Summary: Mr X complained about repeated failures of Hampshire County Council and NHS Hampshire and Isle of Wight Integrated Care Board to work together. He complained this caused: a prolonged delay in discharging his wife from hospital; and, his wife to be left without funding for necessary night-time care. We found fault with the Council and the ICB for failing to manage a funding dispute adequately. This caused an avoidable delay in Mrs X’s discharge from hospital which, in turn, caused avoidable stress and frustration. We have not found fault in the way each organisation considered Mrs X’s night‑time needs against relevant eligibility criteria. The Council and the ICB have agreed to take actions to address the injustice their fault caused.

The Ombudsmen’s role and powers

4. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
5. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we 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).
6. 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.
7. When investigating complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
8. We 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. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
9. If we are satisfied with the actions or proposed actions of the organisations that are the subject of the complaint, we can complete our investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(1), as amended)

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How I considered this complaint

10. I considered evidence provided by Mr X, the Council and the ICB as well as relevant law, policy and guidance.
11. Mr X, the Council and the ICB had an opportunity to comment on my draft decision. I considered all the comments they made before making a final decision.

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What I found

Legislation and guidance

Hospital discharge

12. The Department of Health and Social Care issued statutory guidance: Hospital discharge and community support guidance (the National Discharge Guidance) in April 2022. It was updated in January 2024. This provides guidance to NHS bodies and local authorities on discharging adults from hospital. It said local areas should adopt discharge processes that best meet the needs of the local population. This could include the ‘discharge to assess, home first’ approach.

NHS Continuing Healthcare

13. 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 CHC. It states that where an individual is eligible for CHC funding, the ICB is responsible for care planning, commissioning services and case management.
14. Paragraphs 55 to 67 of the National Framework (and paragraphs 3.1 to 3.6 of the Practice Guidance section) set out how organisations are expected to consider a person’s needs and work out whether the NHS or a local authority is responsible for meeting them.
15. The National Framework notes that “Some needs are clearly health needs and some needs are clearly social care needs; and some needs may be either or both”. (Paragraph 50 of the National Framework)
16. The National Framework notes that, in general terms, a “health need” is one “related to the treatment, control [or] management…of a disease, illness, injury or disability, and the care…of a person with these needs (whether or not the tasks involved have to be carried out by a health professional”. (Paragraph 51 of the National Framework)
17. The National Framework guides people to use the Care Act 2014’s national eligibility criteria as the best way of determining whether something is a “social care need”. (Paragraphs 52 and 53 of the National Framework)
18. The Care and Support (Eligibility Criteria) Regulations 2014 set out that an adult will meet the criteria for social care support if:

• their needs arise from, or are related to, a physical or mental impairment or illness, and
• as a result of their needs they cannot achieve two or more of a list of specified outcomes, and
• as a consequence there is likely to be a significant impact on their wellbeing.

The list of specified outcomes is:

1. managing and maintaining nutrition,
2. maintaining personal hygiene,
3. managing toilet needs,
4. being appropriately clothed,
5. being able to make use of the adult’s home safely,
6. maintaining a habitable home environment,
7. developing and maintaining family or other personal relationships,
8. accessing and engaging in work, training, education or volunteering,
9. making use of necessary facilities or services in the local community including public transport, and recreational facilities or services, and
10. carrying out any caring responsibilities the adult has for a child.
1. Section 22 of the Care Act 2014 says that council cannot provide services to meet a person’s needs if they are required to be provided under the National Health Service Act 2006 unless:

• Doing so would be merely incidental or ancillary to doing something else to meet needs under the Care Act 2014, and
• The service in question would be of a nature that the council could be expected to provide.

20. If a person is not eligible for CHC they may receive a jointly funded package of health and social care, in any setting. This may apply “where specific needs have been identified through [a CHC assessment] that are beyond the powers of the local authority to meet on its own”. (Paragraph 287 of the National Framework)
21. In these instances ICBs and councils are expected to work together to agree their respective responsibilities. “Where a person is not eligible for full NHS Continuing Healthcare the cost of a jointly funded support package is a matter of negotiation between the ICB and the local authority based on the assessed needs of the person and the limits of what a local authority can fund”. (Paragraph 51.1 of the Practice Guidance section of the National Framework)
22. The ICB told us there is no statutory definition of “standalone health needs”. It said it has adopted the following definition:

“Stand-alone health needs” (SAHNs) are clinically identifiable and specific healthcare needs that:

• Do not cumulatively amount to a primary health need (and therefore do not trigger NHS Continuing Healthcare (CHC)), yet:
• Are beyond what a local authority (LA) can lawfully provide under the Care Act 2014 (either because it is a service required to be commissioned under the NHS Act 2006 or because, where it could be delivered as part of a social care package (incidental and ancillary) there are no other social care needs to be met).”

23. ICBs and councils need to have processes in place to resolve disputes about eligibility for CHC. These processes should include several key features including:

• Clear timelines for each stage.
• An agreement as to how the person’s care will be funding pending the outcome of the dispute.

(Paragraphs 233 and 234 of the National Framework; and paragraph 6.83 of the Care and Support Statutory Guidance)

24. A key principle in disputes is that “Individuals must never be left without appropriate support while disputes between statutory bodies about funding responsibilities are resolved”. (Paragraph 234 of the National Framework)

The Care Act 2014

25. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve.

Relevant events

Discharge from hospital

26. Mrs X had been diagnosed with a genetic, progressive neurodegenerative disorder which was causing her to lose the ability to walk or move independently. It also affected her ability to communicate and caused a loss of sensation in her arms and legs. At night, Mrs X often experienced leg spasms, cramping and clonus (an abnormal reflex response that involves involuntary and rhythmic muscle contractions). These caused Mrs X a lot of pain and meant she could not sleep.
27. Mrs X lived at home with her husband, Mr X, who cared for her. Mrs X also received a Direct Payment from the Council to pay for support during the day.
28. Mrs X was admitted to hospital in late-April 2023. Mr X said that early in Mrs X’s admission her night‑time needs became the most problematic issue and it “became obvious to all those involved…that nights were exceedingly difficult for [Mrs X].”
29. Aside from a short stay in a rehabilitation centre, Mrs X remained in hospital until the end of July 2023. Mrs X moved to a nursing home from hospital. Mrs X had wanted to return home but professionals had concerns about whether that would be sustainable. The plan was to assess Mrs X’s needs in the nursing home, outside of an acute hospital.
30. Mr X told us it continued to be “obvious to all those involved…that nights were exceedingly difficult” for Mrs X. Mr X said Mrs X was now bedbound and could not turn herself in bed and had no movement in her legs. As such, Mrs X needed people to regularly reposition her in bed.
31. In October 2023 a multi-disciplinary team (MDT) completed a Decision Support Tool (DST) to assess Mrs X’s eligibility for CHC. The MDT gave its view that Mrs X had a primary health need. The ICB rejected the recommendation and concluded that Mrs X did not have a primary health need and was not eligible for CHC.
32. The Council appealed the CHC panel’s decision, beginning a dispute.
33. Several days later Mrs X returned to hospital. Mr X told us that, whereas Mrs X spent much of her days in the nursing home in her wheelchair, she spent most of this hospital admission in bed.
34. Six days after Mrs X’s admission medical staff decided she was “medically optimised” and could leave hospital. The hospital completed paperwork to highlight that Mrs X wanted to return home and would need support at home. The referral noted that Mr X had specific concerns about Mrs X’s night-time needs. It said Mrs X’s leg cramps usually occurred at night. The referral said that, while Mrs X was prescribed and used pain relief medication, this was not always helpful. It said, because of this, staff tried to alleviate Mrs X’s discomfort and help her to settle by repositioning her. The referral noted this was a long-standing problem which would not change. It also explained that the frequency and regularity of these symptoms varied: that sometimes they happened very frequently; and, on some nights they did not happen.
35. The dispute between the Council and the ICB over responsibility for arranging Mrs X’s care in the community continued. During this time, among other internal and inter-agency correspondence:

