How to challenge an NHS Continuing Care decision

How to challenge an NHS Continuing Care decision

Each year, tens of thousands of elderly people are forced to sell their home in order to fund their care. Many more use up their life savings.

While many of these people and their families may feel that their serious underlying heath conditions should make them eligible for support by the State, relatively few are deemed eligible for NHS Continuing Healthcare.

“The stakes are really high, with nursing home fees typically averaging around £37,500 a year and there are very prescribed limits to who can, and who cannot, be supported by NHS Continuing Healthcare,” says Deborah Stone, MD of specialist advice

“There is also no question that it’s also a ‘postcode lottery’. But  – if you know how to challenge a decision – you have far more chance of winning an appeal.”

Now has published a detailed guide on the rights of people needing care in later life, and how to go about making a challenge.

The biggest single fact to bear in mind,” says Deborah, “is that the diagnosis of a serious or life-limiting condition does not in itself guarantee entitlement to funding. It’s actually based on a broader range of healthcare needs.”

The full assessment uses a standard form called the Decision Support Tool and there is a section for 12 different care domains (behaviour, cognition, psychological and emotional needs, mobility, communication, nutrition, continence, skin, breathing, drug therapies, altered states of consciousness and the catch all of ‘other significant care needs’).

Is the decision always correct?

One of the problems of the Decision Support Tool, and the guidance within it, is that implies that unless a person is assessed as having needs within these 12 domains of either 1 = priority, or 2 = severe, they would not necessarily be entitled to NHS Continuing Care. Despite the guidance stating that the patients might still qualify for NHS Continuing Care, if they score only one severe, or a range of high and mediums, they are often turned down.

Therefore it is not easy to obtain the benefit. Added to this, the chances of success vary according to one’s postcode, as different PCTs interpret the rules differently.

But challenging a decision can often be worthwhile. A survey by Community Care Magazine found that 40% of completed challenges were successful.  The number of appeals rose by 9% from 2009-10 to 2010-11, whilst the proportion of successful completed challenges rose from 33% to 40.

How can you challenge the decision?

So if you are unhappy with the initial decision, what recourse do you have?

Local NHS Clinical Commission Groups (CCGS) have different procedures, so the first point of call is to ask for a copy of the relevant NHS review/appeal rules.

Once you get into the appeal process, irrespective of where you are, essentially you have a three-stage appeal process:

1. Local resolution by a panel review. This can be started by writing to the chief executive of your CCG. If this works, all well and good. If not, you may move to the next stage…

2. Independent Review Panel. The appeal must be done on the basis that the procedure used to reach the decision was wrong, or that the Decision Support tool was not applied correctly. If the NHS review maintains the original decision, you can ask for the case to be referred to the NHS England’s Independent Review Panel (IRP). You can also apply directly to the IRP if the local resolution stage is taking too long. NHS CCGs should accept IRP decisions in all but exceptional cases.

3. Ombudsman. The final stage of the appeal is the Health Service Ombudsman. An Ombudsman is able to investigate a complaint and/or ask the CCG to review the case again.

To help maximise your chances of getting a good result:

  1. Ask the CCG for the full Decision.
  2. Complete a Decision Tool yourself in order to compare their assessment and that of a professional.
  3. Keep a journal of the patient’s day-to-day life over a long-term period to show an assessor or appeals board. The original assessor will only have a snapshot picked up in an hour or so.
  4. Request medical records from various bodies involved in the care of the person -e.g. the hospital or GP.
  5. Make sure you deal with any time deadlines.

“The way you approach the appeal will play a big part in determining success,” concludes Deborah Stone. “Even details, such as keeping all the information in order, will help. It is also critical to stay as detached as possible and remain mentally strong and positive: this can be a very long and arduous process and you might well feel you are being ‘ground down’. There are also legal experts who are particularly experienced in fighting these cases.

“Sadly, many elderly people pass away whilst their families are still fighting their corner, but they can still win the case retrospectively. Finally, bear in mind that there is a very strong test case – Coughlan – that made it the responsibility of the health service to look after someone with severe medical problems.  No savings and assets came into the equation on who picks up the bill. Remember that this ruling is behind you when you fight your case.”

Read the full guide to challenging NHS Continuous Care decisions HERE