A glaring omission in the latest version of the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (revised October 2018) has allowed Clinical Commissioning Groups (CCGs) around the country to take unfair advantage of individuals seeking to appeal a decision from a Multi-Disciplinary Team assessment (MDT).
Under the previous NHS National Framework, revised in November 2012, individuals were allowed a 6 month window to appeal an MDT decision.
So, if the CCG rejected your relative’s application for NHS Continuing Healthcare Funding after a full MDT assessment, or else, if existing funding in place was withdrawn following reassessment, 6 months was usually sufficient time to evaluate the outcome decision to refuse/withdraw CHC funding and lodge an appeal, if appropriate.
Although 6 months sounds a long time, in reality, there is a lot of material to collate and review.
You will need to obtain all relevant care home notes and records, GP and hospital records, any other treating therapist’s notes or other notes and records by those involved in your relative’s daily care (as may be relevant) and the CCG’s case file.
You will need to collate all these records, organise, paginate and assess them in minute detail, line by line, and consider them in conjunction with the Decision Support Tool used by the CCG when assessing your relative’s eligibility for NHS Continuing Healthcare Funding.
You will need to carefully look at each of the 12 Care Domains in turn, comparing the entries provided in the DST to check whether the entries recorded have been fully and acurately quoted (and not partially quoted/misquoted or simply summarised) to ensure there is no missing information which would paint a different picture of your relative’s healthcare needs. Inevitably, there will be lots of entries or information in the care home and medical records which have not been included in the CCG’s DST! Incorrect or missing information could dramatically reduce your relative’s chances of getting NHS Continuing Healthcare Funding.
So, for example, if under the Care Domain, “Medication” the NPD may only list a handful of entries as to the nature, type, dose and time medication was administered, but if you know your relative’s medication needs are more complex and require constant intervention and supervision, then look for every relevant entry where medication is mentioned and quote it in your written appeal submissions. This can be a painstaking and emotional task, but every entry in the notes and records, however minor, may help build a bigger picture of overall healthcare needs.
This is not a job that can be rushed, and can often take many days, if not weeks, to do the job properly and set out in detail where the CCG have omitted or incorrectly quoted entries from the multiple sources of records that may be available. It is then a matter of taking a holistic view and summarising those needs in conjunction with the 4 Key Indicators (Nature, Intensity, Complexity and Unpredictability).
So what’s the issue over timing?
When the updated National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care came into effect on 1st October 2018, the previous 6 month timescale for lodging an appeal disappeared. Paragraph 195 of the 2018 National Framework 2018, merely states:
“All CCGs must have an NHS Continuing Healthcare local resolution process. They should therefore develop, deliver and publish a local resolution process that is fair, transparent, includes timescales and takes account of the following guidelines…”
Many practitioners and CCGs alike, assumed that this sacrosanct provision from the previous 2012 National Framework had been incorporated into the updated 2018 National Framework. It hadn’t! This was the timescale both CCGs and those seeking NHS funding had always worked to and there is no reason to think that it would be removed when the 2018 National Framework came into force.
Some more sceptical might think that it was a deliberate omission, rather than a mere oversight. Without any prescriptive 6 month timescale, CCGs became at liberty to impose unilateral and arbitrary shorter timescales at will, some as short as 14 days, within which to lodge an appeal from an MDT assessment!
Miss the deadline and you risk losing your chance of appeal. One strike and you’re out! That could cost your relative thousands of pounds a month in care fees.
This condensed timescale has proven totally unrealistic and unfair to those family representatives appointed to prepare appeal submissions – and the CCGs know this. From our own experience, we have set out above a brief outline of the amount of work required to draft cogent appeal submissions.
The omission of the 6 month appeal deadline has until now given CCGs carte blanche immunity to impose a random abbreviated timescale of their choice, with impunity, and however unreasonable it may be; taking unfair advantage and pressurising families who are already at a point of despair whilst looking after their relative at home or in care.
Most CCGs have not been sympathetic to challenges over their self-imposed shortened timescales to appeal, as it is not in their interest to do so for ‘financial gatekeeping’ reasons. The omission of any mention of a timescale to appeal an MDT decision has lawfully enabled them to be as ‘ruthless’ and difficult as they want, at expense of families seeking to appeal an incorrect, flawed or perverse decision to refuse or withdraw NHS funding.
What’s the latest news?
It has now come to our attention that, only this week, the Department of Health and Social Care has confirmed that this 6 month appeal timescale has been reinstated. A good result for common sense!
So, if you disagree with the MDT’s rationale after a full assessment, you still have 6 months from their outcome decision to appeal to a Local Resolution Meeting (LRM). The LRM is conducted at local level by the Clinical Commissioning Group. Beware! Think of this first tier appeal as the CCG marking their own homework!
Remember, if you are unsuccessful at the LRM, you still have another opportunity to appeal to the next tier – NHS England. Again, a 6 month time limit applies to lodge your written appeal submissions. NHSE will conduct a full review and your appeal will be heard by an Independent Review Panel (IRP). This is effectively your last chance of appeal, so make sure you prepare your case well and don’t forget to lodge the appeal submissions in time! Search our website for more information about IRP appeals.
If all fails, the final chance of any appeal is to the Parliamentary and Health Service Ombudsman (PHSO). You have 12 months to lodge your appeal from the IRP outcome. However, generally speaking, the PHSO will only investigate and overturn decisions where there has been an abuse of process, rather than an outcome which you do not agree with, however perverse, or aggrieved you feel. PHSO tend to look at whether the correct decision-making process was followed and not whether the decision itself is correct.
If your relative has been denied NHS Continuing Healthcare funding or it’s been withdrawn upon review, and it’s clear that, for example, the:
- correct process wasn’t followed
- assessors have not followed the National Framework guidelines or case law
- eligibility criteria have not been properly applied
- family representatives have been excluded from the process
- there are no proper assessment notes
- proper consent was not obtained to start with
…then you MUST appeal.
Don’t delay and leave it too late. Early preparation is essential and the key to success.
Read these helpful articles: