Catch up here if you missed part 1 of the MDT appeal process – Part 1: Avoid common mistakes and pitfalls when appealing the MDT decision.
As we concluded at the end of Part 1, if you don’t succeed at Local Resolution and you remain dissatisfied with the outcome, then you have another 6 months from the negative outcome decision to appeal to NHS England. This is the first appeal to an independent body. The appeal to NHS England will be handled by an Independent Review Panel (IRP).
Currently, most IRPs are limited to only 2 hours – which means there’s a lot of ground to cover in the short space of time allocated. For more information read our blog: Only 2 Hours for an appeal to Independent Review Panel!
Good written submissions
To give yourself the best chance of success, it is preferable to draft written appeal submissions arguing your case.
Your written submissions need to be based on a careful forensic review of the negative Decision Support Tool (DST) and supporting evidence. Look at each Care Domain and consider whether the level of care scored is correct or too low. There is generally little point writing lots of material in your submissions if you agree with the level of need, or repeating evidence which is already included within the DST. However, the exception to this would be if there is a significant amount of evidence, for example, relating to challenging behaviour which would not alter the level of need, but would add to the Key Characteristics to evidence intensity, complexity and/or unpredictability. The general rule however should be to focus your attention on challenging those needs which are in contention. Look at the ‘Descriptors’ of need in each Care Domain and see if you can cogently argue that the NHS assessors have underscored any area and back it up with evidence in your appeal submissions.
Review the 4 Key Characteristics and argue that the nature, intensity, complexity or unpredictability of needs are incorrectly stated or underplayed and when looked at holistically, indicate an enhanced level of overall care needed to manage those needs .
You need to be able to assimilate the information and succinctly pull apart the negative appeal outcome, and provide documented evidence to back up your assertions. It is not the length of your written submission that counts but the content. A well-reasoned argument is far better than a rant! However, the level of detail required to make your case can depend on how poor the rationale is in the DST (and outcome letter) rejecting CHC Funding. It can also depend on the amount of evidence available in Nursing Home and medical records, as some sets of records can be particularly poor and lacking in detail.
However, drafting good written submissions is an acquired skill but how is the lay person expected to know how to do this task or what level of detail is required? There is no practical guidance in the NHS National Framework explaining how to present your appeal. The odds are very much stacked in the ICB’’s favour. This is an area where you will really benefit from professional help.
Albeit very rare, we have known appeal submissions to go to some 500 pages to demonstrate just how much relevant information the ICB missed out of their DST – which (perhaps intentionally) painted an entirely different picture of the patient’s actual level of need – leading to an inevitable negative outcome both at MDT stage and at Local Resolution. Whilst this amount of detail is generally far and above what is ordinarily needed when drafting your appeal submissions, the IRP Chair fully understood the need for this considerable and painstakingly assimilated detailed information to castigate the ICB’s shameful and partisan DST. The IRP Chair thanked our representative for the quality of the Submission and expressed how helpful it had been for the Panel Members to gather a full insight into the individual’s needs. The subsequent IRP Report specifically used the phrases “cherry picking of evidence”, “disingenuous to suggest”, “marginalised and minimised” etc when referring to the manner in which the ICB Panel had reviewed and considered the case, and the Panel decision.
The Independent Review Panel
Your appeal will be heard by an IRP which consists of an independent chair (appointed by NHS England) and ICB representative (who was not involved in the previous decision) and a local authority representative (unconnected to the ICB involved in the previous decision).
The IRP Chair may decide to refer a case back to the ICB for further work and/or reconsideration before it is accepted for consideration by the Independent Review Panel. This could be because the ICB has not followed correct process in relation to the original assessment or Local Resolution appeals process, or because the ICB’s Case File as provided to NHS England is incomplete and has some missing evidence; or there is or evidence that wasn’t considered by the MDT (such as all the relevant GP records where a patient changes GP); or the ICB’s rationale to refuse CHC is weak and not well made; or the decision to refuse CHC Funding is so patently wrong that the ICB really need to look at it again, rather than wasting the IRP’s time.
Sometimes, an ICB will revisit the negative decision themselves, even at the eleventh hour, just prior to the IRP hearing, particularly once they have had sight of our well-argued Appeal Submission! If they realise that their rationale was obviously wrong or so poor, an ICB may wish to avoid the embarrassment of attending an IRP and instead offer to look at the matter afresh, or else simply concede eligibility for CHC Funding, rather than proceed with the appeal and leave with their tail between their legs.
Get advocacy help
Although the National Framework for NHS Continuing Healthcare Funding states that it is not necessary to have advocacy representation at IRP as the appeal is intended for the lay person to handle and it is not intended to be an adversarial process. Make no mistake, this is a battleground, and the NHS representatives are not there to play ‘nice’ or be helpful. Some representatives can be very bullish and hostile skilled advocates, fighting to save face and protect the NHS’s funds, even if they have a weak position to defend. They will know the case they are presenting inside out and will do their uppermost to protect their employer’s position and contend that the decision to refuse CHC Funding was correct.
So, you must know your case well and be prepared to stand your ground (politely) with the IRP Chair and make your case out toe-to-toe with the ICB’s representative. It’s quite easy for family representatives to get emotional, frustrated and want to tell all. But, just like the MDT, don’t get side-tracked arguing irrelevancies as you are wasting valuable time and irritate the IRP Chair, whilst at the same time detracting from the better points you need to make on disputed matters.
Although, the National Framework suggests advocacy representation is optional, we strongly recommend that you do have a professional advocate or legal representative with you who really understands your relative’s needs and can argue against the ICB’s skilled representative in robust terms and spot any abuse of process. Usually, for continuity and to have the best chance of success, that same advocate will have drafted the written appeal submissions for you as well. Whilst having an skilled specialist CHC advocate does not guarantee success, those who do generally stand a far better chance of success. Speak to our sister organization, Farley Dwek Solicitors, who are renowned experts in this complex arena.
IRP is really your last real chance of getting CHC Funding for your relative. Forget about the Parliamentary & Health Ombudsman service as it’s generally a waste of breath complaining to them as they won’t consider a wrong decision – however perverse – because that is the IRP’s remit. They are only really interested if there has been a procedural abuse, such as critical records not being considered at IRP as part of the decision-making process. So, if you’re just frustrated by the IRP’s decision and can’t fathom how any reasonable panel could possibly come to this wrong decision, basically it’s too bad! You’re most likely going to be stuck with it and PHSO won’t sweep up behind you to bail you out. From experience, will simply say that there is a CHC process in place, and you’ve had your chance; so unless there is obvious abuse, they’re not interested and will not intervene.
The ICB should accept the IRP’s recommendations (unless there are exceptional circumstances).
For more information about appeals, read this selection of previous blogs below: