4. Mrs A complains that the ICS has refused to refund the legal fees she incurred when she was pursuing the CHC appeals process.
5. Mrs A says her mother’s estate has been financially impacted by the ICS’s decision to not pay back her legal fees.
6. Mrs A wants the ICS to pay back these legal fees to her late mother’s estate.
7. The ICS wrote to Mrs A’s brother on 24 May 2019 to invite him to attend a multidisciplinary team meeting, where a decision support tool (DST) to review Mrs E’s care needs was to be completed. Mrs E’s CHC funding was stopped in July 2019, following another multidisciplinary team meeting that Mrs A and her brother attended.
8. On 1 July 2019, the ICS wrote to Mrs A’s brother to explain it had not identified Mrs E to have a primary health need, and it outlined he had the right to appeal the decision within six months of the date of the letter. It provided contact details for who he could write to if he chose to appeal the decision.
9. Mrs A then hired a solicitor to act on behalf of her mother’s estate in pursuing the CHC appeals process. In August 2019, Mrs A’s solicitor wrote to the ICS to outline the reasons for the family’s appeal.
10. A local resolution panel was held on 11 December 2019, which Mrs A attended. On 31 January 2020, the ICS wrote to Mrs A to outline that the local resolution panel had not found Mrs E had a primary health need. It informed her of her rights to appeal this decision to NHS England.
11. NHS England overturned the decision of the ICS in its report in December 2020.
12. Mrs A complained to the ICS regarding reimbursement of her legal fees in 2021. The ICS responded to say it would not be reimbursing her legal fees.
15. Mrs A complains the ICS would not reimburse her legal fees that she incurred when she was pursuing the CHC appeals process. Mrs A says she wants these to be paid back.
16. Mrs A says she hired a solicitor to act on the family’s behalf because the ICS would not listen to her when she was outlining the reasons why her mother had a primary health need. Mrs A says her legal costs would not have been incurred if the ICS had carried out its processes correctly.
17. Mrs A says the ICS was communicating with her brother and her, including the next steps in the CHC appeals process in writing, but the extenuating circumstances in her case that show why her legal fees should be reimbursed are because NHS England had upheld her appeal and her late mother’s care home fees were reimbursed by the ICS.
18. Mrs A has referred to the NHS CHC Refreshed Redress guidance (2015): · Paragraph six says our office has indicated it is rarely appropriate to receive a refund of legal and professional costs in bringing forward an NHS CHC dispute · Paragraph seven says individuals do not need to request legal advice to request an assessment of CHC eligibility and there is also a mechanism to request a review of a decision on eligibility. Clinical Commissioning Groups (CCGs) and individuals will help and advise individuals or their representatives on the process that will be followed in line with the National Framework.
19. Mrs A says although the guidance says redress is rarely given, this does not mean at all, and she says paragraph seven is not relevant to why she sought legal representation.
The ICS’s response
20. The ICS stated it followed the National Framework and it has a local resolution process for the management of appeals against eligibility. This is not a legal process, so there is no requirement for individuals, or their representatives, to engage legal advice to support any appeal. It stated NHS England have issued clear guidance about the refund of legal fees in connection with NHS CHC appeals.
21. The ICS referred to the NHS CHC Refreshed Redress Guidance (2015) and stated that Paragraph six of the guidance states that it is rarely appropriate to receive a refund of legal and professional costs in bringing forward an NHS CHC dispute.
22. The ICS referred to paragraph seven (above) where it says CCGs and third sector services will help and advise individuals, or their representatives, on the process that will be followed in line with the National Framework for NHS Continuing Healthcare and NHS funded Nursing Care.
23. The ICS said the Complex Cases Team has reviewed the circumstances surrounding the appeal and it has not found that there were any exceptional circumstances that might justify the need for legal representation during the appeals process.
Our consideration
24. The National Framework sets out the process to be followed by individuals who wish to pursue a claim for CHC. The Department of Health has also published a public information leaflet which explains the various steps of the process. In addition, there are also free advocacy services available which can provide help.
25. The National Framework states that individuals do not need to have legal representation during the CHC eligibility process. Individuals are free to choose an advocate and for them to be present.
26. The National Framework sets out a national system for determining eligibility for CHC. The eligibility process is focused around assessing an individual’s needs in the context of the National Framework, rather than being a legal or adversarial process.
27. It outlines that if the individual chooses to have a legally qualified person to act as their advocate, that person would be acting with the same status as any other advocate. The Multi-Disciplinary Team (MDT) process is fundamentally about identifying the individual’s needs and how these relate to the National Framework. Health and Social Care practitioners should be confident in their knowledge and skill in dealing with most queries about the MDT process and the appropriate completion of the DST. Where wider issues that are not connected with the question of eligibility are raised by advocates (such as legal questions) they should, if appropriate, be asked to raise these separately with the CCG outside the MDT meeting.
28. The National Framework says it is an individual’s personal choice to have legal representation and individuals do not need to have legal representation during the CHC eligibility process.
29. The NHS CHC refreshed redress guidance (2015) says it is rarely appropriate to receive a refund of legal and professional costs in bringing forward an NHS CHC healthcare dispute. Individuals do not need legal advice to request an assessment of eligibility for NHS CHC and there is also a mechanism to request a review of the decision made on eligibility. CCG’s and third sector services will help and advise individuals or their representatives on the process that will be followed in line with the ‘National Framework for NHS Continuing Healthcare and NHS funded nursing care’.
30. We would only expect legal fees to be reimbursed in exceptional circumstances, such as where there is compelling evidence the individual or representative could not make the claim themselves or if they encountered significant issues with the organisation in pursuing the claim.
31. We have not seen any evidence that Mrs A was unable to pursue the CHC process on her own, or that Mrs A encountered significant issues with the ICS before she made the decision to pay for legal representation. Mrs A has informed us that she and her brother were able to pursue the appeals process themselves, and they did not need the help of a solicitor to do this.
32. Mrs A says the ICS was not listening to her at the multidisciplinary team meeting in June 2019, and therefore she sought legal representation. The decision support tool shows evidence of the ICS taking her views into account. For example, in the mobility domain ‘[Mrs E] has osteoarthritis in both knees’. In the communication domain, ‘family and staff reported she is not always reliable in her communication’.
33. We understand that Mrs A sought legal representation following the decision of the ICS to stop the CHC funding, but this was her decision, and it was not necessary because of the ICS’s decision. The National Framework states there is no requirement for legal representation for the CHC appeals process.
34. Mrs A has informed us there were no communication issues with the ICS. The ICS wrote to Mrs A’s brother on 1 July 2019 to explain it had not identified Mrs E to have a primary health need. It also explained he had the right to appeal the decision within six months of the date of the letter and provided contact details for who he could write to.
35. Following this, Mrs A sought legal representation, and her solicitor wrote a letter of appeal to the ICS in August 2019. We have not seen evidence that legal representation was sought because Mrs A was unable to pursue the CHC process without it.
36. While the original decision was overturned by the appeal to NHS England, there is a National Framework in place to govern the whole CHC process. Incorrect decisions may occasionally be made during the CHC process, but this is safeguarded by an appeals route, first to the ICS and then to NHS England.
37. As such, we have not seen any failings in the ICS’s decision to not reimburse Mrs A for her legal expenses. The CHC process does not require legal or adversarial input. This is outlined in the National Framework. The ICS’s decision was in line with the National Framework and the Redress guidance
1. We have carefully considered Mrs A’s complaint about the Cambridgeshire and Peterborough Integrated Care System (ICS). After careful consideration, we have seen no indication that anything went wrong in the ICS’s decision to refuse to pay back her legal fees, and we will not be taking any further action on this part of the complaint.
2. We were very sorry to learn of the concerns Mrs A has raised with us and that her mother had sadly passed away. We send our sincere condolences to Mrs A and her family. We understand that pursuing the Continuing Healthcare (CHC) appeals process can be frustrating and difficult for families, particularly when it involves that of a close loved one who has passed away.
3. We understand that Mrs A will be unhappy with our decision, but we hope the explanations we provide in this report help Mrs A to understand the reasons for our decision.