This blog looks at various issues arising out of a successful retrospective claim for NHS Continuing Healthcare Funding and how to recover care fees or how to get paid.
A claim for a retrospective review can be made whether the individual is living or has passed away.
We answer some of your common questions, show you how to avoid pitfalls, and help you quickly recover fees that were wrongly paid for your relative’s care.
Tom makes a retrospective application for NHS Continuing Healthcare Funding (CHC) on behalf of his late mother, Mrs B. He believes that she had a ‘primary health need’ and met the criteria for CHC Funding when she had complex and challenging needs in 2016, before she passed away in 2017.
He makes an application to her local Clinical Commissioning Group (CCG) to undertake a retrospective review of her healthcare needs.
The CCG undertake a review of Mrs B’s care home and medical records but find that her healthcare needs were not sufficiently high to meet the eligibility criteria.
Tom remains dissatisfied and appeals to the CCG’s Local Resolution Panel who agree that his mother was not eligible.
Tom takes the matter to a final independent appeal before NHS England. The Independent Review Panel consider all the evidence and conclude that the CCG’s decision to refuse CHC was ‘unsound’ (ie polite version of ‘wrong’) and that Mrs B was indeed eligible for CHC for the period 01/01/16 to 31/01/16.
The CCG accept NHS England’s decision outcome and agree to provide retrospective restitution (ie reimbursement) for all of Mrs B’s care home fees during this period. Tom was sorting his mother’s finances to assist his elderly father, George, and recalls that she was paying £1,250 per week for her care.
The estimated value of restitution is £65,000 in care fees that were paid unnecessarily in 2016.
Now comes the task of claiming back those fees that should not have been paid and how you go about it.
How will I know if the retrospective review for CHC has been successful?
The CCG should write to your relative (or their representative) confirming their positive outcome decision and stating they will provide restitution for the awarded period of eligibility. They will also invite you to provide proof of the care fees paid for their consideration and reimbursement.
The burden of proof rests with you, as the applicant, to show to the CCG’s satisfaction what monies have been paid for your relative’s care so that they can be reimbursed.
What proof will the CCG ask for?
Most CCGs have moved the goalposts over recent years, and simply providing invoices from the care home is usually no longer sufficient. They feel that an invoice does not necessarily mean that the care fees charged were actually paid on time, in full as billed, or at all. The invoice just shows the amount due, and the resident might have delayed making payment for a variety of reasons. For example: due to a lack of funds, sheer oversight, or paid in part by agreement, etc. Hence, most CCGs will usually insist on the applicant providing additional supporting documentation for the period of eligibility awarded. This will usually include the following:
- Invoices (preferably on the care home’s stationery)
- A Statement of Account from the care home (preferably on letterhead stationery)
- Bank statements (preferably with bank logo) to prove when and how much payment was made
Why am I being asked to provide yet another form of authority?
Despite having corresponded with the CCG for many months, (or possibly years!) whilst processing your relative’s application for a retrospective review, some CCGs will still request you provide updated proof of your authority to act, ID and address.
However frustrating this may seem, understandably, CCGs need to be sure that the person who will be receiving reimbursement is legally entitled to it. This, of course, could be a different family member from the person bringing the retrospective appeal. So, in our scenario, whilst Tom might be Mrs B’s son and acting as the family’s representative, it is actually Mrs B’s husband, George, who is the sole Executor of her estate and named on the Grant of Probate. The CCG’s payment should therefore be made to George, as his late wife’s Personal Representative, and not Tom.
Whilst sometimes, it can appear that the CCG’s requests for additional proof and documentation are unreasonable or just delaying tactics, it is important to recognise from their perspective that they need to ensure that the individual(s) with correct legal standing receives payment.
What sort of legal authority will I need?
If your relative is living, but doesn’t have mental capacity to action their own affairs, the CCG will accept a Lasting Power of Attorney from their appointed Attorney(s).
For a deceased relative, authority will usually take the form of a sealed Grant of Probate.
However, if no Grant of Probate is available, then the CCG may be satisfied with a certified copy of the original Will appointing named Executors.
If not, as a last resort, some CCGs may accept an affidavit (oath) confirming that you are a person with legal standing and authority to receive payment of the award.
Of course, applying for a Grant of Probate usually takes many weeks (and adds expense) which can delay payment and can be hugely frustrating after so much time already spent challenging the CCG. There can also be tax implications of taking out a Grant where there is a large estate. Therefore, we recommend you seek specialist advice first.
What sort of proof of ID and address will I need?
CCGs may ask for proof of ID (e.g. passport or photocard driving licence) and a recent utility bill (current within the last 3 months).
At what point should I get this information together?
It is always preferable to collate proof of payment (and where applicable, get the Grant of Probate organised) as soon as possible when making your retrospective claim. Don’t wait. That way, you can identify any missing information early on and get hold of it quickly whilst it is still possibly available. This is preferable to waiting for the outcome decision and then incurring added delay whilst scrambling around trying to hunt down missing proof. This can present problems as we’ll explain later.
We therefore recommend that you attend to this collation task as soon as you start to consider making your retrospective claim.
Remember: Without proof, you run the risk of winning the retrospective claim but not getting paid your due restitution monies.
Tip: Get proof for the whole of the retrospective review period under consideration.
Remember: Keep the documentary evidence safe as it may be some months, or possibly even years, before the final outcome as to eligibility is determined.
What happens if I can’t get hold of proof of payment?
It is quite common that care homes can go bust or have to close for a variety of reasons; whether due to financial viability, poor management, COVID restrictions or breach of regulations. Others might have been sold on.
From experience, if a care home closes or is sold on, we know that it can become a real challenge trying to track down missing invoices or statements of account to support your financial claim for reimbursement. Many hours can be spent investigating the whereabouts of these illusive records, sometimes to no avail because they have been destroyed or the new personnel have no idea where they are currently stored.
What happens if I haven’t got any proof at all?
Remember, burden of proof is on you to show what they have paid for their care so that the CCG can make restitution and reimburse those fees.
Without proof, the CCG can technically refuse to reimburse your relative’s care fees.
However, that would be a grossly unfair outcome. It is inconceivable that a commercial care home would allow a resident to remain there, long term, without being paid.
Farley Dwek Solicitors have kindly shared with us some useful information which is invaluable in circumstances where you have absolutely no proof at all.
They suggest looking at the PHSO guidance, “Continuing Healthcare: Getting it right first time”. Here’s the link:
In particular, read Mr J’s Story on page 26 which we’ve copied below
“Mr J was awarded retrospective NHS CHC funding for a five-month period in 2011, to be paid to his estate. His niece, Ms D, was the executor of his estate and the CCG asked her to provide evidence of payments for Mr J’s care. Ms D asked Mr J’s nursing home to provide this evidence, which she in turn gave to the CCG. The CCG decided this evidence was not sufficient, because it did not show proof of the charge for the care, or that the payments were made. The CCG told Ms D it needed bank statements as evidence of the payments. Ms D was unable to source bank statements from Mr J’s account. The CCG’s own guidance states that where there are gaps in evidence for reviews of previously unassessed periods of care, the CCG should ask the care home or other relevant organisations for evidence, with the claimant’s permission. For example, the CCG should have asked the local authority if it contributed towards the cost of the claimant’s care. It could also ask the claimant’s GP to verify the claimant’s address during the period in question. As a last resort, guidance states the CCG should reimburse the claimant at the rate of the CCG’s predecessor, the Primary Care Trust (PCT). We found no evidence to show that the CCG attempted to gather evidence from any of these sources, or pay the claimant at the PCT rate, in line with its own guidance. We recommended that the CCG obtain the necessary evidence of fees, or make a calculation based on precedent, and reimburse Mr J’s estate. The CCG subsequently paid Mr J’s estate over £6,000”
The PHSO guidance makes it very clear that it is still incumbent upon the CCGs to reimburse applicants even where there is no available evidence. This will usually be at the contractual ‘bed’ rates CCGs were paying the care home for the CHC period awarded. Whilst in most cases this is likely to be far lower than the actual rates the family were paying for care, some reimbursement is better than nothing.
What happens once I send proof of payment to the CCG?
The CCG will consider your documentary proof and may ask for additional documentation if they are not fully satisfied. Challenge any attempts to use this purely as delaying tactics.
