Continuing Healthcare redress – new guidance on repayment of care fees

Continuing Healthcare redress – new guidance on repayment of care fees

Energy SavingNHS 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…

Interest payments:

The guidance recommends that the Retail Price Index should be used to apply interest to the repayment amount.

Financial redress:

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.

Profiteering:

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.

Transparency:

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.

Ex-gratia payments:

CCGs are also required to consider making ex-gratia payments where it’s clear that a person has been disadvantaged.

Prompt repayment:

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.

You can read the Continuing Healthcare Refreshed Redress Guidance here.

What’s your experience claiming back care fees?

45 Comments

  1. Richard 1 month ago

    Hi All,

    We’ve had to put mom into a private care home for end of life care. Situation is complex.

    Does anyone have any template letters for reclaiming some of the care home and prior to that visiting carers’ Costs?

    Many thanks in advance.

    Richard.

  2. jan 2 years ago

    We are now at the stage after almost 6 years where the CCG have agreed to repay care home fees but are disputing aspects of our claim when my father lived with my sister. Can we claim for her loss of earnings, Repairs and damage to furniture, Petrol and Travel, Inconvenience and distress and an ex gratia payment due to the length of time taken for the claim? Does anyone know where there is a definitive list available for what we can and cant claim for? The CCG are trying to put the claim up against the latest guidelines for redress however when we claimed and when my father required continuing health care the 2007 guidelines were in place!

  3. Vanessa 2 years ago

    Having had a retrospective assessment carried out by an independent nurse assessor employed by my CCG who basically have paid this private company to re-assess the whole period of claim for my now deceased Mother, they have recommended in their Decision Support Tool that part of the claim should be paid. It does have to go back to the CCG who I am hoping will now just rubber stamp it. My question is, this period was for 2011-2013 (my initial request for retrospective assessment was back in 2012!). So my Mother paid out for two years when she shouldn’t have had to, her house had to be sold as we nearly ran out of her money. Can we claim interest for the money from 2011 to date? And would she be compensated for having had to have sold her home to pay for the care fees? Basically her money would have earned interest all these years, and similarly she lost a great deal of money having to sell her home earlier than her death in 2013. Also another question, she did get NHS Continuing Healthcare from the June to her death in the September, but only a limited amount and we were told to pay a top up to the home. Am I right in thinking this was not correct and we should put in a claim for the top ups we had to pay? Many thanks for any advice.

  4. Larna Fox-Cowan 2 years ago

    Interest payments?
    Hello. After almost 5 years, I have been successful in securing funding for my mother (who unfortunately passed away during the process). I am finally at the point where payment is imminent, however I wasn’t sure about the interest due. They have added interest to the months of care they are now paying for, (2010 to 2011), but I was unsure as to whether the payment should include interest up to the date of settlement? I have looked everywhere I can online, but cannot find anything definitive. If anyone could advise I’d be very grateful. Thank you

  5. Richard 2 years ago

    Advice please , where does it state that redress interest payments for the period of care will also be paid upto the settlement of the claim.
    Regards

  6. Gillian Lindley 2 years ago

    I have fought for 5 years to get retrospective funding for my Dad . He died without a will – my Mum and Dad had been married for over 40 years and still were at the time of his death . After first stating he did not qualify for funding ( which was lately overturned because as a nurse, I fought his corner ) we are now at the point of getting what my mum is owed . However he was in a nursing home for 8 years and they will only see fit to give him money for 18 months ( unbelievable !! )- now they are saying because my dad didn’t leave a will, they can not just pay the money back to my Mum because she will need a letter of probate even though the house was in joint names ,they had joint bank account and all their money had gone on care fees- the whole thing has been an absolute shambles – it is nothing short of criminal !

  7. Christine 3 years ago

    Thanks to your website, my sister and I successfully appealed a decision to refuse funding to my late mother.
    The problem that we have now is that we are being fobbed off regarding repayment of the fees.
    The guidelines state :
    ‘It is important that once an eligibility decision for NHS Continuing Healthcare is reached, CCGs should promptly pay any redress sums owed to individuals or their representatives. Disputes about aspects of the redress payment or other aspects of a case should be dealt with subsequently’

    There is no definition of promptly and we keep getting fobbed off with excuses such as ‘ The person you need to speak to is ain a meeting’ have you any advice to help speed payments up?
    Thanks

    • Angela Sherman 3 years ago

      Christine – we’ve come across this problem before and getting a solicitor’s letter sent to the CHC team can sometimes help speed things up. You shouldn’t have to do that, of course, but it can help.

  8. Jane Evans 3 years ago

    I wasn’t sure where to post this query but hope I will receive some guidance. I posted a comment 5 months ago under ‘The vital question to ask the social worker’ – regarding my step-father. He was hospitalised in January then transferred to a nursing home in March. He returned home from the nursing home in June. I was fobbed off by his social worker in applying for Continuing Healthcare (CHC) so he has been receiving local government funding for part of his care fees. He has carers four times a day and a community nurse twice a day to check his blood glucose and administer insulin. My mother is struggling and it has been suggested he goes into respite care for a few days to give her a rest. My question is: Can we still apply for CHC funding or is it too late now after he has been partly self-funded for several months?

    • Angela Sherman 3 years ago

      Jane – you can apply for CHC at any time – it doesn’t matter at all that your stepfather has been self-funding. The only thing that matters are his care needs.

  9. Catherine Harrison 3 years ago

    Thank you for your responses ref my mother Rita , I would love to be able to get legal help but as I am working on a low income I cannot pay for legal assistance. I have not heard from the CCG restitution team since December 2015, when I was informed that they were harassing my mothers solicitor ref medical records???? They threatened to close the enquiry if the solicitor did not comply.
    I rang the team and informed them that the coroner held all documents they required, they apologised but sent the solicitor 2 further copies of the same letter. My last phone call was less than polite, but the solicitor has not received any further correspondence. I am now seriously considering going to the media reference my situation.
    My mother’s case was well publicised and is now available for everyone to read on the internet, I also have a full transcript of the inquest which the coroner gave me as he was so disgusted with the whole case. All professional testimony is there reference my mothers medical health at time of eviction from hospital to death.

  10. Chris-G 4 years ago

    Hi Catherine,
    I have blanked names here – but I know the article mentions the names.
    It stated: “NHS matron [*****] was brought in by the coroner as an independent nursing expert to review the notes kept on [The Resident].
    She said [The Resident’s] care was not properly documented and that daily logs did not match up with weekly progress reports.
    That meant it was impossible to get a full and comprehensive picture of [The Resident’s] care.”
    Read more: http://www.shieldsgazette.com/news/coroner-slams-care-home-staff-over-oap-s-death-1-4604871#ixzz3xA5TN4gJ

    That being recorded at a Coroner’s Court, I am certain as I can be that any CHC assessment, (or refusal to carry out an assessment), was done without all of the information that the assessors required.
    I might also argue that the Assessors likely knew of the faulty record keeping too. It would have been very obvious.
    In my mother’s case we even cited that fact at three Independent Review Panels, who chose to take my fathers almost daily diary entries, over many of the records kept by the home. The home’s manager was eventually disbarred by the Care Quality Commission (CQC) for exactly that reason.
    As for poor care plans. The NHS is complicit in that too. The Decision Support Tool (DST) that each assessment requires, is in fact to be used to create care plans. I believe that somewhere on the DST it tells assessors that fact.
    If information was missing and the assessors knew that, then they appear complicit in allowing faulty care to be planned.
    I hope that you have some advocacy in this matter because I would hate for you to rely solely upon what might only be supposition from the likes of me. I wish you success.

  11. Catherine Harrison 4 years ago

    I am still trying 4 years later to get restitution of my late mothers care home fees, but finding the CCG’s restitution team seriously lacking in their professional approach. After her death in 2011, an inquest was held in which the coroner requested certain experts to review my mother’s medical situation and records. A matron reviewed her paperwork, a home office pathologist performed the autopsy and the queen’s coroner gave the verdict… and yet the CCG say they have to follow all of these records again!!!! My mother’s case is online for everyone to read, search Rita Christie-southern cross if interested. Can anyone help me speed this enquiries up?

    • Angela Sherman 4 years ago

      That’s such a sad situation, Catherine. I’ve read a little about your late mother’s death, and I imagine the last few years have been excruciating for you. Given what’s happened, and how obstructive the CCG seem to be, you may need some legal clout to get things moving.

  12. Sheila 4 years ago

    My sister and I have recently been successful in an IRP review against the CCG’s decision not to award continuing health care to my mother. She has since died. The appeal acknowledged that it was reasonable for my mother to stay at home and not be admitted to a care home. My mother was therefore cared for 24 hours per day for a period over 3 years by my sister and I as we could not afford to continue paying for an external night sitting service. I am hoping to recover the costs of the night sitting service (£20,646 for a six month period). Are my sister and I able to make a reasonable claim for the provision of our caring services? As you can imagine the task was exhausting for us both and had a deleterious effect upon our families. Our provision of nursing care clearly saved the CCG many thousands of pounds in care home fees. We are not wanting to profit from the situation but do feel that we have been unfairly treated, a point recognised by the Independent Review Panel. If we are, can you please refer us to any relevant publications?

    • Angela Sherman 4 years ago

      Sheila – you may (possibly) be able to claim for respite care that should have been provided. Did the IRP make reference to this?

    • Chris-G 4 years ago

      Sheila, That sounds appalling. I really hope that you can get this sorted out. Best wishes Chris.

  13. Gareth Finch 4 years ago

    I have received confirmation that following a Retrospective Local Review Panel meeting in March this year and subsequent consideration by the Clinical Commissioning Group, our retrospective claim on behalf of our late father has been partially upheld, for the period from 09/08/2008 to my father’s death on 02/07/2009.
    The CCG agreed with the panel that the claim should however not be upheld for the period 23/01/2006 to 08/08/2008.
    We have yet to consider fully the reasons given for not upholding part of the claim and we may wish to appeal.
    Are we able to now start the process of providing bills, receipts etc to attempt to settle that part of the claim which has been upheld, whilst still deciding whether or not to appeal against the decision to not uphold the earlier part of the claim?
    We obviously do not want to start the process of settling the part of the claim which has been upheld if doing so would harm our prospects of winning an appeal against the decision not to uphold the earlier part of the claim.

    • Angela Sherman 4 years ago

      If you disagree with the outcome of the retrospective claim, this article may help: http://caretobedifferent.co.uk/retrospective-claim-for-care-fees-rejected/ There’s not necessarily a right or wrong in what you should do, but I would continue to appeal the decision before submitting receipts, as this could otherwise be viewed as acceptance of the retrospective decision.

  14. Angela Sherman 4 years ago

    You may find some of the points in this article helpful: http://caretobedifferent.co.uk/nhs-continuing-care-why-the-new-deadlines-for-reclaiming-care-fees-are-illegal-full-article/ Although it’s an older article, it’s still relevant.

    • Chris-G 4 years ago

      Cheers Angela, I will have a long looook.

  15. Angela Sherman 4 years ago

    Thanks for your comments, Mel, Sue and Rita. Keep going if you can. I know myself how exhausting it can be. I sometimes think it’s almost a battle of wits, and when you know you’re right in pursuing CHC it can come down to stamina and waiting for the other side to cave in. It shouldn’t be that way, of course – but sadly it often seems to be.

    • Chris-G 4 years ago

      Of course, even if the CHC rules state that you cannot make a retrospective claim, it is highly likely that if recklessness or deliberate action in maladministrating the matter can be shown, then there are other courses of action outside of the CHC rules, that can be applied.

      I would start with the complaints procedure for the local NHS and the council and list the facts of the matter. Include names if you have them…. Try to keep it chronological but don’t worry if you have to jump forward and backward in time to make a point, just make sure that you explain all of it.

      The complaints procedures should address the failures to behave properly and they should not try to ignore you just because of Government closing dates for retrospective claims or time limits in making appeals within the CHC process…… You are complaining that rules were broken that apply to all circumstances…. e.g. is there a time limit for complaining about poor hospital treatment? Is there a time limit to complain to a council that they have overcharged you for something?

      If a complaint is upheld, then other courses of action are open to you. The reply to complaints are often instructive in themselves. Using a lawyer for advice at that stage might be valid dependent upon the amount that one might be able to recoup.

      • Angela Sherman 4 years ago

        Thanks for the tips, Chris.

  16. Mel 4 years ago

    Rita, this is just the info I need. Your father was never medically assessed. I am going today to the CCG offices to provide them with my ID to continue the appeal. I am taking a letter to the Clinical Manager appealing the right to a retrospective claim. Having discussed this with a few people, an appeal is asking them to reassess a denied claim, retrospective claim means a claim which should have been carried out but wasn’t. I’ll keep you up to date with the progress. We really need a forum!

  17. Rita Foster 4 years ago

    Having read the above comments, at least I am not alone. I made a retrospective claim on behalf of my deceased father in 2012. Dad was never medically assessed, having been put in a care home on the skirts of a social worker. In January of this year the CHS involved agreed to refund care home costs for the last year of his life. They still have not made any repayment! I am fighting for the remaining 3 years. It has been so hard and I am bone tired with the lies, maladministration, blocking, delays, losing documents and the sheer amount of people who have been dealing with this claim. Incredulously, they even lost vital documents within their own offices when I had sent them by special delivery and signed for by a member of their staff. I have no idea what to do about that, having only received a pithy apology. I made an official complaint throught their own procedures about the whole claim and that has become so complicated. I don’t intend to give up but at the moment am facing a brick wall inasmuch they are obviously delaying a “final decision” preventing me from going to the ombudsman. Does anyone know if I am able to go to appeal meetings, so far I have been denied this. The organisation in question has changed itself three times so far, and new staff each time! Guess I need a bit of encouragement to find the energy to go on.

    • Angela Sherman 4 years ago

      I can certainly understand your frustration, Rita. I often wonder what it costs the NHS (i.e. the taxpayer) to fund all the maladministration and other things you mention. We hear about it from so many families. We also hear that the NHS is often very tardy in making repayments, even when it’s been written in black and white that they need to do this. It’s shameful. Keep going if you can. The whole process is supposed to be open and transparent, and yet it often seems far from that. Having said that, we also hear every week from families who have succeeded in securing the funding/payments – even if after a battle. If you’re being blocked in your route to the Ombudsman, you could always ask for an Independent Review. A solicitor’s letter can also help.

    • Sue Collins 4 years ago

      Rita – everything you have said echo’s what I have been going through since 2010. I have so much paperwork that I could sit and cry every time I have to go into it. There has been several offices and numerous people involved so much so that I didn’t know who I was dealing with any more. At one point it took me nearly 2 years to arrange an assessment only to be told afterwards that the information in the DST was not good enough so wouldn’t be used. My mother’s case was at one point closed because someone thought she didn’t meet the criteria but they didn’t bother telling me about it! They have lost documents, told me that they were waiting on records being sent, the truth was they had not even asked for the records. I refused to deal with anyone at the CCG except the Chairperson but he is just arrogant. I enlisted the help of my MP and although there is a limit on what she can do just knowing she is behind me and keeping my spirit up is a great help. I refuse to give up, it is mentally draining and exhausting but I will keep at it until I get a result! Good luck with your claim, keep at it x

  18. Gary Cullum 4 years ago

    Can anyone please tell us where we would send our application for the refund of retrospective Care Home Fees re the CHC issue..we livein Wolverhampton, West Midlands.Many Thanks…whatgreat information yu have on this site.Thanks
    And any tips on essentials to include please..in fact any information would be helpfull, its through this site that we have now been told htat our local Heath Authority are going to pick up the Care Home Fees for my Father in Law from 6th July 2015 albeit he has been this ill since November last year.Thanks

    • Angela Sherman 4 years ago

      Gary – you need to send it to the Continuing Healthcare Team at the local NHS Clinical Commissioning Group (local to your father-in-law). You should be able to find the contact details online.

  19. Lynda Winton 4 years ago

    We need some guidance on what happens next. We are in the process of trying to claim back fees for our father, we have just been sent a Needs Portrayal Document which has attached to it Applicant’s Comments on Needs Portrayal. We just need to understand if we should be talking about the time before going into the Care Home and what prompted this decision or do we make comments on what the report has highlighted. We do not want to go and make a mistake in commenting on the wrong part of his care. Many thanks

    • Angela Sherman 4 years ago

      Lynda – the Needs Portrayal should cover the whole period of your claim – the period of care you mentioned when you first submitted your retrospective request. Does that help?

  20. Heather 4 years ago

    Mel
    i read it as only able to go back “retrospectively” to previous CHC funding decisions. It is hard enough to try to fight for them to change their decision on CHC funding, never mind trying to argue that they were eligible before any assessment. My father had a major stroke and was in hospital for three months, when a CHC assessment was made, really without us being told anything about it. He was doubly incontinent, fed through a PEG as couldn’t swallow, not able to move, but still did not qualify for CHC funding at that time. They did another assessment six months later, without our knowledge and never telling us the outcome of that, but STILL refused CHC funding, even though that month he had had two stays in hospital, one being for near renal failure. He continued to have renal problems and infections, and only got CHC funding six months after that when he was not really aware of what was going on. i am sure we only got the funding then because by that time we knew more about how things work and argued our case. He died a month after getting the funding!Having appealed, we now have the funding backdated to the second assessment, but still not given from when leaving hospital six months before. We found care home notes very poor to use as evidence to argue our case, so unless you have a very good Care home manager then i am afraid i doubt if you have much chance to get it back dated over years. If the manager thinks you have a good case, then she should have asked for an assessment when your relative first went into the home. Sorry to be so pessimistic. Good luck anyway and keep us posted of your progress on this site.

  21. Heather 4 years ago

    Mel
    i know how you feel- so frustrating, but think you can only appeal when CHC assessment carried out- July 2013 in your case. Even though you think your mum was eligible from July 2012, they will say that care home could have asked for an assessment or yourself, even though you don’t know about these things!! Our care home actually told us that it was no good trying to get CHC assessment as had to be “at end of life”! And we never knew we could have actually asked for one! When I asked to appeal and assessment decision from Nov 2012, i was told I was too late to appeal, as had to be done within six months. That was totally wrong, as it only changed to six month limit in April 2013. Of course they limit it to six months now as many people don’t realise their rights until it is after six months as it is such a traumatic time with ill relatives. Good luck with your fight.

    • Mel 4 years ago

      Hi Heather,

      Yes I see what you mean but the wording of “Retrospective Claims”, makes me feel otherwise. My mum’s care home manager said we can go back a long way. I just need someone to clarify this and I will at least try til when she entered the home. The previous CHC person who was doing the appeal said we could go back further, the new lady says she asked her Medical Assessor who said no. I am going to write to her to put mum’s case, but if I can find out if a retrospective claim means just that, going back further on a claim, then I will have more ammo to hit them with.

      • Angela Sherman 4 years ago

        If the care home manager is supportive, that can help a lot. Also, it’s my understanding you can reclaim year’s worth of retrospective fees now – but of course you may be able to argue that the various authorities failed in their duty to carry out proper assessments previously.

  22. Mel 4 years ago

    I am currently appealing a CHC decision for my mother who has dementia and is in a home. In October 2014 they granted her CHC but had turned her down in July 2013. I am appealing that but she had been in the nursing home since July 2012 and because Social Services failed to come and do an assessment within 6 weeks of her entering, (they came 8 or 9 months later), the CHC assessment wasn’t flagged up, so it wasn’t until a year later that they finally came and assessed her. Now they won’t let me appeal back to July 2012 saying time for appeal had run out. I fully believe my mum was entitled to CHC up to 10 years ago, but Social Services she wouldn’t be eligible even though her behaviour has not changed in that time.

    I am not very savvy with CHC. Because no assessment was made in 2012, does this mean they won’t do a retrospective appeal to then? I feel my mother has been rather cheated.

    • Angela Sherman 4 years ago

      I can understand your feelings that your mother has been cheated, Mel. You could argue that the health and social care authorities failed in their duty to carry out the proper assessments at the correct time.

  23. Heather 4 years ago

    Like Lesley, we have made a retrospective CHC funding claim for my now deceased father. it has taken nearly three years to win our appeal case, but are now awaiting a cheque for over £17,000. We did not have legal representation, just lots of hard work reading everything about NHS continuing healthcare funding and not giving up, continuing to argue our case. We actually found that at the appeal meeting we were at an advantage representing ourselves as we made it more personal. Solicitors will want their cut and they are only going on what you tell them. we found the people on the appeal panel very nice and very helpful and considerate; just the other meetings to get there we found it was like banging our head against a brick wall. My advice: stick at it, don’t give up, know your rights and be prepared to argue your case. My father died two years ago, but they awarded the funding for the last nine months of his life, so worth all the heartache for my step mother and family. Good luck to everyone still in the system!

    • Angela Sherman 4 years ago

      I’m so glad you were able to succeed, Heather. When using a solicitor, I think it’s vital that the family still remains fully involved. No one knows a person like the family does, and also a family member feels the anger and emotion of the situation and can often bring that to bear (for positive outcome) in meetings and reviews. Specialist solicitors in this field can be invaluable, though.

    • Chris-G 4 years ago

      I agree with you Heather, the personal touch in representation at meetings is essential in my book. I personally would suggest using lawyers to clarify any action that you might wish to take that could be construed as unlawful. Such as not paying the council for care and accommodation.

      Lawyers can also put people in touch with expert nurse representatives that can argue the DST for you from a professional viewpoint that you might lack.

      All the best.

  24. Lesley Jacklin 4 years ago

    I have made a retospective claim in the past for my mother and recently a nhs continuing care claim for a friend, both being successful. The NHS both times have been slow, unhelpful and obstructive. It is only because I had taken a lot of time researching and knowing my rights and not giving in to their bullying tactics that we were sucessful.

    • Chris-G 4 years ago

      Good for you Lesley.

      As Angela has written in her article; the NHS does not think that legal services are necessary. That is simply because the Framework states that is the case. Yet we regularly see references to patient representatives suffering extreme scrutiny from the Office of the Public Guardian (OPG) and that surely requires some accountancy and legal expertise in certain circumstances. Such OPG action of course only being required because the NHS has often maladministered the process and it is then the LA or the care home that involves the OPG because of the NHS’s unlawful shifting of the financial responsibility.

      Bearing that in mind, why then is the OPG not looking into the NHS’s maladministration of a person’s CHC funding when it risks unnecessary expenditure of a vulnerable person? It is an exact analogue of the OPG looking into allegations regarding a representative’s handling of the patient’s finances after all!

    • Angela Sherman 4 years ago

      Well done for persevering, Lesley.

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