• ICB staff visited Mrs X on the ward, supported by the hospital’s Discharge Team. Staff reviewed Mrs X’s medical notes and treatment plan and they spoke to nurses on the ward.
• The Council completed an assessment of Mrs X’s needs. The assessment noted that ward staff had advised that Mrs X regularly called out at night due to discomfort. It noted that, at these times, staff repositioned Mrs X. However, it also noted that Mrs X had slept better, and called out less, in the nursing home.
• The Council completed a care plan which set out the type of care that social care staff would need to provide for Mrs X during the day at home. This included requirements to:
• “administer medication, and ensure they are taken” and report any concerns about medication to the GP, Mrs X’s family and the care company’s office; and
• support Mrs X with repositioning. It said care workers would need to be trained in this and would need to follow a moving and handling guide in the home.
• The Council concluded that it would not be feasible for a day-time live-in care worker to provide the necessary support for Mrs X at night. It said this was because, under the terms of their contract, a live-in care worker could not be expected to wake and support Mrs X at night as often as she might need. Further, the Council said that Mrs X’s family would also be unable to provide the necessary night-time care.
• The Council told the ICB it could not “organise new care for someone in their own home where there are indicative health needs”.

36. Toward the end of November 2023 (24 days after Mrs X had become medically ready to leave hospital) the Council proposed to the ICB that Mrs X be discharged under the Discharge to Assess process. The Council said it could then re-start Mrs X’s Direct Payment for day-time care and the ICB could organise any new care Mrs X needed. The Council said the CHC dispute could end if the ICB agreed to this plan, and there could be a reassessment of Mrs X’s eligibility for CHC when she was at home. The ICB agreed to this proposal and began approaching potential care providers.
37. In the following weeks the Council and the ICB completed further work to establish the specifics of Mrs X’s night-time needs and the necessary care. The ICB also contacted potential care providers.
38. On 11 December 2023 (14 days since the Council and the ICB’s agreement) a care provider confirmed to the ICB that it could provide the necessary waking‑night care for Mrs X (nine hours per night, seven days per week). The ICB formally agreed to fund this support, on a trial basis, and noted Mrs X would leave hospital in six days’ time. Arrangements were also made for a Council-funded live-in care worker to begin supporting Mrs X during the day when she returned home. The ICB and the Council agreed they would review Mrs X’s needs and the adequacy and proportionality of her commissioned care.
39. Mrs X returned home in mid-December 2023, 45 days after medical staff found she was stable enough to leave hospital.

Review of needs and care in the community

40. In early January 2024 an ICB care manager completed an assessment of Mrs X’s needs. It noted that Mrs continued to experience “challenges with sleeping during the night due to leg cramps that sometimes do not respond to any medication or reposition interventions”. It said that staff were positioning Mrs X at night about every three hours, as required. It also said staff massaged and stretched Mrs X’s legs to help alleviate her cramps.
41. In the middle of January 2024 a Council social worker visited Mrs X to begin a reassessment of her needs under the Care Act. The social worker reported to colleagues that Mr X “expressed significant concerns, particularly regarding [Mrs X’s] night health care needs. Upon contacting the [live‑in care provider], they also confirmed that nighttime care is a primary concern”.
42. At the end of March an MDT assessed Mrs X’s eligibility for CHC. The MDT concluded Mrs X had a primary health need and, as such, was eligible for CHC. The ICB did not accept the MDT’s recommendation and asked it to reconvene. The MDT reconvened in early April 2024. This time the MDT concluded that Mrs X did not have a primary health need and, therefore, was not eligible for CHC.
43. The ICB told Mr X and the Council of its decision and said it would stop funding Mrs X’s night-time support later that month (on 17 April). It told Mr X that the Council would then be responsible for meeting all of Mrs X’s needs.
44. On 16 April Mr X contacted the Council and noted that the ICB’s funding was due to end. Mr X asked the Council to urgently assess Mrs X’s needs. Mr X emailed again, three days later as he had not received a response. Mr X said Mrs X “urgently requires suitable care at night”.
45. Following this, in April 2024:

