NHS England - South (regional office)

4. Mrs A complains about NHS England’s decision to uphold Kent and Medway Integrated Care Board (ICB)’s decision that her mother, Mrs C, was not eligible for NHS Continuing Healthcare (CHC) funding. She complains specifically that the Independent Review Panel (IRP): • did not consider the domain weightings in line with the National Framework and Decision Support Tool (DST) descriptors • held a poor quality of discussion in relation to the four key indicators • despite finding Mrs C had needs in many domains found her not eligible for funding • did not appropriately consider the evidence presented and the conclusion reached in the disputed domains is not accurate • did not appropriately consider the four key indicators.

5. Mrs A states this decision has negatively impacted Mrs C’s estate.

6. Mrs A is seeking a reconsideration of NHS England’s decision.

7. NHS continuing healthcare (CHC) funding is NHS funding provided for free to cover the health and social care needs of people with complex health needs.

8. At the time of the review, Mrs C was a 78 year old lady who had been living in a nursing home since 2017.

9. On 28 July 2023 Mrs C had a positive checklist. On 28 August 2023, she had a DST assessment which concluded she was not eligible for CHC funding. This was verified by the ICB on 30 August 2023.

10. On 8 August 2024 a Local Resolution Meeting (LRM) was carried out and again the recommendation was made that she was not eligible for CHC funding. This was ratified by the ICB on 14 October 2024.

11. An IRP was requested on 14 December 2024. This was carried out on 10 April 2025. The IRP concluded Mrs C was not eligible for NHS CHC funding.

12. Mrs A’s solicitors complained to us on 13 November 2025.

15. Before we decide if we should conduct a detailed 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 C 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 ICB in making a decision about a person’s eligibility, or the primary health need decision by the ICB. In reaching a view about whether the ICB followed the correct process and correctly applied the eligibility criteria, the IRP can: • recommend the ICB 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.

18. 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.

19. Mrs A has been represented by solicitors in her complaint to us. In the complaint made to us, the solicitors state for each domain that the IRP did consider the available evidence. They state that the IRP specifically failed to consider each domain in line with the National Framework and DST descriptors. We will consider the specific concerns raised in each domain below.

Nutrition

20. The solicitors state while the IRP did consider the available evidence, Mrs C should have been concluded as having high needs because she had type two diabetes and experienced weight loss. The solicitors said the care records and GP notes document a weight loss of 5.4% over six months, a MUST score of 1 (medium risk of malnutrition), and repeated refusals of food, with prescribed supplements and a diabetic diet. Despite this, the IRP upheld a Low score, simply stating that weight was stable and there was no high risk of malnutrition, without addressing the documented weight loss, the risk posed by diabetes, or the repeated refusals and need for supplements.

21. High needs in this domain is defined in the DST as ‘Dysphagia requiring skilled intervention to ensure adequate nutrition/hydration and minimise the risk of choking and aspiration to maintain airway. OR Subcutaneous fluids that are managed by the individual or specifically trained carers or care workers. OR Nutritional status “at risk” and may be associated with unintended, significant weight loss. OR Significant weight loss or gain due to identified eating disorder. OR Problems relating to a feeding device (for example PEG) that require skilled assessment and review.’

22. Low needs in this domain is defined in the DST as ‘Needs supervision, prompting with meals, or may need feeding and/or a special diet (for example to manage food intolerances/allergies). OR Able to take food and drink by mouth but requires additional/supplementary feeding.’

23. We can see Mrs C’s weight loss was noted during the IRP, as this was raised by the ICB. The applicant told the IRP that Mrs C had a 5% weight loss during the review which would result in a MUST score of one, indicating nutritional risk. This is recorded in the IRP. The IRP noted the GP recoded this, but it was not a 5% weight loss, but a 5kg weight loss, which was then mitigated by a 2kg weight gain. Mrs C’s weight recordings do reflect fluctuation in this period but her weights and BMI were within normal limits and the panel could not identify any indications of nutritional risk during the period.

24. Mrs C’s poor appetite and repeated refusals of food were also noted by the IRP, and the IRP noted Mrs C was prescribed supplements which were given if she refused food.

25. We understand how concerning it is when a loved one loses weight and how this can impact on their wellbeing. We can see the IRP has considered all of the information which the solicitors raised in their complaint to us. We cannot identify that any key information has been overlooked, and the complaint in relation to this point arises from a disagreement with the IRPs discretionary decision. We have seen the IRP considered the domain in line with the National Framework.

Psychological and emotional needs

26. The solicitors complain that while the IRP considered the available evidence, it failed to consider this domain in line with the National Framework and DST descriptors. They state Mrs C should have been awarded high needs in this domain and disagree with the conclusion of a moderate level of need.

27. High needs in this domain is defined in the DST as ‘Mood disturbance, hallucinations or anxiety symptoms, or periods of distress, that have a severe impact on the individual’s health and/or well-being. OR Due to their psychological or emotional state the individual has withdrawn from any attempts to engage them in care planning, support and/or daily activities.’

28. Moderate needs in this domain is defined in the DST as ‘Mood disturbance, hallucinations or anxiety symptoms, or periods of distress, which do not readily respond to prompts, distraction and/or reassurance and have an increasing impact on the individual’s health and/or well-being. OR Due to their psychological or emotional state the individual has withdrawn from most attempts to engage them in care planning, support and/or daily activities.’

29. The solicitors highlight in their complaint that the difference between the two descriptors is whether her needs had an ‘increasing impact’ or ‘severe impact’ on Mrs C’s health and wellbeing.

30. The solicitors state she presented with mood disturbance, hallucinations, anxiety symptoms, personality disorder, periods of distress, and agitation. They state there is evidence the needs had a severe impact on her wellbeing, as she required skilled interventions. The IRP has recognised these symptoms and notes them in the IRP report. The IRP also noted the care home were able to reassure Mrs C and she was not prescribed any sedatives. The IRP recognised when she was anxious or agitated, she could refuse care, and carers would utilise a policy of retreat and return at which point care was usually able to be provided.

31. They argue that the IRP relied on the fact that the community mental health team were not required as a rationale for awarding a moderate level of need. The solicitors state this is a breach of the National Framework. We consider it is relevant to note whether professional input was required, and we do not consider this is a breach of the National Framework.

32. We recognise witnessing a parent’s change in behaviour is upsetting. We consider the IRP has appropriately considered the evidence presented and has considered the impact on Mrs C’s health and wellbeing. It has considered the domain in line with the National Framework.

Cognition

33. The solicitors have complained that while the IRP considered the available evidence, it failed to consider this domain in line with the National Framework and DST descriptors. They state Mrs C should have been awarded severe needs in this domain and disagree with the conclusion of a high level of need.

34. High levels of needs are defined in the DST as ‘Cognitive impairment that could, for example, include frequent short-term memory issues and maybe disorientation to time and place. The individual has awareness of only a limited range of needs and basic risks. Although they may be able to make some choices appropriate to need on a limited range of issues they are unable to consistently do so on most issues, even with supervision, prompting or assistance. The individual finds it difficult even with supervision, prompting or assistance to make decisions about key aspects of their lives, which consequently puts them at high risk of harm, neglect or health deterioration.’

35. Severe levels of need are defined in the DST as ‘Cognitive impairment that may, for example, include, marked short or long-term memory issues, or severe disorientation to time, place or person. The individual is unable to assess basic risks even with supervision, prompting or assistance, and is dependent on others to anticipate their basic needs and to protect them from harm, neglect or health deterioration.’

36. The solicitors state she suffered from vascular dementia and frontal lobe damage as a result of a stroke. The IRP noted she was oriented to place and mostly to people, although she could confuse family members. The family supported this and explained Mrs C could confuse family members and forget their names.

37. The IRP noted the records did not confirm she lacked capacity to make decisions, and appeared to suggest she was oriented to place and person and could retain information to make decisions regarding her day-to-day care. She was able to express choice, pain, and remorse. The IRP noted she did not have a Deprivation of Liberty Safeguards (DoLS) in place.

38. We can see the IRP considered this evidence and we cannot criticise the discretionary decisions reached by the IRP. We recognise the solicitors and the family continue to disagree with the conclusion reached and we know it is difficult when there are disagreements in the domain weightings. The consideration was carried out with the National Framework in mind. We have not identified any indications of failings in relation to this point.

Behaviour

39. The solicitors have complained that while the IRP considered the available evidence, it failed to consider this domain in line with the National Framework and DST descriptors. They state Mrs C should have been awarded severe needs in this domain and disagree with the IRPs conclusion of a moderate level of need. The ICB concluded high level of need.

40. Moderate needs is defined in the DST as ‘‘Challenging’ behaviour that follows a predictable pattern. The risk assessment indicates a pattern of behaviour that can be managed by skilled carers or care workers who are able to maintain a level of behaviour that does not pose a risk to self, others or property. The individual is nearly always compliant with care.’

41. High needs is defined in the DST as ‘’Challenging’ behaviour of type and/or frequency that poses a predictable risk to self, others or property. The risk assessment indicates that planned interventions are effective in minimising but not always eliminating risks. Compliance is variable but usually responsive to planned interventions.’

42. Severe needs is defined in the DST as ‘Challenging’ behaviour of severity and/or frequency that poses a significant risk to self, others or property. The risk assessment identifies that the behaviour(s) require(s) a prompt and skilled response that might be outside the range of planned interventions.’

43. The solicitors state Mrs C presented with challenging behaviour which posed a significant risk to others. They disagree with the IRPs statement that ‘carers were able to manage with reassurance’. This was set out by the care home, who also state they did not need a referral to a Community Mental Health Team (CMHT). No sedatives were prescribed and the evidence did not reflect incidents of aggression to other patients.

44. The solicitors state her behaviour created significant risk of harm to herself and others and required a prompt and skilled response, which is in line with a severe level of need.

45. We have seen the IRP considered the evidence available. The IRP acknowledged Mrs C could refuse necessary care, and her physical aggression carried a significant risk. The IRP noted that when a retreat and return strategy was utilised, care was nearly always given. The IRP reviewed the evidence available and did not note any skilled approach required in response to the behaviours.

46. We recognise there is continued disagreement about the level of needs in this domain. We have seen the IRP considered the domain in line with the National Framework.

NHSE did not award funding despite needs in many domains

47. Mrs A’s solicitors have stated that despite the IRP allocating Mrs C three domains as a High level of need, five Moderate needs and three Lows, with the combination of needs within those domains demonstrating Nature, Complexity, and Intensity, they upheld the ICB’s view that Mrs C did not have a Primary Health Need.

48. The National Framework says, ‘Although the tool supports the process of determining eligibility and ensures consistent and comprehensive consideration of an individual’s needs, it cannot directly determine eligibility. Indicative guidelines as to threshold are set out in the tool (for example, if one area of need is at Priority level, then this demonstrates a primary health need), but these are not to be viewed prescriptively. Professional judgement should be exercised in all cases to ensure that the individual’s overall level of need is correctly determined. The tool is to aid decision-making in terms of whether the nature, complexity, intensity or unpredictability of a person’s needs are such that the individual has a primary health need.’

49. There is no set combination of needs which would constitute the presence of a primary health need or warrant automatic CHC funding. We have therefore not identified any indications of failings in relation to this point.

Key indicators

50. The solicitors state the IRP should have considered all of the Practice Guidance questions for each of the four key indicators.

51. The Practice guidance states the questions may help to consider each of the indicators. It also states, ‘the following questions are not an exhaustive list and are not intended to be applied prescriptively.’

52. It is not a requirement to consider each of the questions on this list. We can see the IRP has considered all relevant information for each of the key indicators and we have not identified any indications of failings in relation to this point.

53. The solicitors have raised further concerns with each of the four key indicators. We will consider these in turn below.

Nature

54. The solicitors state the Panel’s consideration of the nature of Mrs C’s needs was superficial. They state it fails to engage with the severity and the consequences of her aggressive behaviours, and it did not sufficiently consider the documented incidents where Mrs C placed herself and others at risk.

55. The IRP report recognised she could be verbally aggressive to carers, but was known to apologise to them afterwards. The report states it is important for her to be looked after in a safe environment where ongoing attention could be given to ensure all her needs were met and risks to her physical and mental wellbeing were managed.

56. The IRP also recognised she could collide with objects and that she had a shin injury at the time of the review. The IRP noted she could become breathless as a result of her anxiety, and she did experience hallucinations. We can see the IRP has sufficiently considered the risk which occurred as a result of Mrs C’s symptoms. We recognise Mrs A disagrees with the conclusions reached by the IRP, but we cannot state these were not considered.

57. The solicitors state the Panel overlooked the interventions needed to manage Mrs C’s behaviour. The report does discuss Mrs C’s challenging behaviours and states carers could adopt a policy of retreat and return, and care was usually given. While we understand Mrs A disagrees with the conclusion reached by the IRP, we cannot state the IRP did not consider the interventions required to manage her behaviour.

58. The solicitors state the Panel does not address how her symptoms affected her health and wellbeing.

59. The National Framework states the nature indicator is about the characteristics of both the individual’s needs and the interventions required to meet those needs. We can see the IRP has carried out a detailed consideration of both of these, and the IRP is not required to consider how the symptoms affected Mrs C’s health and wellbeing in this indicator. We have therefore not identified any indications of failings in relation to this point.

Intensity

60. The solicitors have complained the IRP failed to acknowledge that, due to her significant cognitive impairment, she was at risk of causing severe harm to herself and others.

61. The solicitors state the IRP did not acknowledge her mobility needs in this key indicator. They state this significantly undermined Mrs C’s needs.

62. The solicitors argue the IRP failed to consider the frequency and severity of her psychological symptoms required ongoing skilled intervention. The Panel’s assertion that she ‘responded to reassurance’ did not sufficiently demonstrate how her agitation and distress often necessitated repeated and prolonged interventions.

63. The solicitors also disagree with the IRPs conclusion that care was usually given after reassurance, as they state this does not adequately reflect the ongoing, resource-intensive nature of the interventions required, nor the ‘severe impact’ these behaviours had on her health and safety.

64. The IRP recognised Mrs C could be anxious and verbally aggressive. She could be unsettled at night and then agitated during the day. The IRP also recognised Mrs C could be non-compliant and so carers would utilise a ‘retreat and return’ strategy which usually allowed care to be given. The IRP noted her daily care needs could be mostly anticipated, planned for, or addressed through the daily arrangement and care interventions available. It noted she required sustained person-centred care. The IRP concluded that the evidence did not indicate her care needs required an increased number of interventions with additional carers for lengthy periods, and therefore did not demonstrate the intensity associated with a primary health need.

65. We understand the solicitors continue to disagree with the conclusion reached for this key indicator. We can see the IRP has considered the information and reached a robust conclusion regarding the intensity of Mrs C’s needs. We therefore have not identified any indications of failings in relation to this point.

Complexity

66. The solicitors complain the IRP’s analysis failed to fully consider the intricate interplay between Mrs C’s needs. The IRP did not adequately address how her challenging behaviour directly complicated the management of her physical health, nutrition, and psychological wellbeing.

67. The solicitors state the IRP also overlooked the level of skill required to manage these interrelated needs. This complexity was also compounded by her lack of risk awareness.

68. The solicitors state the IRP failed to consider the interaction between the mobility, skin, continence, behaviour, and cognition domains, and the difficulties arising out of this interaction.

69. The solicitors complain the IRP did not consider the clear need for skill and knowledge required to manage Mrs C’s nutrition.

70. Mrs C’s significant pain levels required management in relation to the Butec pain patches she was prescribed, which required management from a trained nurse.

71. The IRP has acknowledged Mrs C had care needs in 11 of the 12 domains. The Panel acknowledged there was an interaction between the needs; for example, the report states ‘her cognitive impairment impacted on all aspects of her daily care.’ The Panel also noted her sleep issues could have led to her general agitation during the day, and she needed carers to ensure she received the necessary care. The IRP concluded that the needs arising from the interactions in the care needs did not require enhanced skills or knowledge to address them, and the needs did not indicate a complexity of needs associated with a primary healthcare need.

72. We understand the solicitors continue to disagree with the conclusion reached for this key indicator. We can see the IRP has considered the information and reached a robust conclusion. We therefore have not identified any indications of failings in relation to this point.

Unpredictability

73. The solicitors state the IRP overlooked the fact that the level of support and intervention required for Mrs C frequently changed, and her needs could not be reliably predicted or managed through routine care alone. The solicitors state IRP did not address the significant consequences of unmet needs.

74. The solicitors state Mrs C’s nutritional status was at risk, which evidenced an unpredictability of need.

75. The solicitors complain the IRP did not acknowledge that her falls risk was unpredictable, as it could not be predicted when she may fall.

76. The solicitors complain the IRP did not consider Mrs C’s episodes of mood disturbances as evidence of an unpredictability of need.

77. The solicitors conclude by stating the Panel did not consider all of the relevant information in light of the questions outlined under Practice Guidance 3.6. As we have already explained, the questions outlined in the Practice guidance are not required to consider.

78. We can see that the IRP carried out a robust consideration of her unpredictability of needs. The IRP noted she did have periods of aggression which the applicant suggested were unpredictable. However, the IRP acknowledged this was detailed in her care plan, and the need for intervention strategies such as ‘retreat and return’ and reassurance. The IRP considered her carers were able to observe and note pressure areas, her incontinence, her weight and food intake, pain, blood sugar levels, general health and wellbeing, and any signs or symptoms of general deterioration. The IRP noted her care plans were updated but largely unchanged, the IRP felt her daily care could be predicted.

79. We cannot criticise the IRP for not specifically considering the questions which are set out in the Practice Guidance as there is no requirement for these to be specifically considered. We can see the IRP has considered the fluctuations in need and how her needs were managed. We have therefore not identified any indications of failings in relation to this point.

The IRP did not appropriately consider the evidence and the conclusion reached in the disputed domains is not accurate

80. On the complaint form to us, the solicitors recognised that in each of the domains disputed, the IRP considered the evidence presented. We have considered each of the domains in dispute and have found the IRPs consideration to be robust and in line with the National Framework. We recognise the solicitors continue to disagree with the conclusion of the levels of need in some domains, but this relates to the discretionary decision which has been made without fault. We therefore have not identified any indications of failings in relation to this point.

Key indicators not considered appropriately

81. The solicitors say the discussion of complexity and unpredictability indicators is generic. They state the IRP failed to address the interrelation of needs across domains, the skill required to manage unpredictable aggression, or the impact of cognitive impairment on all aspects of care. We have considered this earlier in our decision, and we have not identified any indications of failings in relation to the IRPs consideration of these key indicators.

82. The IRP rationale does not reflect that staff had to use skilled interventions, retreat and return approaches, and frequent monitoring to manage unpredictable and aggressive behaviour. We have reviewed the IRP report and we note it contains a number of references to the management of Mrs C’s behaviour and the utilisations of strategies such as reassurance and retreat-and-return. We therefore have not identified any indications of failings in relation to this point.

83. We understand the question of someone’s eligibility for CHC funding can be a complex and emotional process, and we hope our consideration provides reassurance and clarity on the decision. We thank Mrs A for bringing this complaint to our attention.

1. We have carefully considered Mrs A’s complaint about NHS England.

2. Having completed our consideration of this complaint, we have not identified any indications of failings in NHS England’s consideration of Mrs C’s eligibility for NHS Continuing Healthcare (CHC).

3. We have decided the IRP has carried out a robust consideration of this case. We understand how difficult it is to challenge CHC eligibility decisions, and we were sorry to hear about Ms A’s experience.