Following the IRP review there was only one avenue open and that was an appeal to the Ombudsman. The Ombudsman clearly stated in 2002 that authorities were using over-restrictive local criteria which were not properly in line with Department of Health guidance nor with the Coughlan judgment (1999). A pattern emerged from the complaints she saw of NHS bodies failing to conform to the law and central guidance on this issue, resulting in actual or potential injustice arising to frail elderly people and their relatives. However, in a number of the complaints she saw, any review of the criteria following the judgment seemed to have been very limited, and criteria remained unchanged even when it is very hard to see that they were in line with the judgment. Some patients needing long term care need help with a wide range of basic activities: to the average patient or carer, the distinction professionals might make between health and social needs is largely irrelevant. And there is a large number of people in the group in between. Now and in the past, she was concerned that NHS Funding for Long Term Care was based on generally quite subjective criteria. So on that basis, I was quite hopeful that an appeal to the Ombudsman my mother's case would at least be fairly compared to the Coughlan judgment. Yeah right.......what do you think?

The Ombudsman

The Ombudsman require their own forms to be completed with their particular layout of questions, not always appropriate to the case but the relevant part is available HERE together with additional case history documentation. Naively I thought the Ombudsman would consider my mother's case in relation to the Couglan judgment and previous reports published by the Ombudsman. Not so. The entrenched denial of the NHS came into play again basically rubber stamping the IRP decision. Their Investigation Report merely looked at the 'process', not the health requirement. Their advisor (person unknown) backed up the application of the PCT local criteria and the National Framework. On Coughlan, their advisor (person unknown) stated that a) there was nothing to suggest that my mother's case was not Coughlan compliant (there was nothing to suggest it was either!) and b) that a comparison of a person's need with Coughlan was not a test for eligibility. The whole thing was turning into a bit of a nonsence because on the one hand the Ombudsman has upheld complaints and criticised assessment tools but in my mother's case the Ombudsman is upholding the very system that she complained about it in the past!. So how do you get a fair review in those circumstances? I decided to have one last go and submitted an appeal. Again my argument was not properly considered and the Head of the Review Team basically dismissed my appeal and told me that 'matters have to be brought to an end at some point', so that was it. The Ombudsman upheld the illegal SHA eligibility criteria even though my mother was receiving nursing care by definition. During the course of my dealings with the Ombudsman, I dealt with a total of 7 different people, I have no idea if they talked to one another or just kicked my mother's case around between them. Having no dedicated case handler and a mystery advisor (presumably NHS and not independent) does not give an overwhelming feeling of confidence that complaint was dealt with seriously. They probably took the view that I was unlikely to go to Court so a casual dismissal without properly reading my documentation would do.

So the decision really was what to do next. I was tempted to apply for a Judicial review to challenge the original SHA/PCTdecision. It is a more expensive process these days and it is certain the NHS would mount a vigorous defence. A Judicial Review might not help since it is not really concerned with the conclusions of that process and whether those were ‘right’, as long as the right procedures have been followed. The court would not substitute what it thinks is the ‘correct’ decision but it could squash an order, striking out the original decision, and requesting the public body to take the decision again, lawfully. However, time has run out for that option so unfortunately then I have to concede the end of the line and I have decided to post the whole useless process on line instead. I admit I have made some mistakes on the way when dealing with the whole CHC question but if this site is useful to anyone in a similar position then some purpose will have been served.

Final Remarks

The Ombudsman's review of my mother's case was fruitless, not because the decision went against us but rather that the Ombudsman ignored most of the facts submitted to support the case and totally failed to examine the case in detail. These issues are dealt with in the Final Summary. Although we pursued a retrospective claim, had we known at the time and been better informed, it would have been preferable to have made the claim whilst my mother was alive. Subsequently we did try to get solicitors involved, a firm Beven Brittan, who were touting for business at the time on the internet, but all they did was to send us repeat forms to fill in so that didn't go anywhere. The arbitrary division between a 'health need' and a social care still remains however a gnawing injustice since anyone who has witnessed the physical and mental deterioration of and Alzheimer's patient cannot but wonder how on earth that can be classed purely as 'social'. It is a total absurdity which has no basis in law.
1948 alliance the real lottery dementia cosh rates democracy? healthcare costs healthcare responsibilities going down it's like cycling uphill legal criteria used? london dementia facts help me! postcode lottery the process diagnosis lottery PCT lottery the problem...