Guidance for Professional Deputies on NHS Continuing Healthcare after Re: ACC & Others
Re ACC & Others is an important case for Professional Deputies as it hampers their ability to secure and retain valuable NHS Continuing Healthcare funding awards for their clients. The most recent NHS England statistical data for 2019/20 confirms that only 35,374 adults in England held standard (non-Fast Track) NHS Continuing Health Care (CHC) awards.
In the last quarter of that year 4,739 adults who had held NHS CHC awards lost their funding. Clinical Commissioning Groups (CCGs) overturned only 17% of their negative NHS CHC eligibility decisions at CCG Local Resolution Panel stage.
The issue before the Court was “when may a professional deputy instruct a legal firm with which it is associated and recover the costs from P?” But the judgment went much further than that. The pressing concerns around this case are:-
- The strict limitations that the judgment imposes upon the Deputy’s general authority to challenge NHS CHC funding decisions.
- The Office of the Public Guardian (OPG) Professional Deputy Standards emphasise the requirement to secure public authority funding and benefits for P. ,
- Challenging the CCG’s decision to withdraw the NHS CHC award that was previously meeting P’s care costs now falls outside the Deputy’s general authority. This is because it is said to amount to conducting litigation.
The Deputy is not forbidden from pursuing their client’s case for NHS CHC eligibility through the review process. However, if the Deputy conducts the CCG Local Resolution Panel or the NHS England Independent Review Panel (IRP), without the Court’s specific authority, they are at risk of costs when they submit P’s file for annual costs assessment.
In addition, some CCGs will rely on the judgment to refuse to liaise with the Professional Deputy in the absence of an Order confirming specific authority.
The National Framework for NHS CHC, which provides statutory guidance, emphasises that the NHS CHC process is not a legal or adversarial process and that it is not necessary for any party to be legally represented. The panels have a Chair, who may or may not be legally qualified, but not a Judge. The review panel terms of reference expressly prevent them from hearing arguments of law. Nonetheless, the Judgment still treats the review as a process for conducting litigation.
In contrast, if the Deputy seeks to challenge the CCG’s commissioning decision by threatening Judicial Review (JR) proceedings after securing NHS CHC funding for P, this process may well result in conducting litigation.
In this scenario, the Deputy’s general authority covers the steps of seeking advice, drafting and sending a pre-action protocol letter and considering the CCG’s response. The Deputy then needs to seek specific authority before issuing or instructing public law specialists to issue JR proceedings.
The Court’s decision that a Deputy should seek specific authority to conduct litigation before challenging an NHS CHC eligibility decision will stand until there is either a clarificatory reported judgment or this aspect of the judgment is successfully appealed.
Deputies will need to review any of their files that currently involve an NHS CHC eligibility challenge and seek retrospective specific authority to continue the NHS CHC review process. If the NHS CHC review process has completed in the time since the Deputy’s last annual cost assessment, the Deputy should seek retrospective authority. If the Deputy has already instructed in-house, and the costs are likely to exceed £2,000 net, they will need to apply to the Court of Protection to regularise this, or be at risk of costs.
It is not clear how the Court of Protection, which is already heavily backlogged, will respond to applications for specific authority to litigate NHS CHC eligibility decisions before the need for review arises. The Court might reject such applications as premature.
We would advise the Deputy to make an application where P’s existing NHS CHC award is what makes the complex care at home package financially sustainable. CCGs review most NHS CHC awards annually, and no award of NHS CHC has a lifetime guarantee.
We believe that this judgement is wrong to regard the NHS CHC review process as conducting litigation, within the same class as an appeal to the Special Educational Needs and Disability Tribunal or to the Employment Tribunal.
In the past year, we have represented Professional Deputies in dozens of NHS CHC eligibility challenges, securing annual awards worth between £78,000 and £220,000, and in one case, a refund of £660,000 in care at home costs funded privately by P before the successful IRP.
It is vital that Professional Deputies challenge negative NHS CHC eligibility decisions where their clients have complex healthcare needs. Securing and retaining an award of NHS CHC, or NHS CCC for clients under 18, is tough enough as it is, without the additional hurdle of seeking specific authority.
Our Community Care lawyers provide expert legal advice on your client’s ongoing eligibility for NHS CHC as well as challenging negative eligibility decisions. If you require assistance, please contact us on 01273 609911, or email deputyservices@ms-solicitors.co.uk.
