How To Challenge A Nursing Care Funding Decision

In the second part of our series on the intricacies of obtaining nursing care funding, Solicitor Cate Searle explains how to challenge an undesirable decision.

In the first article on how to get care home funding we looked at how to apply for continuing health care funding in the light of rules introduced in October 2007. Solicitor Cate Searle now offers advice on how to challenge a negative funding decision in England*.

Specialist Help

It is always worth getting expert advice before challenging a continuing health care funding decision. The review process is complex and a solicitor or other specialist can advise on your prospects of success as not every negative decision is wrong. They can also prepare the written submissions necessary for the appeal process.

Requesting A Review

If you proceed with a challenge, the first step is to request a review in writing to the Primary Care Trust (PCT). Check first whether there are any particular rules – for instance deadlines or special forms. If you are challenging a decision because of an increase in needs, do not be put off by ‘missed deadlines’.

PCTs are supposed to deal promptly with review requests. However, in practice, it can take months for the review to happen. But, where reviews are successful, funding decisions should be backdated to the time of the original funding application. If your relative is challenging the withdrawal of existing continuing healthcare funding, the PCT should continue to pay for their care pending the outcome of the review.

How The Review Is Conducted

Some PCTs use an internal panel to make a decision based on an assessment of the paperwork. Others may ask neighbouring PCTs to look at the case. In both cases you should be invited to attend a Panel review meeting or to express your understanding of your relative’s needs in writing.

Although the National Framework encourages PCTs to review cases themselves in the first instance (known as local resolution), some PCTs refer review requests straight to the Strategic Health Authority. If this happens to you, make sure you get specialist advice promptly.

What Information You Need

When challenging decisions, it pays to be well armed with the facts. Start by checking the following documents.

• NHS continuing healthcare and NHS funded nursing care assessments
These can be obtained from the PCT. Check them for any errors, or misunderstandings about your relative’s needs. For instance:
• Have they overlooked needs that are already being met?
• If your relative has dementia, or mental health needs, have they taken supervision, prompting and other specialist interventions into account?
• Have they looked at how all your relative’s health needs interact to increase the amount and type of care required?
• Have they properly assessed and scored your relative’s physical health needs such as mobility and nutrition, or have they understated these?

• Hospital assessment
If your relative has recently been in hospital, get a copy of any nursing and discharge assessments from the hospital. These should include evidence and opinion about the severity of their health needs.

• Social Services’ care plan and assessments
Social services paperwork often contains useful supporting evidence particularly about the number and quality of nursing or other care interventions required. Get hold of this from the social worker involved.

• Your own evidence
Make a detailed record of the events and illnesses that lead to your relative’s need for care. Could a GP or other professional give any useful evidence about their needs?

What If The PCT Panel Upholds The Original Decision?

If the PCT Panel does not overturn the decision, ask for the case to be sent to the Strategic Health Authority’s Independent Review Panel (IRP). However, be warned that there is a large backlog of cases and it can take months for your case to reach IRP. If you have not already obtained specialist advice, make sure that you do at this stage.

The IRP has an advisory role and can only offer ‘guidance’ on the ‘validity’ of the PCT’s decision and whether the PCT correctly applied the National Framework. However, PCTs should accept IRP guidance in all but exceptional cases. This means that should the IRP advise that a funding decision was not valid, the PCT should reverse it.

The IRP should let you have the documents they will use to consider your relative’s case and ask you for information about their health needs. The panel consists of three people and will normally have a nursing adviser. The hearing is part of a fact-gathering and decision-making process and should be relatively informal. This is a private hearing and the panel will interview you and the PCT separately.

You will generally be notified of the panel’s decision by the SHA in writing within two to four weeks. If the IRP decides that your relative should be entitled to NHS Continuing Healthcare funding, the award should be paid retrospectively to cover the dispute period. The IRP’s recommendation should include a date from which the funding should have been awarded.

* The above applies to continuing care funding in England. A similar system operates in Wales (www.wales.nhs.uk) and Northern Ireland (www.dhsspsni.gov.uk). There are some differences in the detail and anyone seeking funding or challenging a funding decision should consider seeking specialist advice. A different approach applies in Scotland (www.show.scot.nhs.uk) where nursing and social care costs (but not accommodation costs) are currently funded in full.

Cate Searle is a community care law solicitor in the area of continuing care law. Find out more at www.ms-solicitors.co.uk