Retrospective appeal - Claim back care fees already paid

A retrospective appeal for CHC Funding or how to reclaim fees that have already been paid.

From 1^st September 2020, the Government has instructed Clinical Commissioning Groups (CCGs) to restart their retrospective appeals.

Retrospective appeals look at whether an individual was historically entitled to NHS Continuing Healthcare Funding (CHC). If found eligible on appeal, they should have all their care fees that were paid during the period of eligibility refunded by the NHS in full, including the cost of accommodation.

Often families have been forced to sell their relative’s home or use savings or other assets to pay for their care. To retrospectively recover these funds for care fees that were wrongly charged can make a huge financial difference to most families and give them a true sense that their relative’s rights have been vindicated.

However, the current backlog of retrospective reviews is thought to be substantial and includes both appeals that were previously waiting to be decided pre-COVID (19^th March 2020) as well as those deferred or postponed since this date due to COVID-19. One would expect that these outstanding appeals should take priority over any new appeals now being lodged with CCGs since 1^st September 2020. It is anticipated that there are many thousands of cases currently waiting in the appeal queue.

But don’t be surprised if CCGs have a ‘knee-jerk’ reaction to the Government’s mandate and proceed with all haste, throwing huge resources at the problem to try and catch up and make some quick inroads into their backlogs. Wishful thinking? Perhaps.

The result: you might not get too much notice that your relative’s appeal is ready to be heard. Contrary to years of lethargy and delays chasing appeal dates, your relative’s appeal might now be dealt with at panel far sooner than expected. Whereas pre-COVID it could take many, many months waiting for an appeal to come to panel, it is possible that these timescales may be substantially truncated as CCGs try and bash out as many appeals as possible in a short timeframe and meet targets. Only time will tell whether this is a realistic or even achievable prospect. However, reduced waiting times will generally be welcomed by families if this becomes a positive reality. Quicker decisions should convert to quicker refunds!

If your relative’s retrospective claim for CHC Funding has been turned down by their local Clinical Commissioning Group and you think the decision is wrong or flawed or did not follow the correct process, then you must appeal.

You only have 6 months to lodge your appeal from the date you receive notification of the CCG’s outcome letter rejecting your relative’s claim for CHC. Whilst that might seem like a long time, from experience, there is much work to be done if you are going to present your appeal successfully. Take time to do the job properly.

Your relative’s appeal deserves proper consideration. A successful outcome could see many thousands of pounds (plus backdated interest!) being refunded for care fees that were incorrectly charged and should never have been paid had a fair and robust assessment of their healthcare needs been properly undertaken by the CCG in the first place.

Excluding the Parliamentary and Health Service Ombudsman, there are 2 principal levels of appeal:

1. The first is from the Multi-Disciplinary Team Meeting (MDT) to a Local Resolution Meeting. The LRM is conducted by the CCG themselves and is your first real chance to get your relative’s CHC Funding reinstated. This is a very important appeal stage and often families do not prepare for it adequately, and so consequentially find themselves totally out of their depth or outflanked by the CCG’s appeal team. Decisions should never be influenced by financial budgeting constraints.

Failure at LRM can lead to months of delays (12 -18 months are quite common) whilst waiting for your next appeal and outcome decision. So, take advantage of this opportunity to give your appeal its best chance of success.

Read our blog: Rejected for CHC Funding? Part 1: How To Appeal The MDT Decision

2. Don’t worry if your appeal to the LRM is unsuccessful as you can still appeal to the next stage. This is an appeal to an Independent Review Panel conducted by NHS England. The IRP is chaired by a lay independent chairman and is also comprised of at least 2 other members (a representative from the social services team and one from the NHS). The IRP follows a similar process to the LRM panel appeal but is entirely independent of the CCG.

By now most of the arguments have been raised by both sides and it is a question of refining your case based on the LRM’s findings set out in their outcome decision and challenging their rationale (reasoning for their decision). Consequently, your appeal submissions will be far less lengthy, but must be punchy and targeted for direct pinpoint attacks to achieve a successful outcome. Concentrate your efforts on finding errors in the LRM’s rationale and looking at the 4 Key Indicators.

Read this exclusive blog by an IPR Chair which offers some very helpful practical tips: An exclusive Q & A interview with an IRP Chair – a rare insight into conducting your appeal and knowing what to expect on the day.

Rejected for CHC Funding? Part 2: How to appeal the Local Resolution Decision

Here are 10 tips to help you prepare for your appeal to the LRM or IRP:

1. Don’t procrastinate! 6 months soon fly.

2. Early preparation is essential to maintaining momentum. Make no mistake, preparing your appeal is onerous and will take many hours, if not weeks, to do the job properly. It is not something that can be rushed or else vital information may be missed from your appeal submissions.

3. Get hold of all relevant medical notes and records, including GP, hospital and care home records as soon as you can. It is not enough that you know your relative’s healthcare needs and can articulate them before an appeal panel. You also need to be able to point to records in support. Your testimony and evidence is vital, but so, too, is what is printed in the notes in black and white. Look for the evidence to support your written appeal submissions. Here are two previous blogs to help you:

Need help getting copies of your relative’s care home records?

June’s feature on flawed CHC assessments and the importance of good record keeping

There should be no cost getting the care notes and medical records and the record providers should comply within one calendar month of receiving your Subject Access Request. However, due to COVID and induced staff shortages, it is often taking some organisations far longer than the allotted time. So be prepared for delays and keep chasing the records. They are essential to support your appeal submissions.

For more information as to collating your relative’s records look at the sub-paragraph, ‘How to access your notes and records’ contained in this blog: Essential Preparation and Planning As CCGs Restart Assessments and Appeals From 01/09/2020

4. Read the National Framework for NHS Continuing Healthcare Funding and NHS-funded Nursing Care. Understand the appeal process and what is required. Whilst helpful guidance is provided within the National Framework, it doesn’t tell you how to actually draft your appeal submissions and what is needed to make a fist of your appeal and give it your best shot. That is where years of professional expertise in CHC Funding can really assist. If you don’t have the time or are totally bewildered by the appeal process and don’t know where to start, visit our one-to-one page for more information and professional expert help.

5. Get to grips with the 4 Key Indicators and understand how the appeal panels adopt a holistic approach when assessing overall care needs and reaching their rationale decision on eligibility for CHC Funding. Read our blogs for more information:

For more reading around the subject, look at these blogs:

PART 1 – Looking At The 4 Key Indicators: Unlocking the Basics
PART 2 – Looking At The 4 Key Indicators: Gathering pieces of evidence
PART 3 – Looking At The Four Key Indicators: Completing the Jigsaw
PART 4 – Looking At The Four Key Indicators: Drafting Your Conclusions

6. Once you have lodged your appeal the CCG will provide you with their Needs Portrayal Document (NPD) – click on this link to see a sample template.

The NPD incorporates a similar format as the Decision Support Tool used at the MDT and includes a patient summary, summary of evidence reviewed and the 12 Care Domains. At the back there are guidance notes which state the author of the NPD must have appropriate skills and training to complete it.

Under each of the 12 Care Domains (Breathing, Nutrition, Continence, Skin integrity, Mobility, Communication, Psychological and emotional needs, Cognition, Behaviour, Drugs/Medication, Altered states of consciousness & Other), the CCG will list a chronology of relevant entries taken from all the available medical notes and records that reflect your relative’s changing needs. The CCG will use the NPD to make their recommendation as to retrospective eligibility for CHC Funding (or more cynically, to support their previous decision rejecting eligibility for CHC).

Your job is to analyse these records in detail and point out all missing entries in their chronology that support your relative’s intense, complex and challenging healthcare needs within each Care Domain. Whilst you may feel that some entries in the records are trivial or repetitive, they can all be very useful evidence in building up a picture of your relative’s needs and the nature and frequency of skilled care required to manage them.

Watch out, as some of the CCG’s entries stated in the NPD may be abbreviated, misquoted or incomplete, throwing a different slant on the actual entry in the records and impacting on the overall outcome.

Each entry in the CCG’s NPD has to be meticulously checked and cross-referenced against the original to ensure that it is fully and accurately quoted. There is an art to drafting your own written appeal submissions in response to the CCG’s NPD, and from experience, it is extremely time-consuming! You need to have the patience to diligently consider every single relevant entry throughout mountains of records and then, where appropriate, allocate it to one or more of the relevant Care Domains. Knowing what evidence is relevant and where to insert it is an acquired skill. Whilst doing this, you also need to check whether the CCG have already included it in the NPD, and if so, whether it has been quoted correctly as written exactly in the records. Point out their errors to your advantage. Paraphrasing an entry or putting spin on it as to what they think it says is not good enough. The entry must be accurately stated to be meaningful. As you can appreciate, this is a laborious and emotionally challenging task, which is why many families seek professional help.

7. Families often tell us that attending the appeal itself can be an intimidating and daunting process. Those who have been through the process alone tell us that confronting the CCG’s assessors face-to-face (or now over Zoom) at an LRM or IRP is no easy task. They know the National Framework inside out and have had years of experience attending appeals. Most CCG representatives are battle-hardened and used to defending their decisions to refuse CHC Funding. Not only is it an emotional time for families having to recap and recount their dear relative’s healthcare needs in detail, but there is also the real fear that they may not succeed and do their relative’s case justice. A poor appeal showing could result in the loss of huge care fees paid from the sale of family assets or home, not being recouped. The pressure to succeed and achieve a successful outcome can be stressful and too much for many as there can be a lot riding on the outcome of the appeal.

To prevent ‘red mist’ and becoming frustrated, losing your temper and risk the appeal descending into a controversial adversarial shouting process, you should consider getting professional advocacy support. A trained CHC advocate who ‘knows their stuff’ should be able to take the strain and weight off your shoulders and argue with their CHC counterparts on at least a level basis.

Employing an advocate as a hired gun doesn’t automatically guarantee success. However, it should give you a much better opportunity than presenting the appeal yourself against the NHS. Even a seasoned CHC campaigner like retired nuclear submarine commander, Admiral Mathias, featured on our website, struggled with his mother’s retrospective claim. How much more so will the average person on the street be overwhelmed by the appeal process and know how make the most of this opportunity. Some lone ‘soldiers’ will inevitably be successful and will be emboldened by Admiral Mathias’ heroic struggle and the free resources and information on this website. But sadly, there will be many casualties along the way for those who fight alone without expert reinforcements to support their battle. For more information read: ‘Fighting for NHS funding for my mother was as complex as my work on the nuclear deterrent…’

Remember though, CHC is not black and white. And whilst you can argue for eligibility, you must be realistic and pragmatic and not let your emotions overtake you. However strongly you feel, you cannot simply make your relative eligible for CHC if they clearly aren’t. It just doesn’t work that way. You have to look at their healthcare needs holistically.

8. Read our self-help book: How To Get The NHS To Pay For Care available as an e-book/PDF or paperback.

9. If you want to speak to a registered nurse to discuss your CHC queries get in touch via our CHC Nurse Advice Line Service.

10. When thinking about your relative’s appeal, don’t forget that you if you succeed, you will need to produce evidence to satisfy the CCG as to the amount of care fees that are due to be reimbursed. Too often, families discard vital evidence and correspondence too quickly, not realising its critical value if the retrospective claim is successful. The burden is on you to prove your loss. You must keep all relevant letters and documents. No proof may mean no reimbursement!

You must keep (or get hold of) invoices and a detailed Statement of Account from the care home on official stationery showing what sums were charged and when they were paid. This still might not satisfy most CCGs, so in addition, we strongly recommend that you obtain bank statements from the account(s) the care fees were paid to the care home. Keep these documents safe!

For further reading: What Evidence Do I Need To Prove My Claim For Past Care Fees Paid?

We recommend that you also read these helpful blogs:

Part 1 – Revealing Insights From A Continuing Healthcare Nurse Advocate…

Part 2 – Revealing Insights From A Continuing Healthcare Nurse Advocate…

Retrospective Reviews for past periods of care – avoiding fatal mistakes

Tell us about your experiences of preparing your appeal and share your tips for success (or mistakes made) to help others who are waiting for their appeal…