Flawed: NHS Continuing Healthcare Independent Review Panels

Hi my late mother's case has been to IRP & IRP review the latter behind closed doors which simply rubber stamped no to CHC funding mother had severe dementia, was doubly incontinent at high risk of falls scored 1 severe 5 high 3 moderate & one low. Her condition well above what would have been social care. Not satisfied going back to Ombudsman. Complex needs isn't a legal definition & just wide open to NHS rewording & downplaying the true extent of care needed. After Ombudsman where do you go. Families are made out to be exaggerating yet NHS more than happy to take the word of questionable accounts from care homes which in many cases indulge in questionable financial practices

Hi Andrew,
The advice that the Ombudsman office offers is (in brief):
*What we can and can’t do
When we investigate complaints about CHC funding, our role is to decide whether or not the NHS carried out its decision making process in line with established guidelines (the National Framework). These are nationally agreed criteria for making decisions about who is eligible for CHC funding. The National Framework is there to make sure all decisions are consistent.

If we agree to investigate your case, we will look to see whether the NHS followed the National Framework properly.

We can’t make the NHS change its decision, and we can’t make our own decision about whether you are eligible for funding, but we will say what we think the NHS needs to do to put things right.

In terms of the CCG the NHS have stated:
Complaints about the CCG should be handled by the CCG, they are a separate entity to NHS England and we have no authority over them.

If the Clinical Commissioning Group Patients Experience and Complaints Team are refusing the handle your complaint and you haven’t already raised a complaint with them about the same concerns then you should contact the Parliamentary and Health Service Ombudsman (PHSO). They make final decisions on unresolved complaints about the NHS in England. It is an independent service which is free for everyone to use. To take your complaint to the Ombudsman, please use the following contact details:

In summary no body is responsible and you have little or no support in bringing a complaint to the NHS, CCG or PHSO

Strongly advice for people to diary, document their processes and return to The Board (NHS CHC England) who is in the ideal position to repudiate, redress a CCG error. If NHS CHC fail to address your complaint then you should be directed to the NHS complaints department which should be governed by Sir Simon Stevens CEO of the NHS.

Hi Dom - Thank you for that amazing information Dom, that will be so useful. I have previously contacted them & said that as the chair would not answer my questions with regards to photographic evidence & supplying me with copies of minutes of IRP, I would therefore have to assume that the chair is refusing to allow me to have copies of the minutes & is also refusing to clarify as to why the photographic evidence was never mentioned & also will not clarify as to why no one challenged CCG representative when she stated that there was no evidence of end of life diagnosis, when I provided irrefutable evidence, including a letter from the GP completely substantiating the diagnosis.this is what they have said. (They did send me the pack prior to the IRP being convened that was to be presented to chair at IRP, but they said that no hospital notes with the June diagnosis would be included because "it was outside of the review period". They are now starting to get sharp in the tone of their emails)

The Chair has not refused anything – he has gone back to the report and felt that he is satisfied with it. As is normal practice, the next stage for you is to appeal to the Ombudsman – so they can review the decision of the IRP with the evidence that was presented before it.
The report that was sent to you is the summary record of the meeting and represents the discussions that took place. It is regrettable that you were not present as you could have participated and asked the questions and raise the concerns which you have had with W****** CCG.
As stated to you in my previous emails, your statement was shared with the Panel and the CCG – they all saw the photographic material you are referring to and indeed if you do decide to appeal to the Ombudsman, this will be sent to them and presented to their clinical advisers.
The letter from the GP was also presented and its contents were noted.
Mr Evans, please be assured that everything was looked at for the review period that was presented to the Panel.

Hi Glynis Evans,
No problem and I am glad it gives you a direction to go but you should have a copy of the Pen Portrait within the file you already have as it should be in the Decision Support Tool (DST). Your relatives past medical history should also be in the DST.

On another note it would be worth checking the hospital discharge document within the file as is it a clear discharge back into the Local Authority legal responsibility of care or is it as in our case an 'external patient transfer' from NHS hopsital into a RGN nursing care home for rehabilitation i.e additional health care required that is beyond that of the lawful ability of the Local Authority (section 22 Care Act)?

Again could you confirm why they have stated and applied an 'out of time' deadline for past medical history?

All the best
Dom

Hi Glynis Evans,
Thank you for your kind words... I dont think the CCG may agree with being an earth angel more like a thorn in their side.

I am drawn to a couple of areas of your response with your concern of evidence not being heard at the IRP. Could it be possible that it was not shown to the Chair and the IRP members? Having experienced the CCG and NHS CHC England provide me with a different IRP Pack to the one they supplied the Chair I would strongly recommend that request a copy of the Chairs IRP Pack and a copy of the meeting minutes which will have probably been taken by your contact at the NHS CHC office. Dont take no for an answer as I was so sure that I was looking at a different IRP Pack to what the Chair had that I issued a Subject Access Request which they went well over due on but proved I was right. It also did not include the breached appeals process or my 40 odd page appeal document and evidence.

Secondly you mention the previous assessment being out of time?... what time ? 1st April 2004? I would also check the DST and the Pen Portrait and Medical History as the Pen Portrait should be accurate and if Medical History dips into the patients history prior to the 'cut off' period then why is the previous assessment not being considered. Again this is what happened in our case with the CCG denying a Previous PCT assessment in 2003 but yet within the medical history they were recording irrelevant doctors comments from 1978.

To substantiate my experience the 2016 MDP Pen Portrait was record by 3 CCG memebers (without any LA) as:

‘Mrs X had a stroke in 1995 and continued to live independently with increasing help of carers and her daughter until spring of 2003 she suffered a collapsed vertebrae, after which she could no longer support her weight and needed help day and night. It was decided for her to be admitted in X Nursing Home where she stayed till she passed away on the 25/11/2005’.

Through counter evidence from their own files the same CCG employee (head of business) then changed the pen portrait within the IRP Pack to:

‘After several bouts of hospital care in 2004 [correction 2003] she agreed to a 2 weeks respite at X, X while I had a holiday. Within one day she fell and broke her upper leg and on the 29th June 2003 was admitted to Queen Alexandra’s Hospital. After five months of being in plaster, from thigh to toe, she could no longer support her own weight (needing help day and night) and it was considered that she could no longer look after herself and was discharged from X Rehabilitation Unit to Southlands Nursing Home.’

The statement I have received from NHS CHC England in August 2018 is that the two Pen Portraits matched but WHCCG may of ‘only changed a couple’ of words.

The NHS CHC England have been unable to respond to me since September 2018 but there is no excusable defense to the changes of the Pen Portrait and to the misleading information I have since received.

All the best

Hi Paul2
Many thanks for the questions which I will hopefully provide clarity through my own experience with the NHS CHC England and CCG.
No.1 - ‘The right to a fair process’ is a term of law that NHS CHC England specified themselves during a response when I challenged them to their conduct and their attempt to lure me into an IRP meeting when the IRP Pack (different to the one I was sent) was clearly and in evidence inaccurate, incomplete and very misleading. Therefore on the balance of equality and if the NHS CHC England are willing in written communication to refer HRA 1998 then it is also your right to have a fair process and that you should put this concern to them and let their legal team do the ground work and respond to where you might be right or wrong. You have nothing to lose:)
No.2 – It is also within my experience that the Ombudsman will only be looking for maladministration and anything outside of that will not get a consideration or comment. They will not overturn your case nor will they instruct the NHS CHC England or CCG to do so as it is out of their remit.
With regard to your illegal property "charge" complaint it was not something that we had on our claim so that is new territory for me but I can see that it involves the action of the local authority (council) which I think the Ombudsman would consider to be a separate argument to the retrospective NHS healthcare funding eligibility claim especially if the local authority took that decision without the influence of the CCG.
I would certainly question where the local authority substantiated their action?
However, if you believe the criteria of the law has been broken then I would say that you have nothing to lose by adding it to your complaint to the Ombudsman and requesting it is covered during the Ombudsman’s conclusions.
Is the Ombudsman’s independent? I am yet to be convinced as not only will they not consider or provide a judgement of previous laws or case laws but they also receive a payment from NHS England (or local authority) for each complaint they are asked to investigate. Why should they cut off their financial nose to spite their face in creating a precedent that could help us all but reduce the number of investigations they are paid to investigate.
Again my advice would be to rewind to where the claim became a ‘non comprehensive assessment’ which under annex E of the National Framework should of halted any IRP meeting which was the responsibility and potential fault of the NHS CHC England (The board) not just for failing to identifying a non comprehensive assessment but act upon an incomplete IRP Pack and therefore of their failures and your right to a fair process that any judgement by the IRP or Ombudsman would have no grounds for accuracy. They will try to rely on the ‘post’ IRP and Ombudsman’s findings purely in an effort to pass blame and responsibility onto another body and distract your direction and focus of the true facts which the CCG and NHS England should be addressing.
I would also add that you stick to the facts (supply or resupply evidence) and cut out any personal feelings as I am sure from my experience that they will attempt use any personal comments as either an ad hominem comments or claim of some form of vexatious conduct against you.

