Navigating the process of securing NHS Continuing Healthcare (CHC) funding can be challenging, and many families find their applications are initially refused. However, a negative decision does not necessarily mean the case lacks merit. Individuals have grounds to appeal if they believe the assessment process or its outcome was flawed.

James Urquhart-Burton, head of continuing healthcare claims at Winston Solicitors, explains that appealing a CHC decision involves demonstrating that the assessment was not sound, that evidence was misinterpreted, or that the National Framework for NHS CHC was not properly applied. Appeals are not simply about disagreeing with the outcome but about identifying specific errors in how needs were assessed and recorded. The process is detailed, and outcomes are not guaranteed, with a relatively low national success rate.

Grounds for Appeal

Common reasons to appeal include:

  • Assessors failing to follow the correct procedures outlined in the National Framework, such as the absence of a local authority representative during the assessment.
  • A lack of full understanding by assessors regarding the individual's needs.
  • The recorded levels for care domains (e.g., communication, mobility, nutrition) not accurately reflecting the severity of the needs.
  • The presence of 'intensity, complexity or unpredictability' in needs being overlooked or inadequately explained by assessors.
  • A perception that the decision was predetermined.
  • Observed discrepancies where others with seemingly less severe needs receive CHC funding.

If these concerns are present, and there is a belief that the eligibility criteria are met, pursuing an appeal is worthwhile. Prompt action is crucial, as there is typically a six-month deadline from the decision letter to request a review.

The Appeal Process

The appeal process involves several key steps:

  1. Request a Decision Letter: If the initial refusal was verbal, obtain a written decision letter to confirm the deadline for appeal. Some NHS organizations may impose shorter, incorrect timeframes, which should be noted and challenged if possible.
  2. Obtain Assessment Records: Secure a copy of the Decision Support Tool (DST), which details the full assessment, along with relevant clinical and care home records.
  3. Detailed Review of DST: Carefully examine the DST to identify grounds for appeal, checking for procedural compliance and how care needs are characterized. Professional advice can be beneficial for assessing prospects of success.
  4. Structured Case Presentation: Formulate the appeal in writing, clearly outlining where the original assessment may have gone wrong. Evidence is critical; for example, including a nutritional risk assessment to support claims about malnutrition.

James Urquhart-Burton: Appealing a CHC decision is not simply about arguing that the NHS 'got it wrong'

A well-prepared appeal should address procedural concerns, engage directly with how needs were recorded in the DST, identify potential understatements or mischaracterizations of needs, reframe evidence to align with primary health need criteria, and present the argument clearly to the Integrated Care Board (ICB).

  1. Submit in Writing and Get Receipt: Send the appeal in writing, ensuring it is received by the ICB before the deadline. Using methods like recorded delivery or email with a receipt provides confirmation.
  2. Attend ICB Meetings: Engage in any meetings offered by the ICB. These discussions are opportunities to clarify points and demonstrate commitment to the case. The ICB remains the decision-maker throughout this stage.

Further Appeals

If the appeal to the ICB is unsuccessful, there is a further right of appeal to NHS England for an Independent Review Panel. This request should include full reasons for appeal, highlighting any issues not resolved by the ICB and clearly stating why eligibility criteria are believed to be met, particularly regarding the intensity, complexity, or unpredictability of needs.

Proactive engagement with NHS England and attendance at the Independent Review Panel are advised. While not a formal court, a respectful and clear presentation of arguments is crucial for persuading the panel.

Seeking Professional Support

While individuals can manage appeals themselves, the process can be complex. Specialist advisors or solicitors familiar with the National Framework can help analyze assessments, identify technical flaws, prepare submissions, and represent families during discussions with the NHS, ensuring key points are effectively communicated.