Watch out for the CCG’s latest tricks to save costs

Watch out for the CCG’s latest tricks to save costs

Here are two new areas of concern which we need to bring to your attention.

If you’ve made a retrospective claim to recover care fees that shouldn’t have been paid and are due to receive reimbursement from your Clinical Commissioning Group, don’t be caught out by new tactics to reduce your compensation award. Read on…

No.1 Deducting Attendance Allowance

Take this scenario:

You’ve battled with your NHS Clinical Commissioning Group (CCG) for a good number of years, retrospectively trying to get NHS Continuing Healthcare Funding for your relative who has since passed away. The CCG has turned your relative down for funding at every opportunity, putting you through the mill, raising objections and hurdles along the way, whilst trying to wear you down. You are forced to make appeal after appeal en-route to an Independent Review Panel Meeting (IRP) conducted by NHS England. The IRP find in your relative’s favour and retrospectively award your relative NHS Continuing Healthcare Funding. That could be many thousands of pounds that the NHS are due to reimburse your relative for wrongly charged care fees. You would hope that after years of fighting to get your entitlement to funding, that the CCGs would now pay up promptly.

Not quite! A new tactic is emerging.

We know that the NHS has to make £855m in efficiency savings by 2021, and it seems that a new plan has been hatched by some CCGs ie deducting Attendance Allowance from the restitution sum payable.

For example: The IRP finds that the CCG should reimburse care home fees wrongly paid for a 2 year period. The CCG make a calculation that your relative is due to be reimbursed £100,000. However, because your relative has been in receipt of benefits ie Attendance Allowance, during that period, they allege that those benefits should be deducted and paid to the Department of Work and Pensions (DWP). This tactic is outrageous and blatantly flawed!

So, not only has your relatively wrongly been paying care fees for a number of  years (that should have been paid by the Clinical Commissioning Group), and then made you fight for many years to get CHC funding, they now want to add ‘insult to injury’ by unilaterally deducting Attendance Allowance just at the point of reimbursement. Where is that permitted in the National Framework for NHS Continuing Healthcare Funding and NHS-funded Nursing Care?

There is simply no legal entitlement for Clinical Commissioning Groups to do this.  If this happens to you, then you MUST object strenuously. It is wrong and unlawful, no matter what the CCG says!

Note:  If an individual is still alive, the Clinical Commissioning Group are entitled to deduct Attendance Allowance from the restitution award and should repay it to the DWP.

No.2  Not paying interest

Fact: You are legally entitled, as of right, to claim interest on the retrospective compensation award that is payable by the CCG.

This is clearly set out in the NHS Continuing Healthcare Redress Guidance, effective from 1st April 2015, which states that “Where maladministration has resulted in financial injustice, the principle of redress should generally to be to return individuals to the position they would have been in but for the maladministration which occurred”.

However, we have recently learned of one particular group of CCGs who have been trying to avoid paying interest on monies due on retrospective cases by simply ‘rebranding’ a retrospective review and calling it a “Desktop Review” instead.

In this scenario, the CCG were asked to carry out a retrospective review of a previous period of care dating back a number years and to assess whether the individual met the eligibility criteria for NHS Continuing Healthcare Funding. The CCG followed exactly the same assessment process when doing their retrospective “Desktop Review” of the claim, using the standard Decision Support Tool form prescribed in the NHS National Framework, and using all the same criteria to assess eligibility for CHC etc. But, somehow, despite all these identical factors, the CCG allege that wasn’t a retrospective review, just because they called it something different. Really? All quite novel, but it doesn’t wash!

Why is this relevant? Because the CCG now argue that they don’t have to pay interest if the decision to grant funding is based on a “Desktop Review”.  Where does the National Framework for NHS Continuing Healthcare Funding and NHS-funded Nursing Care even refer to a Desktop Review? Again, this is just another blatant attempt to save money and deprive families of monies they are legally entitled to.

Trying to disguise what is clearly a retrospective review, by calling it whatever other name a CCG may arbitrarily chose to suit their purpose, is just another appalling attempt to evade payment of interest rightly due on the restitution award, and is simply wrong.

This new spate of NHS tactics is extremely worrying. Most individuals wouldn’t necessarily know any better and could easily have the wool pulled over their eyes by a CCG as they attempt to make further savings.

Conclusion:

We wonder what the NHS will think of next…

If you have encountered situations where your CCG have either attempted to deduct Attendance Allowance improperly or refused to pay full interest on a retrospective award, leave a comment below…

For further reading around the subject, look at:

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

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

13 Comments

  1. James Allison 5 days ago

    Hi,

    This solicitor is an expert in care and nursing care cases : http://www.farleydwek.com

    They provide an online guide to NHS care or hard copy if you prefer that.

    Jim

    • James Allison 5 days ago

      Please note, I have no connection with this solicitor. I only put the URL because colleagues have told me they are excellent in dealing with the problems of NHS care in Registered Care Home and Nursing homes.

      Jim

  2. James Allison 5 days ago

    I have helped some people having problems relating to care homes and nursing homes, but usually pass them on to a solicitor with extensive experience in this field. I am a qualified Welfare Rights Lawyer but I am not a solicitor. I mainly deal with people with benefits problems such as Disability Living Allowance, Personal Independence Payment or Attendance Allowance.
    I used to sit on Tribunals for claimants appealing these benefits, but had to retire at 70. I’m now 78 years old but still do some work to keep my brain active.

  3. Jim Allison 1 week ago

    Hello,
    If you are in care home that also provides nursing care, then the nursing care should be paid for by the NHS .i.e CHC.
    From my experience there is a problem with what the care organisation calls itself, a nursing home does provide nursing care, because it’s nursing home. Many homes call themselves care homes, but still provide nursing care, for example if a district nurse calls to give treament such as injections then that is nursing care and should be paid by the NHS CHC.
    Some care homes have no qualified nursing staff, so they are entitled to charge for the care they give.
    This is a minefield for elderly people and their family. If in doubt seek advice from a solicitor experienced in this field.

    • Jenny 6 days ago

      With respect Jim, that’s a bit confusing. The first thing to establish are the care needs of the individual. If those show a Health Need or a Primary Health Need (depending on which version of case law, National Framework or NHS literature you read) across adequate domains then CHC is appropriate. Requiring the attention of a district nurse occasionally, or for one or two procedures is unlikely to be sufficient.
      Once the eligibility for CHC is established then Coughlan clearly states that the location of the care is immaterial – which is why the demand of various CSUs to individuals to enter care homes if in receipt of CHC was challenged in the European Court of Human Rights. A man who developed catastrophic injuries abroad, and who had a young family and a business he could better run and participate in from home was the case in point.
      In some cases, (my relative’s being one) if it is in the interest of a CHC receiving individual to remain in a Residential care home and receive regular visits from a GP and DN team to meet their needs, rather than increase confusion and anxiety by moving to a Nursing Home, then The National Framework covers and allows for this. (It would have to in order to be Coughlan compliant).
      Thus, when a care home with no nursing staff is charging for care, it is essential to establish through a DST assessment whether the individual has Health Needs, and not assume they are Social Care needs chargeable to the individual or via the Local Authority.

      • M Wetherall 5 days ago

        Hi Jenny, I absolutely agree with your piece but can see where Jim is coming from in respect of the majority of residents placed in nursing homes who should be in receipt of full funding, yet in many cases aren’t or as in my late father’s case received a small contribution through the Funded Nursing Stream.
        My late father was assessed by CHC and it said in the DST that his needs would be best met within a nursing home! Yet he did not meet the assessors target for scoring 2 severes so was only awarded FNC. He scored 1 Severe , 6 highs, 2 moderate & 2 no needs. He had Parkinson’s disease and advanced dementia as well as other health issues.
        I am presently waiting the outcome of IRP.
        I can understand Jim, when he says that there should be funding for all those in homes that are designated nursing homes.
        From my 2 year experience of visiting my dad in a nursing home daily I would have said that the majority of residents should not have been paying for their care, but they were! If my late father had not been in a nursing home he would have been in hospital! What’s the difference? The difference for dad was 66k
        The difference is the NHS is on its knees and the Government have failed on it’s manifesto to tackle the issue of a cap on care fees.
        Like many contributors to this forum we are all in the same boat trying to fight a system that is so unfair to that generation who worked so hard for this country,to put it back together after the war and now find themselves being penalised for being old and ill.
        CTBD is my go to forum for help and comfort!!!! Well done everyone, you keep me sane!!!

      • James Allison 4 days ago

        My wife recently had a full hysterectomy due to a massive cyst on her ovary. We have a Care Home less than 200 yards from us. My wife really needed support and her mails made for her. However, she was discharged from hospital after just 3 days, the norm for this operation is 5 days. My wife was still receiving anticoagulants , so for 4 days, the District Nurse
        visited my wife and gave her an anticoagulant injection. We had the charge for the Care Home reduced by £100, because the injections were given by a qualified District Nurse, as there are no qualified nursing staff to give these injections.

  4. Linda Samuel 1 week ago

    I am just two months into claiming NHS Continuing Healthcare Funding. A DST assessment was done well over six months ago, but the more I delve into it the more evidence I find that it was not carried out lawfully. The NHS assesser who was allegedly there on the day did not sign the visitors book in the home, therefore it appears that she was not actually there, they have not applied The Coughlan Test to my mother’s claim, the incorrectly done assessment was only done at the instigation of my brother, some four months after my mother went into the nursing home. Also, the assessment form actually makes statements about a different person! I wrote to the NHS trust and after six weeks they responded with a letter telling me I was way over the six months allowed to appeal. I didn’t tell them I wanted to appeal in my first letter, but that I believe their previous assessment was incorrectly carried out, therefore I expect a new assessment to be carried out , this time in a lawful manner. I have thoroughly read both of the Care to Be Different books and found them extremely useful and informative. I am just about to send my second letter in response.

    • Jenny 6 days ago

      Good. Don’t let them get away with it. Make clear that you and/or your brother will be at the assessment and that you require adequate notice of their intention to carry out the DST – so that you can prepare comments for each domain and put your points across and ensure they are noted at the DST.

  5. Denise 1 week ago

    My experience with the CCG with my mother was that when I was first told that my Mum had to go to a care home before the mental health team would give her medication for her alzeimers, (even though two years later when she passed away she still knew who I was and my name and other members of the family) was that they tried to just put her in any old home regardless of her needs and when I refused they said that she would then have to go through the DST before leaving the hospital. In that DST meeting the hospital had not written the correct information on my Mum’s file and I had good arguments for this. As such they then decided that the first DST meeting was null and void and I could choose her care home. I did this but was informed that I had to contact the DWP since she was no longer entitled to attendance allowance but having read this article and checking on this have found that a person is entitled to their attendance allowance if they fund themselves!! As it happens I was successful in obtaining full CHC funding for my Mum for the last two years of her life but if I had not been would the DWP have informed me that she would then have been entitled to her attendance allowance once more… I doubt it!! The social services also informed me that when I was first told that Mum would have to go in a care home that I would have to be a third party funder and pay the difference between what was deducted from my Mum’s pension and what the local authority would pay but I did a lot of research on this and found out about CHC funding and that the social services could not enforce this third party funding in the event that Mum was not awarded CHC.

    • Jenny 6 days ago

      Well done Denise. It makes you wonder whether anyone gets any training in this area, or whether it suits them all to make it up as they go along. They’ll try absolutely anything against people already in a stressful situation. Shocking.

  6. Jenny 3 weeks ago

    Having delved through the dodgy rationale behind the NHS Refreshed Financial Guidance imposing RPI on redress payments, I gather one of the reasons IRP was selected over Court rate interest was the need to deduct AA from payment to avoid profiteering by claimants. To deduct this (or indeed income tax) from redress paid with RPI level interest is unlawful.
    If anyone is interested I’ll try and find the reference for the AA and RPI arguments.

  7. D Jolly 3 weeks ago

    What about the costs payed to your solicitor if you win and the cost of a charge on the property at the land registry it seems you have to pay these costs after selling the house to pay for care wrongly taken by the NHS , It is a bit like expecting to pay for the water used by the fire brigade after a fire or the police’s petrol after chasing bank robbers. The biggest robbery since time began and we just stand like sheep and get robbed!

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