What the National Framework and CCG local policy say about the CCG’s responsibility
22. Paragraph 167 of the National Framework says the CCG is responsible for assessing any package of care provided under CHC funding. It is required to ensure it is appropriate and meets a person’s needs.
23. The practice guidance notes of the National Framework give further details about what should and should not be funded. It also sets out that any NHS element of care should be clearly identified in a care plan. The practice guidance is clear that any additional services should be a separate and a voluntary agreement.
24. Policy 32 of the CCG’s service specification for NHS continuing healthcare says:
‘Top-up fees will only be allowed for services identified by the service provider and agreed by the commissioners that do not directly meet or are related to the service user’s care needs. Top-up fees are only for service user choice extras and are not allowed where there is a gap between the price agreed for this contract and the price the service provider wishes to charge.’
25. We think the evidence shows the CCG has a responsibility to ensure any NHS care is fully funded. That responsibility includes making sure people are not involuntarily paying for additional health services.
Our view on what the CCG did
26. We have seen no indication that the care package the CCG agreed in 2015 was inadequate. Mrs A is upset about the funding, but she does not say her husband was not getting the care he needed. It is not clear whether the CCG was commissioning enough funding for the care package, and if Mrs A was ‘topping up’ the care fees when she should not have done.
27. The CCG was not aware Mrs A was paying a weekly fee to the care home until she stopped doing this in April 2017 and the care home asked the CCG for more money. We cannot say the CCG should have done something sooner than this.
28. The CCG was right to offer to reimburse Mrs A the money she paid to the care home between January and April 2017. This is because there is no evidence the weekly fees Mrs A paid were for lifestyle choices.
29. The contract between Mrs A and the care home said her payments were for ‘lifestyle choices’ but there is no evidence to support this.
30. The care home’s terms and conditions say:
‘basic fees do not include chiropody or other similar treatments unless carried out by the NHS, non-prescribed medication, hairdressing and perms, dry-cleaning, toiletries (other than basic ones supplied by the home), clothing, confectionary, newspapers, telephone rentals and calls, transport/escort or visitor’s meals. The aforementioned items can be supplied by the home if requested at an additional cost which will be charged on a monthly account basis in arrears.’
31. These are items we would expect to see as lifestyle choices and are in line with the CCG’s policy about extra services. The terms and conditions say the care home would charge monthly if the service user used any of the services.
32. The costs Mrs A complained about were a £322 weekly fee in the contract and were not itemised. We appreciate this is a substantial amount of money.
33. The care home’s terms and conditions go on to say:
‘A weekly charge will be agreed with the resident which will be exclusive of the registered nursing care contribution (RNCC) and any other contributions from the health authority, the latter being claimed by and paid directly to the home.’
34. The terms and conditions do not explain what these weekly charges are for and we cannot see the CCG asked the care home or scrutinised this to understand what services Mrs A was paying for on a weekly basis.
35. Based on the information in the care home’s terms and conditions, we think the CCG had reason to doubt Mrs A was paying for lifestyle choices. This is because:
• lifestyle choices that are itemised in the terms and conditions of the contract would be charged monthly as Mr A used them
• the ‘lifestyle choices’ in Mrs A’s contract with the care home, which cost £322 per week, are not itemised
• the lifestyle choices which cost £322 were a weekly fee, not monthly
• the contract does not explain what the weekly charge is for.
36. There is no evidence to show the CCG acted in line with the National Framework and considered whether or not these fees were filling a gap between the price agreed for the contract and what the service provider wanted to charge. The CCG’s policy is clear about the extra things the service user can pay for.
37. When Mrs A made the difficult decision to stop paying £322 per week in April 2017, the care home contacted the CCG for more money to meet the care costs. The CCG increased its payment.
38. We have seen no evidence the care home changed any of the services it gave to Mr A because of the CCG’s increased payment. We think this shows that what the care home was charging Mrs A was not for lifestyle choices.
39. Additionally, when the CCG offered to reimburse Mrs A for her contribution between January and April 2017, it agreed the money Mrs A had paid in this period was for care and not lifestyle choices. It would not have done this if it agreed the weekly fees met its policy requirements of what lifestyle choices were.
40. The CCG’s complaint file contains a letter from the care home’s solicitor to
Mrs A’s solicitor dated 5 December 2017. The letter says:
‘We do not believe that Mr A’s care was fully funded by the NHS. Rather, Mr A and his wife agreed to a level over and above that which might be provided under the NHS. The costs invoiced by our clients related to what might be called ‘top-up care’.
41. We acknowledge the contract between Mrs A and the care home says that she was paying was for lifestyle choices. But given the evidence, the CCG had enough reason to believe it might not fully be funding the care.
42. We also think it should have reviewed the entire period. This is because there is no evidence to support the CCG’s decision that Mr A’s needs had increased in January 2017. This means we think the needs were roughly the same throughout and we think the care fees should have been consistent throughout the full period.
43. Mrs A says her husband’s needs, though great, stayed the same over the whole period he was in the care home.
44. The CCG completed decision support tools (DSTs) in September 2015 and January 2017. These are documents which form part of the CHC assessment and consider his care needs in detail. Both DSTs found Mr A eligible for CHC. We have compared these to see what they tell us about Mr A’s needs at those times.
45. For the 25 September 2015 DST, the domain weightings are two severe, four high, three moderate, one low, and two no needs.
46. For the 24 January 2017 DST, the domain weightings are one severe, five high, three moderate, one low and two no needs.
47. The four key indicators are:
The 24 January 2017 DST does not show a change in the nature of Mr A’s needs. The DST says ‘The nature of Mr A’s health needs continue to be in relation to his Parkinson’s disease, behaviour, cognitive impairment and his psychological, mobility, nutritional, continence, tissue viability and medication needs.’
The 24 January 2017 DST does not show a change in the intensity of
Mr A’s needs. Both document the same analysis of the intensity of his needs.
The 24 January 2017 DST does not show a change in the complexity of
Mr A’s needs. Both document the same analysis of complexity of his needs.
The 24 January 2017 DST does not show a change in the intensity of
Mr A’s needs. Both document the same analysis of the unpredictability of his needs.
48. The DSTs show Mr A’s care needs had not significantly increase in January 2017. There was some variation within the domains but not significantly, and the totality of needs appeared to stay the same.
49. There is no evidence to show the level of care the home provided to Mr A increased or changed in January 2017, after the assessment.
50. We cannot see that anything changed either in the needs or the service Mr A received.
What we think the CCG should have done
51. We think there was enough information for the CCG to question what Mrs A was paying for when it became aware she was paying a weekly fee in April 2017. It did not do this.
52. In line with its own policy, we think the CCG should have asked the care home what services Mrs A was paying for and examined the terms and conditions.
53. We also think the CCG had an opportunity to consider the other evidence that suggested Mrs A was topping up her husband’s care costs, such as the care home solicitor’s letter.
54. The CCG should have acknowledged that the January 2017 assessment showed no meaningful change in Mr A’s needs and that the care home did not provide any different care or service after that point, compared to before it.
55. When Mrs A approached the CCG about the issue, it should have seen that Mr A’s care cost more than it was paying. This meant that from September 2015 Mrs A was filling the gap.
56. There is no indication Mr A’s care package did not meet his needs. But we have seen evidence the CCG was not meeting the care homes costs for Mr A’s care from September 2015.
57. When it became aware Mrs A was making weekly payments to the care home, the CCG did not look thoroughly at why this was happening in line with the National Framework. Its decision that Mr A’s needs changed in January 2017 does not appear to be based on evidence. This means its decision to reimburse Mrs A for the fees she paid back to only January 2017 does not appear to be evidence based.
58. There is evidence that Mr A’s care cost more than the CCG was paying between September 2015 and January 2017. Mrs A was paying £322 per week for a period of around 16 months. The evidence shows this was a ‘top-up’ for the cost of Mr A’s care, which the CCG should have been wholly responsible for.
59. The CCG had the opportunity to put things wholly right after it became aware of the situation in April 2017. It did not do this, as it only offered to reimburse Mrs A’s fees between January and April 2017. The CCG has not yet provided a remedy to cover the period September 2015 to January 2017.