Retrospective claims for CHC Funding – Claim back monies already paid.
NHS Continuing Healthcare Funding (CHC) is free funded care paid by the NHS for individuals who have a ‘primary health need’. If you meet the CHC assessment criteria and have a primary health need, then the NHS is obliged to pay for all your care fees, including accommodation, whether at home, in a care home or other care facility.
Sometimes claims for CHC Funding are made retrospectively, too i.e., after the individual has already paid for care fees from private means e.g., the sale proceeds of their home.
Depending on the circumstances, retrospective claims for CHC can be made whilst the individual is living (e.g. waiting for a CHC assessment, or if in receipt of Funded Nursing Care), and/or after they have passed away.
If your relative has never been assessed by the NHS for CHC Funding, they may be entitled to make a retrospective claim for previously unassessed periods of care. However, at present, these claims can only recover care fees going back to April 2012. But, that could still amount to many hundreds of thousands of pounds for longer periods of care.
Or if they were assessed, but that assessment was flawed, done incorrectly or simply not up to scrutiny – leading to a refusal to award CHC – then consider appealing! But note, there is a strict 6-month time limit from the date you receive the negative outcome decision.
What happens next if you have successfully made a retrospective claim and your relative has been awarded CHC Funding?
Well, firstly, the NHS Integrated Care Board (ICB) should write to you promptly with their outcome letter confirming the period of eligibility awarded. They will also ask you to provide proof of payment of the care fees paid so they can calculate the exact sum to be reimbursed.
Usually the ICB will require invoices from the care provider/care home, a statement of account from the care home, and bank statements covering the award period. This can be a lot of paperwork to collate and can prove a real headache if you haven’t kept the documents handy, or the care home has deleted the records or since closed, or the bank hasn’t retained them because they are over 6 years old. There are ways round this to satisfy the ICB, but it is not as good as having the original paperwork, and can lead to lower pay-outs. In such circumstances, the ICB will probably offer you their standard ‘bed rate’ for that care home, which will inevitably be considerably less than the actual amounts paid for care.
In some cases, the ICB may also ask you (yet again!) for proof of your status to act (i.e. Lasting Power of Attorney for living patients, or a copy Will and Grant of Probate for deceased patients) together with updated proof of your ID and address. Unnecessary? Of course, especially so, when most of these documents will have already been provided to the ICB at the outset when launching the retrospective claim! But there is often no way round this superfluous bureaucracy and added delaying tactics; so rather than argue, it is far easier just to provide the documents again, because you won’t bypass their red tape.
According to the NHS Redress Guidance, the purpose of restitution (i.e. reimbursement) is to put the individual back in the position they would have been but for the ICB’s maladministration. Translated, this means that your relative is perfectly entitled, as of right, to interest on the restitution monies to be reimbursed – dating back to the time of the first payment. That can amount to a significant sum, sometimes almost as much as the actual restitution sum itself.
Don’t be fobbed off if the ICB tries to get away with it and omits or declines to pay you interest. Quote the NHS Continuing Healthcare Refreshed Redress Guidance which came into effect on 1st April 2015, below, which says:
“1.4… where maladministration has resulted on financial injustice, the principle of redress should generally be to return the individual to the position they would have been in but for the maladministration which occurred.
1.5 This guidance recommends that the Retail Price Index is the appropriate interest rate to apply.
2.4 The purpose of redress is solely to restore the individual financial position they would have been in had NHS Continuing Healthcare been awarded at the appropriate time.”
After all, had the individual been assessed at the outset, or assessed correctly, they would not have needed to pay for their care privately and could have put the money to alternative use or even invested it, whereby it would have increased in value. So don’t be bashful. The entitlement to interest is automatic and should not be withheld.
Checking the offer
The ICB will make an offer of the sum to be reimbursed with added interest. In addition, the ICB should be transparent and freely disclose their calculation showing how they achieved this sum, the interest element added, and the RPI rates used. If the ICB only provide an offer letter without their workings, you should ask for it. How can you possibly know whether the offer looks reasonable without seeing how they’ve calculated it! So don’t be afraid to insist on seeing a breakdown if one isn’t provided.
Unfortunately, each ICB’s finance department seems to adopt an individual approach to calculating interest. Some are simple, clear and relatively straightforward; others have invented a whole new science around calculating interest, requiring telepathy and a degree in mind-reading combined with Further Maths!
There is no consensus of uniformity across the country as to how interest should be calculated – other than to say it should be done using RPI rates. So we recommend that you check their calculation and methodology carefully to ensure it looks reasonable and that you are not being short-changed. Do the figures presented stack up? Have the correct RPI rates been used? Are all totals added up correctly?
You will usually be asked to sign an agreement accepting the amount offered in full and final settlement of the CHC period awarded. So do check it carefully before committing to accepting an offer. If you have any doubts, contact the ICB and ask them for clarification or an explanation.
If you aren’t confident in doing it yourself, you can always seek advice to be sure the ICB aren’t trying to pull the wool over your eyes and that you are getting your full entitlement to interest.
Note: Due to an ongoing dispute between HMRC and the NHS, income tax on the interest element calculated will be deducted at 20% and withheld by the ICB pending the outcome of this matter. If the NHS are successful in arguing that tax isn’t payable, then the 20% retained by the ICB should be repaid to you. However, at present, there is no end date for this dispute.
If you do mount a challenge as to the ICB’s methodology when calculating interest, the typical response is, “That is the way we have always done it and there is no reason to change.” But, of course, that doesn’t necessarily make it the best way of calculating interest in your favour and, in some cases, can mean families losing out financially. ICBs are notoriously intransigent when it comes to challenging their methodology, and from experience, you are never going to convince them to change their immutable ways. So, in practice, it is a case of accepting the basis of their methodology however convoluted it might appear – as mounting a challenge isn’t necessarily a productive use of your time and inevitably just prolongs payment. But, as above, do still check their maths is correct.
Claiming care fees post-death
Issues can arise where some ICBs argue that they are only liable to reimburse care fees for the awarded period of CHC. That is usually correct.
But take a hypothetical scenario where, for example, ‘Mrs Smith’ is found eligible for CHC, retrospectively, for the period 01.04.2018 to the date of her death on 31.10.21.
Ordinarily, the ICB would only be liable to reimburse care fees during this period awarded.
However, Mrs Smith’s contract with the care home states that she has to pay 10 days’ fees post-death (for cleaning) amounting to £1250. However, the ICB, refuse to reimburse these additional days post-death as part of restitution and argue that this is her responsibility under her contract, not theirs.
What should Mrs Smith’s family do?
Firstly, they must stand their ground and contest this and, if necessary, raise a formal complaint with the ICB.
Secondly, quote the NHS Redress Guidance above– stating that the purpose of restitution is to put the individual back to the position they would have been in but for the ICB’s maladministration. I.e had Mrs Smith been assessed (or assessed correctly and robustly) at the outset, she would have been awarded CHC Funding at that time. As such, she would NOT have needed to enter into a private contract with the care home. As a result she has therefore suffered financial hardship by paying care fees unnecessarily. Instead, what would have happened is that the ICB would have entered into a contract with the care home at the outset to pay for Mrs Smith’s care fees, and would have stipulated that such payment ceases immediately on death. Therefore, Mrs Smith is entitled to full reimbursement of £1250, plus interest!
If you meet with resistance from the ICB, we suggest that you seek professional advice immediately and, if necessary, take the matter to the Parliamentary and Health Ombudsman. Do not let the ICB get away with it.
Under clause 3.5 of the NHS Redress Guidance, the ICB has an obligation to make prompt payment once the eligibility decision for CHC has been reached. So, don’t let the ICB drag matters out. Insist on prompt payment. If there is a dispute, request an interim payment for those sums that can be agreed and then deal with the outstanding matters separately. But don’t let the ICB withhold or refuse to make payment until all issues have been finally resolved – as that is contrary to the Guidance and, arguably, tantamount to blackmail.
Succeeding in getting the ICB to award CHC Funding retrospectively is only part of the equation.
Proving the amount of restitution to be reimbursed can be challenging, too. So, if pursuing a retrospective claim, we strongly recommend that you get your documentary proof together at the outset whilst the evidence is hopefully still available and that will save time later on if your CHC application is successful.
Getting paid the correct restitution sum can involve mental gymnastics, so do check the ICB’s offer carefully, and, if in doubt, get help!
For more reading on the subject: