Making sense of community care law
factsheet 2:
challenging continuing care funding decisions
This factsheet outlines the steps you need to take to challenge a decision where you believe you or a relative are being wrongly denied the continuing healthcare funding to which you are entitled in England (see below for Scotland, Northern Ireland and Wales).
See Accessing Continuing Healthcare Funding Factsheet for help with applying for continuing healthcare funding.
1. get specialist help
The Dispute Resolution or review process is complex and a solicitor or other specialist will be able to:
- Advise on your prospects of success in challenging a decision
- Prepare written submissions
Following the introduction of the National Framework in October 2007, there are now two Dispute Resolution stages:
- Local resolution
- Independent review panel
The Dispute Resolution process can only address whether the National Framework and Guidance have been applied correctly in your or your relative’s case. Concerns about the type of care or treatment, or the location of the care package, need to be dealt with through a separate process.
2. Ask for a Primary Care Trust review – local resolution
Apply for a review in writing checking for deadlines or forms. If the request is due to an increase in your relative’s needs, do not be put off by deadlines. Primary Care Trusts (PCTs) are supposed to deal promptly with review requests, although it can take months. The PCT review may involve one or more of the following:
- An internal panel to review assessment documents
- A neighbouring PCT reviewing documents
- An invitation to next of kin (or someone with Enduring Power of Attorney) to attend the Panel review meeting
- An invitation to next of kin (or someone with Enduring Power of Attorney) to express in writing their understanding of the individual’s needs
If you are asked to give your opinion, issues to raise include:
- Errors or misunderstandings by the original assessor of your relative’s needs.
- Needs that are already being met that have been overlooked.
- Supervision, prompting and other specialist interventions needed for dementia or mental health problems.
- Evidence/opinion of complex need and healthcare in any recent hospital assessments (for instance before being discharged).
- Social Services’ care plan or assessments indicating the number and quality of nursing or other interventions required.
- Your own detailed records of the events and illnesses that lead to your relative’s need for care.
- Evidence from a GP or other professional where they did not give an opinion in the original assessment.
3. ask for a strategic health authority referral
If the PCT review maintained the original decision, you can ask for the case to be referred to the Strategic Health Authority’s Independent Review Panel (IRP). You can also apply direct to the IRP if the local resolution stage is taking too long. The IRP has an advisory role and can only offer ‘guidance’ on:
- The ‘validity’ of the PCT’s decision
- Whether the PCT correctly applied the National Framework
However, PCTs should accept IRP decisions in all but exceptional cases.
The IRP should let you have the documents they will use to consider your relative’s case and ask you for information about their health needs. However, this information is often only provided a week or so before the hearing. It is advisable to meet your solicitor or adviser well in advance of receiving this information, to prepare your written submissions. You can update them when you have the information.
The panel hearing:
- Consists of three people
- Will normally include a nursing adviser
- Is relatively informal as part of a fact-gathering and decision-making process
- Is private – you and the PCT should be interviewed separately.
You will generally be notified of the decision in writing within four weeks. If the IRP decides your relative should be entitled to NHS continuing healthcare funding, the award should be paid retrospectively to cover the ‘dispute period’. The recommendation should include a date from which the funding should have been awarded. It may be that the IRP says your relative did not meet the criteria for free care at the time you brought the challenge, but that funding should be allowed for a period after that date.
4. seek a referral to the healthcare commission
If the IRP upholds the PCT’s decision, you may have a basis to refer the case to the Healthcare Commission. The Commission can review complaints where the complainant is not satisfied with the local decision or where the complaint has been unresolved at local level for six months.
5. try the health service ombudsman as a last recourse
There are limitations to the type of issue the Ombudsman can investigate. It can say, for example, whether a request for a continuing care assessment was unreasonably refused. Or whether the rationale for the decision was fair, clear and based on evidence. Or whether the proper processes were carried out. While the Ombudsman cannot make a substitute decision, it can remit the case back to the Strategic Health Authority or PCT for a proper and fair determination.
The National Framework applies to continuing healthcare funding in England. Different guidance operates in Wales and Northern Ireland. Anyone seeking funding should consider seeking specialist advice. A different approach applies in Scotland where nursing and personal care costs (but not accommodation costs) are funded at set levels.