Frimley Integrated Care Board

4. Mr A complains the ICB has refused to carry out a retrospective review of his late mother, Mrs A’s care needs from 10 August 1989 – 1 April 2004 to determine whether she was eligible for continuing healthcare when she resided in a nursing home.

5. Mr A complains that when providing his late mother’s estate with redress for the period from 1 April 2004 – 3 March 2009, the ICB applied the wrong interest rate, and it did not take into account that assets of the estate such as his mother’s house and her shares had to be sold to fund the care costs at that time. Mr A says if these assets had remained as part of the estate until the time of his mother’s death, they would have been worth a lot more money, and therefore the estate had been deprived of the higher marker value the home and the shares would have been worth.

6. Mr A says his late mother’s estate has been financially impacted by the ICBs decision to not carry out a review for the period from 10 August 1989 to 1 April 2004.

7. Mr A says his late mother’s estate has been financially impacted by the ICB not providing the estate with the appropriate amount of redress for the period from 1 April 2004 to 3 March 2009.

8. Mr A wants the ICB to carry out a retrospective review of his mother’s care needs for the period from 10 August 1989 to 1 April 2004.

9. Mr A wants the ICB to provide an appropriate amount of financial redress for the period from 1 April 2004 to 3 March 2009.

10. Continuing Health Care (CHC) funding is NHS funding provided to cover the health and social care needs of people with complex health needs. Funded Nursing Care is NHS funding to cover nursing care only.

11. Mrs A very sadly suffered a stroke at the age of 47 in 1987. The stroke left her paralysed from the neck down, and for the next two years she was cared for at home by Mr A’s father. Mr A’s father sadly died on 3 July 1989, and Mrs A was then transferred to a nursing home on 10 August 1989.

12. Mrs A began receiving funded nursing care in 2002.

13. Mrs A was assessed for CHC on 3 June 2005 and found not eligible for CHC. Mr A appealed this decision at the time. The then Strategic Health Authority met with Mr A on 16 September 2005 to explain its decision to him, and his appeal was unsuccessful.

14. In 2009 Mrs A was assessed and found eligible for CHC.

15. Mrs A remained resident at the nursing home until she sadly passed away on 22 May 2010.

16. In 2012, Mr A instructed solicitors to request a retrospective review of the care period from 1 April 2004 to 3 March 2009.

17. The ICB refused to review 2004 and 2005 as it said Mrs A was assessed in 2005 for CHC and she was found not eligible. It subsequently reviewed the period from 7 May 2006 to 3 March 2009 and found her not eligible for CHC.

18. The ICB carried out a retrospective review in 2016 and found Mrs A not eligible for CHC.

19. Mr A ultimately escalated this to NHS England’s Independent Review Panel.

20. The IRP meeting was held on 27 September 2022. The IRP found Mrs A eligible for CHC for the period from 17 May 2006 to 3 March 2009. Following this, the ICB wrote to Mr A on 5 April 2023 with an offer of redress of £268,223.88 including interest.

21. Following payment of this money, the ICB then agreed as a gesture of goodwill to review the period from 1 April 2004 to 16 May 2006. Following the review, the ICB found Mrs A retrospectively eligible for CHC for this period of care. It wrote to Mr A on 8 November 2023 with an offer of £196,585.11 including interest.

22. Mr A has pursued a formal complaint against the ICB, and he received responses to his complaint in 2023 and 2024.

23. Following the final response to his complaint from the ICB, he brought his complaint to our office in 2024.

The ICB’s decision to not review the period of care from 10 August 1989 to 1 April 2004

26. Mr A says the ICB has unreasonably time-barred his request to have the period of his late mother’s care from 10 August 1989 to 1 April 2004 reviewed for potential CHC eligibility. He says this is not in line with the principles of public law. His argument is that because his mother was retrospectively found eligible for CHC for the period from 2004-2009, this shows there was maladministration from the ICB as she should have always been found eligible for this period – i.e. the ICB should have been paying her care fees at the nursing home in real time, and it should not have taken a retrospective review to bring this to light.

27. Mr A says this position amounts to deliberate financial gatekeeping and he says this is inconsistent with established public law principles, including the obligation upon public bodies to correct maladministration to the point at which the injustice first arose.

28. Mr A says that as a consequence to this, the period from 1989-2004 has never been assessed for CHC by the ICB, and this in turn has financially impacted the estate of his late mother, Mrs A.