Once satisfied, the CCG will send out an offer letter for restitution together with a breakdown of their calculation (including added interest).
You may be invited to agree the amount offered and send back an authority form confirming your acceptance of the sum offered.
However, simply getting a letter saying that the CCG are going to pay you X thousand pounds, is not sufficient, nor transparent. You are entitled to a full breakdown of their offer, including how they have calculated interest, and should insist on seeing it so you can check their calculation against your paperwork.
CCGs do make mistakes! Therefore, it is vitally important that you do check their calculation carefully to ensure that it is accurate. If you have any concerns or questions, or simply want some clarification, you must contact the CCG, as once you have signed their form of acceptance, it may be too late to argue about any errors, however obvious. CCGs rarely make mistakes with their calculations, but even so, we strongly encourage you to read their offer letter carefully.
What happens if I don’t agree with the CCG’s award?
Sometimes, CCGs will just provide you with their offer letter and calculation, but not request any signed form of authority. They will merely state that they are going to make payment based on their calculation – fait accompli. Again, it is important to check their figures are accurate, and if you have any doubts, take the matter up with the CCG, directly. As payment is going to be processed automatically, you are usually at liberty to mount a challenge even after payment has been received, if you disagree with any aspect of their calculation.
Beware! Some CCGs stipulate that acceptance of their offer is in full and final settlement of the awarded period of eligibility and/or state that cashing their cheque is deemed to be in full and final settlement unless it is returned to them. This is taking unfair advantage and is contrary to the NHS Redress Guidance.
Therefore, check the small print in their offer letter very carefully (and both the period and the amount being offered) to make sure you do not fall foul of this trick by eagerly accepting the payment in circumstances where you may want to challenge it or seek clarification.
If you do not agree with the offer, then you must challenge it and state why.
In the meantime, to protect your position we recommend that you get permission from the CCG to accept/cash any payment tendered as an interim payment only whilst any ongoing matters or disputes (or other periods under appeal) are still outstanding.
The NHS Refreshed Redress Guidance makes it very clear that prompt payment should be made (ie by way of interim payment) so as not to delay matters whilst any outstanding or ongoing dispute is addressed separately:
“3.5. 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.”
This is the reason why some CCGs just make payment without waiting for the applicant’s signed authority accepting the offer. Any disputes can be dealt with separately and it stops interest accruing on the restitution sum.
Am I entitled to interest on the restitution award?
Yes! Payment of interest is provided for in the NHS Regress Guidance and is typically paid at RPI rates for decisions awarding CHC after 1 April 2015. Had your relative not spent the monies on care fees they could have been invested or used for other purposes. They have lost the use of those funds and should be reimbursed accordingly.
The Refreshed Redress Guidance maintains the long-established principle 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.”
Can the CCG lawfully withhold tax from my restitution payment?
Yes. At present CCGs are in dispute with HMRC as to whether the interest payable is taxable. Until the dispute is resolved, CCGs are mandated by HM Inland Revenue and Customs to withhold tax at 20% on the interest element payable, in case it has to be paid over HMRC. If, however, CCGs are successful in their appeal, they will pay individuals this withheld balance of their restitution monies.
How long does it take to get paid?
Payment timescales can vary from one CCG to another. Some are super-efficient and can process payment within 7 days. Typically, however, most take an average of around 30 days. Some are hugely under-resourced and/or seem to find every excuse to delay payment! So, don’t be afraid to chase frequently. They have agreed to make payment, so there is no reason to delay matters further. Ask for wasted interest if the delays are extortionate.
Watch out for the latest tricks to avoid payment.
Please read our article: Watch out for the CCG’s latest tricks to save costs
But now there’s a new ‘trick’ on the block to look out for…
We have encountered a bizarre situation recently where a CCG who have refused to pay the full period of CHC awarded because the resident was in hospital for part of the time! This is a highly unusual stance, which completely ignores the fact that the resident was still living in the care home and contractually bound to pay their weekly fees for her care, regardless of her temporary hospital admission. An unbelievable example of the lengths some CCGs will go to.
If you need specialist help recovering care fees, visit our 1-2-1 Support page.
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