Retrospective claims – 3 New Tricks To Watch Out For!

We recognise that NHS Clinical Commissioning Groups (CCGs) have to make great savings in their annual budgets, but we have come across 3 scenarios recently that we just had to bring to your attention as CCGs seek more inventive ways to evade making proper restitution (reimbursement) to families for wrongly paid care fees who have have launched successful retrospective claims.

Watch out for the CCGs’ latest tricks to save costs

Vital Information About Paying For Care

Background:

“NHS Continuing Healthcare is a package of care arranged and funded solely by the health service in England for a person aged 18 or over to meet physical or mental health needs which have arisen as a result of disability, accident or illness. Where an individual has both health and social care needs, but they have been assessed as having a ‘primary health need’ under the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care3 (the National Framework), the NHS has responsibility for providing for all of that individual’s assessed health and social care needs. This care can be provided in a number of settings, including at home.”

If you think that your relative may a ‘primary health need’ and have been eligible for NHS Continuing Healthcare Funding (CHC) for a past period of care, start by writing to their local CCG’s NHS Continuing Healthcare Department to request a retrospective review.

If successful, your relative will be entitled to reimbursement of all their care fees paid during the period of eligibility under consideration – including the full cost of their care/nursing home accommodation – which could amount to many tens of thousands of pounds (plus interest) being reimbursed.

A retrospective review can take place irrespective of whether the patient is living or has passed away.

However, because CCGs don’t publicly advertise the fact, many families don’t even realise that they can ask them to do a retrospective review of their relative’s healthcare needs!

There is, however, a time limit as to how far back you can claim retrospectively. If you are starting a retrospective review claim now, currently you can only go reclaim care fees going back to 1^st April 2012.

The retrospective review process is supposed to engage with individual, their family and/or appointed representatives. However, it has been said by families that they felt that the MDT:

• approached the assessment with a pre-conceived outcome and had already made up their minds in advance i.e. that their relative was not eligible for retrospective reimbursement.
• ignored their views or comments and failed to gather sufficient evidence to ensure a robust assessment.
• failed to provide an accurate picture of their relative’s health and social care needs by relying too heavily on documented evidence from the care provider, even when this information was demonstrably false.
• refused to consider any evidence or comments seeking to correct the assessors’ misunderstanding or address misinterpretation of the care records or their relative’s care needs.

Historically, family representatives were often invited to attend the retrospective MDT, to provide evidence to the Panel before a decision was made. However, in more recent times, due to inherent backlogs, compounded by the coronavirus pandemic (and thousands of retrospective cases being put on hold for months until 1^st September 2020), retrospective reviews are now carried out ‘in-house’ by the CCG’s appointed nurse assessors or else delegated to third parties such as a Commissioning Support Unit (CSU).

This has largely become a paper exercise whereby the CCG will complete a Needs Portrayal Document and send it to the family or their representative in draft for comment and invite them to submit their Written Submissions document in response. Once the CCG have received a reply, their assessor will then complete a Decision Support Tool making a ‘recommendation’ as to whether or not CHC Funding should be granted retrospectively. The CCG should ordinarily follow that recommendation and will then write to the family with their decision letter and timescales for any appeal if you are dissatisfied with the outcome.

Below are 3 recent scenarios that you need to look out for:

Scenario 1 – Make sure you don’t get short-changed!

We came across a situation recently where the family had been successful with their parent’s retrospective review claim and the CCG had agreed to refund care fees for the full period in question except for the last few weeks at ‘end of life’ when the patient was admitted to hospital with an acute deterioration of symptoms. The CCG’s bizarre rationale for refusing to reimburse the last few weeks of care home fees whilst in hospital, was simply due to the fact that the patient wasn’t living in the care home, but in hospital.

This stance was utterly incomprehensible, very upsetting for the family and tantamount to penny pinching.

The CCG’s flawed arguments ignored the fact that the patient was still contracted to pay for her care at the care home even whilst in hospital.

The matter was challenged by the family’s appointed legal advisors and the CCG immediately apologised for their oversight and agreed to reimburse the family the full period during hospital admission until the date of death. However, without legal representation, it is possible that the family wouldn’t have spotted the CCG’s error or known how to mount a successful challenge.

Scenario 2 – Make sure you get paid!

Here’s another baffling scenario…

A family won their retrospective review claim after many years battling their CCG for reimbursement of their relative’s care fees. However, somewhat bizarrely, it is this particular CCG’s unique policy to repay the restitution directly to the care home and not the family! This unusual practice is contrary to every other CCG in the country that we have come across.

The family made the claim through their legal advisors, not the care home. So obviously, it is the family who are entitled to reimbursement and not the care home. That is logical sense – but not apparently to the CCG – despite it clearly being the family’s loss, not the care home’s. It seems a deliberate ploy to cause further frustration to the family by paying their restitution via a third party care home who had absolutely nothing to do with the matter. By doing so, the care home has now effectively received a (temporary) windfall and double payment: once from the family whose relative wrongly paid for their care in the first place, and now again, from the CCG! This money does not belong to the care home.

When challenged, the CCG’s answer was that they’ve always done it this way and paid the care home directly because: (a) it’s far more convenient from an administrative perspective (ie rather than paying the family whose claim it is!) and; (b) as the family paid the care home, it is the care home’s responsibility to reimburse them not the CCG. Really! We cannot get our head round this incomprehensible logic.

The CCG say that the care homes are told to expect payment and are expected to pay it over to the family immediately once received. Sure! But on this occasion, somewhat unsurprisingly, the family weren’t initially told by the CCG that monies had already been paid to the care home. So, in effect this means that a care home could sit on a family’s restitution monies for a number of weeks, leaving the family to chase them for payment. What happens if a care home refuses to pay or goes bust in the meantime?

By involving the care home, not only has the CCG has created more periphery administration for other parties, but moreover, has now heaped further distress and anxiety upon the family who will have to chase the care home to get their lawful restitution payment released.

This is a farcical situation which also raises a serious question of breach of data protection legislation – paying funds to a third party who have no involvement in the retrospective review process or legal entitlement to those monies.

Tip: If you are successful in your retrospective claim, insist early on that the CCG pay you directly. If they refuse, consider lodging a formal complaint and reporting the matter to NHS England.

What Evidence Do I Need To Prove My Claim For Past Care Fees Paid?

Scenario 3 – Don’t forget your entitlement to interest!

Reimbursement, often referred to as ‘restitution’ or ‘redress’ should include interest as of right. This is set out in the NHS Refreshed Redress Guidance which came into effect on 1^st April 2015.

The Redress Guidance states 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.”

That includes paying interest! Part of the rationale is that if the money was not been spent on care fees, it could have been invested and earned interest instead.

CCGs are obliged to add interest to the restitution sum (currently paid at RPI rates) and should provide you with a detailed breakdown showing how they have calculated reimbursement of the care fees and interest payable. If they don’t, just ask them to supply their interest calculation so that you can check it is accurate.

CCGs can make mistakes, so do check the figures carefully, and query any discrepancies with them.

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

One CCG recently tried to get away with not paying any interest on the restitution sum awarded following a family’s successful retrospective review.

The CCG agreed the patient was indeed eligible for reimbursement of past care fees paid but deliberately omitted to include interest on the restitution sum.

The NHS Refreshed Redress Guidance provides that where there has been ‘maladministration’ (i.e incompetence) the CCG should pay interest on the restitution (currently at RPI rates). This is an automatic entitlement.

Luckily, the family had the benefit of expert legal representation who saw through the CCG’s attempt to evade paying interest and immediately queried why it was omitted contrary to the NHS Redress Guidance. The CCG responded that it is not their policy to apply interest unless specifically requested to do so! So basically, if you don’t ask for it, you won’t get it!

The CCG said that only if the [family] wrote in to ask for interest, would the CCG then consider the matter and recalculate restitution applying interest.

This is a staggering abuse of power and outrageous policy, deliberately seeking to take advantage of unsuspecting individuals in contravention of the NHS Redress Guidance just to protect budgets. We wonder how many families over the years have simply accepted reimbursement from a CCG believing it to be the maximum extent of their restitution and missed out on interest, without ever knowing that they were automatically entitled to it?

Sometimes, the interest payable can be very significant, especially on a lengthy retrospective review periods spanning back several years or where the monthly care fees paid are substantial.

Retrospective Review Claims – Everything You Need To Know About Claiming Interest

What To Do If You Haven’t Received Your MDT Decision Or Received CHC Funding?

Remember – you don’t have to fight this battle alone. We recommend that you get professional help for any retrospective claim to maximise your chances of success. The sums involved could be considerable.  A good advisor will review all the relevant care and medical records and give you advice as to your chances of success. They can also draft your Written Submissions to argue your case in a professional and robust manner.

Here’s a selection of related blogs on the subject that will help you:

Confused? Read This Before You Start Your Retrospective Appeal for CHC Funding…

Retrospective Reviews for past periods of care – avoiding fatal mistakes

Where is your retrospective CHC claim up to? If you’re frustrated by delays, read on…

How To Recover Care Fees After A Successful Retrospective Review

Know your rights – Appealing the CCG’s refusal to grant CHC funding

If you need help with your retrospective review – collating records and assessing your relative’s chances of successfully retrospectively recovering care fees or help with advocacy, visit our 1-2-1 Support page for more details.

For more information, browse through our Care To Be Different website to find lot of free tips, resources and hundreds of helpful blogs.

Get our book How To Get The NHS To Pay For Care (paperback or PDF).

You can also speak to a specialist CHC Nurse Advisor or our General Advice Line.

For specialist advocacy or legal help for any stage of your claim for CHC, visit our 1-2-1 Support page.

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