4. Mr V complains about the decision of NHS England’s independent review panel (IRP) on 6 November 2020. He complaints the IRP found that Bristol, North Somerset and South Gloucester CCG’s decision that his mother, Mrs V, was not eligible for continuing healthcare funding (CHC) for the period 14 May 2004 to 11 April 2006 was correct. Mr V says the IRP failed to properly consider CHC eligibility and has relied on the fact that Mrs V was eligible for funded nursing care (FNC) instead.

5. Mr V states that the estate has been financially impacted as a result of this matter.

6. Mr V would like NHS England to reconsider its decision.

7. Mrs V was living independently until 2002, when she suffered a stroke, which was a great shock to the family.

8. After this time, Mrs V was living at home with social care input. Mrs V unfortunately suffered a more severe stroke in 2004, which led to her being admitted to hospital.

9. Mrs V was discharged from hospital in May 2004 to a care home (the Care Home).

10. Mrs V was admitted to hospital on 27 February 2006 and died in April 2006 due to aspiration pneumonia.

11. The family submitted a Previously Unassessed Period of Care (PUPoC) review in December 2012. Due to the backlog of cases and subsequent queue, the CCG did not complete the Needs Portrayal Document (NPD) until August 2014.

12. This was sent to the family and a meeting was held with the applicant to review the contents of the NPD on 28 October 2014. A Decision Support Tool (DST) was subsequently completed and presented to a multi-disciplinary Team (MDT) panel in December 2014. The MDT concluded that Mrs V was not eligible for CHC funding, and this was communicated to the family by letter dated 12 January 2015. The family submitted an appeal in July 2015.

13. Due to the volume of PUPoC requests, there was a delay to the hearing of this appeal and a local resolution meeting (LRM) was not held until 29 January 2018. The LRM upheld the decision of non-eligibility by letter of 19 February 2019, leading to this IRP.

15. In our primary investigation of a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We have done this and have not found any indications that something has gone wrong.

16. It is our role to decide whether NHS England’s IRP made the decision that Mrs V was not eligible for NHS continuing care in line with the National Framework. We cannot question discretionary decisions when they have been made without maladministration (fault). This includes decisions about eligibility for NHS continuing care. So, we can only uphold a complaint about an eligibility decision if there is some specific fault in the way the IRP reached the decision. Such decisions are based on clinical judgements and opinions.

17. The purpose of the IRP is to review the procedure followed by the CCG in making a decision about a person’s eligibility, or the primary health need decision by the CCG.

18. In reaching a view about whether the CCG followed the correct process and correctly applied the eligibility criteria, the IRP can: • recommend the CCG should reconsidered the case and address any faults identified in the process, or • reach a view as to whether the individual should or should not be considered to have a primary health need.

• When we look at a complaint about an IRP, we consider whether it took account of all the relevant information provided to it in reaching its decision. To help us reach a decision there are four key areas we consider. I will consider each key area below.

19. Mr V complains ‘the Panel has made a serious error in referring to the Funded Nursing Care Contribution as covering some of my mother’s needs. It is my understanding that in the 2006 Judgment of R v Bexley NHS Care Trust ex parte Grogan, the Court expressly ruled that such a link is unlawful.’ We have considered this point and we have not identified any references to this funded nursing care contribution within the IRP report. We note that there are references to this in the explanations that are standardised across all IRP reports. However, we have not found anything to support Mr V’s concern that the IRP relied on the FNC contributions as reason to not consider IRP funding.

20. During its consideration of the nature of Mrs V’s needs, the IRP report states, ‘the IRP acknowledged this would have been covered under the Funded Nursing Care Contribution Mrs V was receiving at that time.’ This statement is in relation to the administration of a PEG (Percutaneous endoscopic gastrostomy is a medical procedure in which a tube is passed into a patient's stomach through the abdominal wall, most commonly to provide a means of feeding when oral intake is not adequate). We can see that this is in order to support the IRP statement that the administration of a PEG does not require a registered nurse to administer every time once carers had been trained on what is a relatively routine aspect of care.

21. When we look at a complaint about an IRP, we consider whether it took account of all the relevant information provided to it in reaching its decision. To help us reach a decision there are four key areas we consider. I will consider each key area below.

22. First, we considered if the IRP established all the appropriate and relevant clinical facts.

23. Paragraph 199 of the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (2018) sets out the following:

24. ‘the key elements involved in considering requests for independent reviews of NHS Continuing Healthcare eligibility include: • scrutiny of all available and appropriate evidence as described in the Local Resolution section.’

25. Based on the information provided by NHS England, we can see the IRP considered the following: • GP Records: May 2004 to February 2006 • Hospital Records: Discharge records May 2004 • Social Services Records: 2004 • Registered Nursing Care Contribution Determination (16 January 2006) • Needs Portrayal: 5 December 2014 • DST: 9 December 2014 (original missing even pages but full copy provided) • Initial CCG Outcome Letter: 12 January 2015 • Final CCG Decision Letter with Local Dispute Resolution Minutes: 19 February 2018 • Request for Independent Review: 28 August 2018 • Correspondence between applicant and NHS England and the CCG • Evidence given during IRP meeting on 27 October 2020.

26. The care home records were destroyed by the time action was taken to obtain them. The CCG had discovered their destruction by 17 July 2013 and the CCG provided evidence covering the period until November 2014 showing correspondence and visits to the Care Home to try and obtain records, which was ultimately unsuccessful.

27. The available evidence demonstrates the IRP considered all the evidence that was made available to it and there are no obvious omissions evident in the IRP’s consideration of Mrs V’s eligibility for NHS CHC funding. As such we cannot see any failings in this part of IRP’s consideration which would lead us to question its decision.

28. Next, we consider if before it made its decision, did the IRP have a clinically led discussion about the impact and interaction of the clinical facts.

29. Paragraph 200 of the National Framework sets out the following:

30. ‘NHS England is responsible for convening independent review panels consisting of: • an independent chair (appointed by NHS England); • a CCG representative; and • a local authority Social Services representative.’

31. We can see the following individuals were also present at the meeting: • A CHC representative from NHS England • An independent local authority representative • A CCG representative • A clinical adviser • An independent Chair • Mr V • Mr O (Mrs Vs’ son-in-law)

32. We consider that NHS England appropriately constituted a panel in line with the National Framework.

33. The only domain disputed at IRP was altered states of consciousness. Mr V argued that there was a moderate level of need, but the IRP stated that there was a low level of need.

34. When coming to us, Mr V has not disputed any of the domains. He stated that he accepted the domain weightings as determined by the IRP.

35. Thirdly we considered if the IRP’s final decision adequately considered and explained the conclusions of the clinically led discussion.

36. Paragraph 199 of the National Framework says, when considering eligibility, NHS England should provide: ‘clear and evidenced written conclusions on the process followed by the NHS body and also on the individual’s eligibility for NHS Continuing Healthcare, together with appropriate recommendations on actions to be taken. This should include the appropriate rationale’.

37. The IRP report demonstrates a discussion and consideration of the four key characteristics (nature, complexity, intensity and unpredictability). We can see the IRP considered all the available evidence during the consideration of these four key characteristics.

38. The IRP concluded that its consideration of the four key characteristics did not result in the finding that there was a primary health need. The IRP looked at the totality of Mrs V’s needs and felt that her needs were at a level which could be met by a local authority.

39. Upon review of the evidence available to us such as GP notes and hospital records, we consider the IRP’s rationale is consistent with Mrs V’s records and the domain descriptions. The IRP has provided a clear explanation for its views about Mrs V’s needs. It has used a variety of sources and evidence to show how it weighted each of the four key indicators. This is in line with the National Framework, and we cannot see NHSE got anything wrong here.

40. We have seen no indications of failings in this part of the IRP’s process. The IRP clearly took into consideration the family’s views and there are references to the family’s views throughout the four key indicators.

41. Fourthly, we considered if the IRP applied the appropriate eligibility tests.

42. Paragraph 124 of the National Framework sets out the following: ‘establishing whether an individual has a primary health need requires a clear, reasoned decision, based on evidence of needs from a comprehensive range of assessments relating to the individual. A good-quality multidisciplinary assessment of needs that looks at all of the individual’s needs ‘in the round’ – including the ways in which they interact with one another – is crucial both to addressing these needs and to determining eligibility for NHS Continuing Healthcare. The individual and (where appropriate) their representative should be enabled to play a central role in the assessment process.’

Nature

43. Section 3.9 of the practice guidance within the National Framework describes nature as ‘the characteristics of both the individual’s needs and the interventions required to meet those needs’.

44. In the IRP’s consideration of nature, we would expect to see analysis of: ‘The particular characteristics of an individual’s needs (which can include physical, mental health or psychological needs) and the type of those needs. This also describes the overall effect of those needs on the individual, including the type (quality) of interventions required to manage them’.

45. In this case, the IRP acknowledged that Mrs V had a number of needs spanning multiple care domains. The IRP acknowledged that she needed a PEG (Percutaneous endoscopic gastrostomy- a tube that is inserted into the stomach to allow for feeding when oral intake is not possible or sufficient) but this was non-problematic. The IRP considered the family’s submissions regarding the fact that Mrs V was incontinent and unable to communicate. The IRP confirmed this and also noted that she was unable to weight bear.

46. The family raised concerns regarding the CCGs considerations which were considered by the IRP. The family argued that the National Framework was not in place when Mrs V was receiving care, and therefore should not be used now in considering her eligibility for funding.

47. The family also discussed a similar case and drew comparisons to Mrs V’s case, stating that the two had the same levels of need. The IRP considered these points and responded fully to the family’s concerns. The IRP explained that it had not identified any failings in the consideration carried out by the CCG and it was appropriate that the National Framework should be used.

48. The IRP then explained that whilst the family’s considerations were ‘admirably clear and concise’, a careful consideration of each case on an individual basis is the most important factor.

49. Paragraph 3.3 of the National Framework sets out the following questions to consider when considering this need:

50. ‘Questions that may help to consider this include: • How does the individual or the practitioner describe the needs (rather than the medical condition leading to them)? What adjectives do they use?

• What is the impact of the need on overall health and well-being?

• What types of interventions are required to meet the need?

• Is there particular knowledge/skill/training required to anticipate and address the need? Could anyone do it without specific training?

• Is the individual’s condition deteriorating/improving?

• What would happen if these needs were not met in a timely way?’

51. We have reviewed the information that was made available to the IRP. We can see that the IRP considered the nature of Mrs V’s needs, and the type of intervention that would be typically required to manage these needs. We can also see that the IRP considered the totality of her needs in order to reach its conclusion.

52. The local authority representative felt that Mrs V did have a primary health need, because her health needs were greater than her social care needs. However, the majority of the IRP concluded that Mrs V’s needs were mostly routine and, whilst she required supervision and interventions, these were mostly routine and of social care in nature. Her PEG was not problematic, did not require a nurse to administer, and she did not require specialist care. She had severe cognitive issues as a result of the strokes she had suffered, but her needs were met within the remit of the funded care contribution. The IRP noted that the absence of full care home records was unfortunate, but there was no suggestion of a change in care plans.

53. The IRP concluded that Mrs V had a range of care needs but these were incidental or ancillary to the provision of accommodation which local authority social services are under a duty to provide.

54. We consider that the IRPs consideration of this indicator is robust. We have not identified any indications of failings in relation to this point.

Intensity

55. Intensity is essentially how severe an individual’s needs are, how they need to be managed and whether the necessary care crosses domains. Section 3.9 of the National Framework practice guidance describes intensity as ‘the quantity, severity and continuity of needs’. In the IRP’s consideration of intensity we would expect to see analysis of: ‘Both the extent (quantity) and severity (degree) of the needs and to the support required to meet them, including the need for sustained/ongoing care (continuity’).

56. The IRP recognised that Mrs V had range of care needs but noted that there were no provisions required outside the planned care interventions. The IRP recognised that she had significant problems with her cognition and communication but noted that this did not require a level of personal care beyond what would be expected within social care.

57. Whilst the IRP noted that Mrs V had severe care needs and had a high level of dependency on care, the evidence indicated that her needs did not require increase and unplanned interventions, and nor were they for lengthy period or require extra carers. The IRP therefore decided that Mrs V care needs did not demonstrate any level of intensity associated with a primary health need.

Complexity

58. Section 3.9 of the National Framework practice guidance describes complexity as ‘the level of skill/knowledge required to address an individual need or the range of needs and the interface between two or more needs’.

59. In the IRP’s consideration of complexity, we would expect to see analysis of: ‘How the needs present and interact to increase the skill required to monitor the symptoms, treat the condition(s), and/or manage care. This may arise with a single condition, or it could include the presence of multiple conditions or the interaction between two or more conditions. It may also include situations where an individual’s response to their own condition has an impact on their overall needs, such as where a physical health need results in the individual developing a mental health need’.

60. Paragraph 3.5 of the National Framework sets out the following questions to consider when considering this need: • ‘How difficult is it to manage the need(s)?

• how problematic is it to alleviate the needs and symptoms?

• Are the needs interrelated?

• Do they impact on each other to make the needs even more difficult to address?

• How much knowledge is required to address the need(s)?

• How much skill is required to address the need(s)?

• How does the individual’s response to their condition make it more difficult to provide appropriate support?’

61. The IRP has acknowledged that there was an interaction between Mrs V’s needs.

62. The family submitted that there was a primary health need based on the complexity of the need. They highlighted Mrs V’s nutritional needs and the use of the PEG, which needed monitoring by a trained nurse. The family also raised the interactions between continence and skin care and stated that Mrs V’s inability to communicate meant she needed closer attention.

63. The IRP noted that whilst there were interactions of needs, her needs were met as a whole within the routine provision of care within the home, and that any external intervention was very infrequent.

64. We have reviewed the information that was available to the IRP. From the available evidence which unfortunately does not include care home records, we can see that whilst Mrs V had some interactions between her needs across domains, there is no indication that her needs were complex to manage. Her nursing care needs were stable and any interactions of need did not create a barrier to the delivery of care that she needed. The IRP did not identify any risks associated with any interaction of need.

65. We are satisfied that Mrs V’s care needs were straightforward to anticipate and to manage. She did not generally require lengthy interventions and her care plans remained stable. The information available to the IRP supports that Mrs V’s needs did not interact with one another to a complex degree.

Unpredictability

66. Section 3.9 of the National Framework practice guidance describes unpredictability as ‘the degree to which the needs fluctuate and thereby create challenges in managing them’.

67. In the IRP’s consideration of unpredictability, we would expect to see analysis of: ‘The degree to which needs fluctuate and thereby create challenges in managing them. It also relates to the level of risk to the person’s health if adequate and timely care is not provided. Someone with an unpredictable healthcare need is likely to have either a fluctuating, unstable or rapidly deteriorating condition’.

68. The family submitted that Mrs V had an unpredictability of needs that constituted a primary health need. They highlighted that Mrs V’s inability to communicate meant that her needs had to be anticipated and she had to be monitored 24/7. This is supported by the information provided to the IRP.

69. The IRP acknowledged that Mrs V communication was clearly limited but concluded that this indicated a level of unreliability but not unpredictability. Her needs did not change in such a way that indicated unpredictability. Her general health but this was manageable and managed appropriately by care plans.

70. We have reviewed information available to the IRP and have not seen any indications that there were frequent interventions from healthcare professionals that would suggest that care plans were not able to be adhered to. Therefore, we are satisfied that there are no indications of failings in the IRPs decision-making process about the unpredictability of Mrs V’s needs.

Summary

71. We have considered if the IRP looked at the appropriate evidence when reaching a view as to whether the CCG’s decision was sound.

72. We recognise the importance of Mr V’s account, as he was there at the time. His evidence is important and insightful. Our decision is not intended to detract from this information. We have not seen any evidence that NHSE failed to meet its obligations under the National Framework, and its decision can be supported by the evidence.

1. We have carefully considered Mr V’s complaint about NHS England. We have completed our consideration of this complaint and we have seen no indication that anything went seriously wrong.

2. We understand that this has been a long and difficult process for Mr V, and we were sorry to hear about what happened.

3. We will outline the reason for our decision below.