Factsheet: How to Challenge Decisions on NHS Continuing Healthcare

This factsheet applies to England and is designed to help you understand and challenge NHS Continuing Healthcare (NHS CHC) eligibility decisions where you or a relative have been found ineligible. It explains how to challenge decisions on NHS CHC.

1. Get specialist help from an expert in NHS CHC 
2. Ask the Clinical Commissioning Group (CCG) to review their NHS CHC eligibility decision – local resolution
3. Ask  NHS England Independent Review Panel to consider the decision if local resolution is unsuccessful
4. Ask the Parliamentary Health Service Ombudsman to review your NHS CHC case

Get specialist help from an expert in NHS CHC

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 the eligibility decisions
• Analyse the Decisions Support Tool (DST) to identify errors
• Consider all available care records
• Prepare written arguments to support the review/ appeal

The national framework for NHS continuing healthcare, introduced in October 2007 and revised most recently in October 2018, is 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 guidance and the Decision Support Tool have been applied correctly in your case. Concerns about the type of care, or the location of the care package, are addressed by a separate complaints process.

Ask the Clinical Commissioning Group (CCG) to review their NHS CHC eligibility decision – local resolution

Apply for a review of the ineligible decision in writing. The Framework directs that you have 6 months from the date of the decision to challenge it. You should check for any shorter deadlines imposed by the CCG. If you are requesting a new assessment because your relative’s needs have changed and increased since the decision, do not be put off by deadlines. The CCG is supposed to deal promptly with review requests, although the process can take months. The local resolution may involve one or more of the following:

• An internal CCG panel reviewing their assessment documents
• A  peer review by a neighbouring CCG
• A local resolution meeting or local resolution panel which the person, relative or representative is invited to attend

When 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 any other health or social care professional, if this was not provided in the original assessment

Ask NHS England Independent Review Panel to consider the decision if local resolution is unsuccessful

If the CCG maintains it’s original ineligible decision, you can apply to to NHS England’s Independent Review Panel (IRP). You must make this application within 6 months of the date of the CCG local resolution outcome letter. 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 CCG decision
• Whether the CCG correctly applied the National Framework criteria

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 clinical 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 6 weeks. If the IRP decides the person is entitled to NHS CHC funding, the award should be backdated to cover the dispute period.

Ask the Parliamentary Health Service Ombudsman to review your NHS CHC 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.