Decision Date: 10 June 2024
Summary
The Council did not act promptly to ensure Mrs X’s son, D, received a timely referral for NHS Continuing Healthcare (CHC). There was consequently a delay of nine months between the review meeting that informally agreed on D’s needs and that NHS funding should be made available, through the council, while D continued paying for his support under the Care Act. There was also a very long wait for the additional funding he needed now his college placement had ended.
What happened
Mrs X’s son, D, was an adult with complex needs and learning disabilities. Mrs X was his court-appointed Deputy [the report does not say whether for welfare or for property and finance].
D finished college in July 2023 and lived in a residential placement, funded by the ICB.
A new social worker arranged to attend D’s CHC review on 20 July 2023.
[We have to flag up here that this cannot be the correct nomenclature because if he was already funded by the NHS, there would not have been a complaint about the hiatus in funding caused by the delay on the part of the council. But it was explicitly described as not a CHC funding assessment.
It may have been a transition from children’s services to adult services, but if that had been the case, there should have been no hiatus in funding unless this person had already reached 25, because children’s services are not allowed to stop funding until the person has been transitioned to adults or told that they are not eligible. There would likely have been a shared care package in place, with children’s continuing care (part funded from the NHS) and education until the termination of college, and part funding by the children’s services for the residential placement. It would not be correct to call that a CHC review, then because CHC refers to adults’ CHC. On balance we think this is the most likely starting point because people often call this sort of a joint review ‘a CHC review’ just because the NHS is there.]
D’s residential placement manager and Mrs X requested additional support hours for D to cover hours when he had been supported in college. The social worker’s view was that D required 100% health funding due to his needs. She noted the attending nurse assessor agreed that the NHS should provide additional funding; and that the nurse could not dispute the suggestion as the meeting was a review of the plan and not a CHC eligibility re-assessment (Decision Support Tool exercise).
After the meeting, the manager of D’s residential placement contacted the social worker to say he wanted increased staffing and resources for D but needed an agreement from the funding body. The social worker said a plan for a package of care would take 2-3 weeks of urgent work to complete. The social worker wrote to Mrs X on 8 August apologising for the delay and that she expected to complete the paperwork that week, and asked for a CHC assessment from the local CHC manager.
Mrs X wrote to the Council in September to complain about the delay. She still awaited the review’s outcome; communication had been poor, D’s residential placement manager could not plan without funding assurance, and there had been no increase in D’s hours. The social worker’s manager sent Mrs X a revised assessment, to which she responded by identifying inaccuracies she had already corrected and asked why there was still a delay. The Council upheld her complaint for the delay and lack of communication, offering £300 for her distress.
By October, Mrs X wrote again to the social worker manager thanking him for his work and saying she hoped an outcome was close.
On 1 November, the social worker was emailed by the local CHC unit saying the nurse assessor involved in the July review had not seen any significant change in D’s needs and asked the social worker for evidence to trigger a fresh eligibility assessment.
The social worker asked Mrs X, the residential placement manager and director, for any relevant information, and apologised to Mrs X for her error. Mrs X replied that day saying D’s needs, wishes and views were not being met, and a day later saying his behaviour had been ‘off the scale’. Mrs X also complained to the LGSCO.
On 2 November, the strategic lead for adult learning disabilities said that unfunded care was being provided by the provider and said a proper CHC referral needed to be completed urgently to make progress. The social worker completed it that day.
D’s residential placement manager emailed the Council saying D’s placement was now at risk of breakdown due to a lack of increase in support for 3-4 months.
A similar review took place on 20 November, but Mrs X wrote to the social worker manager on 27 November saying she was assured that a resolution would take place by 24 November; that date had passed by without communication. The manager replied saying he needed more time to create a support package and that he had asked the CHC clinical management for interim funding.
Mrs X complained again in December when no progress had been made. The social worker manager explained that due to the proper process not being followed for setting up a Decision Support Tool exercise in July, D’s needs could not be funded, even in the interim, by the social services council.
Mrs X complained to the ICB that the November meeting was not the promised reassessment, and was still just a review, and about the lack of assessment, outcome and provision of care.
A further meeting in January 2024 agreed that D was eligible for CHC, backdated to 1 September 2023 [nb the report says September 2024, a date we have not yet reached, so it must be a typo.]In April 2024 Mrs X was reimbursed with the client contribution charges that she had paid for D’s baseline provision.
What was found
The LGSCO found that the Council failed to follow the correct process for requesting a CHC eligibility reassessment, which delayed the funding of appropriate care for D. There was also poor communication that meant Mrs X had to chase up progress. The Council did not demonstrate that it was proactive in updating Mrs X on what was happening.
The LGSCO said within a month, the Council should—
- review the way in which it ensured CHC DST eligibility consideration requests were made, according to the correct protocols and in a timely way;
- review the way the progress on CHC decision requests is monitored;
- apologise formally to Mrs X and offer her £1000; and
- also offer £1000 for the benefit of D for the services that he did not get during the delay period.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
This report is not helpful in illustrating to Councils or ICBs how to follow the correct process for requesting a CHC eligibility assessment, (DST), because of the looseness of the language used about the context of the initial meeting in July.
A CHC review cannot possibly be the right nomenclature for a meeting if the person in question has not qualified for CHC status!
What is clear is the harmful consequences of not doing so, for all concerned. It is not fair to a provider, to the person, their Deputy, nor public sector staff if they are operating in this field without knowledge of the legal framework governing their functions.
Yet, the report touches upon the fault of Staffordshire only extremely briefly and with no clear references to any authorities.
This main duty, although not cited by the LGSCO, is to be found in Regulation 7 of the Care and Support (Assessment) Regulations 2014, which states that—
(1) Where it appears to a local authority carrying out a needs assessment that the individual to whom the assessment relates may be eligible for NHS continuing healthcare, the local authority must refer the individual to the relevant body.
[…]
(3) In performing its duties under this regulation, a local authority must have regard to the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care issued by the Secretary of State and dated 28 November 2012.
In this case, the ‘referral’ made by Staffordshire did not even amount to a referral as the correct process was not followed. It was not a Checklist or any other form of referral in line with any local protocol that should have been followed.
Based on the decision, for a CHC DST referral to be triggered, appropriate evidence and recording on to the national CHC checklist would be needed, indicating a rough scoring of someone’s needs by someone at a prior review, to show the justification for thinking that the person is at least in the zone for qualifying as having a primary health need.
If this is not done, the relevant care professionals are left uninformed as to how someone’s needs have changed, if at all.
The position taken by Staffordshire’s social work manager that social services could not fund the needs in the meantime was legally completely misguided. A person counts as the responsibility of social services unless and until a person has obtained a positive decision from the DST. Since the July meeting involved a nurse assessor, but the meeting was not a DST, D could not have been found to qualify for the CHC status. So the manager’s stance that Councils are legally compelled to withhold state funding, for needs that have been acknowledged, because of what the manager thought was everyone’s agreement that D qualified, was not defensible.
It is for this reason that it is legally correct that the council needed to pay back the charges that the man had had to pay for the underlying residential social care he was getting, which would have been free if the NHS had been pushed properly to make an earlier decision. The NHS never pays the council back, in our experience!
As can be seen in the report, in the case of someone with complex needs and learning disabilities, a lack of funding can mean (although it should not mean) that their needs are not met for unacceptably long periods of time, and this can have detrimental effects on their well-being and that of their parents, especially if they are experiencing a transition from a college placement to say supported living, or from children’s services to adults’ services.
It’s a miserable example of how poor integration practice will remain, unless people get used to having to learn something about the legal framework before they handle such cases. Mrs X’s position was that bank social workers from agencies should not be used in such transitions and we would say ‘Hear, hear’ to that – they cannot be expected to be inducted into the minutiae of how the local place based system has been designed to work, or whether it’s even compliant with the National Framework for CHC or indeed, the nationally applicable legal framework for the interface between the Care Act and NHS obligations.
It’s also a fine example of restitution operating in adult social care, and not just NHS. If you have been charged for something that you should not have been charged for, then the council has been unjustly enriched, and once the man’s status had been backdated, it would have been unlawful to charge him for Care Act services at all.
Councils therefore need to be careful to follow the correct process for requesting a CHC reassessment so that individuals receive NHS-funded care as soon as possible, and are kept up-to-date with the progress of any request. This can most obviously be done by showing clear and proactive communication between Councils and those being cared for or their representatives, and a failure to do so risks causing them further anxiety and distress, giving them the impression that their needs, wishes and views are being sidelined. This all risks further excluding them from the system of care provision, which they ought to have an integral role in shaping.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Staffordshire County Council (23 012 191) report.
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