• Mr X emailed the social worker to provide his views about Mrs X’s need for support at night and provided copies of her waking-night records. In short, Mr X explained there had been no change in Mrs X’s night-time needs since she left hospital and she still needed the same type and frequency of support.
• The Council reassessed Mrs X and completed a new support plan. It noted that Mrs X “has variable pain levels and has medications to manage these, but they are not always effective. Night times for [Mrs X] are the worst times, and she can require repositioning regularly though the night. [Mrs X] requires a wake night to support her through the nights.”
• Mr X told Mrs X’s social worker that he and Mrs X were “both incredibly anxious and stressed as a result of the withdrawal of funding for night care”. Mr X said that he had had no choice but to ask the night‑time care provider to continue privately.
• Mrs X’s social worker advised Council colleagues that Mrs X still needed waking-night support. He asked for support from his colleagues to either dispute the CHC decision or to ask the ICB for standalone funding for the required night‑time support.
• The Council emailed the ICB and said it was evident Mrs X still needed support at night because of health needs. It asked the ICB to reinstate funding.
• The ICB told the Council it had reviewed the situation. It said Mrs X no longer needed the same night-time care and said there was no clinical rationale to keep funding it.
• An ICB practitioner spoke to Mr X and said the Council could apply for funding for a stand-alone health need. It said the Council would need to explain its rationale. However, the ICB said that, at present, it had not found any evidence of a stand-alone health need.
• The Council reiterated to the ICB that Mr X was not coping since Mrs X’s night‑time care had stopped.

46. Mr X appealed the CHC eligibility decision in May 2024. He said the assessment of Mrs X’s night-time needs was not a realistic reflection of her needs. Mr X attached a spreadsheet setting out his analysis of the night-time care records to give an accurate representation of them. Mr X told the Council of his appeal. However, he clarified that he still expected the Council to continue with its own discussions with the ICB and to support Mrs X. The ICB subsequently considered Mr X’s appeal at a review meeting. It upheld the original decision that Mrs X was not eligible.
47. The Council and the ICB continued to exchange correspondence about Mrs X’s needs. The Council accepted that Mrs X was not eligible for CHC but maintained its view that she had needs at night which were health needs and could only be met by the ICB.
48. The ICB considered further information but did not change its view that Mrs X did not have a health need that required individual health funding.
49. At the end of August 2024 the Council agreed to fund waking-night support for Mrs X. It agreed to fund this on a “without prejudice” basis while it continued to negotiate with the ICB.
50. At the end of November 2024 Mrs X broke her leg at home. She was admitted to hospital and clinicians decided to treat her palliatively. Mrs X sadly died in early December 2024.

Complaints process

51. During the events described above, Mr X complained to the Council in late May 2024. He complained about:

• An unreasonable delay in discharging Mrs X before December 2023.
• A failure to arrange appropriate funding for Mrs X’s night-time care after the ICB withdrew funding in April 2024.
• Poor communication.

52. The Council replied a month later. It said:

• It needed to dispute the ICB’s conclusion that Mrs X was not eligible for CHC. However, it said that, while doing so and in order to prevent “a further delay” in arranging Mrs X’s discharge from hospital, it and the ICB agreed on a jointly funded package of care.
• While it agreed Mrs X was not eligible for CHC, it maintained the ICB was responsible for meeting Mrs X’s night-time needs. It said it could not legally fund services which meet health needs.
• Mrs X’s allocated worker had been very active in progressing the case.

53. Mr X was dissatisfied with the Council’s response and made a follow-up complaint. The Council replied in September 2024 and maintained it had acted appropriately and in line with its legal duties. However, the Council apologised that the direct communication Mr X had requested had not been forthcoming.
54. Mr X complained to the ICB in February 2025. The ICB responded in late June 2025. The ICB:

• did not identify any fault in its (or any other organisation’s) actions in arranging Mrs X’s discharge from hospital. The ICB said it followed the correct processes and kept Mr X informed throughout; and,
• said it considered the Council’s requests for it to reconsider its decision to withdraw funding for Mrs X’s night-time support. The ICB said it did not identify any relevant needs, and was unable to substantiate the Council’s request. Further, the ICB concluded that it had followed the correct process to consider a standalone health need.

Analysis

Delayed discharge

55. After Mrs X returned to hospital at the end of October 2023 doctors were quickly satisfied that she did not need to be there. However, she remained in hospital for 45 more days.
56. Mrs X and Mr X told professionals that they wanted Mrs X to return home. Professionals understood that Mrs X would need more support than she had previously received. As such, there needed to be agreement about who would be responsible for sourcing and paying for that care.
57. The delay in arranging Mrs X’s discharge initially occurred because professionals from the ICB and the Council could not agree on who would fund Mrs X’s care at home. And, consequently, they could not agree on who would lead on arranging the necessary support for Mrs X at home. This disagreement stemmed from, and was a continuation of, the dispute between the ICB and the Council about the ICB’s decision, in late October 2023, that Mrs X was not eligible for CHC.
58. Disputes between ICBs and local authorities about eligibility for CHC will arise. However, a guiding principle of relevant guidance is that disputes should not lead to gaps in the provision of appropriate care and support.
59. We asked the ICB about their dispute process. It said it uses processes set out by the National Framework for resolving disputes. The ICB said this includes:

• Timely clinical reviews and consideration of any changes;
• Meetings between the organisations in accordance with the National Framework’s joint dispute resolution process;
• Escalation to senior management promptly if an agreement cannot be found; and,
• Steps to ensure continuity of care is maintained so there is no gap in provision, and no delay in the person receiving appropriate care.

60. The Council told us that it is currently working with the ICB to agree a formal dispute policy for CHC. It said that, in the interim, it endeavours to work closely with the ICB to resolve disputes when they arise.
61. Mrs X was receiving care and support in hospital during this time. However, it was not the most appropriate form of care. She had no clinical need for acute medical care that only an inpatient placement could provide. A Council assessment in mid-November 2023 noted the hospital ward was a “much more noisy and busy environment than [Mrs X’s] own bedroom”. It also noted that when Mrs X had been in the care home she was sleeping better and not calling out at night. Further, the assessment said that in hospital Mrs X was lying in bed whereas in the care home staff had hoisted her into a specialist wheelchair.
62. As such, the presence of acute NHS care for Mrs X did not mean there was no need for urgency, in terms of ensuring appropriate care was put place while the dispute continued. She did not want or need to be in hospital, and it was not a comfortable or helpful environment for her.
63. There is evidence of a significant amount of contact between the Council and the ICB during November 2023, with both organisations aware of the need to resolve the dispute and find a way forward. Nevertheless, it took 24 days to reach an agreement to use the Discharge to Assess process and for the ICB to fund the night-time element of Mrs X’s care. This was too long and is fault.
64. In communication with us the Council acknowledged that “frequent escalation could have benefited from a formalised approach to reach earlier resolution”. I agree that a formal, local dispute process would have been beneficial. The lack of an agreement on funding during a dispute (as highlighted in the National Framework, referenced at paragraph 23) was particularly unhelpful.
65. I will return to the injustice stemming from this fault in paragraph 71.
66. Following the agreement between the ICB and the Council it took another 14 days until the ICB secured a care company to provide Mrs X’s night-time care. During that time a hospital social worker provided a detailed summary of the level of support Mrs X had needed overnight for the last two weeks. They also detailed the types of intervention required.
67. In early December 2023, during this period, the ICB noted the case “needs urgent progression”. The Council noted there were plans to arrange day-time and night-time support. However, staff noted that the ICB had asked for a clear review of Mrs X’s pain management to ensure it was optimised as far as possible. This led to hospital staff seeking and providing more information about Mrs X’s needs and pain management, from medical and nursing perspectives.
68. By 11 December 2023 (38 days since Mrs X had been medically ready to leave) the hospital told the Council and the ICB it could not provide any more information about the Mrs X’s symptoms and pain management. The information it had provided to that point reiterated that Mrs X’s experience of pain varied from night to night and that repositioning was more effective in resolving it than Mrs X’s prescribed pain relief medication.
69. Overall, there is evidence that the ICB and the Council asked for detailed information from the hospital trust about Mrs X’s needs. In particular, about pain management. From the evidence I have seen these queries were sincere attempts to obtain a full and accurate understanding of Mrs X’s needs. As such, while this delay (from the end of the dispute to the point of securing a contract with a care provider for Mrs X’s night-time care) was frustrating, it was not a result of fault.
70. It then took around a week before Mrs X returned home. However, this does not appear to have been due to any fault by the ICB or the Council. Rather, this related to the practicalities of waiting for the relevant care providers to be able to provide the necessary care.
71. Overall, there was a period of just over three weeks when Mrs X’s discharge from hospital did not progress because of fault. This related to a funding dispute where there was no prior agreement about interim funding during disputes, and no formal escalation points. Because of this fault Mrs X remained an inpatient for longer than necessary. This was a busy environment where she appears to have been cared for in bed for significant periods. Mr X explained this was mentally and physically hard for Mrs X, and for him in having to witness it. I cannot say that this three week delay is likely, on its own, to have caused an avoidable deterioration in Mrs X’s health. However, the discomfort of being in hospital and the stress of the situation were injustices to Mrs X and to Mr X. I have made a recommendation to address this, below.

CHC decision in April 2024

72. When a multi-disciplinary team reconvened in early April 2024 they unanimously agreed that Mrs X did not have a primary health need. The Council has not disputed this and said it accepted that Mrs X was not eligible for CHC.
73. Mr X appealed the decision. The appeal review upheld the original decision. There is a clearly defined process of appeal for decisions about CHC eligibility. Following a local appeal people can request an Independent Review Panel by NHS England. And, should they remain dissatisfied with the outcome of that review, they can complain to the Health Service Ombudsman.
74. These steps have not taken place and, as such, we have no grounds for questioning this CHC decision.

Council’s decision not to fund Mrs X’s night-time care from late April 2024 when CHC funding ended

75. The Council said its view is that Mrs X had a combination of health and social care needs. The Council said Mrs X’s needs at night-time were for skin care and pain management. It said that neither skin care/repositioning nor medication management are eligible outcomes under the Care Act 2014. I have included the eligible outcomes in paragraph 18. As the Council notes, the intended outcome of Mrs X’s night-time care (to keep her pain free and comfortable) is not one that is listed in the eligibility criteria. This is an understandable and supportable interpretation of the relevant legislation and guidance.
76. The Council said it commissioned a live-in care worker to support all Mrs X’s eligible social care needs during the day. It said it was possible for this live-in care worker to meet Mrs X’s health needs (around skin care and pain management) during the day as part of social care routines. The Council said, as such, it considered these needs were “incidental and ancillary”. The legislation relating to this test is referenced in paragraph 19. Again, there is a logic and a coherent rationale to the Council’s view.
77. The Council said Mrs X had no social care needs which required waking‑night care. It said, as such, waking‑night care was required solely to meet a health need; a need to manage Mrs X’s pain and keep her comfortable. The Council said it can only meet health needs when they are appropriately delegated by the NHS and are incidental and ancillary to social care.
78. It is evident that the Council considered the specifics of Mrs X’s needs at night. It used information from its own assessments (taken, in turn, from interactions with and information from Mrs X and Mr X). It also used information from other professionals. It then compared its understanding of Mrs X’s needs to relevant legislation and guidance. It did this before making its judgement that it did not have the legal authority to provide support to manage Mrs X’s needs at night. This was an appropriate process, followed without fault. As such, the Council was entitled to make its own professional judgement.

ICB’s decision not to provide stand-alone health funding for Mrs X

79. The Council said that, because Mrs X’s needs at night were not eligible for social it was not within its powers to decide what care Mrs X required to meet those needs. The Council said, because Mrs X had health needs, this required a clinical decision. The Council said that once it was brought to its attention that Mrs X might have unmet health needs, it raised it with the ICB to ask for a clinical decision.
80. There is evidence to show that, from late April 2024, the Council repeatedly contacted the ICB to ask it to reinstate funding for support for Mrs X at night. It asked the ICB to do so on the basis that, in its view, Mrs X had needs which warranted standalone health funding. The Council took appropriate and proportionate action to raise this with the ICB, and to challenge the ICB’s stance. Ultimately, as the Council has highlighted, it was the ICB’s sole responsibility to decide whether it would commission any support for Mrs X at night. The Council could not make this decision for the ICB.
81. I have noted in paragraph 22 the criteria the ICB uses to determine whether a person has a stand‑alone health need. These criteria do tie in with the relevant legislation and guidance.
82. The ICB said it recognised that Mrs X did have health needs. However, it said that it considered that those needs were appropriately managed by Mrs X’s GP, district nursing services and other community professionals.
83. Ultimately, it was for the ICB to make its own decision about the extent of Mrs X’s needs at night, and whether they required individually commissioned support. That the ICB reached a different conclusion about this from Mr X and from the Council is not, in and of itself, evidence of fault.
84. There is evidence to show that, through the CHC process and via separate work, the ICB had built a reasonable understanding of the nature and extent of Mrs X’s needs at night. There is evidence that it applied this information to its own internal eligibility criteria for stand-alone health needs. Therefore, as the ICB followed an appropriate process, it was entitled to make its own professional judgement. Because of this, I have not found evidence of fault in the ICB’s actions.

Council’s decision to start fund waking-night care from the end of August 2024

85. The Council said it made started to fund Mrs X’s night-time care as a compassionate response to Mrs X’s and Mr X’s continued representations. It said it did so on a “without prejudice” basis. It said it continued to consider that the only purpose of the waking-night care was to meet an unmet health need.
86. This decision did not alter the Council’s overall responsibilities. It was not required to take this course of action and, therefore, there is no fault that it did not do so sooner.

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Agreed actions

87. Within one month of the final decision the Council and the ICB should both write to Mr X to acknowledge the fault identified in paragraphs 63, 64 and 71 of this decision. They should also apologise for the impact of these failings as identified in paragraph 71. The organisations should follow LGSCO’s guidance on making an effective apology (at part 2.2 of its Guidance on remedies).
88. Within two months of the final decision the Council and the ICB should each pay £250 to Mr X. These payments are to act as a symbolic, tangible acknowledgement of the injustice their failings caused Mr X, in terms of the stress and frustration he experienced because of each organisation’s fault.
89. As detailed in paragraph 60, the Council and the ICB are currently working on a dispute process. Within two months of the final decision the Council and the ICB should complete an action plan for finalising and implementing this dispute process. The action plan should include timeframes for key actions, escalation plans and information about appropriate senior oversight.
90. The organisations should provide us with evidence they have complied with the above actions.

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Decision

91. I found fault by the Council and by the ICB which caused an injustice. The organisations have agreed to take proportionate action to remedy the injustice.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman