How do you appeal if your application for NHS CHC is refused?

Getting your or a loved one’s care fees fully funded can be a struggle, and many families feel their cases are wrongly rejected.

How to apply for ‘NHS continuing healthcare’ to cover the often astronomical bills is explained here, and now we look at what to do if you are denied this help. 

James Urquhart-Burton, partner at Ridley & Hall Solicitors and an expert in care funding, lays out the potential grounds for objecting to a decision and the key steps to mounting a successful appeal.

If you or a relative have been assessed for NHS funding and told you are not eligible, you may be wondering whether it is worth challenging the decision.

There are plenty of valid reasons for deciding an assessment was incorrect and mounting an appeal to your local Clinical Commissioning Group.

– The assessors did not follow the correct procedure laid down in the ‘national framework’ for NHS CHC. For example, it could be that no local authority representative was involved in the assessment, only nurse assessors.

– The assessors did not fully understand your needs.

– The levels (or results) the assessors gave you for various ‘care domains’ – like communication, mobility and nutrition – don’t reflect the severity of your needs.

– There is ‘intensity, complexity or unpredictability’ associated with your needs, but the assessors said there wasn’t, or didn’t give very clear reasons why there wasn’t.

– The assessors made you feel the decision was a foregone conclusion.

– You know other people who receive NHS CHC but they don’t seem to have needs as severe as yours.

There may be other strong reasons not given above to challenge an assessment, but if you have any of the concerns listed, it is worth making an appeal.

James Urquhart-Burton: It is important that you take action quickly because your right of appeal won’t last forever

It is important that you take action quickly because your right of appeal won’t last forever. Here are the steps to take.

1. Ask for a letter confirming the decision on ineligibility

If you have only been informed verbally, insist that a decision letter is provided to you urgently and work out your deadline to appeal.

You should be given six months to appeal from the date of the decision outcome letter. Work it out and put it in your diary, then give yourself ample time to prepare ahead of that date.

You should read your letter carefully though as some NHS organisations have been known to wrongly impose shorter timeframes to appeal.

In this scenario, you should try if possible to comply with the deadline, whilst clearly expressing your objection to the arbitrary time limit imposed.

In other words, although the deadline may not be right, if you are able to comply then you are no worse off.

2. Make sure you get a copy of the ‘decision support tool’ too

This is the detailed, full assessment that was used to make a recommendation on whether you are eligible for NHS CHC or not.

3. Review the decision support tool in detail

Study it carefully to prepare your grounds for appeal, and consider while doing so how you are going to present them most effectively.

You should check whether procedures were followed correctly, in case there are any concerns to raise on that front.

This can be tricky and the better you know your way around the National Framework for NHS CHC linked to above, the more likely you will be to spot problems.

4. Consider the care domain level descriptions

Think about whether the levels chosen by assessors are at odds with your needs.

You may feel, for example, that you are at a high risk of malnutrition, but in the domain of nutrition in the DST, the assessors awarded a moderate level of need instead of a high one.

Make out your argument in writing in your appeal, and evidence is key so include it if possible.

For example, if you can obtain a copy of your nutritional risk assessment from your personal care records to support your argument then this will help you.

5. Submit your appeal in writing and obtain a receipt

Whether via post or email, ensure that the CCG has received your appeal in writing and before the deadline has passed. Recorded delivery or email are good methods as you can obtain receipts.

Whilst there is guidance which allows CCGs to consider appeals outside of the six-month timeframe, this is best avoided as they will only give weight to exceptional reasons for late submission and have full discretion when deciding whether to allow your appeal.

If you are in this position, you should seek urgent expert advice.

6. Attend any meetings you are offered by the CCG

Discussing your appeal with members of staff from the CCG, – virtually if necessary during the coronavirus, or in person – will allow you to get your key points across.

It will also help your credibility, as it will show the assessors that you are passionate and care about the outcome.

Also, if your appeal is not successful, you will have a further and final right of appeal to NHS England, which is called ‘requesting an independent review panel’.

The independent review panel will pay special attention to how much you engaged with the CCG in relation to your first appeal.

7. Request an independent review panel if your appeal is unsuccessful and you remain unhappy

If your CCG turns down your appeal, carefully consider its reasons for doing so and whether or not your concerns have in fact been fully addressed.

If they have not, or the response gives rise to further concerns, then consider writing to NHS England asking for an independent review panel.

Go through the above steps once more.

Have you got a final decision outcome letter from the CCG following your appeal? Have you verified your new deadline?

Has the CCG provided full contact details for NHS England so you know where your independent review panel request needs to go?

8. Provide full reasons for appeal alongside your request for an independent review panel

It is wise to start preparing early on and ensure full written submissions are provided at the outset when requesting an independent review panel.

If the CCG has not dealt properly with your original reasons for appeal, explain this.

Try to narrow the issues. Clear off any problems which were sorted out by stating they have been resolved. Confirm what problems are still outstanding.

9. Be clear why you believe you meet the eligibility criteria

It is important to set out your arguments in a persuasive manner. Criticising the CCG for making mistakes is one thing, but have you explained why you believe your needs are intense, complex or unpredictable?

Have you stated why the evidence justifies two severe levels of need and therefore eligibility for NHS CHC?

10. Engage proactively with NHS England and attend your independent review panel

Make every effort to attend. Although an independent review panel is not a court, you should remain respectful of the chairperson and other panel members at all times.

Answer questions clearly and ensure that any messages about eligibility are put across in a persuasive way.

A collaborative and helpful approach is far more effective than an adversarial one.

You are trying to persuade the panel members that your interpretation of the evidence and the eligibility criteria is correct.

It helps to remain calm and professional, but most panels know this can be an emotive and upsetting subject and make allowances for this.