Re ACC and CHC Appeals: What Professional Deputies Need to Know Before Challenging a Funding Decision

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 deputy may be able to apply for CHC funding on behalf of P. A deputy may also be able to take steps to prepare for, attend and participate in the assessment process. But where a CHC decision is refused and the next step is to challenge that decision, Re ACC draws a line.

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.

Why Re ACC Matters for CHC Funding Cases

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?

What Deputies Can Usually Do Without Further Court Authority

In most cases, a property and affairs deputy can take sensible preparatory steps to ensure that CHC is properly considered.

This may include:

• identifying that P may be eligible for CHC

• requesting that CHC eligibility is considered

• gathering care records, health evidence and relevant financial information

• ensuring that P is represented at the assessment stage

• instructing appropriate professional support for the assessment, where this is within the deputy’s authority and proportionate

• attending or arranging representation at the Decision Support Tool meeting

• reviewing the outcome of the assessment and taking advice on whether the decision appears sound

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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.

Where the Line Is Drawn

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.

Under Re ACC and the OPG guidance, deputies should not assume that general authority permits them to launch the appeal or review process. Specific Court of Protection authority may be required before sending the appeal letter or taking further contentious steps.

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.

Why This Creates Practical Problems for Deputies

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:

Do as much high-quality work as possible before the decision is made.

The better the assessment preparation, the lower the risk of needing to challenge a poor decision later.

The Best Strategy: Get the DST Right First Time

A CHC appeal can sometimes be avoided by making sure the assessment stage is handled properly.

That means deputies should consider arranging experienced DST attendance and representation before the meeting, not only after funding has been refused.

At the DST stage, a knowledgeable representative can help ensure that:

• the meeting is properly prepared

• relevant records are available

• the correct care domains are explored

• the evidence reflects P’s actual presentation, not just what is written in a care plan

• needs are considered in combination, not artificially separated

• the primary health need test is properly addressed

• disagreements are recorded clearly

• procedural concerns are documented at the time

This does not guarantee eligibility. Nothing can.

But it does mean that the case has been properly presented before the ICB makes its decision. If CHC is awarded, the cost and delay of a challenge may be avoided. If CHC is refused, the deputy is in a stronger position to decide whether an application to the Court of Protection for authority to challenge is justified.

When a CHC Decision Should Be Reviewed

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:

• the DST domains do not reflect the evidence

• care records were not properly considered

• the MDT did not consider the interaction between needs

• the primary health need analysis is weak or missing

• the decision focuses too heavily on diagnosis rather than needs

• family or professional evidence was ignored

• the written rationale does not explain how the conclusion was reached

• the process did not follow the National Framework

• there are clear gaps between the evidence and the eligibility decision

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.

Court of Protection Authority and Proportionality

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:

• the wording of the deputyship order

• the value of the potential CHC funding

• the strength of the challenge

• the cost of obtaining advice or representation

• whether urgent action is needed

• whether another person is better placed to act

• whether Court of Protection authority is required

• whether any conflict of interest arises

• how the decision will be explained in the deputyship annual report

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.

What Deputies Should Do Going Forward

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:

• early screening for possible CHC eligibility

• prompt request for assessment where appropriate

• proper preparation before the DST meeting

• professional representation where the facts justify it

• careful review of any negative decision

• clear advice on whether there are grounds to challenge

• documented best interests reasoning

• Court of Protection authority where required before appeal steps are taken

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.

How Nellie Supports Can Help

Nellie Supports provides specialist CHC support for deputies, solicitors, attorneys and families.

Our expert team, is experienced in supporting individuals through the CHC assessment process, including DST preparation, representation and review of CHC decisions.

We can assist with:

CHC Assessment Preparation

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.

DST Meeting Representation

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.

Review of Negative CHC Decisions

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.

Evidence for Court of Protection Applications

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.

Retrospective CHC Funding Support

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.

Speak to Nellie Supports

If you are a deputy dealing with a possible CHC case, the best time to act is before the process goes wrong.

Early preparation can reduce the risk of an inaccurate decision, avoid unnecessary appeal costs and help ensure P’s needs are properly evidenced from the outset.

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.

Book a free, no-obligation call with Nellie Supports to discuss CHC assessment support, DST representation or review of a refused funding decision.