The public funding and commissioning of rehabilitation services on an individual basis varies hugely across the country.
In areas where public authorities are very receptive to such requests, we see efficient and effective provision of specialised services, often built around good collaboration between various bodies and tailored to an individual’s need.
Yet in other parts of the country, patients and their loved ones face a much greater challenge in accessing the services they require. A UK-wide postcode lottery means public funding and services may be unfairly – and unlawfully – denied to patients.
In my experience, it is only when you challenge authorities about a lack of funding, service provision or coordination among relevant organisations, that they sit up and take notice.
Holding them to account to meet their statutory duties not only helps the individual patient access the services that might give them greater independence, it can also set an example to help other cases where rehabilitation has been denied.
There are several strands through which rehabilitation services are arranged, funded and provided. Continuing healthcare (CHC) packages for rehabilitation are free at the point of need but, amid tight NHS budgets, are in very short supply.
Rehabilitation can also be accessed via an individual funding request (IFR) to a Clinical Commissioning Group (CCG), with services delivered by the CCG or a specialist provider and arranged through NHS England.
Alternatively a patient can ask for a personal health budget (PHB) and arrange the service themselves.
Patients may also find themselves under the care of local authorities – although their provision is limited to social care and housing provision and adaptations, rather than rehabilitation.
NHS commissioning is underpinned by a clear framework which allows for the assessment and funding of rehabilitation.
Worryingly, I have come across commissioners who are unaware of its very existence.
Instead of following guidelines, knee-jerk decisions can be made to refer patients to non-specialist services or local authorities.
The clear danger there being that the patient’s particular healthcare assessment and rehabilitation needs are not met.
The statutory framework guidance for the provision of NHS care states that assessments must consider the potential for rehabilitation to lead to increased independence.
If this is disregarded, the public body’s decision is challengeable, perhaps by writing to the CCG with the help of a lawyer, approaching the health ombudsman or, as a last resort, a judicial review.
In some circumstances an injunction can be obtained from the court to order urgent provision of services pending the outcome of the legal case.
Under the framework, commissioning organisations must ensure arrangements satisfy appropriate rehabilitation and care needs of people with acquired brain injury (ABI).
It also quite clearly sets out that the longer term needs of people with ABI shouldn’t be separated out.
In other words, there should be cooperation between the NHS and local authorities involved in the individual’s care.
The two public bodies must work together and may be required to provide a joint package of care, with one body taking the lead in commissioning.
Under section 67 of the Care Act 2014, an individual is entitled to support through the assessment process itself.
If family members are unavailable or unable to advocate for the individual, a Care Act advocate who can independently support and represent the individual can be requested from a local authority and is funded by them.
Once an assessment determines the individual’s eligible needs, a care and support plan is produced aimed at delivering person-centred care.
Sometimes challenges are required when a patient is pushed from one authority to another, in the event of service cutbacks.
A recent case involved the closure of a rehabilitation and respite service for 16 to 18-year-olds.
The case went through various processes with NHS England, who ultimately reminded the local CCG that it had been given funding a year earlier to deliver that service.
The CCG had the budget and hadn’t delivered it. Plans to get the service back up and running within six months were put in place, highlighting the power of a legal challenge to a lack of commissioned services.
When challenged about rehabilitation denial cases, CCG’s may come up with the excuse that they only fund X amount per week for a specific service provision.
From a legal perspective, this sounds like a blanket policy, so is likely to be unlawful and can be challenged. The law requires discretion in each area; the individual circumstances of each case must be factored into any decision.
Furthermore, CCGs can’t simply dictate that services must be provided in a residential setting. They must consider home care packages, if that environment would enhance rehabilitation for the individual.
Raising IFRs with CCGs can be a long, convoluted and expensive process. The request is put to a panel that has a finance budget and looks at exceptionality.
It usually assesses IFRs linked to a wide range of conditions one after the other. Proving a patient has an exceptional and urgent need for rehabilitation against the context of many other serious cases, is therefore very difficult.
One cannot always compare cases of patients with different conditions. I advise taking cases to a separate complaints process before going down this cumbersome and frustrating route.
Challenging decisions through a judicial review, meanwhile, is akin to using a sledge hammer to crack a nut, and there are other options available.
They include a complaint to the health ombudsman, which can deliver a good response albeit often after a lengthy investigation period.
In a recent case, approaching the ombudsman resulted in a council paying £5,000 in compensation to a patient.
The authority’s dithering on an assessment was deemed to have been seriously detrimental and distressing to the individual.
Delays in assessment and provision of services can often result in a setback to rehabilitation, and experts can often demonstrate the detriment to the individual.
If a judicial review is the only option, a legal case must be brought within three months of the date of the decision or the introduction of the policy that will restrict or reduce services.
The challenge can be based around the individual’s human rights, but is generally on the grounds of an irrational decision by the body which ignored relevant information or failed to go through the right processes.
Many cases come to us beyond the three months and we are unable to challenge them, unless a new decision can be instigated.
I also regularly have to remind patients’ families that legal aid may be applicable, despite a common misconception that this type of funding support is no longer available.
A specialist public law solicitor can assess whether a patient is eligible for legal aid. Whichever route cases are taken down, the process may seem daunting.
Certainly, the landscape for rehabilitation services gets more and more complex as the NHS statutory framework develops.
With every judicial review I am involved in, an NHS body has introduced another area of research, another piece of statutory legislation is brought in or another stream of services emerges which has to be considered as a possible alternative for the patient.
There is a fast pace of change in evidence and the legal framework. Encouragingly, this continual process of change means different sources of funding and support can arise.
I urge everyone involved in rehabilitation to look again at the options available to health authorities in their area and to challenge refusals to assess or provide services – there may well be a rehabilitation service or previously unexplored solution that could put a patient back on track towards independence.
Yogi Amin is partner and national head of public law and human rights at Irwin Mitchell.