You can make a retrospective claim to recover care fees that were incorrectly charged if your relative meets the eligibility criteria for NHS Continuing Healthcare Funding (CHC) as set out in the National Framework for NHS Continuing Healthcare Funding and NHS-funded Nursing Care (2018).
To draw a line under its pipeline of retrospective review cases and manage the scale of the issue, the Department of Health introduced an arbitrary deadline to register any retrospective claim for wrongly paid care fees (paid between 01/04/2004 – 31/03/2011) by 30th September 2012. This was shortly followed by a second deadline of 31st March 2013 to register any retrospective claim for funding between 01/04/2011 to 31/03/12. If you missed the deadline, you can now only retrospectively claim for care fees going back to 1st April 2012.
However, the NHS could not have anticipated that it would be inundated with nearly 60,000 new retrospective claims for NHS Continuing Healthcare Funding as a result of their own instigation to get a grip on the number of current and prospective pending retrospective claims.
The result was to create administrative chaos, more red tape and bureaucracy, and a plethora of wrong decisions as to eligibility for CHC. Whether this was due to maladministration or sheer incompetence of those assessors appointed to carry out reviews or CCG Local Resolution Panel appeals, or perhaps some deliberate financial gatekeeping policy to turn down claims, remains open to debate. But, the lack of successful claimants magnified the administrative headache for CCGs as many appeals were kicked down the road and left to languish in the ether.
Whilst the underlying principle of our much-admired NHS is that “NHS care is free at the point of delivery” in practice, accessing CHC funding quickly, just when you need it, can be an entirely different proposition! Readers comment that the CHC review and appeal’s process is full of ‘minefields’, ‘hurdles’, ‘complexities’ and is ‘overwhelming’, ‘daunting’, ‘stressful’ and ‘challenging’.
The backlog created by the deadlines for registering retrospective claims backfired and clogged up the retrospective review pipeline for many years to follow. Perhaps this was a desired outcome? Regardless, most CCGs, without exception, demonstrably failed to absorb the huge influx of retrospective cases efficiently and allocate adequate resources to cope. The backlash has been felt ever since, and indeed, some cases registered in 2012/13 still have not been finalised and remain under appeal!
Whilst apologising for the delays, the best most CCGs could do in the early years was to issue holding updates when chased, advising that your case was (say no. ‘56’) in the queue – with no commitment or timescale as to when it would be looked at. And, just when you thought your it was moving to the top of the list for review, the case could then be reallocated to a Commissioning Support Unit (CSU) and get downgraded again. Most CSUs were notoriously hard to communicate with (not to mention administratively incompetent) and inevitably you would be fobbed by someone who had no idea what was going on (assuming that they could actually trace your papers!). All these delays and bureaucratic hurdles left families and their representatives feeling angry and frustrated.
Some might say this was all part of a brilliant strategy by CCGs to ration payments by delaying progress of cases – and hence, ultimately payment – in the hope that claimants would just give up and abandon their retrospective claim. After all, in many cases, it was money their deceased relative had paid, not them, and to recover anything was a ‘bonus’. However, for most, it was a point of absolute and resolute principle. Their spouse, relative, friend or those for whom they had a professional duty to protect, saw this as their moral duty and obligation to pursue recovery of care fees that had wrongly been charged by care homes. These fees should have been paid for in full by the NHS (ie free of charge), had they undertaken a correct assessment for CHC funding diligently, fairly and robustly. Instead, some of the most vulnerable in our society have been forced to use hard-earned life savings set aside for a rainy day in their old age or sell their assets or home to pay for their care, quite needlessly.
So, no matter how long the delays or what obstacles are thrown in the way to slow down or delay retrospective claims, nor whatever farcical bureaucratic red tape and maladministration families have had to endure, for most, this was and still is, a matter of principle and CCGs must be held to account.
You only have to read what our contributors to the Care To Be Different website and our Facebook page say about their personal experiences when battling for their relative’s rights for CHC funding, to get an immediate sense of the delays, anxiety, worry, and frustration caused at the hands of the CCGs – sometimes referred to as ‘judge, jury and executioner!’
Admiral Philip Mathias, who undertook his own retrospective claim and successfully recovered £200,000 for care fees on behalf of his late mother said that the “CCG did everything possible to avoid making an eligibility decision. This included ignoring and grossly distorting the evidence contained in her care records.” You can read more from Admiral Mathias in our blog: Rationing NHS Continuing Healthcare Funding – The ‘NHS’s Best Kept Secret’.
CCGs can, of course, take their time processing retrospective reviews and appeals, as there is no set timescale to adhere to. They’ll work at their own pace, probably in chronological order, with the oldest cases being dealt with first. Nor is there any proverbial ‘stick’ to beat them with in the event of delay. Your only option is to be patient or else keep chasing for progress or lodge a formal complaint, for what it’s worth. Conversely, in return, little leeway is often afforded to families who can be made to jump through arbitrary hoops to meet unrealistic and unreasonable CCG deadlines.
Families who successfully reclaim care fees that were wrongly charged are, of course, entitled as of right to receive additional interest on their restitution award as a consequence of the CCG’s ‘maladministration’ (ie delays or unsound decisions). Since 1st April 2015, the revised Redress Guidance provides CCGs should pay interest at RPI rates – which are relatively low. CCGs might see the trade-off between delaying cases and holding on to their NHS budgets as a price worth paying if they have to pay out some interest if they lose at appeal.
What’s happened since?
We are hoping that these historic practices will be eroded by the new Government Guidelines which came into effect from 1st September 2020.
CCGs have been mandated by the Government to progress assessments and appeals with all speed. That said, it is up to each CCG how to manage and progress its own caseload. Some are likely to cut corners in an effort to try and catch up. It is too early to tell whether that is a good or bad thing, but speed should not be a substitute for poor decision-making that will only add to the pile of pending appeals. But for others, we fear delay may be part of the fabric and has become ‘institutionalised’ after many years of practice since 2012. For more information, read our blog: Are you ready for 1st September 2020? CHC Funding Gets Back to Business
Here’s what you can do…
Whether you are waiting for a Multi-Disciplinary Team Meeting or Local Resolution Appeal or the outcome decisions from these panels to be notified to you, here are some quick tips to help you counter delays:
- Be persistent. Try and establish a point of contact with whom you can liaise regularly at the CCG. Sounds obvious, but not so easy in practice!
- Set diary reminders and don’t be afraid of chasing the CCG or CSU regularly for updates.
- Don’t be fobbed off, and press for progress.
- Keep emailing or calling until you are satisfied that your claim is receiving the CCG’s attention.
- Remember to get hold of and keep safe your proof of payment. If you win your appeal, you will need to satisfy the CCG as to the amount of care fees to be reimbursed. Keep safe all bank statements, invoices, statements of account from the care home and any correspondence relating to fees. If you don’t have them, do your best to get copies as quickly as you can.
- If waiting for an appeal date, prepare your written arguments in advance. Early preparation is essential. Too many people leave the matter to the last minute. Get hold of all relevant notes and records from your relative’s GP, hospital, and care home notes so you can draft your retrospective appeal. This process can take weeks, especially in the current COVID climate, where administration might be much slower (regardless of GDPR allowing them one calendar month to comply). Our website features lots of helpful information here. Search for terms surrounding the ‘4 Key Indicators’).
- Check whether you have legal authority to act for your relative, friend or client. Do you have a valid Lasting Power of Attorney or Deputyship Order (for living patients) or a Grant of Probate (deceased patients)? Correct authority will be required by the CCG before they will process your restitution award.
- Don’t be afraid to raise a formal complaint to the CCG if you’re getting nowhere. You should be able to find their details online.
- Even though the interest payable by the CCG may not be significant compared to the overall amount of reimbursement due, this is still costing the CCG money. You can remind them that delay is a waste of resources which could be put to better use.
- Read our book, How To Get The NHS To Pay For Care.
- Above all, when communicating with the CCG, remember to be polite – however frustrated you may feel. The NHS staff deserve respect. In our experience, you will get better results with a courteous approach.
- Remember that you don’t have to fight this battle alone. There is professional help and advocacy support available if you need it. We only recommend that you don’t leave it to the last minute or you might miss out.
We’ve added a selection of blogs around the subject to get you started, but there are dozens more on our website. Browse our Articles page or use the search box to find what you’re looking for.