Appealing an NHS continuing healthcare decision can be time consuming (people can wait for months, or even years) and very distressing for individuals and their families.
The appeals process can appear extremely complex especially as the lack of guidelines in the National Framework means that Clinical Commissioning Groups (CCGs) conduct appeal hearings in very different ways across the country and there is a distinct lack of information available to patients to help them through the process.
Worryingly, this lack of guidance has resulted in 55% of professionals surveyed by the CHC Alliance, (a group of 13 organisations who believe NHS continuing healthcare needs to improve) revealing that they didn’t feel confident enough in their own knowledge to offer people information or advice regarding the appeal process.
The Alliance has also reported that many of the people they have contacted took the decision not to appeal the decision “not because they feel the decision was correct, but because they are too distressed and exhausted to go through the complex appeals process.” (page 17, CHC Alliance’s ‘Continuing to care? Is NHS continuing healthcare supporting the people who need it in England?’ report).
Our advice is to always use an expert company such as Compass CHC to guide you through the process. Compass CHC is a specialist private company dealing exclusively in matters relating to continuing healthcare funding. The process for securing continuing healthcare funding is often an arduous matter that many individuals without experience in the area struggle to deal with themselves. In such circumstances the assistance of an expert with experience relating to NHS continuing healthcare can pay dividends.
How to Appeal a Continuing Healthcare Decision
If you do not agree with the decision that has been reached by the NHS panel, then the decision can be appealed. This must be backed by evidence to support why you feel that the decision reached was flawed.
There are several options available to you:
1. Initial Checklist assessment
Bear in mind, If you don’t get through the Initial Checklist, whilst you are unable to appeal the outcome, you can request that another Checklist assessment is undertaken by asking the Clinical Commissioning Group (CCG) to reconsider its decision.
If the decision remains the same after the CCG has reconsidered it, you have the right to access the NHS complaint procedure. This is a 2-stage process which consists of:
- Sending a written complaint to the CCG detailing the reasons you feel entitled to a full assessment and why you disagree with the Checklist outcome. You should provide as much evidence as possible and specify which areas of need (domains) you disagree with. (A PDF of an example checklist is available here).
- If the CCG’s response leaves to dissatisfied, you can refer your complaint to the Parliamentary and Health Service Ombudsman.
2. Decision Support Tool
If you are denied funding at the full Decision Support Tool stage, you can submit an appeal, in writing, to the local NHS Continuing Care Department who undertook the assessment. These details should be provided to you in the outcome letter you receive that sets out the negative funding decision following the continuing healthcare funding assessment. You must list all your reasons – with evidence – for disagreeing with the decision to deny continuing healthcare funding.
The basis for appealing a decision can be either that the procedural process was not correctly followed, and / or the evidence was incorrectly weighed against the levels of need awarded and the wrong decision was reached based on this evidence ie the patient’s needs are complex, intense, and / or unpredictable in their nature and as such are primarily health needs
3. Local Dispute Resolution process
Should the Local Dispute Resolution process uphold the ‘ineligible’ decision, the next step is to request an Independent Review Panel to be convened at regional level.
4. Independent Review
If the Independent Review also find you ineligible for funding, you can request NHS England undertake an appeal and convene an independent appeal panel. If you remain dissatisfied with the outcome following NHS England level you may approach the Parliamentary and Health Service Ombudsman for a case review and / or a full independent investigation.
How Long Do I Have to Appeal?
Once you receive the letter informing you of the CCG’s decision you have 6 months from the date of the letter to initiate an appeal and request a review of the decision. The Clinical Commissioning Group has a further 3 months from the date of your request to undertake this appraisal and complete the local review stage. It is worth noting however that this process can take up to a year to complete, the time it takes varies dependent on geographical location.
When the local review stage has been completed, you have a further 6 months from the day you are notified to request an Independent Review Panel (IRP).
Within 3 months of your request for a review, NHS England should convene the Independent Review Panel. At the IRP, 3 decision makers must work together to decide on the outcome of your appeal. The panel should be headed by an independent Chair and should also include a health and a social care professional who must not be from the same CCG who made the initial decision.
Continuing Healthcare: An Overview
To receive NHS continuing healthcare funding the individual’s need for care must be a healthcare rather than a social care need. It must be established that the need for care is primarily health related. Additionally, these needs must be assessed as being complex, intense and unpredictable in their nature or a combination of the same.
It should be noted that a person’s health needs – not their diagnosis – determines whether they are eligible for funding so having a certain diagnosis, for example having been diagnosed with Dementia, Alzheimer’s Disease or Parkinson’s disease, is not in itself an automatic entitlement to free care.
However, at Compass CHC, we have witnessed first-hand how NHS continuing healthcare assessors consistently try to downplay and underscore obvious health needs and re-categorise them as social care needs.
Clients inform us that they have spent many upsetting hours in continuing healthcare assessment meetings disputing the difference between health and social care needs with assessors determined to withhold funding. Many clients ultimately receive the news that their relative doesn’t qualify for funding as their need for care isn’t health based despite clear evidence in the form of medical records and care plans to the contrary.
This desire to withhold funding shouldn’t come as a surprise as it allows the NHS to pass responsibility for funding the individuals care to the Local Authority where the person will be means tested and then, if they exceed the funding threshold of having assets over £23,250, told they must fund social care themselves. But, by its very essence, medical services provided by the NHS are free to residents in the UK so if there is a clear healthcare need, care should be provided for free.
Continuing Healthcare Stages
There are several stages individuals must go through before being awarded, or denied, continuing healthcare and funding can be denied at each stage of the process.
A continuing healthcare checklist is the first stage in determining whether an individual is entitled to free care. To trigger a checklist, you can ask your social worker, GP or other health and social care professional – such as a care home manager – to organise one.
An assessment should be carried out before a patient is discharged from hospital to a nursing home. This is a crucial point. If the patient is already in a nursing home or remains in their own home, then the responsibility for conducting an assessment is with the NHS Clinical Commissioning Group for the area.
If the checklist identifies the need to carry out a full assessment, your Clinical Commissioning Group (CCG) will be contacted. The full assessment is carried out by a multi-disciplinary team comprising two or more health or social care professionals familiar with the patient’s needs. In some cases, the multi- disciplinary team will contact the specialists involved with the care to build a better picture of the health needs the individual has.
The information taken from your full assessment will be used by the multi-disciplinary team to complete a ‘Decision Support Tool’ (DST). The DST document was developed to ensure assessments are carried out as consistently as possible across the national NHS network.
The multi-disciplinary team will allocate a level of need to each care domain to determine if the individual has a ‘primary health need’ and then make a recommendation to the CCG as to whether the individual should be entitled to NHS continuing healthcare.
Once your continuing healthcare assessment has taken place, the NHS health and social care professionals involved with your care will recommend whether you are eligible for funded care. This recommendation is forwarded to the Clinical Commissioning Group (CCG) responsible for funding in your area. The CCG will decide whether to accept or decline your assessment results and, if upheld, the level of care and support package available to you.
How can Compass CHC help?
Compass Continuing Healthcare is owned and managed by Tim Davies LLB. Tim is a qualified solicitor but he acts in a non-practising solicitor role and utilises a team consisting of qualified non-practising lawyers, as well as clinicians including Registered General Nurses, tissue viability specialists and pharmacists.
Compass CHC seeks to ensure the strongest prospects of success at the least cost to the individual. All work undertaken is done exclusively on a fixed fee basis which provides clients cost certainty from the outset. We do not act under conditional or contingency fee (also known as “No-Win-No-Fee”) arrangements, whereby individuals are charged a proportion of the care fees which are eventually recovered; it is our view that this can often be exceptionally expensive for individuals and does not value for money for the work undertaken.
Separately, we do not work under an hourly rate scenario as is often the case with solicitors’ practices. We feel that such situations provide no cost certainty to the client because, if a matter is more complex than initially anticipated, costs can build up and run away with themselves.
Compass CHC believe that the fixed cost scenario affords the client the best value for money as well as cost transparency so our clients know what their total expenditure will be from the very outset of the case.
Before any instructions are accepted on a case a full, detailed, free and confidential assessment of the specific circumstances relating to the patient will be undertaken. Only at this stage – and when the expert assessor from Compass CHC is of the view that the evidence relating to the patient’s condition indicates that there is a reasonable prospect of success in securing funding – would we accept instructions to act on a patient’s behalf.
Should you, or a relative, have any concerns regarding NHS Continuing Healthcare funding, our expert advisors can assist by explaining the ins and outs of what can be a perplexing and complicated process. There is no time limit placed on this free, no obligation consultation. Should you wish to discuss matters further, do not hesitate to contact us.
Author: Tim Davies LLB