NHS CHC disputes: where are we now?

Both practitioners and family members alike are becoming increasingly aware of the difficulty in securing (and retaining) a positive NHS Continuing Healthcare (NHS CHC) eligibility decision. Recent statistics from NHS England show that less than 54,000 adults in England qualify for NHS CHC and, where eligibility decisions are challenged, only 24% of Local Resolution Panels are successful in overturning a CCG’s decision. Furthermore, CHC awards are time limited and subject to any change in circumstance.

This situation has not been helped by the case of R (Gossip) v NHS Surrey Downs CCG [2019] EWHC 3411 (Admin), in which the High Court concluded that a CCG’s “failure to adhere to the National Framework Guidance does not amount to unlawfulness”. This essentially means that CCG’s will now feel able to exercise more discretion when making decisions regarding eligibility for NHS CHC and will use this case to defend challenges against them.

In the circumstances, it is now more important than ever to have a clear understanding about when how and to challenge a decision of ineligibility, before embarking with such action.

The Checklist

The checklist is the first stage to be completed when considering whether a person is eligible for NHS CHC. If the checklist stage is passed positively, a Decision Support Tool will then be used to make a recommendation regarding NHS CHC to the CCG. In the event of a negative checklist, it is possible to make a complaint about the outcome. Challenges should be succinct and supported by evidence. You can also ask for a new checklist to be completed if there has been a change in circumstances. The CCG and local authority can only refuse to do this if they do not believe there has been any change, so it is important to be able to show what has changed with supporting evidence if possible.

The Decision Support Tool (“DST”)

After passing the checklist stage, a DST will be used to determine whether a recommendation of eligibility for NHS CHC is made to the CCG. The assessment team will consider what are known as the ‘care domains’, in order to determine whether an individual’s care needs are severe enough for NHS CHC. We would expect a clear recommendation to be made if an individual is described as having a priority need, or two or more identified severe needs, across the relevant domains. The CCG will then consider that recommendation and decide whether they agree that an individual is eligible.

Decisions about eligibility are based largely on a person’s daily health and care needs. There are a number of factors that do not determine eligibility, which many people find surprising. These include: an individual’s diagnosis; their care setting; the ability of the care provider to meet the individual’s needs; and the fact that a need is well managed by the care provider.

Challenging Decisions

When challenging an eligibility decision, it is important to be aware of the National Framework and the four key characteristics explained within the same, which can be used to challenge the level of care needed.  These four characteristics are Nature, Intensity, Complexity and Unpredictability (also known as “NICU”) and are arguably more important than the scores from the care domains. According to the National Framework, “each of these characteristics may, alone or in combination, demonstrate a primary health need, because of the quality and/or quantity of care that is required to meet the individual’s needs.” An initial challenge will be dealt with by a Local Resolution Panel and, if a further challenge is made thereafter, by an NHS Independent Review Panel. Local Resolution Panels are made up of personnel from the CCG and so success can be difficult. Sometimes, a more successful outcome can therefore be achieved at an NHS Independent Review Panel.

Care Homes and Top up Funding

If you or a relative have successfully been able to secure NHS CHC funding, it is important to be alive to the fact that care homes should not ask for any top up payments towards the cost of a care package that has been agreed between them and the NHS. If you have been asked to do this and have topped up a care package accordingly, the care home may well be in breach of consumer law and you may be entitled to recover the top up fees that you have paid.

How can we help?

Our Healthcare Team can provide you with concise, comprehensive and practical advice on this issue. If you wish to discuss a potential claim, please contact Henrietta Frew by email at Henrietta.Frew@ellisjones.co.uk  or phone 01202 057863.