Leading solicitor urges independent healthcare tribunals

One of the UK’s leading NHS Continuing Healthcare (CHC) funding solicitors, James Urquhart-Burton, has called on Andy Burnham’s newly established government to implement an independent tribunal system for the appeals process related to CHC funding. Urquhart-Burton, who heads CHC Claims at Winston Solicitors in Leeds, argued that establishing such a body would significantly improve fairness and transparency while increasing public confidence in the healthcare system.

NHS Continuing Healthcare funding has long been a contentious issue, with families frequently embroiled in complex disputes over eligibility that can involve significant sums of money. “There are a myriad of different suggestions for how to improve CHC funding, making it easier to understand and access, but to me the clearest and most-obvious step is to introduce a wholly independent tribunal outside the NHS to make final decisions on eligibility disputes,” asserted Urquhart-Burton.

Currently, families have the ability to challenge CHC decisions through multiple stages, yet there is no independent tribunal at the final appeal stage to deliver a clear, conclusive ruling on eligibility. While Urquhart-Burton acknowledges that Integrated Care Boards (ICBs) and NHS England do provide some level of review and recollection of decisions through Local Resolution and Independent Review Panels, he believes these mechanisms are insufficient.

“It is appropriate that an Integrated Care Board (ICB) should have the opportunity to reconsider its own decision through Local Resolution and that NHS England should convene Independent Review Panels, which provide an important safeguard and are separate from the original decision-maker,” he stated. However, he further explained that such panels, despite being independent, remain part of the NHS framework and do not fully alleviate concerns regarding transparency and independence.

“Although these panels are independent of the original decision-maker and typically comprise an independent chair, together with experienced health and social care professionals from outside the area concerned, they remain part of the wider NHS framework,” he said. Urquhart-Burton emphasises that a truly independent system is vital, especially given the complex eligibility processes where the stakes can be extraordinarily high for families in need.

Public confidence in the fairness and reliability of CHC decisions is crucial, particularly as such decisions can substantially impact the lives of vulnerable individuals. “The current set-up raises questions about public confidence in the fairness and independence of CHC decision-making. Given the sums of money often involved and the trying circumstances people find themselves in when battling for the funding, that confidence is critically important,” Urquhart-Burton explained.

The CHC programme aims to cover the full costs of care for adults with significant ongoing healthcare needs, a commitment that necessitates decisions on eligibility through a series of assessments carried out by multi-disciplinary teams of health and social care professionals. Unfortunately, even when these teams provide a positive recommendation, the ICB is not obliged to approve funding, further complicating the appeal process.

Urquhart-Burton highlighted the arbitrary nature of current eligibility decisions, which often depend on subjective assessments. “The rule of thumb for approval is that a patient needs to have care needs beyond those which a local authority social services department could lawfully be expected to provide,” he continued. “Eligibility decisions frequently turn on subjective judgment and, in my experience, families can face very different outcomes despite apparently similar circumstances.”

Assessments can vary greatly across regions, leading some advocates to label the system a postcode lottery. Urquhart-Burton remarked that while the introduction of an independent appeals body might not resolve every issue with CHC, it would align the system with other public decision-making areas where independent tribunals exist.

"It would provide families with access to a body outside the NHS capable of determining disputed eligibility decisions on their merits,” he reflected. He believes that taking such a significant step would not only enhance the CHC framework but also represent a vital improvement for some of the most vulnerable individuals and families navigating this challenging system.