29. Mr A also says NHS England produced an outcome report following the IRP hearing, whereby it instructed the ICB to retrospectively review the period of care from 1989 to 2004. Mr A says that despite this, the ICB has not reviewed the period from 1989 to 2004.

30. In its response to Mr A dated 15 February 2023, the ICB stated that any claim in relation to the period from 1987 to 2004 is time-barred, meaning that the courts will not entertain such proceedings, as claims for those periods cannot be brought as a matter of statute. The ICB added that NHS guidance in November 2007 closed the ability to bring PUPoC (Previously Unassessed Periods of Care) claims for periods of care prior to 1 April 2004. The ICB also stated that the solicitors was aware of this deadline when it was advising Mr A in 2012, and at that time, Mr A only pursued a claim for the period from 1 April 2004 to 3 March 2009. The ICB stated Mr A should have brought a legal claim in 2012 if he considered he had grounds for a claim for a period prior to 1 April 2004.

31. In its response to Mr A dated 18 March 2024, it stated that the Department of Health (DoH) made it clear that any challenges or reviews in relation to decisions prior to 2004 should have been brought over 17 years ago. The ICB specifically referred to DoH guidance that outlines that ICBs should generally only consider requests for assessments of a PUPoC for care provided from 1 April 2012 onwards. This is because in November 2007, the opportunity to request a review of where most of the care had taken place prior to 1 April 2004 was closed through a ‘close down’. A close down exercise provides a cut-off date to request a review where most of the care had taken place prior to a set date.

32. The ICB stated to us that following the Independent Review Panel (IRP) recommendation to overturn the ICB’s decision for the period 17 May 2006 to 3 March 2009, the ICB took the exceptional step of reviewing the earlier period from 1 April 2004 to 16 May 2006.

33. It stated this was undertaken despite the national ‘close down’ arrangements announced on 15 March 2012, which set a deadline for submitting retrospective claims relating to the period 1 April 2004 to 31 March 2012.

34. The ICB stated it has not reviewed care periods prior to 1 April 2004, as these fall outside both the national retrospective review framework and the scope of the IRP recommendation.

35. To determine if the ICB should review the period of care from 1989-2004 for Mr A’s late mother, it is first necessary to review the relevant guidance. This is the DoH guidance that the ICB has referred to. This guidance states that the cut-off to review a period of care prior to 1 April 2004 was in November 2007. A further deadline was announced on 15 March 2012, relating to requests for assessments for PUPoCs starting between 1 April 2004 and 31 March 2012.

36. The guidance says this means that there should be very few PUPoC cases in relation to periods of care before 1 April 2012 that have not already been considered, given the previous close downs. However, ICBs should consider whether there are exceptional circumstances that mean consideration should be given to requests covering periods of care provided prior to 1 April 2012. It is expected that these instances will be rare.

37. We understand Mr A argues that because his mother was found retrospectively eligible for CHC for the period from 1 April 2004, the ICB should review the period from 1989 to 2004. Mr A also says his mother’s needs never changed from when she went into the nursing home in 1989 to when she sadly passed away in 2010, and so by default, she would be eligible for CHC for the entire period of care. Whilst we understand his argument, it is important to point out that the guidance outlines requests for retrospective reviews prior to 1 April 2004 should have been submitted by November 2007.

38. Whilst the guidance does say there can be exceptional circumstances for periods of care provided prior to 1 April 2012 to be retrospectively reviewed, it is expected these will be rare. We can see the ICB has considered Mr A’s claim for a review of his mother’s care from 1989 to 2004, but it has explained its rationale for not doing so.

39. Exceptional circumstances are unexpected, unavoidable events outside a person's control that severely hinder their ability to meet obligations, such as deadlines, attendance, or legal requirements.

40. For the ICB to consider reviewing the period prior to 1 April 2004, Mr A would need to show exceptional circumstances prevented him from submitting a retrospective review claim for the period from 1989 to 2004 before the November 2007 deadline.

41. The private company report (a private investigation into the ICB’s handling of Mr A’s case that Mr A commissioned) provided by Mr A says he requested a review of Mrs A’s care needs for the period from 1 April 2004 to 3 March 2009 when he submitted his claim in 2012. We also acknowledge Mr A brought this claim with solicitors who are well versed in bringing CHC applications for individuals. This shows that Mr A was aware he could bring a claim for a retrospective review in 2012, but he did not request a review for the period prior to 1 April 2004 at that time.

42. There is no evidence Mr A requested a review of his mother’s care needs for the period from 1989 to 2004 any time before November 2007, or that the ICB prevented Mr A from submitting a PUPoC claim for his mother’s care needs from 1989 to 2004 at any time before November 2007. We have not seen any indications of failings with the ICB’s decision here.

43. Mr A also says that NHS England produced an outcomes report after the IRP meeting was held in November 2022. He says this report instructed the ICB to review the period of his mother’s care from 1989 to 1 April 2004.

44. Mr A refers to an email he received from the NHS Counter Fraud Authority (NHSCFA) On 14 September 2023. This states: ‘We note the outcome of the Independent Review Panel of NHS England and further note you have been offered the opportunity to seek a further review covering the full period of your mother’s condition from the IRP and that you have yet to pursue this course.’

45. Mr A says this is strong evidence that NHS England has directed the ICB to review the full period of his mother’s care from 1989 to 2004. To determine if there is any evidence that this was the case, we made enquiries with the NHSCFA, NHS England and the ICB.

46. Despite having emailed the NHSCFA on two separate occasions, we unfortunately did not receive a response back from it.

47. With regards to NHS England, we specifically stated to NHS England: ‘Mr A says there is an IRP outcome report that is separate to the standard IRP report, and within the outcome report the IRP has recommended Frimley ICB to review and assess his late mother’s needs for the period from 1989-2004. With regards to this, we would be very grateful if you could send us a copy of the outcome report, and secondly, if you could clarify and confirm if NHS England has ever recommended to Frimley ICB (either verbally or in writing) that it needs to review his late mother’s care needs for the period from 1989-2004.’

48. In response to this email, NHS England replied to us and stated the correspondence Mr A refers to does not exist. We wrote back to NHS England and stated: ‘Just to confirm then, can you confirm that at no time has NHS England asked the ICB to review the period from 1989 to 2004?’

49. NHS England replied to us and stated: ‘I can confirm that at no time has NHS England asked the ICB to review the period from 1989 to 2004. NHS England cannot not ask an ICB to review an additional period and I can confirm we have not done this.’

50. We also made enquiries with the ICB to determine if has ever been directed by NHS England to review the period of care from 1989 to 2004:

51. We specifically stated: ‘Please could the ICB confirm whether it is in possession of any documentation that shows NHS England has asked it to review the period of care from 1989 to 2004, or if the ICB has ever been instructed by NHS England to review the claim period of 1989 to 2004?’

52. The ICB responded to us and stated: ‘The ICB has undertaken a review of all available records and can confirm that it does not hold any documentation indicating that NHS England instructed a review of the care period between 1989 and 2004.

53. Furthermore, there is no evidence that the ICB has otherwise been directed to undertake a retrospective review for this period.’

54. After having carefully reviewed all of the available evidence, and after having made enquiries with the ICB and NHS England, we have not seen any evidence to show that NHS England has instructed the ICB to review the period from 1989 to 2004, nor have we seen evidence of a document that directs the ICB to review the period from 1989 to 2004.

55. Our conclusion is that we have seen no indication of a failing or maladministration with the ICB’s decision to not review the care period from 1989 to 2004, on the grounds that this period is time-barred, in line with guidance produced by the Department of Health.

The redress provided to the estate of the late Mrs A for the period from 1 April 2004 – 3 March 2009

56. Following the IRP meeting was held on 27 September 2022, the IRP found Mrs A eligible for CHC for the period from 17 May 2006 to 3 March 2009. The ICB wrote to Mr A on 5 April 2023 with an offer of redress of £268,223.88 including interest.

57. Following payment of this money, the ICB then agreed as a gesture of goodwill to review the care period from 1 April 2004 to 16 May 2006. Following the review, the ICB found Mrs A retrospectively eligible for CHC for this period of care. It wrote to Mr A on 8 November 2023 with an offer of £196,585.11, including interest.

58. On 16 November 2023, Mr A wrote back to the ICB to again explain he would not be signing the indemnity form. The ICB then made payment to Mr A. It is important to point out the IRP did not direct the ICB to review this period of care, and this was done as an exception to the ICBs normal working practice, and as a goodwill gesture to Mr A.

59. Mr A argues that the ICB applied the incorrect interest rate to this redress, and it also failed to take into account that his mother had to sell her house and her shares when she was in the nursing home to facilitate the funding of her care. He says that had the house and the shares remained within her estate until her death in 2010, the value of these assets would have been higher than at the time they were originally sold. Therefore the estate has suffered financially because had these assets been sold at the time of her death, as opposed to much earlier, this would have generated a higher amount of money. Mr A says the estate lost the opportunity to realise this extra capital because the assets were sold prematurely.

60. We will address each of these separately:

Interest rates

61. Mr A argues that the ICB should have applied interest to the CHC redress payments at 8%. This is the County Court statutory rate. He says the ICB wrongly applied the Retail Price Index interest rate instead of the County Court statutory rate, and this meant that his mother’s estate was not paid back in the interest it should have been, resulting in a financial loss to the estate.

62. In its response to Mr A’s complaint dated 18 March 2024, it stated with regards to the period of care from 17 May 2006 – 3 March 2009, the then the Clinical Commissioning group (CCG) referred Mr A’s case to NHS England’s Independent Review Panel (IRP) in 2017. The ICB stated it regrets that it took five years for Mr A to agree to process his appeal via the IRP, but this is not the fault of the ICB or its predecessors (the CCG).

63. The ICB stated the IRP was always the best and most appropriate mechanism to address the concern that his mother’s estate had incurred losses due to decisions made by the ICB. The ICB stated as a result of the IRP’s decision, the ICB made a payment offer in respect of the period from 17 May 2006 to 3 March 2009 in the amount of £269,962.43 which Mr A accepted.

64. The ICB added that for the period from 1 April 2004 to 16 May 2006, it made an exceptional decision to appoint an independent nurse assessor to review the earlier period from 1 April 2004 to 16 May 2006. The ICB explained this was exceptional as it went beyond the recommendations of the IRP.

65. The ICB wrote to Mr A on 27 September 2023 to inform him of the settlement offer of £196,585 for the period from 1 April 2004 to 16 May 2006, this accounted for his mother’s care costs plus interest for the entire period.

66. We asked the ICB how it calculated the interest for the redress provided to Mr A.

67. It informed us that the ICB calculated interest on the redress payment in line with standard NHS Continuing Healthcare (CHC) redress guidance and HM Treasury principles for restitution.

68. Interest was applied to reflect the loss of use of funds incurred by Mr A’s mother during the period in which she was incorrectly required to self-fund her care.

69. The approach taken was as follows: • Interest was calculated on a simple (non-compounding) basis, in accordance with the NHS Redress Guidance.

• The Retail Price Index (RPI) was used as the basis for calculating interest, as this is the standard measure used within CHC redress to reflect inflation and loss of purchasing power.

• Interest was applied from the date each care fee payment was made to the date the reimbursement was issued.

70. The ICB stated this methodology is consistent with the national approach to CHC redress and is designed to ensure restitution rather than provide financial gain.

71. It is important to point out that for CHC redress outcome decisions made on or before 31 March 2015, interest on restitution was typically calculated at County Court statutory rate of 8% per annum. However, for decisions made after this date, ICBs have been advised to apply the RPI interest rate.

72. Section 3 of the NHS CHC Refreshed Redress Guidance (2015) states CCGs are advised to apply the Retail Price Index for calculation of compound interest when considering redress cases. This means that for decision made after 31st March 2015, CCGs have been advised to apply the RPI for calculation of interest.

73. Based on the evidence we have reviewed, we have seen no indication of a failing with the ICB applying the RPI to calculate the interest owed to the estate of Mrs A. The ICB applied the RPI as per the redress guidance.

Capital assets

74. As discussed, Mr A says Mrs A’s estate has suffered a financial loss of potential money the estate would have generated had Mrs A’s house and shares remained a part of her estate until her death.

75. We asked the ICB if it had considered this when calculating the redress owed to the estate of Mrs A. The ICB stated to us:

‘The ICB can confirm that the calculation of financial redress in CHC cases is based on the reimbursement of eligible care fees that were incorrectly charged, together with applicable interest, rather than an assessment of the individual’s broader financial circumstances or consequential financial decisions.

In line with national CHC redress guidance: • The redress calculation does not take into account the sale of assets, including property or shares, undertaken to meet care costs.

• This includes situations where an individual may have sold their home or investments while self-funding care.

