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31 January 2020 | Comment | Article by Katie Morgan

NHS Continuing Healthcare: Can you challenge an Independent Review Panel decision?

When an individual has been assessed as not eligible for NHS Continuing Healthcare in England and that decision has been upheld by the Clinical Commissioning Group (CCG) on appeal, there exists a right to request that NHS England convene an Independent Review Panel (IRP) to review the decision. But what happens if you want to challenge the decision of the IRP?

The role of the IRP is to determine whether the CCG correctly applied the National Framework for Continuing Healthcare when making their decision. Whilst an IRP cannot overturn a CCG’s decision, it can make a recommendation as to whether the decision of the CCG was “sound” or “unsound” and if the latter, request that the CCG reconsider their decision in the light of the IRP’s findings. It is expected that in all but the most exceptional of cases that a CCG will concede that an individual was eligible for continuing healthcare following the recommendation of an IRP to that effect and that a reimbursement of care fees paid, plus interest, will be made by the CCG for the determined period of eligibility.

Having an IRP consider a CCG’s decision on continuing healthcare eligibility is cited as being the last stage in the NHS’s internal review process. However, there are options available should an individual remain unhappy with an IRP’s recommendation. One option, as will be detailed within the report of the IRP, would be to submit a complaint to the Parliamentary Health Services Ombudsman and request that they investigate the decision made by the IRP. However, the Ombudsman first has to consider whether to investigate a complaint, figures published for the last quarter of 2018 confirm that only 24% of complaints were passed onto the Ombudsman’s investigations team. It is therefore highly likely that the Ombudsman will decide not to investigate a complaint.

An alternative option would be to issue judicial review proceedings against the NHS. Judicial review is a type of court proceeding in which a judge determines the lawfulness of a decision made by a public body. When considering whether judicial review proceedings would be appropriate it is essential to consider whether the decision of the IRP was “wholly unreasonable.” Should it be determined that the decision was “wholly unreasonable” and not a decision that would have been made by a differently constituted IRP, judicial review proceedings may be appropriate.

However, it is very important to note that the time limits within which judicial proceedings can be brought are extremely limited. There exists only three months from the date that the decision of the IRP was communicated within which judicial review proceedings can be brought. Prior to the actual issuing of the proceedings a number of steps have to be completed in line with what is known as the “pre-action protocol for judicial review proceedings” within those three months. One such step within the Protocol is to send a “pre-action” letter to NHS England notifying them that judicial review proceedings will be issued against them should they not take steps which would remedy the wholly unreasonable decision made by the IRP.

The Hugh James Nursing Care Department has a wealth of experience in advising clients on the appropriateness of judicial review proceedings on receipt of negative IRP recommendations. So too does the Department have experience in sending pre-action letters to NHS England. In one such case, NHS England agreed to hold a second IRP which resulted in a recommendation of eligibility for 2 year and 3 month period and the CCG making a total reimbursement of approximately £120,000. The original IRP that had been convened in that case had made a recommendation that the individual was not eligible for continuing healthcare. In a further case, a second IRP recommended eligibility for a 9 month period which resulted in a reimbursement of approximately £35,000. Again, the original IRP in that case had made a recommendation of no eligibility. As the second IRP in both of these cases had made a recommendation of eligibility which was deemed to be wholly reasonable, the actual issuing of judicial review proceedings did not become necessary.

It is therefore evident that IRPs can make incorrect recommendations and it is therefore important for individuals going through this process to be aware of the option to issue judicial review proceedings, especially as this remedy is not cited as a potential option within the IRP report itself. Due to the very strict timescales within which judicial review proceedings have to be issued, as explained above, should you be in receipt of a negative IRP recommendation, please contact the Hugh James Nursing Care Department for advice as soon as possible.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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