NHS Continuing Healthcare Refreshed Redress Guidance
The NHS has issued new guidance for the repayment of care fees in retrospective claims. The guidance applies to all eligibility decisions made on or after 1st April 2015.
If you’re currently making a claim for care fees wrongly paid in the past, this new guidance will be relevant to you.
Although this Continuing Healthcare redress guidance is similar to previous guidance, there are some points to note, and we’ve highlighted those here for you.
Continuing Healthcare redress
Points to note include…
The guidance recommends that the Retail Price Index should be used to apply interest to the repayment amount.
The principle stays that same that “where maladministration has resulted in financial injustice, the principle of redress should generally be to return individuals to the position they would have been in but for the maladministration which occurred” – i.e. to the position the person would have been in if Continuing Healthcare funding had been awarded when it should have been.
Although this sounds fine on the face of it, it’s difficult to see how a person can really be returned to the financial position they were in when their house and all their savings and/or investments were intact.
The NHS is also at pains to point out that a person who has been wrongly charged for care should not make a profit out of a retrospective claim. This applies also to the Clinical Commissioning Group (CCG) making the refund.
Many families may find the suggestion of profiteering by the person in care rather insulting, to say the least. The CCG, on the other hand (and the previous Primary Care Trust) has enjoyed budget savings (often for years) at a vulnerable person’s expense, when that person’s money should never have been taken in the first place.
The tens of thousands of retrospective claims for care fees have arisen because of the NHS’s failure to properly assess people. Where a repayment is being made, it is because the NHS previously illegally passed the care funding responsibility to the local authority – which led to means testing.
The Continuing Healthcare redress guidance requires the NHS to use “a transparent rationale” when making repayments and to “fully consider the individual circumstances of each case”. Note the word ‘fully’. We have seen retrospective reviews that are little more than a few inadequate notes copied and pasted from the care records.
CCGs are also required to consider making ex-gratia payments where it’s clear that a person has been disadvantaged.
CCGs are required to repay care fees promptly, with any disputes resolved afterwards.
Seeking legal advice:
One of the most controversial aspects of the Continuing Healthcare redress guidance is about individuals or families seeking legal or other specialist advice to help with their claim. The guidance states that individuals “do not need to seek legal advice” because there is a process in place for claims to be registered and processed.
Many families who have been pursuing claims for a long time (often years) may find this laughable. Just because there is a ‘process’, doesn’t mean it is followed correctly. We have seen many documents and retrospective review forms completed by the NHS that are full of mistakes and omissions. A family will not necessarily know what’s right and what’s not without specialist help.
What’s your experience claiming back care fees?