From Paul 2:
Dom, Two questions;
1- I'm not sure as to whom the person is being referred to for the "Right to a fair process", -
Is it for the mental patient ( now deceased in my case), or their family member pursuing the case with the CCG/PHSO etc, or maybe imply both?
2- Schedule 1, Article 6 of the "Human Rights Act 1998", refers to the "right to a fair trial", for criminal proceedings. So is a process in this case still a relevant argument?

As another note on "Fraud Act 2006" and "Bribery Act 2010", then both of these acts should cover the period when the council placed an illegal property charge , as no deferred payment scheme was agreed, and they had clearly been informed, and reported back to the family, that the CHC funding dispute was still on going.
As the illegal property "charge" complaint is now with the LGO, so they should take these Acts into account in their independent deliberation? Should I also go back to the LGO and ensure they do take these into account, and mention that I will be informing the NHS Counter Fraud Specialists as well based on a negative outcome?

As it clearly evidences a deliberate attempt to cause someone a financial loss.
So when should I send the same complaint to the local ‘NHS Counter Fraud Specialist’ ?

Thank you Dom

Hi Glynis Evans,
I am glad my comment came through and sounded of some help and you may have noticed that the CCG and NHS CHC England (The Board) dont mind making any of your concerns bit of a paper chasing exercise.. drawing out their response and not addressing direct concerns you have raised...Am I right?

If that is the case then I would recommend stepping up a gear and by hitting 2 birds with one stone.

Keep your correspondence brief but factual and substantiated by any evidence that was within their 'Evidence File' or that they were aware of during the MDP and IRP but disregarded by the CCG or NHS CHC England, even if they did not disclose it but knew it existed as they would have a duty under the Fraud 2006 Act not act in a way that would cause someone a financial loss.

In their own words the CCG say 'Fraud and bribery are defined within the Fraud Act 2006 (dishonestly making a false representation with the intention of making a gain or causing a loss to another) and the Bribery Act 2010 (giving someone a financial or other advantage to encourage that person to perform their functions or activities improperly or to reward that person for having already done so)'.

Dont rant as this will allow them to distract the conversation or return an ad hominem response. If your not sure if it was a rant or not then sleep on it for the night and return with a fresh mind the next day. In a court the words 'reasonable and not reasonable' are heavily relied upon and any 'proper' authority' will realise that this situation would never be a tea party between the two parties but they will look for conduct that is unreasonable. Your job is to offer them a opportunity to be open, transparent and reasonable with you.

Therefore as per my previously response you need to contact at NHS CHC England with your complaint of a breach of your humans rights 1998 for not receiving the right to a fair process (substantiate by way of facts and indisputable evidence rather than just opinion) obviously then sending the same 'formal complaint' to the CCG Governance Support Manager and Equalities Officer...if uncertain that the NHS CHC will pass it over then try a web search for the department.

Then as you cruise into 5th gear and with the same complaint email it along with a title of a formal complaint to alice.webster@nhs.net who I believe is the central person responsible for the NHS CHC staff you may be having an issue with.

Putting your foot on the accelerator then email the same formal complaint to Sir Simon Stevens office (CEO of NHS) at england.ce@nhs.net, his office will make you aware that they do not investigate complaints on the CCG but as your formal complaint (which it should) also contain the NHS CHC England that they will forward your complaint to the NHS complaints team.

If you not hitting the red line of the rev counter at this stage and have a belief that under the 2006 Act of Fraud that there has been a deliberate attempt to cause someone a financial loss then send the same complaint to local 'NHS Counter Fraud Specialist' who should be able to identify from the following web page. https://cfa.nhs.uk/fraud-prevention/information-local-counter-fraud-specialists.

When you have done all that off the one document you have prepared then park the car on the drive and make sure you take time away from the claim and enjoy your festive break.

If your not sure on any thing I have said feel free to question me.

All the best
Dom

Dom , Paul 2 , Glynis

I am intending to go to the CEO of our local CCG next and complain very strongly about my mothers case . Thanks for the advice, Dom . This whole thing has been a complete sham from start to finish, so back to the start I go !!!!!

I also have have a meeting with our local MP next week to present the whole debacle to him . I ' m pretty sure that won't make any difference but am interested in what he has to say .
I will also be complaining to the CEO of the ombudsman s office as their involvement has been a complete waste of time . They have made it perfectly clear that they are not in the least bit interested in what has gone on here .

Thank you to everyone for your comments and suggestions of what to do next . We may have lost the battle but not the war just yet!!
This website continues to be such a great help . Thank you .

Thank you so much Dom - will try that & let you know results

Just my thoughts - Many are not getting the right process applied at the IRP panel level - I'm not sure if this is because you are not being represented by a solicitor. I did make progress at two IRP panel review, but I was represented by a solicitor. The first IRP panel, my parent was still alive, and they were on tax credits, so it was all free their work. They complied the files , care home records. For the second IRP,when they passed away, this was a "no win no fee" agreement. Again the solicitors arranged the paperwork and letters to ensure the CCG were performing the correct assessment process, before we attended the IRP panel meeting. As you may know, solicitors will not attend an IRP meeting. So you loose up to a third of the returned fees to the solicitor, that should be returned if you do win, but as least you do get something back. So the CCG/NHS may sit up and take more notice if a solicitor is involved? They have more to loose as well, and they know their chances of winning for you, otherwise they would not have taken on your case to represent you.

Hi Sheila and Glynis

Just to say our case has been with the Ombudsmans office for almost two years . It has been through their original caseworker and I represented it to their feedback and review team . I managed to get it up to their Senior management level but likewise we have been told that they agree with the CCG / IRP decision that Mum was not eligible for funding.
Mum s needs were of a similar nature to those described by yourselves but were all deemed as within the limits of social care. Without going into too much detail we had documents destroyed by the CCG , namely the original DST document . The original weightings ( 2/3 severe , 3 high 4 moderate 2 low ) agreed by the MDT were then lowered at a closed door meeting . Needs were underscored by the CCG , (they omitted 252 entries in the Needs Portrayal Document in the behaviour domain and 51 entries in the drug therapies domain , ) There was no co ordinator assigned and MDT was not fully knowledgable of Mum s needs . The IRP report was not a true reflection of what was discussed at IRP .
The IRP agreed the weightings as 1 severe , 3 high , 4 moderate 2 low 1 no need and I have pointed out to the ombudsman that this is above the level deemed to be within the Local Authority legal limit in accordance with the ADASS guidelines for Continuing Healthcare however he has said that they do not look at the legalities of the process and I will need to take it to court !

The ombudsman appears to be of no use at all . He said that they only look at whether the IRP followed the correct process in accordance with the National framework . This in effect means that the ombudsman will only look at the fact that the right people were in attendance at the IRP meeting and that they carried out a domain by domain review. He would not comment on anything else in connection with what happened at the IRP meeting nor any of the decisions they came to . He also refused to comment on anything the CCG did /didn't do .

What was the point of directing my complaint to the Ombudsman ?

However , Sheila , it appears that if you were not invited to the IRP then the correct people were not in attendance and you may have grounds to get the Ombusdman to review again . Just a suggestion.

This really is a National scandal . I do hope the people involved can sleep at night !!!
Not sure of my next move but I think press exposure is a good course of action and I am seriously thinking of court or perhaps the police and what has happened in our case is both corrupt and fraudulent in my opinion .

So sorry to hear that Sheila. We are awaiting outcome of IRP & just know that they will refuse funding, despite the fact that they have spent more money in salaries & costs than we are actually claiming back. We know that referring to ombudsman will be a waste of time, but we may as well make them do some work. It has been the most stressful & exhausting thing we have ever done & like you, we do not have the strength or money to take them to court. They know this. We have letters from GP supporting our case, photographic evidence etc. But what chance do you have, if they say no - then no it is. All the time, money spent & advice is of no use if they dig their heels in. The National Framework is also of no use, for gain if they say NO, what can you do....

Hi Sheila - if you would like to discuss this with us please do get in touch enquiries@caretobedifferent.co.uk Kind regards

Hello Sheila - According to page 130 National Framework Guidelines you should have been invited to attend. I would definitely go to Ombudsman on that point alone. This is what it says on page 130 20. "An individual may have a representative present to speak on his or her behalf if they so choose, or if they are unable to, or have difficulty in presenting their own views. This role may be undertaken by a relative or carer or advocate acting on the individual’s behalf. The IRP should be satisfied that any person acting on behalf of the individual accurately represents their views, and that the representative’s interests or wishes do not conflict with those of the individual. The IRP should respect confidentiality at all times." https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/213137/National-Framework-for-NHS-CHC-NHS-FNC-Nov-2012.pdf

From Paul2:
As our case progressed, the family have now referred the IRP review back to the PHSO. We want them to review the dates that our parent was not eligible for CHC funding. Ie , We were awarded partial CHC funding, but some gaps due to Fastrack processes, and the assumption that the CCG actually handed over CHC funding payments to the Care home. There is also a large period of non CHC eligibility which we are contesting via the PHSO.
The PHSO would only see if the IRP panel had applied the National Framework correctly for the period our parent did not receive CHC funding. I mentioned the Coughlin law case, and confirmed our parent had needs greater than this test case. The PHSO said they would not use this law case. Only if the National Framework had been applied correctly.
So all this talk of “Standing Order Section 107. Refer Part 6:- The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012”, and the Coughlin case, is of no use. The PHSO are ignoring it.

I am rather despondent and let down with this whole system, as the PHSO WILL NOT be looking into other complaints we raised:-
- All the maladministration by the PCT for their inappropriate CHC assessments and ignoring due process.
- Unable to approach the CCG for funds that should have been returned during Fast track periods. Ie the CCG returning funds to the care home, but did the care home actually return the funds back to the patient’s account? No.
- The CCG only keep records up to six years, so they and the PHSO are let off the hook, as our case started 12 years ago.
- The care home went into liquidation this year, so we can’t get any financial records back to confirm or deny we ever received any refunds for Fast track All of this is not the families’ fault. But, the family are having to pay for this maladministration regardless.
- The reason why Social Services could not care and support my parent and hence above the duty of the law, to provide care. Hence the very reason to go into EMI care in the first place will be ignored by the PHSO.
We haven’t even mentioned the LGO maladministration by the council placing an illegal property “charge” on our parent’s property, without an agreed “deferred payments scheme”, even though we had a financial EPA to protect them. Even when we informed the council that CHC funding disputes were still ongoing.
The council took their share of the property sales and we couldn’t do a thing about it. Even though we have an IRP decision to prove that our parent should not have been paying for their EMI care.
This privatised NHS Care system is in complete shambles. It is simply a privatisation of the NHS for EMI care. With our weekly care home fees going into the hands of private companies for their shareholders wanting profit. So who loses out? - the NHS service and the public. If only the NHS would take ownership of the EMI care homes and manage them as a non profit organisation for the wellbeing of it’s citizens.
We have found that the PHSO are a waste of time and a complete waste of money to the tax payers supporting such an inept “independent” institution, when they are protecting Social Services, the councils and the CCG to commit fraud ( the seizing of funds without due process), as evidenced by our family case.

So the result of the Subject Access Request (SAR) requested - so we could at least have the same evidence they had compiling the Decision Support Tool - was we got a copy of OUR evidence back!! Of course we weren't charged for it, how could they? Apparently conveniently they have sent THEIR evidence already to the NHS for the Independent Review Panel without copies, yet have kept ours which appears to be what they are saying. There were no internal emails/meetings etc included. Now we have asked the NHS to complete the SAR as they are the data controllers and ultimately legally responsible the SAR is completed in full. Will they??As I have said before this is quickly heading to a Court case as they are constantly abusing the process and no-one is accountable. Incidently as a past loss adjuster, if I had behaved in this way my company would have been sued within 6 months and I would be legally accountable for non compliance with the SAR.

So we have no chance at all of fighting them. Just been on Care to Be Different's Facebook page & it appears that Independent Review Panel appeals, that should be taking around 3 months, are taking 1 to 3 years on average before they meet for the appeal. We are scuppered all ways :o(

Thanks again Glynis. I have made a note of this and it will be going in my notes for next week.

Gillian if the needs are in the form of a decline then ask the home/GP to fast track. Then the CCG will have to accept that and carry out a NHS Continuing Healthcare assessment afterwards to validate or to deny the funding need...... Then repeat at every serious decline.

I agree with this wholeheartedly. They always seem to break the law and the rules. I have always started with the law breaches.
Everyone needs to understand that this is a set of hoops through which we all have to jump. The end result even if it involves a court is where this leads. It is doubtful that anyone wins whilst only arguing about diagnoses, illnesses, well met needs, and domain levels. Each of these could be at any level dependant upon who makes the assessment and decision.
It is the law and the rules that will best assist claimants for NHS Continuing Healthcare. However, the bods involved have no power to act, even in defence of themselves. Nor do many have any legal knowledge. Ergo they cannot comprehend and likely do not even read the appeals and complaints with a legal eye.
So one has to go through it (and we always take as long as possible), and then at Independent Review Panel (IRP) we impress on the chair that we will want our legal challenges ignored to date, assessed by a real judge in a real court if the IRP cannot comprehend the laws being broken.
The chair is a gatekeeper to a degree... They are there to assess the risk of the case going to a court and rerunning the Coughlan decision and/or creating new law..... This is the entire reason for the nasty process... It is designed to make you give up..... So unless you really have to.....don't.

Excellent resource that compliments and adds weight to the ADASS Commentary in regard to the fledgling CHC process and it's links to the Coughlan case.
https://www.adass.org.uk/adassmedia/stories/Publications/Guidance/commentary_oct07.pdf

The CCG has gone on to say - "The framework itself is Coughlan compliant and there is not a separate "Coughlan test" against which each case has to be compared because the nature of individual cases means that care needs will be different. For example, it is a matter of public record that Pamela Coughlan has autonomic dysreflexia. This is a potentially life threatening condition for individuals with spinal cord injuries above the level of T6. Many clinicians would argue that this condition, in itself, should justify NHS Continuing Healthcare eligibility because of the immediate support required to administer the appropriate treatment. However, it does not mean that individuals without this condition are not comparable and therefore do not qualify. The test which must be applied is that set out fully in the National Framework (pages 14 - 17) taking into account the nature, complexity, intensity and unpredictability of each individual's assessed care needs." - I have no idea as to how argue the point about Pamela Coughlan & would so welcome any advice that anyone can give.

This is the CCG's response & I have no idea at all how to respond - "the Coughlan judgement was one of the catalysts for the establishment of a "primary health needs" test. The requirement for local criteria to be developed by CCGs has long since been superseded by Secretary of State's decision to develop national criteria and this criteria is enshrined within the National Framework for CHC and the supporting legislation which accompanied it before its introduction in September 2007. Annex G relates to a best practice guide for what to include when drawing up local protocols and operational procedures for delivering the national framework in each area as they may operate differently based on local arrangements. This guidance does not incorporate a requirement for local benchmarking as suggested in your email. This CCG does, of course, have operation guidelines and procedures to implement the national framework and these include.... "

Hi Gillian, there should really be someone from the local authority, otherwise how can the LA possibly decide that your mother legally comes under their remit & therefore meaning that she has to be means tested. Was the Nurse assessor also the coordinator, if so then that is in contravention of guidelines as she has to be "impartial" to the team. As Paul says, if she has not improved, then she cannot be downgraded. We had similar & we put in a complaint & the domain was immediately graded back up to the original one. Query everything that you feel is not right.

Was there any improvement ? If not then NO absolutely not - it’s a stunt they pull repeatedly - it’s illegal - they often try on the basis that the needs are ‘stable’.

Essentially they have told you what they do & what they believe BUT you have asked them if they comply with the law which is a totally different matter & S107 Grogan tells them they have to and the Secretary of States directive & the Standing Rules are quite clear.

Glynis this is rubbish the law has never changed - this is what they want you to think - Their Guidelines Per S107 Grogan are quite clear - They must have guidelines in place at the CCG upon which they can make an objective decision of the patient’s nursing needs versus Coughlan as to exceed that level would be unlawful. - The National Framework is a guidance document only - Coughlan & Grogan are the stated cases - remember it is 99% likely they will never had this put to them & they won’t ‘understand’ as it is contra to the culture & misguided principles in which they work

Hi Glynis - you may find our latest article helpful: https://caretobedifferent.co.uk/primary-health-need-made-simple-what-does-it-really-mean/

Roger, Sorry to hear all this. Wales is a little different but it is likely that There was not an Independent Review, but a local review carried out by the same people that made the decision. Then again have you asked the GP/Nursing Home/ District Nurse for 'Fast Track'? The Welsh NHS Continuing Healthcare (CHC) Framework ....... http://www.wales.nhs.uk/sitesplus/documents/866/Continuing%20NHS%20Healthcare%20The%20National%20Framework%20for%20Implementation%20in%20Wales%202014.pdf
states:-
'In some cases much speedier decisions should be taken in the individual’s best interests: for example in terminal illness, or where there has been a catastrophic event from the point of which it is clear that the individual has a primary health need (see ‘Fast Track Assessments’). '
Or at another page:-
'3.84 Occasionally, individuals with a rapidly deteriorating condition who may be entering a terminal phase will require ‘Fast Tracking’ for immediate provision of CHC so that they can be supported in their preferred place of care without waiting for the full CHC eligibility process to be completed. In such cases LHBs should aim to complete the process within two days. There will also be cases, other than end of life care e.g. a catastrophic event where professional judgement indicates that the individual has evidently developed a primary health need, where LHBs should also consider applying Fast Track assessment.'
Please feel free to ignore the word...... 'occasionally' above.... Anyone in a terminal phase should be fast tracked upon or during their final discharge from hospital.

Argue about the previous period later if you wish.... Get Fast Track now.

The National Framework is a defence tool for the NHS - it does NOT alter the law Ask the CCG for its policies proceedures and Guidelines for CHC - If they do not have criteria as per the directive from the S of State then their procedures are unlawful and contravene Art 6 of the HRA - such conditions and nursing needs have been tested in the highest court in this country

Assessors work in a culture that comes from Government down through NHS England and on to the CCGs that is set up to mislead by deliberate omission of what Coughlan Compliancy actually means - S107 Grogan is quite clear & backed by a directive from the Secretary of State. Effectively ‘Coughlan’ has been in front of the highest court in this country twice - The National Framework is a guidance document only & is described as SHOULD be used - that line passes legal liability on to the CCGs who must comply with the law - read the last line of AppB - Coughlan & Grogan are the stated cases - There are Ombudsman ‘rulings’ that cover most cases & yet CCGs repeatedly act as judge and jury deciding not to give NHS Continuing Healthcare to people that can be objectively seen to qualify against these cases - Fight all cases on PROCESS first and foremost - If the Guidelines are not there then any part of the assessment process is fatally flawed

Trust me - don’t try to ‘prove eligibility’ challenge them on process first - Nursing Care is a right in this country and it’s up to them to prove she doesn’t qualify - If they haven’t got a process that is specifically directed by the Secretary of State in place then they better had before the review or it should not take place.

Thank you Paul

From that description she simply has to ‘qualify’ for NHS Continuing Healthcare - I put in inverted commas for the reason that the NHS use the National Framework to do as they please on the basis that the law isn’t properly described within it nor the proper process required because of it - they will tell you that the nursing care has to be that given by a registered nurse, has to be ‘complex and intense & unpredictable’ all of which has been specifically discounted in the highest court in this country. See Leeds Ombudsman Case 1994 Coughlan herself and Grogan. The CCG has to know the law and ignorance is no defence.

Thank you so much Paul. Our relative is totally bedbound & they are unable even to weigh her because of risk of injury. She is on permanent oxygen, Renal & advanced heart failure. Severe cognition. Dementia with occasional behavioural problems. Has to be fed, has dysphagia. Has controlled drugs due to epilepsy plus lots of other other medication (even palliative care medicine from her last visit to A&E). Has severe contractures, doubly incontinent, diagnosed as at risk of malnutrition & has forticreme prescribed, has to be turned every few hours, has pressure ulcers & NHS Continuing Healthcare team say she does not have a primary health need. We are of course appealing decision.

Jenine (replying to previous post as that is what it will allow me) Don’t need multiple cases in court - what is needed is for the LAW that has been tested twice at the highest level in Themis country to be properly implemented. ( Coughlan / Grogan) the Parliamentary & Health Service Ombudsman cases also need to be ‘assessed’ in practical terms to provide a national guideline and the process to be properly outlined in the National Framework - remember Complexity Intensity Unpredictability are terms rules inadmissible under Grogan......

The NHS has always in general terms been responsible for
1) Chronic Bedfast
2) Convalescent Care (you) ie cannot be discharged
3) People who owing to their mental condition cannot be social / LA care

Essentially that has never changed - Government has tried to make it seem like it has but Coughlan & Grogan confirm it hasn’t - There has been no primary legislation which is what would be required and that would change the NHS from being free at the point of Delivery

Hi Jenine

One bit of advice for Independent Review Panel, take someone with you specifically to take notes. Note everything said if possible. In my experience quite a lot of what was discussed , especially that which was favourable to my mother's case , did not make it into their report. I wrote to them immediately and pointed this out , however had nothing back from NHS England other than they would pass my comments to the chair!!! Our case is now still with the Ombudsman.

Remember it is the ‘job’ of the NHS to make things as opaque as possible & for you not to know what has to be part of the process - you must read S107 Grogan and they must have guidelines against which to make an objective assessment against the Nursing needs of Pam Coughlan as a result

You should get a copy of what the CCG have sent to NHS England - you may want to ask for a Subject Access request if you think things may be ‘missing’

I am not sure if anyone knows what the correct procedure is - I made a request for NHS Continuing Healthcare (CHC) for my Mother in Law, I started this process in Jan 2016 and she passed away in November 2016, and at that point we still had not received any progress on the application, apart from a checklist being completed. (August 2016). Since her passing I have tried to pursue the claim, and will not give up! - via the Local Hospital NHS Trust, CCG, Local Authority, Commissioning Support Unit, NHS England and the Ombudsman, and all seem to be 'passing the buck' the CCG have agreed to do a 'retrospective review' of the case this was agreed in November 2017, but since then - nothing. I have written twice to the CEO of the local CCG, and those letters have not even been acknowledged.
The system is a complete disgrace, and no one seems to be able to move things along. As it has been said before, I think they just want you to get fed up with the process and you give in - I do not intend to do that.

Hi - ive just found out a bit more about the situation. It turns out my father molested the woman in the room the mental team said it was due to the dementia so they wont section him. I was hoping for this because then he can be properly assesed for his needs and type of home. Apparently they are doing an NHS Continuing Healthcare (CHC) assessment next week. The social workers are not to helpful but we have got some care homes to view who can cope with this situation and are secure. We have a care home that specializes in dementia assesing him thursday but i think they will turn him down now I know more of circumstances. Its totally out of his character but apparently the Parkinsons attacks the brain. Also and there is definite change in the last 6 months.

He is very likely NHS Continuing Healthcare (CHC) ‘qualified’ - the LA must be involved in the CHC process.

Hi Mike - So sorry to hear about your father. We had a similar experience with my father, except he got up in the night & went walkabout. He saw his reflection in a mirror, then fell downstairs breaking his hip in the process. The care home said they could no longer cope with him. You need a nursing home that specialises in advanced dementia - you local authority should help advise on this. My father had to be sedated at bedtime & this may have to be the case with your father. £3360 per week seems absolutely extortionate & I would research other suitable establishments for him. Just as an additional note, my father did not get any funding of any kind - in fact we were never even told of any assessment when he left hospital. Although I doubt if he would have been entitled as physically he was not too bad. It was 8 years ago but we were only paying around £500 per week. Although the home he went into in the end, did not look after him properly & he ended up with pneumonia & sadly passed away in 2009. Good luck & don't let them take advantage of you.

Yes - read here https://ico.org.uk/for-the-public/personal-information/ - you may have to pay and they have 40 calendar days to supply the information they hold about the person

Submit a Subject Access Request to the CCG and ask for everything including all internal letters, memorandums details of meetings and attendees phone records etc

The whole system is set up in such a way as to misinform mislead and delay in the hope that the vast majority of people give up and go away - Some ‘scalps’ are needed

It is a clear breach of the HRA for the CCG to deliberately obfuscate If a clear comparison to Coughlan or indeed any of the PHSO cases means eligible - These are financial decisions as well remember so they will be committing criminal offences if they deliberately withhold funding

Ah this is where I think the Ombudsman can short circuit - If the CCG is requested to confirm in writing (certify) they have made their assessment against the explicit instruction in S107 Grogan and fail to do so the Ombudsman HAS to rule the local procedure incomplete and throw it back to the CCG and tell them to look at it again

The whole point is that Pam Coughlans needs are Nursing needs but low level - She remains THE STATED CASE

Even the medication that Coughlan is described as receiving is beyond a social services team to administer and is in fact only various laxatives and she could state the efficacy of them or otherwise to her nursing staff. She could ask for more or less...... She could delay......
That is not the case for anyone without cognition that would relapse if much more complex meds were ineffective or did not have a registered nurse to monitor the efficacy and to administer them. That is why the medication part of the Decision Support Tool has a stand alone clause stating the need for meds that would cause relapse if they were administered incorrectly........

So in short, attack the procedural failings and law breaches. Decisions cannot stand if they are made illegally.
Then also make a comparison of Coughlan's needs with yours. Make observations of Decision Support Tool information that is incorrect or in conflict with the wording of the score given.
Don't forget to make your version of the comparison in nit picking detail e.g. 'needs assistance to transfer'..... Requires greater explanation. Most assistance is in fact the doing of the entire task for the person..... 'Assistance' is misleading. Then remember..... ADASS wrote this:-

'The court found that Pamela Coughlan’s needs “were primarily health needs for which the Health Authority is, as a matter of law, responsible”.

F1.9 Pamela Coughlan’s healthcare needs and her need for registered nurse care were neither complex nor unpredictable. However the court took the view that a) the quality and quantity (nature and intensity) of her health needs and interventions were such that she had predominantly healthcare needs and b) her need for registered or unregistered nurse care was more than incidental or ancillary to her accommodation needs and was not of a nature that a Local Authority could reasonably provide (i.e. they were not social care needs). '

I should have written to make a copy of the ADASS document https://www.adass.org.uk/adassmedia/stories/Publications/Guidance/commentary_oct07.pdf because these things get taken down or hidden..... (as this was hidden within a long list of random looking documents, a while ago).......

What does clearly show the Coughlan case is this 2007 document that is still valid advice (as far as an ADASS manager was concerned). See:-
https://www.adass.org.uk/adassmedia/stories/Publications/Guidance/commentary_oct07.pdf
The later parts show Coughlan's needs and if you type them into a word processor and then use your own care notes to compare, in a different script or italics you can provide anyone who needs to review matters, with evidence that your loved ones needs exceed the legal remit of a council to provide......... Especially if you read the whole document......... You will see that this is advice to adult social service managers and it was based upon analysis of many patient's assessment's of levels of need that had already allowed Continuing Healthcare funding. What many do not realise is the number of patients that also benefitted from joint complainants in the case..... One (unlike Ms Coughlan), was bedbound for example..... So being bedbound should not be an indication of less needs as is often tried on by assessors.......

Paul

Again, with all due respect, if a candidate for NHS Continuing Healthcare cannot demonstrate that their needs are primarily health related as opposed to social care needs, the legislation and case law is crystal clear. They are not eligible.

My experience is that at clinical commissioning group level the CCGs are not interested in the law. They follow their guidance doggedly. But even if a case were to get to court, the law still requires a candidate to prove that the majority of their needs are health related such that they have a "primary health need."

As drafted the current National Framework is quite a well drafted document (assuming it is followed). Unfortunately, the real problem lies with the Decision Support Tool (DST) which Clinical Commissioning Groups are supposed to use as information gathering documents to assist professional judgement in deciding NHS Continuing Healthcare eligibility is flawed and allows far too high a degree of subjectivity in the decision making process in terms of how complex, intense and unpredictable a health need is. It doesn't help that the DST is one of the most badly written (deliberately so) documents I have ever had the misfortune to come across.

Having seen the "system" that is in place for a while now, if I could be granted one wish, it would be that the decisions taken in the first instance are taken out of the hands of Clinical Commissioning Groups, many of whom as I have said have adopted the default position that candidates are ineligible.

The point is don’t challenge the decision challenge the PROCESS for unless the CCG have that in place they are breaking the law and the HRA - and none of them do....

Andrew they can’t set their own criteria - That is what the Grogan case was all about - Challenge them on the process they use which MUST Be ‘Coughlan’ compliant, following the stated case R (Ex parte Coughlan) v North and East Devon Health Authority July 1999 Ask them What objective standard did the assessors use to assess the level of nursing need? In R (Grogan) v Bexley NHS Trust (2006) 9 CCLR 188 Mrs Grogan argued she had wrongly been denied continuing care funding because the eligibility criteria used by Bexley Care Trust were not ‘Coughlan compliant’ and therefore her assessment was unlawful. Instead, they had applied a higher test than that set out by the Court of Appeal in the Coughlan Judgment to assess her eligibility. On what objective basis did they ensure that they have not applied a higher test than that set out by the Court of Appeal? Section 107 of the Grogan judgement requires them to (1) establish the test to be applied, (2) to satisfy themselves that it is lawful under Coughlan and (3) be clear that the establishment of the RNCC scheme in 2001 does not and could not alter the law as established by the Court of Appeal in the Coughlan case. On what objective basis has the CCG assured itself that it is fully compliant with the requirements established by ‘Grogan’? Send them this word for word - if they do not follow this process complain immediately to the Parliamentary & Health Service Ombudsman.

Where are you and where is the nursing home ?

Glynis - remind me what you specifically need this for again - I’ve lost the thread

The Data Protection Act is very clear; there is no exclusion for "not having the staff". Contact the owners of the nursing home and insist that this is done. make it clear that you do not wish to cause trouble, but do need the notes. Do ensure that you have a right to see the notes, only the "subject" has the right to make the request, or someone acting on her behalf with proper authority (at least written authority from the person concerned, ideally a Power of Attorney.

Andrew, I can't say for certain how things are now, but 17 years ago when I returned to the UK after 25 years in Australia. I was not asked for my medical records. Neither was I asked for the extensive medical records of my profoundly disabled daughter. I gave the GP a detailed run-down on all the family's health history, including medications and she took me entirely at my word. I don't know if that was just a fluke or common practice. When our things were finally shipped from Australia to UK, I was able to provide some of my daughter's records that I had kept filed, which the GP accepted willingly but it wasn't necessary for me to do so as far as she was concerned. I don't know if this will be at all useful to you but hope that it helps somehow!

Andrew,
I would imagine that (having lived abroad myself), the GP would do what mine did and obtain the records from my last UK GP. We lived in a jurisdiction that made patients responsible for their own records and as such I was able to pass them to the new UK GP to fill in the gap. If not then I imagine that someone if not the person you are helping, knows a little about what health needs were treated abroad if not the entire details. Such info with approx. dates would enable a GP to add them on in some way as reference if not entirely complete records.
If the foreign GP is known to you then perhaps they have the records, if the system there was not designed for records to be kept by the person you are helping.
I don't think the emphasis is on the new GP to do anything except track down records from the last UK GP.... It would appear unfair to expect them to go globe trotting as a last resort.

How long they been out of the country - NHS Legacy will hold their records if before 2013

Jenine,
Much of what I write here is my considered supposition but it is backed by legal experience and good knowledge of the Framework and it’s Laws. There is some logic applied to what I understand of other law too.
Advice and a Legal Opinion can be sought via a Barrister if you have the skills to instruct them (Demonstrate The Case), yourself.... Otherwise you would need to lay everything out for a Solicitor to look at so that they can instruct the Barrister. Get a legal opinion even if you feel confident to construct the case and to take the matter to court yourself. Remember.... All judges were once Barristers. Their opinion barring an unknown reason for a better case for the defence, will indicate if grounds exist, to act.
To answer your question.... The appeals process is a formal process and under Administrative Law any decision that has a formal appeals process cannot be challenged in a court.... Until the entire appeals process (Decision through to Ombudsman), has been exhausted. The CHC process is deliberately designed to prevent court action and to generate failure at every turn, because those failures become ammunition against any determined complainant, to a court.... The failures in appeals cloud the issues...
The Framework divides appeals at IRP level. For example it splits the session into Appealing the Evidence of Needs and then the Procedural Methods used..... so even 'Procedural Error' ... Law Breaking and ..... Criminality, has to undergo appeal in the same way as a challenge to the evidence of needs. This is regardless of if it appears deliberate as was the case that happened from 2010 until 2017 in my mum's repeated assessments and appeals.
Criminal examples can be stressed (and backed by the written Criminal Law too), in appeals but they will only act on them if you make it plain that you do not want a Magistrates Hearing at this time and then clearly link the criminal act to the Framework Breaches. Here is a good link to get you started because simply knowing the words of the Law is not sufficient....... https://www.cps.gov.uk/legal/d_to_g/fraud_act/
It is also a way of ‘threatening’ the chair and their panel, because to have heard a criminal accusation and then fail to act on the link to the failure in procedures is tantamount to assisting the alleged offender or even to commit the act after the fact. The Chair arguably has a ‘Legal Duty’ to hear your evidence and accusations (even if they cannot act and decide upon them). A IRP Chair would likely be guilty of a criminal offence to refuse to hear accusations of criminality if it is linked to the matter in hand.
e.g. Extremely perhaps; if you had video footage of a named CHC individual striking your loved one during an assessment.... It would be bloody foolish to ignore the criminality and so also ignore the fault within the assessment process under consideration. So, an altered DST for example, is proof of a criminal act; the item you hold is a forgery if you also hold the substantially different original. To ignore the criminality and then the failure in the process would be to condone the criminal act and that makes the Chair complicit in the criminality, (if you ever got to a Magistrates/Crown Court to prove it).
e.g. The Framework States:-
‘40.2 CCG decision-making processes should not have the function of: [...]
• completing/altering DSTs [...]’
For anyone to alter a medical record is an offence. The DST forms the care plan. it is clearly a medical record. See half way down this determined FOI request with Police: https://www.whatdotheyknow.com/request/police_response_to_falsification
For anyone to Knowingly and Dishonestly make a false representation is a criminal offence when done in a financial matter. See: http://www.legislation.gov.uk/ukpga/2006/35/contents
To (substantially) alter a document and hide the original whilst making a replacement is criminal forgery. To do the same to your own or your employer’s financial advantage is again, Fraud and Forgery too. See: http://www.legislation.gov.uk/ukpga/1981/45
People have tried to get decisions Judicially Reviewed and have had the Judge refuse to do so solely because they consider (with likely no experience of the process) that the appeals process is all encompassing. (The process, the Needs Evidence, The Coughlan Levels for Councils, The criminal Law, etc.)
We know that an all encompassing process and appeals are not the case when remarks like.... 'I cannot discuss law'. Or, ‘Criminal matters cannot be addressed here’. Or ...... 'The Coughlan case is very old and has been replaced by the Framework'.... 'I cannot comment on whether something is criminal'..... ‘I wouldn’t know if a council top up requested of a spouse is illegal’.... And oh so many more..... Even including ‘We will continue the IRP without you if you insist on leaving now’. (Having failed to properly carry out a MDT assessment, the IRP cannot go ahead because the Law requires such; and also a legally made DST to be in existence before an IRP can actually sit legally. What they would be hearing is an illegal process without admitting their part in taking that illegality further).
So having covered that and not explained so much more..... In my mind many years ago it became apparent that the much less well resourced and less capable council would be a better target for any court action..... Some here have even commented that the money grabbing lawyers for the council do not know the CHC process when they start action. It is also the case that ‘Coughlan’ was a claim against a Council.........
Why attack the council? (Appeal the NHS too of course).
They do not have any appeals process that you need by law to adhere to, in regard to their acceptance of the NHS’ CHC decision. You are excluded from their decision making process.
If it can be shown to be a faulty decision then it is a way in.....

The NHS assessor’s and Council rep’s incorrect procedure during the MDT and subsequent Panel Phase (if any), is the key here....
If the council accepts an incorrectly made decision then they would struggle to avoid an outcome via the court, in your favour. Judicial Review seldom demands an overturning of the decision but it is usually what happens. Or else a much more serious and expensive court action ensues that is already risky because of the JR findings of error.

Criminal matters can be brought up by referring to them in that way whilst demonstrating that they are, (regardless of that court’s inability to rule over), actually against the rules. And very seriously so because the procedural errors represent ‘Prima Facie’ evidence of criminal acts.

Note: Ours Council did not even have a legally and Framework required interagency CHC appeals process to dispute NHS decisions with the NHS from 2007 until 2012 and then again from 1.4.2013 until I caught them again in Early 2014. IRP records show this is true. Letters too.

Whilst a complaint is required in regard to their wrongly accepting care needs, it is not an appeal. There is nothing requiring you to formally appeal to the council within the CHC process.
A refusal to act in your case upon complaint allows Judicial Review of THEIR original decision to accept care needs beyond their legal remit and if you want it complicated, their refusal to act as a result of your doubtless complex and detailed complaint that is sown with examples of Civil Law, Criminal Law, Framework Rules and Court Precedents too.
Also a JR of their exceeding of the Coughlan Limits is reasonable. Regardless of if they fund or you are self funding.
Also JR regarding the recharging of funding (if they contribute to cost of care needs). Because they are doing that upon faulty decision making having failed to use their own appeals process in support of your loved one.

The logic is to avoid any mention of the NHS except to state that their, (Perhaps still being appealed by you), decision has been accepted by the Council and it is the council’s decision to accept the care needs is itself faulty......

In that last regard..... https://www.adass.org.uk/adassmedia/stories/Publications/Guidance/commentary_oct07.pdf is useful because at Page 22 onwards, there is a ‘Pen Portrait’ of Coughlan and her needs. It can be sliced up and your loved one’s care needs inserted to allow a direct comparison of your loved one’s needs.
Because it is a creation of the Social Services Managing organisation for Adult Care Directors, It cannot really be dismissed as something that an unidentifiable someone once placed on a Blog. In that light..... Make a copy on your computer, just in case it disappears from the internet..... Things do when they become inconvenient.......

I won’t go too much into the similar methods available to combat a civil claim for the funding to be paid to the council..... Almost everything discussed and more can be written out and sent to the council as a warning that they will be challenged and that the entire case will need to be heard regardless of any appeals processes..... Their claim will also allow you to get the NHS into a court to answer if they behaved lawfully. This si required because if it is judged that they behaved unlawfully, then how could you owe the money being claimed.

This is also because the organisation claiming the cash, can only do so because they worked with the organisation that has failed to do things properly..... And by attacking your non payment has kicked in the door to the courts before CHC appeals have ended.

You could argue that they cannot claim the money until the appeals have ended..... I doubt that would work because technically the money is owed and refundable if they are wrong..... However, one arguably commits a criminal offence if attempting to take money that is not one hundred percent owed.....

You can read the ADASS report (link above) that actually suggests that any money taken under appeal .... is kept in an interest accruing account and not actually used to pay for the care. (Until I presume, such expenditure becomes lawful).
I very much doubt (having acquired the records), that (even having refused to pay) that such would ever have occurred in my mum’s case. Ergo the money being claimed was seen as 100% theirs when in three IRP cases it was subsequently proven not to be.
In any financial transaction, it is not for you to prove that your money is yours.... Anyone claiming it must by law be confident that it is in fact theirs to invoice and then take.
Having a formal refunds policy makes it apparent that there is doubt as to the ownership claims made by the Councils or the refunds policy need not exist.

Refunds policies are contrary to the criminal law which makes it an offence to retain a false credit. In short.... ; you get a bank statement showing a million extra pounds has been paid in that is not due you...... If you keep it or hide the fact let alone spend it, then you commit a criminal offence. Having a policy does not over ride criminal law..... Ergo, if an outcome involving council staff is appealed with the NHS, then to invoice and take the money would appear to be a matter of poor timing..... Even if there is an entitlement to invoice for it.

Because it’s part of the scam - delay & misdirect is the name of the game - Duty of Candour goes out of the window with their integrity

Kate T, It is not at all unusual even in cases with living patients that NHS England send the docs with a couple of weeks to spare..... At that point I usually tell them to cancel the Independent Review Panel (IRP) and rebook it for some time later....... If these people can take so much time and get paid to delay matters as they do then I demand the right to have a similar period in which to amass data (that they haven't sent), and to write up further representations to the IRP chair.

I agree. But the Framework is the NHS's (well ignored), Bible. It seeks the non existent Primary Health Need. All needs relating to the care of a sick/injured/diseased person are the responsibility of the NHS. At least the definitions state that.
The matter of the Coughlan case was an argument with the Social Services. It is no coincidence that the assessment process is led by the NHS even though the Coughlan case established limits for Social Services. It is a deliberate attempt to make one organisation compete with the other to prevent illegal acts in decision making whilst making one (ironically; the NHS), more dominant and better resourced.

Ha - almost all of the time the council don’t get involved after the Local Appeal which actually invalidates anything at that meeting - reason is don’t want LA exposed to patients representatives - The NHS ‘decide’ what is LA limit and are wrong 99% of the time

No Jenine, I wouldn't pay it..... We are still intermittently arguing after almost two years since my FiL died. The amount is considerably greater than 10k. We refused to pay since a lone assessor recommended to remove his funding back in April 2013. He was awaiting and putting off re-amputation of a failing leg amputation that due to infection clouding his mind (and intermittent MRSA that held up the op'), kept causing him to change his mind (without anyone telling us). Then he collapsed after the eventual re-amputation failed and they sent him home to die with two inches of thigh protruding from his exploded surgical wound. (We saw it explode when the stitches began to be taken out.). Liver cancer and general decline due to infection and the the need for repeated amputations and repairs did for him and all while his needs were adjuged by a lone assessor to have been within the legal remit of an absent social worker, to provide..... Yeah Right!.....

Jenine.
The IRP can deal with matters of relevant law. The Standing Rules Regulations etc. for example can be used to reinforce an argument. If they (as they will) try to fob you off, then having stated that law is being broken you have to have the flexibility to demonstrate that it is also against the framework rules that they can adjudicate on.
To explain with a single example... even using criminal law as a starting point to state that for the local appeal to have ignored the civil law that requires a Multidisciplinary Team (MDT) to consist of more than one person; and to then add that if the ignoring was deliberate then Fraud has occurred and if it was negligence then it was surely misfeasance in a public office.
Then when such matters are brushed aside, you need to reiterate and link the matter by mentioning the lawful form and the framework description of a MDT.
And then reiterate that to have ignored your appeal observations made in the same vein, was tantamount to Fraud or Misfeasance.
In short you can get them to listen to the legal argument by linking it to the misuse or ignorance of framework rules.
I don't understand how you can pay a debt to a council ,upfront...... If money was owed and the assessment process was genuinely unlawful or seriously flawed, or even if the appeals process was incomplete, then the Council can threaten but not act.... You cannot take a council to court or the NHS either until the appeals process is exhausted. What is sauce for the goose is sauce for the gander. and local council lawyers chasing cash (without CHC knowledge and skills), eventually get it that they will lose in the court once the NHS who could as easily owe the money also in the same case, face a judge to explain how they have made a decision without following the process lawfully. How they have made the council act unlawfully. How the council has acted unlawfully when refusing to perhaps appeal on your behalf using their own procedures.
Then of course the council loses also because they are only then able to be shown to a judge to be providing funding and care that is beyond that of Ms Coughlan's care. (her case is a legal precedent and her needs when compared with your loved one's would certainly be less and the Framework does clearly state that her needs are beyond the legal remit of a council to provide.

Once the IRP is complete take immediate action with a lawyer and you will win - this is instituionalised fraud - top to bottom - Govt through to CCG - I wish I was joking

The Ombudsman has made a potentially fatal error here regarding the destruction of the original DST and council assessment copy.....
q. Was that the copy that was altered six days later?
q. If not then was it the copy that the decision maker used to refuse funding?
q. If a second copy was presented to the decision maker then the decision made was not legally made because the Framework requires that the DST created at the MDT assessment (that included everyone) be used to 'inform' that decision. Note: You formed part of the MDT as a representative. As a non professional, your scores should have been noted even if later ignored during the private session that should have included all professionals. (Even care home professionals in my experience, get to work on the final MDT domain scores). To alter matters without their presence is an error.
q. Was the destroyed version the originator of the copy sent to you in refusal to fund?
q. If not then were you told a lie regarding the outcome of the assessment?
Comment. The Framework does not allow the alteration of a DST. However, extra work can be done by the original MDT (including professional advocates too) but that work should not be to disfigure or to remove any part of the original DST because some of what is recorded is your and you apparently missing advocate's input. If it is removed or 'enhanced' at some later date without your acceptance, then your words have been falsified.

There is so much more to this.

Shirley,
Sorry about your mum.
However, to answer one of your questions.
Make a 'Subject Access' request for her DST copies in electronic and paper form from either laptops used or the central servers upon which they were likely loaded. There are likely paper records filed too. Also ask for the minutes of the assessment meetings, if they kept a record.
Ensure that you request explanations as to the reasons for (if) any excluding or omitting of data and an outline of what that excluded data record was about. To explain: My CCG/CSU could not format and print the original typed computer copy of the DST. Nor could they send it electronically. The second copy turned out to be opened for around 15 hours straight from the time of it being first opened (according to hidden metadata on the file). I concluded that the assessor had recreated the DST from memory to create version 2 that I was sent.
Also request any and all references to her name and/or NHS number in both electronic and paper form. This should include emails too. Such as between managers and the social services.
The right to this data is enshrined within the Data Protection Act. I would insist that as you are executor that you are entitled to see it. Do this same thing from the Social Services too.
There will be a cost for each set of data and the internet will confirm the maximum charge.
They can refuse if to do the work exceeds a certain number of hours.... So don't let them confuse supplying her entire medical record with what you are requesting..... Keep it relative to CHC assessment matters only.
You mentioned an advocate during your description.... If they were a trained professional then they should have been invited to the MDT meeting held 6 days after the original assessment.
I note that the domain scores were downgraded at the second meeting. You need to discover if this was solely attended by the MDT members of the original assessment because for anyone else to be involved is a local procedure and it is not a correct procedure. The higher of disputed scores at a MDT assessment should be accepted and only if exceptional circumstances have been outlined, could anyone other than the full (original) MDT change them. For anyone else to change a MDT's recommendation (even to lower the default raised argued scores), is to break the rules. It is potentially criminal too. Money is involved in the outcome of breaking those rules and that is Fraud.

Shirley what is your mothers condition ? This doesn’t make any sense whatsoever - are these scores yours or theirs ? What was the Ombudsman asked to look at ?

I agree Paul, I am lucky in that my earliest training was in Police work. And as such I learned to read and apply the law and comprehended that Law also has intent (that can be different to what is written) and that it alters over time due to additions/new Acts and case law created by judges.
However, it is hard work but not impractical to use the nonsense within the DST and the Framework against them. Especially if you first comprehend the law within sec 6 of the Standing Rules Regulations. You can make accusations in appeal/assessments such as: 'The standing rules reg's states x and you have done z'.
Even having perhaps made accusations of criminality, you can also state that the failing was at the very least a 'Procedural Error' which is required to be addressed within appeals.
You could ask:- 'You are not behaving lawfully. Go on explain how what you said/wrote is a lawful action?'
Then repeat over and again the same mantra in response to their many failings. To further explain:- There are many other laws involved that are not referenced within the Framework. Altering a DST is stated to not be possible. The explanation that to do so is criminal fraud, is not referenced or even hinted at. Nor is the fact that someone has altered/corrupted data, and that is an offence under the data protection act. I would imagine that to falsify a medical record is in there too. I tend to ignore the 'Professional Opinion' malarkey that might give a manager a get out because that right to opinion is clearly only that of the MDT. Others can only act in clearly articulated 'exceptional circumstances' to return the task to the MDT for more work. The rules 91 at page 31 after all do state that 'A decision not to accept the recommendation should never be made by one person acting unilaterally.' This happens regularly at my CCG by virtue of a single manager making the decision that is often (and in my mum's case too), an overturning of the MDT recommendation.
An even handed explanation complete with the idiots guide to the criminal law included often makes even the most recalcitrant NHS manager start to wonder.

And the "nature, intensity, complexity and/or unpredictability" criteria overcomplicate this entire process. It was a throwaway comment made by Lord Woolf who gave the leading judgement in the leading CHC case of R. v. North and East Devon Health Authority Ex Parte Coughlan. The Court of Appeal did not rely on this criteria when they delivered their judgement.

The actual test formulated by the Court of Appeal was what is the quantity and quality of healthcare need required by the individual? And is it lawful for those needs to be met by a local authority?

In Coughlan it was agreed that Ms Coughlan was receiving low level, "routine" nursing care. Her health needs were at the time of the judgement "stable." The Court of Appeal found she was eligible for CHC.

I am not a fan of the confusing "nature, intensity, complexity, unpredictability" factors. They do overcomplicate the real issue. But I guess we have to live with it as the people who assess have to do so.

Chris

In our case the person from social services who was part of the MDT and DST we are challenging wasn't even a qualified social worker, but a general nurse. We have found out subsequently that this individual completed a social services report on the same day that the MDT completed its assessment and the recommendation to the CCG on our Loved One, having agreed with every recommendation made by the nurse assessor. This person from social services who was part of the MDT says (having been informed by the nursing home that our Loved one has assets) that our Loved One should self fund.

Jenine

Chris is right. The National Framework is crystal clear that the nature and/or intensity and/or complexity and/or unpredictability of the needs may be sufficient to make someone eligible for CHC.
The various criteria are NOT cumulative.

As the National Framework says "Each of these characteristics may, alone or in combination, demonstrate a primary health need, because of the quality and/or quantity of care that is required to meet the individual’s needs. The totality of the overall needs and the effects of the interaction of
needs should be carefully considered."

If a clinical commissioning group is suggesting the factors must all be present, they are misapplying the Department of Health guidance, which I would hope gives a ground to appeal.

Jenine.
Another problem with going to court, perhaps for Judicial Review of a bad series of decisions etc., would be that JR requires that all of an established appeal procedure be gone through before seeking legal redress.
This has been confirmed in failed JR requests by the judges involved.
However; as far as if, (non criminal), law breaking that is clearly expressed is denied by untrained non legal personnel, I have often wondered if that would put matters beyond the Local and Independent Appeals Process. Because they usually write that they cannot deal with matters of law, only the Framework etc.
Especially as my experience of Independent Review Panels is that they refuse to discuss breaches of law at all, unless, (I still do both), the breaches of law are expressed as breaches of procedure.
I use phrases such as. 'they broke the law of ZXZ etc. Which point is entirely Judicially Reviewable according to lawyers, but as this panel will not deal with such accusations, I might point out that the problem is also a breach of QWQ etc. within the Framework. Perhaps the existence of the law is the reason for the existence of the rules that have been so cavalierly treated by the NHS/Council'.
You can do this for almost every infraction of Framework rules because they are usually supported with civil court precedents, administrative or criminal law.
For example: our last refusal to fund by the CCG was left unsigned and without even a name of the decision maker typed at the bottom.
Administrative law states that it is not a legal decision simply because of that failing or desire by the CCG to avoid naming the decision maker who will be easily contactable directly, by their name and the CCG/NHS email tags, common to all of their staff.
You get my drift.... Laws are broken and without making a threat at Independent Review Panel (IRP), you are putting the IRP chair (often a lawyer), on notice that you will eventually go to court (if they ignore you), and on some very safe grounds too.

Keep in mind that with the 4 characteristics that are considered as part of a Continuing Healthcare assessment (Nature, Intensity, Complexity and Unpredictability), you only have to show characteristics of one of these, not all of them.

One of the biggest problems with Continuing Healthcare (CHC) is that Care Homes are generally reluctant to see a self-funding resident (paying full care costs) admitted to NHS CHC which will often pay less than the full fees. The daily reports that Care Homes produce are often minimal and unlikely to show really accurate records which could be used in conjunction with CHC decisions.
Not only are the Care Homes conflicted by the funding difference, but care staff are not necessarily trained to give full details which would require more time than is available and can be upsetting for family visitors.
This can frequently make the difference between a positive decision for CHC funding and being denied CHC funding. This dilemma seems impossible to resolve.

Paul, back in the PCT days before 2013, my dad was threatened with an NHS Security Team, if he communicated again, when it was me doing the admin and the questioning....... We still laugh at the imagined vision of bullet proof jacketed SAS style blokes swinging in through the windows from their helicopter. The idiot that sent the letter was quickly promoted to director level within another NHS area during our complaint about her conduct....... Which to this day remains unanswered.

Absolutely correct Angela.
Although some of what John wrote is correct.
However, the CHC process is actually enshrined in law John. It is called the Standing Rules Regulations. Part 6. SEE: http://www.legislation.gov.uk/uksi/2012/2996/contents/made
It does lay out certain aspects of what is required. The only way to use the law is to establish wrongdoing within the Framework and then compare it with what the above law and often many other related laws and court precedents states. The lawyers chasing profits you mentioned do not see beyond the DST and Framework and often have little knowledge of the criminal law whilst espousing their expertise as lawyers.
For example a council potentially breaks Data Protection Law by obtaining financial and personal data to means test, when an appeal is underway. Because when it is won it exposes the lack of actual need to have collected and processed the data. The logic for that argument is that they never needed the data or to process it until appeals were ended. So it is a matter of timing and not an automatic immediate right in law for them to acquire the data and recharge their own costs.
In major infractions of the Framework there is obvious misfeasance or procedural irregularities that can be represented in slightly lesser tones during local appeals, not that they will listen.... That is why I always write local appeals in great detail and include all legal infractions and references to the laws and rules broken, as if for the end user, the Independent Review Panel that is often (in my experience), chaired by a barrister who well might understand the risks if matters ever got to a court.
The human rights legislation does in fact require independent review of decisions if requested. (This does not mean an entire panel either). That is why it is included (if messed about with by those that manage the things), in the National Framework as a right.
External law is obvious throughout the Framework. The trouble is, the rule breakers do not even understand for example, that for anyone other than the original MDT to alter or rewrite a DST and it's recommendation (a regular occurrence), is in fact fraud and forgery in the purely criminal sense because of the potential of monetary loss or savings to their employer.
Using all of this external law is allowable in appeals to Independent panels because even though they will deny any ability to deal with criminal complaints, the complaints especially if couched in this form are in fact severe procedural errors. For an IRP to ignore such failures that you identify to them as crimes, or civil offences would kick the door open to actually getting into a real court and the NHS and councils do not want that because of the risk of new precedents being set that others could exploit. .

The reason they never go to court is that until you exhaust the NHS appeal process a case wouldn’t be heard - HOWEVER once you get to the Ombudsman the law finally comes into play - They will not risk a case in court as it would set a precedent - the shoe is on the other foot.... Rather than ‘rule’ the CCGs are told to ‘look at it again’

Thank you for your comment John. I understand that you are looking to clarify elements of the process, and there may well be confusion in some quarters about this, but the article here is specifically about IRPs, and it does not seek to mislead. The NHS does indeed attempt to act outside the law when denying people healthcare that they have a right, in law, to receive – and many illustrations of that are shown in the of the thousands of comments on this - and other - blogs.

http://www.neneccg.nhs.uk/resources/uploads/files/Management%20of%20Persistent%20_%20Vexatious%20complainants%20v6%20Published%20Feb%202014.pdf

Above is an address detailing action over Persistent and Vexatious Complainants. There are dozens of such protocols available.

If it is not a genuinely Independent Chair in charge then make your position known and perhaps leave. The fault will be theirs for misleading you. Misleading someone in a financial matter or causing them expense in the same vein if it done with dishonesty is fraud.

I agree, and with that in mind I always write the first appeal in close detail including supporting evidence as if I was going to present it to some one that will listen. The chair of the Independent Review Panel. What seems to be going on here is some kind of local resolution panel.... It is not the correct procedure.... It does however seem to lend ammunition to the local CCG when it answers the IRP chair prior to them agreeing to even hear the case. We have had such a thing happen recently. NHS England declared that one assessment would be heard but not one that followed. They blamed the IRP chair but refused to name the person. The matter remains unresolved after 18 months. It relates to appeals going back to 2013. I reckon that NHS England is no longer non partisan in this anymore. They are protecting CCGs and blaming panel chairs for not hearing cases.

Absolutely not - You keep on - once the IRP has sat you have completed the procedures and then it’s up to the Ombudsman to hear your complaint and apply the law - remember nothing up until that point is in any way ‘lawful’

Get the name and position of eveey member but particularly the chairperson that will be present - VERY important - Note pretty much all they tell you contravenes the law - these people are gatekeepers

Martin, I just get banned from communication with them. They really don't like a skeleton legal argument that exposes wrongdoings, along with supporting evidence.

Honestly I wouldn’t worry about any threats at all - The NHS is operating almost entirely outside the Law with continuing care - they wouldn’t dare take it further

Glynis - problem is you can’t just go to NHS England as you have to complete their ‘procedures’ where are you to attend the IRP ?

Join the club. I recently discovered that a safeguard had been issued because I was persistent and difficult. What I can't understand or comprehend is the attitude of these civil servants. How do they sleep at night? They appear to be totally indifferent to people's suffering and the pressure they put on families. Even more concerning is the attitude of MPs who appear to be to scared to do anything about it. I recently wrote to my MP and asked him what was the point of passing legislation if said legislation is ignored. In addition to this I asked him why he thought it was acceptable for a CCG to redact anything in their files which is compromising on the grounds that it would affect the relationship between the care provider and the patient.