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Martin Searle Solicitors

Case Study: NHS England IRP Successful Continuing Healthcare Appeal

Summary

How a community care lawyer in Eastbourne successfully appealed a retrospective NHS Continuing Healthcare Eligibility decision.

The situation

Just two weeks before the hearing, the late Mr H’s family asked Martin Searle Solicitors Carolyn Hunnisett to represent them at an NHS England Independent Review Panel hearing regarding their late father’s eligibility for NHS Continuing Healthcare (NHS CHC). The family were represented throughout the case and at local appeal level by an  independent NHS CHC) consultant. The local Clinical Commissioning Group (CCG) found the late Mr H ineligible for NHS CHC funding for the period under appeal. The consultant was unable to progress the case due to other commitments and recommended our firm to Mr H’s family.

From the papers t was evident to our specialist NHS CHC team that Mr H  had experienced significant behavioural challenges as a result of his dementia and that multiple adjustments to his psychiatric medications had failed to alleviate his symptoms. In addition he had complex physical healthcare needs. Despite the evidence available, the NHS local appeal Panel found that Mr H’s needs were not of a nature, intensity, complexity or unpredictability to be deemed a Primary Healthcare need.

What Martin Searle Solicitors did?

Carolyn Hunnisett, CHC Specialist and community care lawyer in Eastbourne, identified strong arguments to support the Appeal by Mr H’s family, and found a number of mistakes by the CCG at local appeal level. Despite the difficulties of taking over a case at the eleventh hour, Carolyn agreed to represent Mr H’s family.

Carolyn provided clear and frank advice to Mr H’s family about the weaknesses in their case and how to focus on the strengths. The family appreciated this clear advice and began to understand why some of their earlier arguments had failed. Crucially, the family accepted Carolyn’s advice that establishing NHS CHC eligibility is about much more than the scores on the Decision Support Tool. Carolyn explained that quoting the Coughlan decision without properly applying the key indicators to Mr H’s individual needs would get the family nowhere.

Carolyn prepared written submissions for the Panel members clearly outlining the evidence supporting eligibility according to the NHS CHC care domains and the nature, intensity, complexity and unpredictability arguments.

At the Intensive Rehabilitation Programme (IRP) hearing, Carolyn showed how Mr H’s needs should be considered complex as despite significant external specialist input to his care his needs were still very difficult to manage. Carolyn’s specialist mental healthcare knowledge, experience as an Occupational Therapist & NHS CHC expertise resulted in a successful challenge to the CCG’s assertions that Mr H’s needs were “routine” and that his carers did not require any specialist knowledge to meet his complex needs. She showed how the many inter-related interventions that were required for Mr H were above and beyond the care that can be lawfully provided at a social care level.

The CCG had argued that Mr H’s behavioural problems were all managed by “standard care planning”. These assertions were easily countered by the significant reliance on specialist mental health services, illustrating that Mr H’s needs were clearly above and beyond the standard practice or expertise of the care home staff.

The significant residual symptoms indicated that Mr H had suffered a stroke. The CCG argued that it was a TIA. This seemed to be an attempt to downgrade the assessment of needs (the symptoms of a TIA resolve within 24 hours). Carolyn’s arguments were accepted by the Panel who acknowledged the added complexity to his care need.

The result

Carolyn demonstrated the clear inaccuracies in the CCG’s local decision-making process. The NHS England IRP overturned the decision of the CCG that Mr H had not been eligible for retrospective NHS Continuing Healthcare funding. They awarded 18 months of care home fees reimbursement, which equated to about £80,000 plus interest.

If you need specialist community care law advice on retrospective continuing healthcare funding, we can help. Contact us to find out more on 01273 609911, or email info@ms-solicitors.co.uk to find out more.

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