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Factsheet: How To Challenge Decisions On NHS Funded Continuing Care

What you need to know to overturn adverse decisions on continuing NHS care funding.

This factsheet is designed to help you understand and challenge continuing healthcare decisions that go against you (NHS funded care). It outlines the steps to take in challenging a decision you believe has wrongly denied the NHS funded continuing care to which you or your relative are entitled in England (see below for Scotland, Northern Ireland and Wales).

  1. Get specialist help from an expert in NHS funded continuing care
  2. Ask for a primary care trust review of your continuing NHS healthcare funding decision – local resolution
  3. Ask for a referral to NHS England of your continuing healthcare case
  4. Try the health service ombudsman as a last recourse to resolve your NHS funded continuing care case

Get specialist help from an expert in NHS funded continuing care

The dispute resolution or review process is complex. A solicitor or other specialist will analyse all the evidence in order to:

  • Advise on your prospects for success in challenging a health continuing care decision
  • Prepare written arguments to support the review/ appeal
  • Analyse the continuing care decision support tool to identify errors

The national framework for NHS continuing healthcare, introduced in October 2007 and revised in November 2012, was not prescriptive about the process of dispute resolution, so local NHS Clinical Commission Groups have adopted different procedures. Ask for a copy of the relevant NHS review/appeal rules immediately to ensure you do not miss any deadlines. There should be two stages:

  • Local resolution
  • Independent review panel

The dispute resolution process can only address whether the national framework and guidance (including the completed continuing care decision support tool) have been applied correctly in each case. Concerns about the type of care, or the location of the care package, are addressed by a separate process.

Ask for a primary care trust review of your continuing NHS healthcare funding decision – local resolution

Apply for a review of the decision on NHS funded care in writing, checking for deadlines or standard forms. If you are requesting a review because your relative’s needs have changed and increased since the decision, do not be put off by deadlines. The NHS is supposed to deal promptly with review requests, although the process can take months. The NHS review may involve one or more of the following:

  • An internal panel to review assessment documents
  • A neighbouring NHS CCG reviewing documents
  • An invitation to next of kin (or someone with Enduring or Lasting Power of Attorney) to attend the panel review meeting
  • An invitation to next of kin (or someone with Enduring or Lasting Power of Attorney) to express in writing their understanding of the individual’s needs

If you are asked to give your opinion on your relative’s continuing healthcare needs, issues to raise include:

  • Errors or misunderstandings by the original assessor
  • Needs already being met that have been overlooked or under scored on the continuing care decision support tool
  • Supervision, prompting and other specialist interventions needed as a result of dementia or mental health problems
  • Evidence/opinion of complex or intense healthcare needs in any recent hospital assessments (for instance before being discharged)
  • Social services’ care plan or assessments indicating the number and quality of care and nursing interventions required and risk assessments
  • Your own detailed records giving examples, evidence and anecdotes that demonstrate how your relative’s needs in each domain should be scored
  • Evidence from a GP or other professional, if this was not provided in the original assessment

Ask for a referral to NHS England of your continuing healthcare case

If the NHS review maintains the original decision, you can ask for the case to be referred to NHS England’s independent review panel (IRP). You can also apply directly to the IRP if the local resolution stage is taking too long. However, the IRP process is also characterised by long delays and you should be prepared for a long wait.

The IRP has an advisory role and can only offer guidance on:

  • The validity of the NHS decision
  • Whether the NHS correctly applied the national framework criteria

However NHS CCGs should accept IRP decisions in all but exceptional cases.

The IRP should let you have a bundle of the documents that will be used in considering your relative’s case and should 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 to prepare your written submissions. You can then update the written arguments when you receive the panel bundle.

The IRP hearing consists of three people and will normally include a nursing adviser in a non-decision making capacity. It is a relatively informal fact gathering and decision making process, unlike a court hearing.

You will generally be notified of a decision in writing within four weeks. If the IRP decides your relative is entitled to NHS funding, the award should be paid retrospectively to cover the dispute period.

The recommendation should include a date from which funding should have been awarded. The IRP may state your relative did not meet the criteria at the time you brought the challenge, but that funding should be allowed for a period after that date.

Try the health service ombudsman as a last recourse to resolve your NHS funded continuing care case

The ombudsman can investigate a limited range of issues, such as:

  • Whether a request for a continuing care assessment was unreasonably refused
  • Whether the rationale for the decision was fair, clear and based on evidence
  • Whether the proper processes were carried out

While the ombudsman’s office cannot make a substitute decision, it can remit the case back to the strategic health authority or NHS for a proper and fair determination.

If you would like to speak to an expert in NHS funded care about problems accessing continuing NHS care funding (including the use of the continuing care decision support tool) contact us today on 01273 609911, or email info@ms-solicitors.co.uk.

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.

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