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In this article we outline the grounds on which you can appeal a decision about eligibility for NHS Continuing Healthcare funding. This may help you to decide whether to launch a challenge.

Every year, thousands of people are assessed for NHS funding for long-term care, called NHS Continuing Healthcare (CHC). According to the National Audit Office, around two-thirds of assessments conclude that the person is not eligible for funding.

This can be a huge blow to individuals and their families, and often comes at a time in life that is already very difficult.

We know, from speaking to thousands of callers each month, that many people instinctively disagree with their eligibility decision and want to know if they should challenge it.

Should I appeal?

Everyone has the right to launch an appeal, and many people do. However, it can be a long, complex and stressful process. For this reason, we recommend entering into an appeal only if you have clear and specific grounds that give you a chance of success.

In this article we outline the grounds on which an appeal can be built, to help you decide if you want to go ahead.

Timescales

After a full CHC assessment you should receive a decision letter from your Integrated Care Board (ICB) – or a third party acting on their behalf – explaining how the decision was made. The letter should also tell you who to contact if you wish to appeal.

You have six months from the date of that letter to request a review of the decision.

The ICB (or third party) then have three months from the date of your request in which to review the decision and complete a local review.

Grounds for appeal: Procedural

Grounds for appeal could include the eligibility decision, the procedures used to make it, or how the CHC criteria have been applied in your case.

First let’s look at procedure. Was the full assessment carried out correctly? If you answer ‘no’ to any one of the following questions, you can appeal the decision on procedural grounds:

• Were you (the individual) or your representative invited to attend the multidisciplinary assessment meeting?
• Were you or your representative given the opportunity to talk about your care needs and give your views as to why you felt you were eligible for CHC?
• Were these comments clearly contained in the Decision Support Tool (DST – the form into which your care needs are considered under 12 ‘care domains’), including where you have disagreed with a level of need assigned to a care domain?
• Was all relevant evidence relating to your care needs considered as part of the assessment? (You can check this by seeing if the evidence was referenced in the DST).
• Does the DST contain a list of the members of the Multidisciplinary Team (MDT) who made the decision, and is this team made up of at least two healthcare professionals from different disciplines or one health professional and one social care professional?
• Have all the health and social care professionals currently or recently involved in your care had a chance to contribute to the assessment and DST?
• Is there evidence in the DST of a genuine discussion between members of your MDT about whether or not you are eligible for CHC?
• Have budgetary influences been disregarded in the assessment or decision-making process, as far as you know?

Grounds for appeal: Levels of care need

Next, consider whether you disagree with the understanding and assessment of your (or your loved one’s) care needs and how they were applied in the DST.

Again, if you answer ‘no’ to any of the following questions, you have grounds to appeal:

• Did the information provided in each of the care domains in the DST accurately represent your needs and how those needs are met?
• Was all relevant written evidence, such as care records, taken into account when making the decision?
• Was all relevant oral evidence, such as the information provided by yourself or your care team at the assessment meeting, taken into account when making the decision?
• Is the evidence that is referenced in the DST accurate and representative of your overall needs?

For more information on the 12 care domain levels of need and how to interpret them click here to download our FREE Navigational Toolkit.

Grounds for appeal: The conclusions reached

Next, do you disagree with the conclusion reached in the process? Is the answer ‘no’ to any of these questions?:

• Did the MDT make a clear overall recommendation of eligibility following a meaningful discussion? (NB: recommendations should never be made by just one professional but should instead be ‘multidisciplinary’)
• Did the ICB uphold the recommendation of the MDT? If not, did they present exceptional circumstances that forced them to overrule it?
• In coming to a decision, did the ICB consider your needs against the key indicators of nature, intensity, complexity and unpredictability?
• Does the decision letter clearly explain how the decision was reached?

Finally, if you believe that there is evidence to suggest that the eligibility decision was based on any of the following, this could mean that the assessment was unsound:

• your diagnosis (rather than your care needs)
• whether or not you are in a care home or living at home
• the care provider being able to manage your care needs
• use (or not) of NHS-employed staff to provide your care
• need for/use of ‘specialist staff ’ to provide your care
• the fact you may have care needs that are well managed.

How to begin a CHC appeal

Once you are clear that you have grounds to appeal, and you have decided to proceed, the first step is to write to the person or organisation who sent your decision letter. This will usually be the ICB which is responsible for the eligibility decision, or a third party organisation which may have been commissioned to carry out the assessment. In your letter you should outline your reasons for requesting a review. ICBs are able to set their own deadlines for requesting an appeal, so make sure you know how long you’ve got to make the decision.

Prepare this letter carefully. First read through the decision letter to make sure you understand why they have assessed you as ineligible (you can call us for Free Information & Advice if you need help deciphering it). In your letter refer to specific areas from the lists above to explain why you are appealing.

The next stage of the appeal process

The appeal process has various stages, which you can initiate if you are not satisfied with the outcome of the previous step.

Once you have made a written request for an appeal, the ICB should begin a local resolution process. This varies depending on where you, or your loved one, lives but it often involves an informal meeting between you and the Continuing Healthcare team. Here the ICB should try to resolve the matter, without the need for further appeal stages.

When resolution meetings are handled well by the ICB they can be a good chance for you to ask questions and discuss the assessment.  It’s also your chance to talk specifically about how the needs of the person relate to the care domain levels of need in the DST, the procedural failings, or your other grounds for appeal.

We explain the 12 care domain levels of need and how to interpret them in our FREE Navigational Toolkit.

Whoever attends the meeting should prepare thoroughly, make notes, and be clear in their mind the points they want to cover.

If the meeting addresses your concerns or gives you a new understanding of the decision, you may decide that the appeal is not worth pursuing further. Alternatively, you may still feel that your grounds for appeal remain valid, and wish to continue to the next stage – called Independent Review.

The ICB may itself decide to convene a fresh local panel to reconsider the decision if you have presented new relevant evidence or if they feel the original decision was unsound.

How we can help

Through our Free Information & Advice service we can help you if you are considering an appeal, or are in the midst of one. From answering a quick question, to providing up to 90 minutes of tailored support, we are proud of our expert, independent, helpline.

Talk to us, or register for your Free Navigational Toolkit to help you make sense of your eligibility decision and the appeals process.

Alternatively, our caseworkers can provide honestly-priced bespoke analysis of NHS CHC assessments to help clients decide whether to appeal. If there’s a chance of success we can manage the appeal process on your behalf, if you want us to. We have worked on many hundreds of appeals and recovered over £19 million in care fees for families.

Find out more about our paid casework& representation services including Expert Analysis and Appeal Management.