Can I claim interest on my refund of care fees paid?

Can I claim interest on my refund of care fees paid?

When looking to get a refund of care fees DID you know that where there is a previously un-assessed period of care, you can ask your Clinical Commissioning Group (CCG) to undertake a retrospective review to see if you met the eligibility criteria for NHS Continuing Healthcare Funding (CHCF)?  If successful, and found eligible for CHCF, you should be recover past care home fees that have already been paid – which could be a substantial sum.

Furthermore, if successful in your claim for review you are entitled to interest on that awarded sum!

Continuing our 27 top tips on NHS Continuing Healthcare, here’s Tip no. 20…

Your entitlement to interest is set out in the NHS Continuing Healthcare Refreshed Redress Guidance published on 1st April 2015. Find out more here.

The purpose of the redress is to achieve an outcome that is fair and reasonable and to put “individuals in the position they would have been in had NHS Continuing Healthcare been awarded at the appropriate time”. But the “remedies should not lead to a complainant making a profit or gaining an advantage”. So, in short, if you have wrongly been deprived of the use of monies a long time ago that were wrongly paid for care fees, then not only should you get them back, but you are also entitled to interest as well. That seems fair enough!

Tip: So check that any offers of redress made include interest!

What rate of interest is applicable?

The Guidance recommends that interest be paid at the Retail Price Index (RPI) rate applicable to the redress. That is usually a low a rate of interest.

If you want to try and understand the RPI interest offer made, you will need to consult the relevant RPI tables to make sense of the CCGs calculation – which can be quite complicated task in itself.  Having said that, their calculations are usually pretty accurate, but it’s a good idea to check for yourself if you can.

Can I ever claim a higher rate of interest?

Generally, most cases (post 1st April 2015) will now fall under the latest NHS Continuing Healthcare Refreshed Redress Guidance – where interest at RPI is now payable.

However, where there has been an inordinate delay, such that the CCG’s decision on NHS Continuing Healthcare Funding is only given long after the 1st April 2015, you may be able to argue that interest should be paid at the previous statutory rate of 8% per annum – which was the usual rate before the 1st April 2015.

So, for example, let’s take an example where an individual’s case started in January 2012, but the CCG delayed matters such that they didn’t notify the outcome of their decision until June 2017 ie long after the 1st April 2015 – then you may be able to argue for interest at the 8% rate on the amount recovered. But you will need to have a good arguable case for claiming interest above RPI rates. Perhaps consider the following suggestions which are for illustrative purposes only:

  • Has the CCGs conduct has been unfair or unreasonable?
  • Has there has been an abuse of process by the CCG causing the claim to be unnecessarily protracted?
  • Did the CCG behave in an unreasonable or incompetent manner, such that they could and should they have processed the claim much quicker and reached an outcome well before 1st April 2015?
  • Did the CCG put up obstacles to try and frustrate the claim eg by rejecting it incorrectly when assessing eligibility and then wrongly refusing any right to appeal – point blank?

A general delay due to understaffing and shortage of resources will not usually be a good enough argument alone.

The Redress Guidance does allow for the “CCGs to consider the specific circumstances of each individual case when determining the appropriate level of redress”.  Therefore, each case of course depends on its own merits, but if your case started long before 1st April 2015 do consider whether you could be entitled to more than just RPI interest. Sometimes, the interest element can be as much as the actual claim for care costs itself.

Tip no. 19: How do I claim back care fees that have been paid?

Tip no. 21: Appealing A CHC Funding Decision, Not To Grant Or To Withdraw Funding

14 Comments

  1. Mike Clark 5 months ago

    Hi Michelle

    Congratulations on a successful IR though as you say it is a pyrrhic and bittersweet victory.

    Following the Retrospective CHC Review for my late father last year where full funding was awarded for the period March 2015 to June 2017, I now have an IR set for end March to review the decision by the CCG not to award full funding for the period September 2012 to March 2015. My case rests on the fact that my late father required 24/7 health care from September 2012 to June 2017 and chose to have this care at home with a Live In Nurse. His health needs were well managed and ‘masked’ and were no different for the full period even though the award was only for the latter period. The CCG throughout have taken no notice of the ‘well managed need is still a need’ stipulation in the framework.

    Do you have any tips for the IRP process as this meeting is new to me though I am fully comfortable with the DST’s and domains to focus on having battled the CCG for nearly 8 years!

    Thank you in advance for any advice.

    Best wishes

    Mike

    • Michelle Wetherall 5 months ago

      Hi Mike,
      Thank you for your kind comments. 8 years? That’s just ridiculous! I admire your efforts.
      I have just replied to Andy & Sue about my experience at IRP.
      If you search under ATTENDING AND ASSESSMENT OR IRP REVIEW APPEAL – Aug 14 2019,
      you can read my comments.
      You are obviously very knowledgeable about the DST/Domains and will have gone through the process of local
      resolution meeting to reach IRP, so you are well placed to deal with an IRP.
      My worry in your case would be consolidating so much evidence over such a long period into a forthcoming appeal.
      That’s not going to be any easy task trawling through notes from clinicians/carers over such a long time, but having a successful outcome for one enquiry period does give you a greater chance. Use the evidence from this successful appeal and focus it on the Key Indicators necessary to prove a Primary Health Care Need for this enquiry period.
      Use this website to help you research key indicators.

  2. Mike Clark 1 year ago

    I have been awarded a retrospective payment for care fees for my late father following a CHC retrospective review.

    Interest at RPI has been added but tax at 20% has been withheld by the CCG in case the HMRC decides to call in tax on this interest. Can the CCG do this as I am not able to find any details that the HMRC now require this tax to be paid?

    Thank you.

    Mike

    • Jenny 1 year ago

      I’m pretty surprised the CCG is anticipating the personal tax situation of your late father. How can they possibly justify this deduction? They are making a payment to his estate in Restitution or redress for money he should not have had to spend at that time. Ie it was HIS money. Would they have been interested in his income tax position during life?

    • Care to be Different 1 year ago

      Hi Mike NHS England are appealing this decision with HMRC at the moment and if the outcome is successful then any deductions will be reimbursed. We have no further update on this but will advise when we do. Kind regards

      • Jo Saunders 10 months ago

        Hi – Is there any update on this as I am also being told tax will be deducted from a retrospective payment. Jo

      • Michelle wetherall 9 months ago

        Dear CTBD, can you please give an up date on this area of concern. After a 3 year battle with CHC/CCG I have received notification of the restitution of all of my late father’s nursing home fees. A bittersweet experience, which I intend to share with other readers of this forum, once this final chapter is concluded.
        I did this myself, with just initial advice from a firm specialising in CHC, but mainly with information gathered from the National Framework and the advice posted on the is excellent website. I will be forever grateful for all those people (like Admiral Mathias) who have shared their knowledge.
        Now I just need some up to date information on interest on fees to be refunded.
        CCG have said this and I quote:

        The rate of 8% interest you reference in your letter is not correct. Finance will advise of the interest rate that applies once they have received the net calculation, but as HMRC advise that indexation elements of the CHC redress payment constitutes taxable interest under the income tax act 2007.
        CCG IS OBLIGED TO WITH-HOLD 20% of the indexation element of the settlement in respect of the basic rate of income.

        Is this a lawful ?
        They are not executor to my father’s estate! I am! It is my responsibility to pay any tax due!
        How can it be lawful it with hold money that belongs to my late father just incase HMRC claim tax!!!!
        So as I see it CCG take 20% every time they refund and just keep it in an account accruing interest just incase they need to pay the taxman?
        Perhaps I am being cynical or I plain thick but having navigated my way through CHC
        and lately probate I don’t think I am!
        Please CTBD can you help?

        • Care to be Different 9 months ago

          Thank you for your message, we are pleased to hear that you have been successful with your CHC claim after a long battle with the CCG.

          In relation to the interest rate applied, the guidelines state that from 1 April 2015 interest should be applied at the Retail Price Index (RPI) rate. If you would more information on this you can have a look at the NHS Continuing Healthcare Refreshed Redress Guidance, a copy of which can be found at https://eur02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.england.nhs.uk%2Fwp-content%2Fuploads%2F2015%2F04%2Fnhs-cont-hlthcr-rdress-guid-fin.pdf&data=02%7C01%7Candrew.farley%40farleydwek.com%7C7fb05f2c6a7740964e6a08d75d3e2a65%7C262ce588236f45e1bd886a021bd23050%7C0%7C0%7C637080393882978054&sdata=kQoz%2FqxRvJbw6%2FkA5eaLvWmGDOTRTBigO3jJxEAscEY%3D&reserved=0

          We have challenged this with many CCGs and also with the Ombudsman on cases which were registered prior to April 2015 as the previous guidelines stated that 8% interest (with a deduction of any retained benefits) was appropriate. Unfortunately, the Ombudsman have confirmed that they feel the RPI rate is reasonable for any claim settled after 1 April 2015, but it may be something to consider if you feel the CCG have delayed significantly in dealing with your claim.

          We are also aware that HMRC have requested that CCGs withhold 20% tax on the interest element of their payment. We understand that this is currently being challenged by NHS England but unfortunately, the CCG are entitled to withhold this amount until the challenge by NHS England has been settled. If NHS England are successful in challenging this matter, the CCG will return the money they are withholding to you.

          • Michelle wetherall 9 months ago

            Dear CTBD thank you for your prompt reply and for your kind comments. I will share my story with CTBD once I have concluded this final part of this 3 year battle I have had with my CHC/CCG.
            Had it not been for this website and the excellent articles and the experience of other readers I would not have been as well informed and battle ready for the war I have had with my CHC/CCG for the last 3 years.
            My dear dad died last year, so this victory is bittersweet as the family grieves for a much loved husband, father and grandfather.
            In time I want to help others who are just starting out on this horrendous journey, but just need time to readjust to a normal life that does not include spending every waking hour thinking about the national framework for NHS CHC and the next Appeal!

          • Michelle Wetherall 5 months ago

            At last I am able to add an update to this subject, which has concerned me and others.
            Thank you to CTBD, who shared information about the 20% Tax withheld by CCG’s
            on the interest of restored fees. Trying to get answers about this from my CCG has been another
            battle, but I have finally got some good news! I was told by the Senior Financial Accountant for CHC to and I quote, “It’s up to your mother to reclaim the tax back from HMRC”. SO I DID!
            I downloaded the FORM R40 from HMRC and completed it. I sent it with copies of the restitution.
            My elderly mother was the sole beneficiary to my late father’s estate and as a non tax-payer it was evident to me that the money that CCG withheld for the purposes of Tax was wrong. I explained the case in a covering letter and today I have had a letter from HMRC saying that my mother is to be refunded the whole amount! “Because Mrs. ***** is not due to pay any tax, the tax previously deducted will now be repaid to her by cheque”
            So, I would urge all those who believe that they have a case to complete the FORM R40 and send it to
            PAYE and SELF ASSESSMENT COMPLAINTS, HM REVENUE AND CUSTOMS, BX9 1AB

        • Jenny 5 months ago

          Congratulations Michelle (Apologies there wasn’t a Reply button next to your recent post).
          Let’s hope NHS England successfully argued against the witholding of income tax, if it was at the request
          of HMRC. It still seems extraordinary thing for CCG and CSUs to have done, since income tax is not deducted from civil claims (Personal Injury) awards. Let’s hope there is some sort of clear paper/guidance/update on this from either HMRC or from NHS England asap.
          Isn’t it interesting that you, I and others on here all win if you’re prepared to relentlessly challenge the drivel spouted about CHC. If you’re not under any sort of gagging order, I would urge everyone to spread the word as widely as possible every time there is a win. At the very least, the NHS is wasting thousands of pounds distributing incorrect info, failing to adequately train staff in admin of CHC and defending indefensible claims. They are not “Protecting NHS funds” they are acting unlawfully, causing distress and wasting public money.

          • Michelle Wetherall 5 months ago

            Thanks Jenny,
            I’ve finally come to the end of this horrendous journey. You are so right about being relentless in my efforts to prove dad had a PHN and mum should not have paid tax on the interest of the fees restored to her.
            Yesterday I sent off my 12 page complaint to CCG/CHC about the way in which the case was handled. No doubt a waste of time, but cathartic for me having spent almos four years battling CCG/CHC.
            It finally brought me closure.
            I feel desperately sorry for those still going through this and more so for the people just starting it.
            I remember feeling overwhelmed by the process as the paperwork, emails, reviews and appeals started to stack up, but in my head I was singing to myself the old Billy Ocean hit “When the going gets tough- the tough get going! Never let nothing stand in my way!” Might sound corny but its that kind of mentality that saw me through.
            I know I am only one of a few people that have successfully appealed at IRP and without legal representation. As I reflect upon how I was able to do this I know that my determination certainly played a part in it. But I believe that reading & understanding the NF/DST helped enormously.
            I can’t begin to tell you how many hours I spent working on the Key Indicators. Having analytical skills to compare the evidence with these characteristics certainly put the 6 six sentences that the assessors wrote about my father’s needs, to shame!
            I believe the biggest problem that families face is the time and energy it takes to pursue an appeal.
            I could not have done this, had I have been working full time and this is where CHC has the advantage.
            Families have huge constraints on their time, working, looking after children and elderly relatives. They haven’t got hours and hours to spare to sit reading the NF and going through documents in minute detail.
            Rear Admiral Matthias would not have been successful or indeed campaigned for others, had he not been retired.
            Families can hand over the appeal/challenge to a law firm, but there’s absolutely no guarantee that they will be successful, leaving families with huge legal bills.
            It’s a horrible situation to be in, but your right in what you say about having “relentless” determination.
            You can’t do this if you aren’t strong-willed.

  3. Jenny 1 year ago

    From personal and recent experience, it’s the date on which a primary health need is established, by reference to Nature, Intensity, Predictability and Complexity. This is arrived at after a review of the available records, expressed as a Needs Portrayal Document, which you should have an opportunity to comment upon and supplement with your own evidence. This may or may not result in changes being made to the evidence presented to the panel or clinical nurse assessor, or whoever makes the decision on retrospective decisions – it’s not clear.
    If the CCG or CSU wants to get themselves into tricky waters, they may also state that the date reflects the point at which needs became non routine. It’s routine/ non routine care that is significant, so it makes you wonder why they’d write that.

  4. Jenny 2 years ago

    From Jenny: When mention is made of the case starting, does this refer to the facts of the case which led to no consideration for eligibility happening eg repeated no reply from CHC team when approached for an assessment, and actions by GP which frustrated an assessment etc, or the date on which the claim for restitution or retrospective was made to the CCG or CSU please?

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