with the ICB about Mr X’s concerns. However, the Council could have responded to Mr X’s complaint formally at an earlier stage. Even though Mr X had clearly told the Council and ICB he was receiving conflicting information from each of them, the organisations continued to respond to him independently, rather than working together to provide Mr X with a clear response on funding which may have resolved his complaint. There was fault by the Council and ICB in the way they handled Mr X’s concerns.
41. In investigating Mr X’s complaint, I considered that in responding to our enquiries, the ICB and Council should have been able to provide clarity at that stage about how Mrs Y’s care should have been funded. However, it appears the organisations continue to hold differing views about how the care should have been funded. Therefore, this has not resolved matters for Mr X, who has paid the care home fees of £47,004.29 from Mrs Y’s estate.

Back to top

Agreed Actions

42. I recommended within one month of the final decision on this complaint, the Council and ICB:

• apologise to Mr X for the injustice caused by the fault found in this complaint;
• make a symbolic payment to Mr X of £500, shared between the Council and ICB, for the time and trouble he has gone to in trying to obtain a response to his complaint;

43. I recommended within one month of the final decision, the ICB:

• makes an additional symbolic payment of £250 to Mr X in recognition of the avoidable uncertainty caused to Mr X by failing to carry out a review of Mrs Y’s needs;

44. I recommended within three months of the final decision, the ICB:

• review its practice and policy on FNC reviews, and provide staff training where appropriate, to prevent recurrence of the fault found in this complaint;

45. I recommended within three months of the final decision, the Council and ICB:

• work together to develop or review their policies on handling complaints involving both organisations, to prevent recurrence of the fault found in this complaint;
• work together to carry out a joint retrospective consideration to decide how Mrs Y’s care should have been funded after the discharge to assess funding came to an end in June 2021. Should they find that any part of Mrs Y’s care should have been funded by the Council or ICB, they should make any relevant payments to reimburse Mrs Y’s estate for the care home fees paid.

46. The Council and ICB have accepted my recommendations.
47. The Council and ICB should provide us with evidence they have complied with the above actions.

Back to top

Final decision

48. For the reasons explained in the Analysis section above, I uphold Mr X’s complaint about the Council and the ICB. I am satisfied the Council and ICB have agreed to provide reasonable remedies for the injustice caused. I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsmen

Back to top

Investigator's decision on behalf of the Ombudsman