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for NHS Continuing Healthcare Funding after a full MDT assessment, or else, if existing funding in place was withdrawn following reassessment, 6 months was usually sufficient time to evaluate the outcome decision to refuse/withdraw CHC funding and lodge an appeal, if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.
Conclusion
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.
If you need help or want to discuss anything to do with your appeal visit our one-to-one page.
Read these helpful articles:
Rejected for CHC Funding? Part 1: How To Appeal The MDT Decision
Learning valuable lessons prior to your MDT Assessment and how to avoid pitfalls
Beware! Annual Reviews can lead to CHC Funded Care being withdrawn
Attending an Assessment or Independent Review Appeal?
 |
 |
I made my formal appeal in Summer 2013, my father died at the end of November 2015 and the first CCG appeal took place in January 2016. Due to maladministration by the CCG a second Appeal took place in September 2016 which I won in part. Further appeals and a maladministration complaint followed and I am waiting for the National Ombudsman to reply in March 2020. I call it two Olympic cycles – I first challenged it in the Summer of the London Olympics – 2012, the CCG managed one – aborted Appeal by the Rio Olympics in 2016 and I am still waiting for an outocme in Tokyo Olympic year. I think I may deserve a Gold Medal…
Good to hear about the six month timescale. Do the CCG have to continue to fund during this six months or until the appeal is heard? Or will they stop funding after say 28 days unless you get the full appeal documentation to them?
Hi Nicky,
The simple answer is NO. Once the DST ineligible decision has been made and ratified by the CCG, you will receive written notification of the decision and the reasons which should include the recommendation written by the CHC Nurse assessor at the MDT. This recommendation will focus on the four key indicators as part of the process and if it is not proved through these elements then you will be informed that there is not a Primary Health Care Need for health.
If you were already in receipt of funding you will be informed of the date upon which it will cease. Which is normally within 5 working days. If they deem you haven’t a PHN then they aren’t going to pay for your care in the meantime, just because you are challenging them.
You have 6 months to challenge the decision but even if you are successful in securing a review it will in most cases take many more months, even years to reach an Independent Review. CHC/CCG’s are not in the business of over turning their decisions!
In the meantime your care provider will be sending you the bills! They will want paying no matter how much you protest about the injustice of CHC. It’s business!
If you intend to make the challenge be mindful to keep all invoices/receipts/statements that relate to any payment made to your care provider. If you are successful in proving your case these documents are required as evidence and as we know many care providers aren’t happy about helping provide this evidence and of course banks are only required to keep records for 5 years.
There are some really informative articles on here about this subject.
1. Should the NHS Pay for Care During an Appeal
2. Paying for care during an NHS CHC Appeal
Good Luck with your appeal
Thanks to CTBD for highlighting this omission and for the informative article. I would add that don’t wait until you have your appeal ready for submission. It will take weeks/months to prepare a detailed appeal……but this doesn’t stop you from IMMEDIATELY writing to/ informing your CHC that you DO NOT AGREE with the decision and that you are APPEALING the decision and will follow up with your full appeal within the agreed six month time frame. Send it signed for and request a acknowledgment that you have registered your appeal.
I did this a number of times and received acknowledgment of my intention and they then provided the deadline.
You then know exactly the timeframe you have to work to as set out by CHC.
Good Luck to everyone going through this.