Essex County Council and Clinical Commissioning Group at fault for the way they assessed care needs and entitlement to Continuing Healthcare funding, Ombudsman finds

The Council took too long to assess and to review changed needs. Additionally it did not fund a care home placement whilst CHC decisions were being made and financial assessments being completed.

The CCG’s related fault was with completing CHC checklists and a Decision Support Tool whilst delaying the reimbursement of care home fees.

What Happened

Mr T’s Huntington’s disease caused him to deteriorate over time.

His sister (Miss Q) contacted Essex County Council in August 2016 requesting support for her brother. Information about meals and aids was provided as well as referring him to the equipment service. However an assessment for equipment was declined by Mr T.

In February 2017 a social worker visited and assessed Mr T’s needs and referred Mr T for a CHC consideration. The CHC Checklist and consent forms were completed and received by the CCG resulting in a positive Checklist test in March 2017.

Mr T attempted suicide twice and his mental health was apparently declining. A specialist care home was discussed by Miss Q and the Council for her brother but when one was identified there was a wait for a vacancy to become available for Mr T. A respite placement was refused by the Council who instead put in place an interim care package at home until he was able to move into the care home in June 2017.

In July 2017 Mr T was assessed as eligible for CHC funding by the CCG.

However the care home fees already paid by Mr T to the care home whilst awaiting the funding decision by Mr T totalling £8750 were delayed in being reimbursed by the CCG.

In August 2017 the Council agreed to fund ‘without prejudice’ the care home placement whilst the issues with the CCG were resolved. The CCG were provided with copies of the paperwork they required by Miss Q on 26th September 2017 to evidence the payments made to the care home, and Miss Q accepted the CCG’s offer in writing on 7th October 2017.

The CCG authorised payment on 25th October and made the payment to Miss Q on 9th November 2017, by which point Mr T had died. The delays and issued encountered by Mr T and his family caused them considerable upset, as has the inconvenience trying to tackle the issues. Additionally the CCG’s delayed care home fee reimbursement impacted on the family’s ability to pay Mr T’s funeral costs.

Key Issues

The Council was found to be at fault because:

  • of the length of time taken to assess Mr T and put in place a care package for him;
  • there were delays in reviewing Mr T once it was apparent that there may be changes in his needs;
  • they did not fund Mr T’s placement whilst CHC processes were being completed (as to the reasons for which, there is nothing mentioned in the LGO’s report, as it happens).

The Clinical Commissioning Group was found to be at fault because:

  • delays and ambiguity regarding roles and responsibilities of professionals involved in the completion of CHC Checklists and the Decision Support Tool (DST)
  • delayed reimbursement of care home fees to Mr T.

Discussion

The Care Act 2014 places a duty on local authorities to carry out an assessment for any adult who appears to require care and support, regardless of their financial circumstances or likelihood of eligible needs. The assessment must be of the adult’s needs and the subsequent impact of those needs on the person’s wellbeing and the outcomes they wish to achieve.

According to Essex County Council’s own Key Performance Indicator ‘adults at risk’ should be given priority for assessments within 28 days.

In public law terms, and according to national guidance for the Care Act, the assessment should be done timeously, which means within an ‘appropriate and reasonable’ timeframe, considering also the urgency of needs, and any change in needs.

Council staff are obliged by regulation 7 of the assessment regulations to refer anyone who appears to them might be someone who might qualify for NHS CHC to the local clinical commissioning group.

Continuous Healthcare Funding (CHC) and FNC assessments and funding decisions based on up-to-date assessments of all the person’s relevant needs (social and personal as well) are the responsibility of the individual’s local Clinical Commissioning Group (CCG). However sometimes these responsibilities are delegated to other NHS organisations to undertake on behalf of the CCG.

Initially a health or social care professional will undertake a CHC Checklist (a screening tool exercise indicating whether a person MIGHT qualify for full CHC – set with a low threshold to be inclusive).

Each CCG and local authority should have an agreement as to which professionals (within those allowed by the rules) can complete the Checklist, but those involved in regularly assessing the individual’s needs (e.g. social workers) should be able to do this. The revised 2018 Framework for CHC makes further provision to ensure that checklists are not done needlessly, although there can be disputes about this and all that a professional needs to do is disagree that none is needed.

Upon completion of a ‘positive’ CHC Checklist which indicates possible eligibility for CHC, a full multi-disciplinary eligibility decision-making process follows, which involves the completion of a Decision Support Tool (DST) form which maps the actual needs assessment evidence on a scoring chart, and records a rationale for the MDT’s recommendation regarding the person’s qualifying for CHC funding.

Useful paragraphs in the Framework, to which the LGO could have referred, are here:

132. The DST is not an assessment of needs in itself. Rather, it is a way of bringing together and applying evidence in a single practical format, to facilitate consistent, evidence-based assessment regarding recommendations for NHS Continuing Healthcare eligibility. The evidence and rationale for the recommendation should be accurately and fully recorded.

And here:

21.1 Assessment in this context is essentially the process of gathering relevant, accurate and up-to-date information about an individual’s health and social care needs, and applying professional judgement to decide what this information signifies in relation to those needs. Both information and judgement are required. Simply gathering information will not provide the rationale for any eligibility recommendation; a recommendation that simply provides a judgement without the necessary information will not provide the evidence for any subsequent decision. Assessment documentation should be obtained from any professional involved in the individual’s care and should be clear, well-recorded, factually accurate, up to date, signed and dated.

The CCG’s designated decision-maker (often a Panel, but not necessarily so – it can be decided by any two people with the authority to take this next step) is supposed to ratify the recommendation in all but exceptional circumstances. This process should be completed within 28 calendar days from the date of receipt of the positive CHC Checklist. Any credibly unavoidable delays in the process should be explained and confirmed in writing to the individual.

If the CHC Checklist indicates the person is not even considered possibly to be eligible for CHC funding, the CCG should, in writing, advise the individual of their right to ask the CCG to reconsider. Once the CCG have reconsidered the individual can complain to the CCG as the final right of appeal if they are not happy with the decision. Most importantly any disputes between CCGs and local authorities regarding funding responsibility must not leave individuals without the support they need.

Considerations for Professionals in health and social care public bodies

  • How efficient are your processes for completing healthcare/nursing needs and Care Act assessments and a person’s right to a DST within a reasonable time of appearing to be someone who might qualify for CHC?
  • Are there clear joint arrangements confirming roles and responsibilities of professionals undertaking CHC checklists in light of the revised framework in place since October 2018?
  • Are you aware of regulation 7 of the Assessment regulations, which OBLIGE local authority staff to make referrals to the CCG based on their own independent judgements?
  • Are you delaying the funding of Discharge To Assess placements whilst awaiting CHC assessment processes to be completed? It would still be the NHS’s function so to do, if the person has already been positively checklisted. There is no justification for NOT checklisting a person, just because they are not yet in the next setting.

Questions for Clients / Service Users

  • Have you faced delays when awaiting assessments or for care packages to be put in place?
  • Have you been considered as someone who might be eligible for full NHS continuing health care status and funding?
  • Have you experienced ambiguity or delays in CHC eligibility considerations or funding? Interest is payable on reimbursements!
  • Have you been caught in a dispute between two statutory organisations, neither of whom are willing to pay for care needs whilst they resolve their dispute?
  • Has your CHC package been adequate, in your opinion? If not, HOW inadequate has it been? CCGs are governed by public law principles and the package must be rationally sufficient, transparent and accountably defensibly capable of meeting needs, taking all other legal principles into account, such as the one that says relatives cannot be MADE to provide the necessary care!

If so, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full Local Government Ombudsman report can be found at

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/17-015-113