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16 December 2021 | Comment | Article by Michelle Evans

NHS continuing healthcare tips: independent review panels

For anyone who is living with a long-term condition, which is progressive in nature, has the potential burden of escalating care costs, NHS Continuing Healthcare can be a lifeline. It is a package of care that is fully paid for by the NHS, for adults with long-term and complex health needs.

For over two decades, tens of thousands of people with a range of conditions, including dementia, stroke, Parkinson’s Disease, have had their applications rejected. From our fifteen years of experience, we know thousands of individuals and their families are missing out due flawed assessments and a lack of understanding. If they are aware of the process, families struggle to navigate the system and feel discouraged and daunted by a complex process.

This series is to raise awareness of the funding and assist families so they are empowered to make the right decisions for their relatives.

If your relative has been assessed for NHS Continuing Healthcare and found not eligible you have the right to appeal this decision. The appeals process differs depending on whether your relative was assessed by a checklist assessment (an initial screening tool to determine if a full review is required) or by way of a full assessment in the form of a Decision Support Tool (DST).

When challenging a negative DST there are generally two stages in the appeals process. Firstly, an appeal should be made at local level, direct to the relevant Clinical Commissioning Group (CCG). In this appeal you need to clearly explain your reasons for appealing. Please note that you cannot appeal a decision simply because you disagree with it; you must be able to show that the correct process has not been followed or that the patient’s care needs have not been properly assessed. (Please see our blog NHS Continuing Healthcare: What Makes Someone Eligible for further information.)

If, following this appeal, the negative decision is upheld, a further appeal can be made to NHS England requesting that an Independent Review Panel (IRP) is held. This request must be made in writing within six months of the CCG’s decision being communicated to you.

It is important full submissions are made to NHS England at this stage as they may not accept further submissions at a later date.

The Independent Review Panel is seen as more impartial than other review meetings. The panel chairs are independent and are generally not medically qualified. Many panel chairs are retired solicitors or barristers.

On receipt of your request, NHS England will review arguments made by both you and the CCG and will make a decision as to whether an IRP should be organised. Whilst in our experience the majority of appeals made to NHS England do proceed to IRP, if NHS England decides not to convene a panel, you should receive a full explanation as to why and be told of your right to complain about this decision.

If you are informed an IRP will not be convened. You should seek legal advice as this may be open to challenge by way of Judicial Review. An IRP can be held to consider an individual assessment that was completed or a review of a passed period of care.

What is the role of the IRP?

The role of the IRP is to consider the process used by the CCG and review the decision made by the CCG focusing on whether the National Framework for Continuing Healthcare has been correctly applied. The IRP will be made up of:

  • an independent Chair
  • a representative nominated by a Clinical Commissioning Group (not involved in the case)
  • a representative from a local authority (not involved in the case)
  • and there may also be a clinical advisor in attendance

Preparing for the IRP

Prior to the IRP you should be provided with a panel pack including copies of the assessment undertaken, any records the CCG is seeking to rely on and documents relating to the local resolution process.

You will also be asked if you have any further written submissions to make about your relative’s needs. Whilst these submissions will be useful to the panel members, we strongly recommend that you also attend the IRP in person. As relatives of the patient, you will be in a unique position to provide the panel members with details of the patient’s needs which may not be included in their medical records. Further, as a client of ours, we will always offer you a representative from Hugh James Nursing Care to attend this panel with you, or on your behalf.

Proceedings on the day

Prior to the Covid-19 pandemic most IRPs took place at the various regional offices of NHS England. Since the pandemic all IRPs have taken place virtually using the telephone or Microsoft Teams. We have found that this has worked well and has made no difference to the quality of the decisions received. At the start of the IRP, the Chair will introduce the panel members and will set out the agenda for the meeting.

Both you (or your representative) and the CCG’s representative will then be invited to discuss any procedural concerns and your reasons for eligibility or non-eligibility. This involves a discussion of the assessment document and the areas of disagreement. This is the open session. Once this is completed the panel members only will discuss and consider the evidence in the file and the verbal discussions and reach a decision. This is the closed session.

Decisions made at IRP

A report of the IRP’s findings will usually be sent to you around eight weeks following the meeting. Naturally we hope all decisions made at IRP are positive, nevertheless, if the decision remains that your relative is not eligible for NHS Continuing Healthcare funding you have the right to contact the Parliamentary and Health Service Ombudsman to request that they investigate your case or to consider issuing judicial review proceedings.

How can Hugh James help?

We understand that the assessment and the appeals processes can sometimes be lengthy and complex and IRP’s especially can be daunting for families. Here at Hugh James we aim to remove some of the stress from challenging NHS Continuing Healthcare decisions; we have represented thousands of families at IRP’s, helping them to achieve the best result for their relative.

In the past three years, members of the Hugh James team have participated in almost 1000 IRPs across England.

At an IRP meeting, the NHS are quick to state that there is no need for legal representation as legal arguments cannot be made. However, as legal representatives we are able to consider and analyse the evidence and use this to construct the strongest arguments to support a patient’s eligibility. We are also able to support you by explaining the process to you before the IRP and answering any questions that you may have. As part of a lawyers training they are tested on their advocacy skills. Therefore, speaking in an IRP and articulating points are second nature to us.

Contact us

If you have a relative who has or is wrongfully paying for their care, please contact us to determine how we can help. We are able to assist you at all stages of your claim so please do not hesitate to contact a member of the Nursing Care team.

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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