• The rationale for this approach is that CHC redress is intended to restore the individual to the financial position they would have been in had the NHS correctly funded their eligible care at the time, specifically by reimbursing care fees and applying appropriate interest.

Therefore, no additional compensation is made for: • Loss of capital assets • Changes in asset value • Opportunity costs associated with asset disposal

76. The ICB acknowledges the significant personal and financial impact such circumstances may have had; however, the calculation of redress is applied consistently in accordance with national policy and does not extend to these elements.’

77. It is therefore clear the ICB did not consider this when calculating the redress payments. To determine if the ICB should have considered this, we have first referred to the PHSO guidance on Retrospective continuing care funding and redress (2007.)

78. This guidance states (regarding premature sale of capital assets of an estate) that there are circumstances where the financial loss claimed by individuals cannot simply be attributed to the denial of continuing care funding without considerable speculation.

79. Similarly, it is difficult to establish exactly what their financial position would have been, given the passage of time since the events took place. Many individuals can only speculate as to what they would otherwise have done with property at the time, and are often, understandably, not able to provide any written evidence to support their claim.

80. Furthermore, it is arguable that it would be unreasonable to make the NHS financially liable for the vagaries of the property market.

81. The NHS CHC Refreshed Redress Guidance (2015) outlines the following: ‘CCGs are reminded that under section 55 of the Health and Social Care Act 2001, effective since 1 October 2001, people in care homes who are responsible for paying all or part of their fees may be able to avoid having to sell their home to pay the fees by entering into a Deferred Payment Agreement with their local authority. The duties on local authorities to offer deferred payments are strengthening and being expanded from April 2015 (as a result of the Care Act 2014) so more people will be eligible than previously.

82. Those already in residential care could now qualify for a deferred payment under the new rules, even if they have not previously been eligible. If offering a deferred payment was omitted in a particular case, the CCG should ensure that the individuals are directed to the local authority who provided or arranged the accommodation, usually this will be the local authority for the area where the house is situated. Complaints about this aspect of policy should be raised with the local authority and, if not resolved, with the Local Government Ombudsman’s Office.’

83. This provides clear provision for local authorities to offer this to individuals who are eligible for this, to enable their house to remain as part of their estate whilst they remain in a care or nursing home.

84. Under the NHS Continuing Healthcare Redress Guidance (2015), ICB’s are advised to restrict redress to the care costs paid out and the standard RPI-linked interest. The guidance does not obligate ICB’s to consider speculative loss of appreciation on capital assets.

85. The guidance does state CCGs (now ICBs) have the discretion to consider making ex-gratia payments, over and above the care costs and interest, however, these are expected to be exceptional and would need to be made in accordance with a CCG’s own Standing Financial Instructions and any other pre-requisite guidance.

86. The ICB explained it exercised its discretion when providing Mrs A’s estate with redress for the period from 1 April 2004 – 16 May 2006.

87. Based on the guidance we have referred to, we have seen no evidence to show the ICB has to consider the sale of capital assets when providing CHC redress to the estate of Mrs A. We have therefore not identified an indication of a failing with the ICB not taking into consideration the sale of capital assets when providing redress to the estate

Conclusion

88. Based on all the evidence we have considered, we have not identified any indications of failings with the issues Mr A has brought to us.

89. We would like to thank Mr A for giving us the opportunity to consider his complaint. We understand Mr A has been through a very difficult time, and whilst we do understand his strong sense of grievance and injustice with regards the issues he has raised, we have arrived at our findings based on guidance and the available evidence.

90. We sincerely hope this report has been able to address Mr A’s outstanding concerns, and we wish him all the best for the future.

1. We have carefully considered Mr A’s complaint about the ICB. We were very sorry to learn of the issues Mr A has brought to us and the background to Mr A’s complaint. We were extremely sorry to learn of the extreme difficulties Mrs A faced for over 22 years, and we understand this must have been extremely difficult and distressing for Mrs A and her family to have gone through.

2. We understand Mr A has been engaged in a protracted dispute with the ICB since 2012, and we understand this must have been extremely stressful to deal with. We understand that pursuing a continuing healthcare application on behalf a very close relative who has passed away can be emotionally difficult and upsetting.

3. After carefully and robustly considering all the issues that Mr A has brought to us, we have not identified any indications of a failing or maladministration with how the ICB has considered Mr A’s complaint. We will fully explain the reasoning for our decision in this report.