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Case Study: Winning a retrospective NHS CHC appeal at Local Resolution Meeting for the estate of a woman with Parkinson’s disease and challenging behaviour

Care funding lawyer explains how to appeal against NHS Continuing Healthcare Decisions and how our Community Care team can help

How Andy McKay, expert Community Care Law solicitor, secured almost 4 years’ of backdated care fees worth over £157,000 in a successful appeal about NHS Continuing Healthcare eligibility.

The situation

We were instructed by a professional Executor managing the estate of Megan, who had lived in a care home for many years. In 2017, Megan’s executor submitted a retrospective NHS Continuing Healthcare (CHC) funding application to the local Clinical Commissioning Group (CCG). The Executor believed that Megan should have had her care fees paid by NHS CHC funding for the three and a half years before she passed away in December 2015. Megan had self-funded all of her care fees privately, amounting to around £330,000 over the six years that she had lived in the care home.

The CCG Panel rejected the Executor’s application, stating that Megan was not eligible for NHS CHC because she had social care needs, not a ‘primary healthcare need’. The Executor had been on a training course about care fee funding run by Martin Searle Solicitors, so he contacted us for help.

What Martin Searle Solicitors did

Andy told the Executor that the first step was to provide an opinion on the merits of Megan’s case, to determine if there were sufficient grounds to submit an NHS CHC appeal and to consider the cost benefits. The Executor provided Andy with copies of the CCG’s assessment paperwork and their decision letter.

Andy swiftly identified that the CCG’s decision was flawed and advised the Executor that there were merits to an appeal the ineligible decision from January 2013 to the date that Megan passed away. The Executor accepted Andy’s advice that there was no merit to appeal for the 2012 period.

Andy obtained the full clinical and care notes for Megan and worked through these, noting many inconsistencies in the CCG’s arguments and conclusions. Andy then submitted detailed written grounds of appeal to the CCG, arguing that Megan had intense and complex healthcare needs that were over and above those that can lawfully be privately funded. Andy highlighted the fact that in addition to the worsening effects of Megan’s Parkinson’s disease, she presented with frequent and unpredictable challenging behavioural issues. This made it extremely difficult for carers to provide her with the care and support she needed.

Andy represented the Executor at the NHS CHC Local Resolution Meeting. Andy took the CCG Panel through the detailed reasons and evidence which showed that Megan did have a primary healthcare need, not a social care need. Andy argued that Megan’s needs were clearly complex and intense, requiring care interventions above the level that should be met privately or by the local authority.

Some weeks later, the CCG issued the Panel decision letter confirming that they agreed with Andy’s submissions, and that Megan should have been eligible for NHS CHC funding from January 2013, up to her death in late 2015.

The result

Andy liaised with Megan’s Executor to collate the required evidence of payment of care fees so that an NHS CHC refund could be made to her estate. Andy calculated that Megan had been wrongly charged around £140,000. The CCG added interest and an NHS CHC refund of over £157,000 was made direct to the Executor, which was then distributed under the terms of Megan’s Will.

The Executor expressed his gratitude for Andy’s work and diligence in pursuing the rightful outcome in this case; and has told other professionals about our service, should they also need advice about challenging a negative NHS CHC funding decision.

For expert advice in challenging and appealing NHS Continuing Healthcare funding decisions, contact our Community Care law team on 01273 609911, or email info@ms-solicitors.co.uk.

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