If you missed this article in last week’s Daily Express (26th October), you can read it in full below:
Sick pensioners threaten to sue Health Secretary Matt Hancock and the NHS for £5BILLION
“Legal documents have been sent to Health Secretary Matt Hancock and the NHS giving them 14 days to give very sick pensioners the free healthcare they have a right to or face a £5bn lawsuit. The move is the first in a campaign fighting to overturn the unfairness which sees elderly people bankrupted to pay for NHS care – which they have paid for via their taxes all their lives.
The notices – known as a Judicial Review pre-action protocol pre-claim letter – were sent to Mr Hancock and the NHS by Rear Admiral Philip Mathias, who is leading the fight after winning back £200,000 wrongly charged by the NHS for the care of his late mother. The Department of Health and Social Care and the NHS now have two weeks to promise a new fairer plan or the Judicial Review in the High Court will go ahead.
And if successful, the action could cost the health service £5bn in paid-back medical fees.
The lawfulness of the Continuing Healthcare National Framework is being challenged as the scandal of NHS Continuing Healthcare (CHC) rationing grows.
Tens of thousands of eligible pensioners – and other sick and disabled adults – are being rejected by their local Clinical Commissioning Groups for healthcare costs despite suffering from awful health problems.
Many of these people are suffering from dementia or Alzheimers and the vast majority of them are homeowners – so they can be forced to sell their properties to pay the bills.
Former submariner Admiral Mathias, who was in charge of Britain’s nuclear policy at the Ministry of Defence before his retirement, said: “In terms of the sheer scale of this scandal, measured by the significant number of old, ill and vulnerable people adversely affected and the huge level of unlawful financial deprivation, this is very possibly one of the biggest government scandals of modern times.
“The aim of this legal action is to force the Government and NHS England to stop Clinical Commissioning Groups breaking the law and to make sure redress is provided to those who have been unlawfully denied CHC funding.”
On his Crowd Justice page, Admiral Mathias highlights the plight of an elderly patient plagued with health conditions who was denied CHC funding.
The severely ill man suffered from Parkinson’s disease, ulcerative colitis, double incontinence, chronic kidney disease and was unable to move or feed himself.
But his healthcare needs were deemed insufficient to qualify for CHC payments.
The day after that decision was confirmed at an appeal, he died weighing 45kg.
Caroline Abrahams, the charity director at Age UK said: “It’s very sad that things that have reached the point at which administration of the Continuing Health Care scheme is being legally challenged.
“But at Age UK we too have heard too many stories of older people seemingly denied their rights and they and their families having to battle for months or even years to obtain redress.”
“Continuing Health Care exists to help older people with the most serious needs and that’s why it is especially important that it is properly resourced and operates in a transparent and fair way.
“We really do hope that this legal action leads to improvements, so that older people living with complex health problems can be confident of getting the support they desperately need, and so they and their loved ones are not faced with sky high care bills that legally ought to be being met by the NHS.”
Under national CHC rules, elderly people with significant health problems should have their care and nursing fees paid in full by the NHS, provided their condition is the main reason they need help.
This is different to the means-tested adult social care funded by councils.
But the process is complicated, bureaucratic and local clinical commissioning groups (CCG) have been accused of “rationing” successful applications so they do not have to pay out.
There is a 20-fold variation in the chances of securing CHC funding between different NHS clinical commissioning groups, recent research found.
The Daily Express has led a crusade against the refusal to fund the costs which leave elderly people with “catastrophic” bills.
The first £30,000 needed for the court action was raised in a matter of days.
Campaigners are now raising £250,000 for the rest of the legal fees.
The total was boosted earlier this month by a £1,000 anonymous donation from a supporter who wrote; ‘shame on the liars and cheats, who tried to swindle an old man, so ill, he could do NOTHING for himself….. The system, and more so the supposed “caring professionals ” concerned, are corrupt to the core….
Dan Harbour, the managing director of the independent advice group Beacon CHC, said: “The public support for Philip Mathias’ campaign reflects the strong feelings about the CHC system that we encounter every day from clients who turn to us for help.
“Rear Admiral Mathias is passionate about this issue, and I have no doubt he’ll be an effective representative for those who’ve already donated to support the legal challenge.”
To get NHS CHC, you must have “a complex medical condition with substantial, ongoing care needs”, and you have to be assessed as needing it.
In England & Wales, this assessment is carried out by the local CCG.
But worried families complain that the criteria is too strict and often changed.
They say obviously very sick people – especially if they are homeowners – are rejected by a NHS they have paid into all their lives.
The papers – drawn up by top law firm Hopkin Murray Beskine and delivered to the Government’s legal department in Westminster – say the evidence is overwhelming that consistent and lawful CHC funding decisions are not being made.
They describe the postcode lottery of positive eligibility decisions as “startling”.
And despite a growing older population, since 2015 there has also been a sharp decline in the number of people qualifying for the payments.
This “defies any logical explanation save for a desire to save money which cannot be a lawful reason to deny a person the free NHS care to which they are entitled”, the papers say.
The Department of Health and Social Care would not comment on the legal action.
COMMENT By Andrew Farley
There is almost a complete lack of awareness of the existence of CHC and for those who have heard about it an inability to navigate the complexities of the process alone.
Clinical Commissioning Groups at local hospitals are often very inconsistent in their interpretation of the CHC regulations.
This leads to an unacceptable level of subjectivity in the way in which the National Framework is applied and often there is a complete disregard for the law.
There is also considerable evidence of a “postcode lottery” where the eligibility criteria is applied more harshly in some areas than others.
The fact that the NHS are judge, jury and gatekeeper is blatantly wrong – a lot more independence is required.
In any other legal situation, this would be considered to be a clear conflict of interest.
We know that many thousands of people have been inappropriately denied NHS CHC Funding.
The Government has provided significant support to those who have been discharged from hospital requiring ongoing care during the current pandemic.
But there are now 25,000 people who all need to be assessed for care funding and the delays and process issues which are already endemic in the system will be further compounded by the situation.
Many reviews have been found to be inadequate due to a failure by the Assessors to consider available evidence either properly at all.
There are a significant number of appeals presented to NHS England each year resulting in long delays to have cases reviewed by an Independent Review Panel, the success rate at which is very low.
The Health Service Ombudsman also seems to have very limited scope in relation to complaints about CHC funding.
As long as the CCG has followed the correct process, there is a reluctance to uphold a complaint even when the clinical decision is deeply flawed.
And the Ombudsman’s Clinical Advisors are generally individuals employed by the NHS Continuing Healthcare teams, being the very organisations against whom complaints are being made.
The NHS has been told that it has to make £855m worth of efficiency savings in relation to CHC by 2021.
The only way of achieving this is to reduce people’s packages of care and/or to withdraw funding from those who continue to be entitled to it.
This is further compounded by arbitrary caps on care fees which are imposed by various CCGs.
This requires families to top up the shortfall between what is funded and what is being charged by the care provider and is illegal.
Many of the families we speak to have relatives who have been funded for several years, but are now being reassessed and funding is withdrawn.
This is despite the fact that they continue to deteriorate and there has been no improvement in their condition, or reduction in the care required.
Families understandably struggle to rationalise the justification for this which in many cases is blatantly wrong.
The whole CHC system is unlawful and not fit for purpose.
• Andrew Farley is a lawyer and the founder of Continuing Healthcare support group Care to be Different
Case study
On the day of her mother’s funeral, Margaret Kemp received a bill for £63,178.20p – this was on top of £110,000 already paid for supposedly free NHS care.
The 95-year-old mother of two, also called Margaret, was a former district nurse but died penniless after working for and paying into the NHS all her life.
Despite suffering from dementia and host of other severe health problems, the Surrey Clinical Commissioning Group did not class her needs as ‘primary’.
This meant her daughters were left with no choice but to sell the home their mum loved to pay the nursing home and healthcare bills.
Miss Kemp, who lives in Osgathorpe, Leicester, said: “It’s criminal, unlawful and immoral the way they treat dementia sufferers and other elderly people whose poor health means they need care and treatment.
“Dementia robs a person of their dignity; the State rapes them of their assets.
“My mum did the right thing all her life. My father was a veteran of the D-Day landings and they were typical of their generation as they lived within their means.
“They never had a credit card, didn’t go on foreign holidays or went to restaurants and always ‘made do and mended’.
“They scrimped and saved and eventually bought their council house which was their pride and joy.
“My dad died in 2013, he had prostate cancer and mum nursed him at home for as long as possible and then he spent his final days in a hospice. All this was covered by the NHS.”
In 2016, aged 92, Mrs Kemp senior fell and broke her hip. She was admitted to hospital but never walked again.
There was also a diagnosis of dementia which was exacerbated by the anaesthetic and it became clear she could not live alone anymore.
“When the care professionals got involved, one of the first questions I was asked was ‘is your mum a homeowner’,” said Miss Kemp.
“My mum could not stand, could not walk, did not know where she was, where her husband was and was distressed and highly anxious.
“Added to this, she could not remember she could not walk so kept trying to stand up and more falls ensued. She needed 24/7 care as she was a danger to herself.
“But every single Continuing Healthcare assessment minimised her problems, every “need” was ignored.
“The CHC Assessors would spend a couple of minutes with her and decide she was mildly confused.
“This was despite being in front of a woman who thought she was on a farm in Ireland, could not recognise her daughters, had to be hoisted everywhere, could not move due to a risk of falls and was on all kinds of medication.
“Her skin was like tissue paper, she weighed seven stone and was covered in bruises.
She was awarded Funded Nursing Care at £717.43 per month, but the Surrey nursing home fees were £5,300.
“Then in March 2019, mum was diagnosed with pneumonia and we were told to expect the worse.
“We were asked whether we wanted her to be transferred to the hospital but we wanted her to pass away peacefully in her nursing home, not in a busy A&E and her doctor agreed.
“I asked for a Fast Track CHC to be initiated on March 2 and asked again on Monday 4.
“On March 5, I bumped into a CHC Assessor at the home. Mum had pneumonia, not eating or drinking, we were at a vigil at her bedside and she weighed 6½ stone.
“A report came back to say she only needed social care.
Apparently the assessor thought she was “responding to antibiotics” which meant she could open her eyes slightly.
“I can’t express my anger and frustration. They hadn’t reached the limit of what her house would give them when it would be sold, and they just disregarded her needs.
“I complained and they did another Decisional Support Tool a few months later, she qualified but when the report went to Surrey Clinical Commissioning Group her scores were lowered and there was to be no other help.”
If you are in the process of seeking NHS Continuing Healthcare Funding for your relative, you don’t have to fight this battle alone. Read our book for lots of handy tips and help.
Like so many people, Ian Johnson’s family faced the onerous task of trying to secure NHS Continuing Care funding for an older relative. Paperwork errors in NHS Continuing Healthcare assessments made it even harder.
