NEWS
Re ACC & Others [2020] EWCOP 9 is now essential reading for property and affairs deputies. It changed the way deputies must think about the limits of their authority, particularly where legal services, contentious steps, conflicts of interest and public funding challenges are involved.
Re ACC & Others [2020] EWCOP 9 is now essential reading for property and affairs deputies. It changed the way deputies must think about the limits of their authority, particularly where legal services, contentious steps, conflicts of interest and public funding challenges are involved.
For professional deputies, one of the most important practical consequences is the impact on NHS Continuing Healthcare, often shortened to CHC.
A property and affairs deputy may apply for CHC funding and undertake proportionate assessment and preparatory work within their order. General authority also permits steps to consider a refusal and the merits of challenge, but does not extend to delivery of a CHC appeal letter. The particular order and proposed step must be checked.
The Office of the Public Guardian’s current guidance states that general authority to manage P’s funds includes steps up to, but not including, the delivery of a letter of appeal in respect of a decision that P is not eligible for continuing healthcare funding. It also confirms that a deputy may make an application for CHC funding because this is a financial issue.
That distinction matters.
It means deputies need to think carefully about authority before moving from CHC application and assessment preparation into local resolution, appeal or review activity.
The difficulty is that CHC does not feel like ordinary litigation.
A CHC challenge is not a court claim in the usual sense. It is not issued in the County Court. It does not require a litigation friend in the same way civil litigation would. It is an NHS review process concerned with whether the person has a primary health need and whether the eligibility decision has properly applied the National Framework.
The National Framework itself says that individuals do not need legal representation during the CHC eligibility process and describes the process as focused on assessing needs under the Framework, rather than being a legal or adversarial process.
That is why Re ACC has caused understandable concern among deputies.
On one view, challenging a CHC refusal is simply part of protecting P’s financial position. If P is eligible for CHC, the NHS is responsible for arranging and funding the package of care. That can make a major difference to P’s estate, future care planning and financial security.
But the Re ACC position means the deputy must still ask a separate question:
Do I have authority to take this next step, or do I need specific authority from the Court of Protection before challenging the decision?
A property and affairs deputy can usually take proportionate preparatory steps within the terms of their order. Check authority, cost and any conflict before instructing support; the examples below do not create additional powers.
This may include:
The current CHC pathway usually begins with a Checklist and, where the threshold is met, proceeds to a multidisciplinary assessment using the Decision Support Tool. Nellie Supports also explains the full route through the NHS Continuing Healthcare process, including Checklist, DST, decision letter, local resolution, Independent Review Panel and Ombudsman stages.
That early stage is where deputies can add real value.
A properly prepared DST meeting can reduce the risk of an inaccurate decision. It can ensure that key evidence is available, that care needs are described clearly, and that the domains are not considered in isolation from the nature, intensity, complexity and unpredictability of P’s needs.
The risk point comes after a negative eligibility decision.
If the ICB refuses CHC funding and P or their representative wishes to challenge that decision, the first formal stage is usually local resolution. The National Framework says that where an individual or their representative asks the ICB to review the eligibility decision, this should be dealt with through the local resolution procedure. All ICBs must have a CHC local resolution process that is fair, transparent and includes timescales.
For deputies, the issue is not whether the CHC process allows a representative. It does.
The issue is whether the property and affairs deputy has authority to take the step that begins the challenge.
Re ACC and current OPG guidance expressly exclude delivery of a CHC appeal letter from general authority. Preparatory investigation of the merits is different from launching the challenge. The deputy should check whether the order already gives the necessary specific authority and obtain it before acting beyond the order. Urgency does not guarantee retrospective approval of costs.
Where a deputy is considering challenge after a refusal, a fixed-fee CHC appeal viability review can help clarify whether the decision appears challengeable before further cost is incurred.
This can be difficult in real cases.
CHC decisions often arrive at a time when care costs are already significant. P may be paying privately for a care home or complex package of support. The deputy may believe that the decision is wrong, that key evidence has been overlooked, or that the
DST did not properly reflect the severity of P’s needs.
But applying to the Court of Protection for authority takes time and adds cost. That creates tension where there are review deadlines, ongoing care fees and a potential loss to P’s estate if the funding decision is not challenged.
For professional deputies, the practical message is clear:
Identify the issue and obtain the evidence before the assessment decision where practicable.
Preparation can help the MDT understand the evidence. It cannot remove the possibility of an inaccurate or disputed decision, and a refusal may still warrant review.
A CHC appeal can sometimes be avoided by making sure the assessment stage is handled properly.
Consider what support is needed at the DST stage and whether it is proportionate. The linked DST attendance and representation service describes one commissioned option; professional representation is not a condition of assessment.
At the DST stage, a knowledgeable representative can help ensure that:
This does not guarantee eligibility. Nothing can.
A clear record of the needs, evidence and any disagreement can help the deputy understand the eventual decision and consider whether further work is justified. Any later challenge still requires the appropriate authority.
A negative CHC decision should not be challenged simply because the outcome is disappointing.
A review may be worth considering where there are clear concerns such as:
This is where an independent professional review can be useful.
Before a deputy seeks Court of Protection authority to challenge a CHC refusal, they should be able to explain why the challenge is in P’s best interests, what the issue is, what the potential financial benefit may be, and why the proposed work is proportionate.
Where the matter has already reached the first formal challenge stage, deputies may need support with local resolution CHC appeal preparation, including written grounds, evidence structure and representation.
Re ACC also reminds deputies that they must consider the limits of their authority and act carefully where proposed work falls outside the deputyship order.
For professional deputies, this means the decision to pursue a CHC challenge should be properly documented.
A deputy should usually consider:
This sits alongside the wider Mental Capacity Act framework. Nellie Supports has a detailed guide to the Mental Capacity Act 2005, including decision-specific capacity, best interests and the legal structure that underpins Court of Protection work.
Where a deputyship application or Court of Protection evidence is also needed, deputies and solicitors may also need a COP3 mental capacity assessment prepared for the specific decision before the court.
The safest approach is to build CHC consideration into the deputyship file early.
Do not wait until care costs have been paid for months or years before asking whether P might qualify for NHS Continuing Healthcare. Do not assume that a negative decision is correct. But equally, do not assume that a property and affairs deputy can move straight into an appeal without checking authority.
A robust deputyship approach should include:
This is not about creating unnecessary process.
It is about protecting P, protecting the deputy and making sure public funding issues are handled lawfully, proportionately and at the right stage.
Nellie Supports provides specialist CHC support for deputies, solicitors, attorneys and families.
Nellie’s commissioned services include DST preparation, attendance and review of CHC decisions in England. The deputy and legal adviser remain responsible for checking authority and the terms of any instruction.
We can assist with:
We help deputies identify whether CHC should be considered, what evidence is needed, and how P’s needs should be presented before the assessment takes place.
Where the case is at an early stage, our CHC Checklist request and advocacy letter service can help ensure the request is properly framed from the outset.
We can represent P’s interests at the full CHC assessment, helping to ensure the meeting is thorough, properly evidenced and focused on the correct eligibility test.
Where funding has been refused, we can review the decision and advise whether the outcome appears properly reasoned, evidence-based and compliant with the National Framework.
Where a challenge may be appropriate, we can provide supporting analysis to assist deputies and their legal advisers when considering whether to seek Court of Protection authority to proceed.
Where the issue relates to past care fees, we can also advise on retrospective CHC funding appeals, including whether there may be grounds to recover care fees paid during a period when CHC should have been considered.
A deputy considering CHC support should first identify the stage, the work required and the authority to commission it.
Before paying for support, confirm the deliverable, total cost, records needed and any review deadline. NHS assessment and review are available without paid legal representation.
Nellie Supports is an independent practice with published professional standards and credentials, providing structured support across CHC, mental capacity and Court of Protection-related work.
Source: Office of the Public Guardian, ACC and Others: Guidance for property and affairs deputies, published 9 January 2026, particularly “Authority to litigate”: https://www.gov.uk/government/publications/guidance-for-property-and-affairs-deputies/acc-and-others-guidance-for-property-and-affairs-deputies
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National framework for NHS Continuing Healthcare (England)
Official NHS Continuing Healthcare Decision Support Tool
Published 6 May 2026
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