What redress should the NHS provide when refunding care fees?
We’re frequently asked the question about Continuing Healthcare redress. It’s also a topic that seems to be rarely explained to families by funding assessors and decision makers. Once a family wins a Continuing Healthcare case, little seems to be mentioned by the NHS about Continuing Healthcare redress.
The deadlines set in 2012 by the Dept. of Health in relation to claiming back care fees wrongly paid led to a surge of claims by families. These families were concerned that their relatives had needlessly lost personal savings and assets to pay for care that the NHS should have paid for instead.
Families report that it’s not easy to apply for NHS funding at the best of times. Our own research shows how the assessment and appeal system is often characterised by maladministration and illegal practice on the part of assessors. The NHS then seems to act as judge and jury over its own shortcomings.
If you’ve had a Continuing Healthcare claim turned down, you may want to double check that the assessors have actually followed the rules. Read whether your Continuing Healthcare claim can be legitimately rejected.
If you’ve succeeded in securing funding, whether for current care needs or retrospectively, the sense of relief can be immense. Then comes the task of actually getting hold of the refund from the NHS.
It’s not just the actual care fees that should be repaid. Interest and additional financial redress may also be relevant.
The guidelines for NHS Continuing Healthcare funding are called the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care. It’s worth having a look at Annex F, paragraph 13, 14, 16, 17 and 18, shown below:
CCG = Clinical Commissioning Group
LA = Local Authority
IRP = Independent Review Panel
Continuing Healthcare redress:
“Where the Board or a CCG has unjustifiably taken longer than 28 days to reach a decision on eligibility for NHS continuing healthcare…
13. Where the Board or a CCG has unreasonably delayed reaching its decision on eligibility for NHS continuing healthcare, and the individual has arranged and paid for services directly during the interim period, the Board or the CCG should make an ex-gratia payment in respect of the period of unreasonable delay.
14. Such payments would need to be made in accordance with the guidance for ex-gratia payments set out in Managing Public Money. This sets out (in paragraph 4.12.4) that, where public services organisations have caused injustice or hardship, they should provide remedies that, as far as reasonably possible, restore the wronged party to the position that they would have been in had matters been carried out correctly.
Where, as a result of an individual disputing an NHS continuing healthcare eligibility decision, the Board or a CCG has revised its decision…
i) an LA has provided community care services to an individual in circumstances where the Board or a CCG has decided that the individual is not eligible for NHS continuing healthcare, and
ii) the individual disputes the decision that they are not eligible for NHS continuing healthcare and the Board’s or the CCG’s decision is later revised (including where the revised decision is as a result of an IRP recommendation),
the Board or the CCG should refund the LA the costs of the care package. This should be based on the gross care package costs that the LA has incurred from the date of the decision that the individual was not eligible for NHS continuing healthcare (or earlier, if that decision was unreasonably delayed…) until the date that the revised decision comes into effect… Where the LA has collected an assessed charge from the individual, the refund from the Board or the CCG should include interest on that amount so that this can be reimbursed to the individual…
17. Where the Board or a CCG makes such a refund, the LA should refund any financial contributions made to it by the individual (with interest) in the light of the fact that it has been refunded on this basis.
i) no LA has provided community care services to an individual in circumstances where the Board or a CCG has decided that the individual is not eligible for NHS continuing healthcare, and
ii) the individual has arranged and paid for such services him or herself; and
iii) the individual disputes the decision that they are not eligible for NHS continuing healthcare and the Board’s or a CCG’s decision is later revised (including where the revised decision is as a result of an IRP recommendation),
the Board or the CCG should make an ex-gratia payment directly to the individual… An ex-gratia payment would be to remedy any injustice or hardship suffered by the individual as a result of the incorrect decision.”
So if you’ve been successful in securing Continuing Healthcare funding, whether retrospectively or otherwise, make sure you claim the Continuing Healthcare redress you’re entitled to.
If you’ve tried to get redress for your relative, has the NHS complied with the above guidelines in your case?