Has your relative been rejected (whether in full or part) for NHS Continuing Healthcare in the last 6 months? If so, have you been told that you can appeal to an Independent Review Panel?
Often the Care Commissioning Group (CCG) will review their own decisions internally, this will be called something like a ‘Local Panel’ or an ‘Internal Review’. CCGs have different arrangements and use different terms for this process. It is usually done ‘in house’, which means that the team holding the budget is making the decision.
You should be notified that you have a right to have an independent review of the decision. This right should be noted on the letter that you get from the CCG telling you that your application for CHC funding has not been successful (whether that be in full or part).
You must lodge the appeal with NHS England within 6 months of receiving the final decision letter rejecting CHC funding.
Don’t forget to write to the CCG as well, telling them that you don’t accept their decision and are appealing to NHS England.
Once you have asked for an appeal, the matter will move out of the CCG’s internal processes. It will it no longer be the case of the CCG ‘marking their own homework’, as the appeal will be dealt with by an independent team at NHS England – an Independent Review Panel (‘IRP’).
In practical terms, think of the IRP as your last chance to secure a successful outcome for CHC Funding once you have exhausted the CCG’s internal appeal and complaint’s process.
The Independent Review Panel’s terms of reference
The way in which the IRP works is governed by The NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 and by the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (revised October 2018).
The IRP has the responsibility of reviewing (1) the eligibility decision reached by a CCG and (2) the procedure it followed in reaching its decision on an individual’s eligibility for NHS Continuing Healthcare. The IRP can change the eligibility recommendation. The IRP can also make comments about the process that has been undertaken by the CCG.
Who attends the IRP:
The IRP usually consists of the following:
The Panel – consisting of
- Independent Chair
- Local Authority representative
- NHS representative
In addition to the Panel, in attendance may be:
- Clinical adviser (sometimes the NHS representative will also be the clinical adviser)
- Family members
- Family advocate – can be a lawyer, nurse etc.
- CCG representative
- NHS England note taker
- And an observer (in some cases)
Following on from our recent blog: Only 2 Hours for an appeal to Independent Review Panel! You will know that IRPs are now conducted remotely (over Microsoft Teams) and last only 2 hours. So, careful and considered preparation in advance of the IRP is vital, given such a short timescale to now make all your points at the appeal.
After your 2 hours are up, and you have been released from the meeting, the IRP panel members will continue and deliberate the evidence in order to produce their decision outcome report with their findings and recommendations.
Their report will contain several sections, including the following:
1. The Independent Review Panel’s recommendations:
Effectively, a brief a summary of IRP’s finding and recommendations as to matters they have considered, and which prompted your appeal to NHS England in the first place. It will set out whether the CCG’s prior decision was unsound (ie wrong!), if the applicant has been successful and is eligible for CHC Funding. The IRP may also comment if the CCG needs to improve its policy on assessments and reviews in order to ensure full compliance with the National Framework for NHS CHC – which should, of course, be at the heart of the whole process.
2. Does the individual have a primary health need?
An individual is eligible for NHS Continuing Healthcare if they have a “primary health need”. This is when it can be said that the main aspects of the care they require are focussed on addressing and/or preventing health needs. It is not about the reason why an individual requires care or support, and it is not based on their diagnosis (e.g. dementia). It is about the level and type of their overall actual day-today care needs taken in their totality.
In considering whether an individual has a primary health need, the IRP first needs to consider the evidence of the individual’s needs in the 12 separate care domains listed in the Decision Support Tool associated with the National Framework.
The Decision Support Tool does not, however, directly determine eligibility; the evidence collated merely helps to inform the IRP’s consideration of whether an individual has a primary health need, looking at the totality of need using the four key characteristics of nature, intensity, complexity and unpredictability.
In all cases, the overall need, interactions between needs in different care domains, and the evidence from risk assessments, should be taken into account in deciding whether a recommendation of eligibility for NHS Continuing Healthcare should be made.
The decision whether someone has a primary health need must be based on what the evidence indicates about the nature and/or complexity and/or intensity and/or unpredictability of the individual’s needs.
The IRP must also consider whether or not, taken as a whole, the nursing or other health services required by the individual were:
- more than incidental or ancillary to the provision of accommodation which local authority social services are under a duty to provide; and
- of a nature beyond which a local authority whose primary responsibility is to provide social services could be expected to provide.
If they were, then this indicates that the individual had a primary health need.
For more information on the subject take a look at these helpful blogs:
3. The Background to the applicant’s case:
The IRP will usually set out a brief history of the individual’s medical condition and the reason why they moved into a care facility, together with details of any assessments or reviews undertaken for CHC, outcomes obtained as to periods of eligibility and/or ineligibility for CHC Funding, and the basis of those matters for consideration at IRP.
4. Reasons for the request for Independent Review
The outcome report will set out why family requested an Independent Review and will give their reasons for challenging the CCG’s decision to reject CHC Funding. For example, these reasons might include:
- The fact that the CCG had failed to take properly into account their relative’s needs and had misapplied the Primary Health Need test;
- The CCG had given no reason about what had significantly changed or improved in their relative’s needs to make them ineligible for CHC funding;
- A number of process issues that were not followed (including lack of transparency) leading the family to feel that a thorough, fair and robust assessment had not taken place.
5. Evidence considered by the IRP
The IRP will list the evidence reviewed and considered when making its decision and recommendations.
6. The IRP’s view of the applicant’s levels of need under the care domains in the Decision Support Tool
The IRP will set out the 12 care domains and summarise the CCG’s, the family’s and IRP’s suggested level of need in each care domain and discuss the various needs when reaching its conclusion. E.G. ‘No Needs’, ‘Low’, ‘Moderate’, ‘High’’, Severe’ or ‘Priority’ levels of need.
For more information about levels of need for each care domain, we highly recommend that you read our informative blogs in this 12-part series (more to follow soon!). The latest below contains links to all previous blogs in the series.
7. Levels of need agreed by the IRP
There will be a table to give an overview of the levels of need selected in each care domain, listing a total of how many ‘Priority’, ‘Severe’, ‘’High, ‘Moderate’, ‘Low’ or ‘No needs there are.
8. The IRP’s consideration of the four key characteristics
Of course, those familiar with CHC Funding will know that it’s not just about the needs across the 12 care domains that determine eligibility for CHC, but applying the 4 key characteristics (nature, intensity, complexity and unpredictability) to understand the totality of need.
9. The Family’s submission
The family (and their representatives) will be given their chance to have their say. After all, the individual is supposed to be at the heart of the process.
The IRP should reflect again on the family’s submission to check that all the relevant points have been covered, that they have considered the 12 care domains using information available in conjunction with the four key characteristics and have given an explanation about how each was assessed and state whether these amounted to a Primary Health Need.
10. The IRP’s application of the “incidental and ancillary” test in the applicant’s case
The IRP should consider whether, taken as a whole, the nursing or other health services required by the individual were (1) more than incidental or ancillary to the provision of accommodation which local authority social services are under a duty to provide and (2) were of a nature beyond which a local authority, whose primary responsibility is to provide social services, could be expected to provide.
11. The IRP’s view on the primary health need test
Taking into consideration all of the evidence of the applicant’s needs and the nature, intensity, complexity and unpredictability of those needs, the IRP should then conclude whether the individual did have a primary health need.
12. Further comments (if any)
As part of their deliberations, the IRP should note any additional comments made by the family, for example, in terms of high levels of support provided to their relative, such as visiting daily to provide direct support and supplement care due to staff shortages, help with medication, getting their relative ready for bed, being ‘on-call’ when the care home struggled to manage their relative’s behaviour etc.
13. The IRP’s recommendation on eligibility
The IRP will conclude whether the individual did have a primary health need and was therefore recommended eligible for NHS Continuing Healthcare or not. The IRP can only make a ‘recommendation’ to the CCG about eligibility, but in practice, the CCG generally accepts the findings of the IRP.
14. Procedural issues raised by applicant
The IRP will summarise any concerns the family have raised about the dispute resolution process; the previous appeal to the CCG’s Local Resolution Panel; any lack of transparency or lack of clear explanation or rationale as to how the disputed DST had been resolved; any failure to invite the family to participate in meetings; under-reporting of the clinical evidence discussed; whether the CCG’s general approach with applicant’s family had been dismissive and could even be perceived as dishonest etc.
15. The IRP’s recommendations on procedural issues
Having regard to the issues raised above concerning the CCG’s procedure, the IRP can make any recommendations as it feels fit, such as: the CCG reviews its policy and procedure for any stage of the CHC process from review (and timings), the DST, the dispute resolution and/or local appeal to ensure that clear information is made available to families to guide them through the CHC process, letting them know what to expect at each stage; to ensure the National Framework for Continuing Healthcare 2018 is at the heart of all process and that CHC process is clear, well documented with signed evidence made available at each stage showing the decision made and who made it.
But remember, just because the CCG got parts of the process wrong, does not necessarily meant that the eligibility decision is wrong.
Attending an IRP can be a daunting experience given the high stakes and number of people who may be in attendance (even if only ‘virtual’, as these days IRPs are held online). This is an area where we would recommend you seek professional help and advocacy to help you to navigate this complex area. If you need help, or want to discuss your situation, contact us via our website.
For more information about appeals, read this selection of blogs below: