Professional Deputies and NHS Continuing Healthcare – The impact of Re ACC

Re ACC & Others [2020] is a well-known case amongst professional deputies, which

brought about landmark changes regarding the scope of a deputy’s authority.

A somewhat controversial outcome of Re ACC was the ruling that challenging an

NHS Continuing Healthcare decision would amount to conducting litigation on behalf

of P. This would therefore fall outside the scope of a deputy’s general authority.

This is an unusual judgment for a number of reasons:

1. There is no requirement to have a legally appointed representative to

challenge a CHC decision on P’s behalf. If no welfare attorney or deputy is

appointed, the CHC team will make a best interests decision to determine

who can act on behalf of P. This is not the case with litigation whereby a

Litigation Friend is a requirement.

2. Fundamentally, a CHC appeal is not a legal nor a litigious process. Any

challenge is review based; it involves scrutiny of a process founded on

health and social care policy. It is not a court appeal based on the

intricacies of legislation and caselaw. The National Framework for

Continuing Healthcare itself is clear that ‘the eligibility process is focused

around assessing an individual's needs…rather than being a legal or

adversarial process’. [PG 58.1].

So where does this leave deputies?

Deputies continue to have a duty to secure public funding on behalf of P.

Professional deputies are held to a higher standard in that regard and are expected

to have a good knowledge of what support is applicable and appropriate.

What are deputies permitted to do?

Deputies may apply for CHC funding and represent their client as far as the

assessment (DST) meeting.

If the funding decision is negative, they cannot take the case any further without

authority from the Court of Protection. This means they cannot instigate any review

or appeals process at the first stage – the Local Resolution.

What should deputies consider going forwards?

Re ACC has a significant impact – obtaining COP authority to challenge a funding

decision is expensive to P, and time-consuming for deputies, particularly where strict

deadlines are involved.

Our advice to deputies is to concentrate on getting the CHC process right in the early

stages so that appeals can be avoided where possible. This means:

- Ensuring your clients are assessed for CHC where appropriate; and

- that they are represented at the full assessment by a knowledgeable

professional

Representation at the full assessment (DST meeting) is strongly advisable – an

experienced advocate will ensure that the meeting is conducted thoroughly and in

accordance with the rules. This may result in eligibility, but in cases where funding is

not awarded you have the peace of mind that the claim has been explored fully, and

it is the correct decision.

In instances where there are concerns about the conduct of the meeting or the

eligibility decision, these are fully documented and can be used to support

applications for court approval to appeal.

How can Nellie Supports help?

Our in-house solicitor Ruth Tarr is experienced in supporting individuals at DST

meetings and reviewing CHC decisions.

Ruth can represent your clients in DST meetings to ensure that these are conducted

properly and that P’s needs are advocated for fully. This is an extremely important

stage in any CHC claim, and if conducted properly, can save the expense of

pursuing appeals.

Ruth can also review CHC decisions where funding has been denied, to determine if

the decision was correct or if an appeal should be considered.

Where appeals are necessary, we can support with this, along with providing

supporting evidence to the Court setting out why an appeal is appropriate for P.

Book a free no obligation call here

www.nelliesupports.com email: nellie@nelliesupports.com tel: 03339875118