The deadline set by the NHS for claiming back care fees wrongly charged between 1st April 2004 and 31st March 2011 was 30th September 2012.
Thousands of families will have missed the deadline, because the NHS did not publicise it effectively – and mainstream media coverage came far too late.
The September deadline was announced in March 2012 by NHS Chief Executive Sir David Nicholson. Its clear purpose was to clear the decks in advance of full health reform implementation in England, and get rid of the ongoing disputes about Continuing Care funding for full time care – for the benefit of the NHS, not the families who have been wrongly charged. Nicholson stated that claims received after the September deadline may be considered in exceptional circumstances.
In our previous article on the care fees reclaim deadline, Care To Be Different, outlined why she believes the deadline was – and still is – wholly illegal, as it is in breach of consumer law, the Theft Act, the Equality Act and disability legislation. It remains to be seen whether the whole process will be challenged in the courts.
Over the months leading up to the deadline, a deluge of families contacted us for help and advice. Many reported the difficulties they were experiencing getting an actual claim lodged in time with the NHS:
- Not only had there been no effective publicity of the deadline by the NHS, but we heard that it was often not possible to get through to NHS Continuing Care departments on the phone, calls were not returned, emails went unanswered, NHS switchboard staff seemed not to know who was handling the claims, contact phone numbers had sometimes been disconnected and key contacts were ‘on holiday’.
- Even if individual NHS Trusts had a small paragraph somewhere about the deadline on one page of their website, no one would have known it was there unless they were a) already aware of the deadline, and b) happened to be specifically looking at that page.
- Many NHS Trusts asked claimants to complete application forms half a dozen pages long, the content of which will be measured against specific eligibility criteria for funding. However the families completing these forms were not told what those eligibility criteria were in the first place. It means many claims will probably be thrown out – without the NHS bothering looking at any further supporting evidence – simply because the family concerned was not informed of the purpose behind the questions on the form. Families also report that some NHS Trusts have taken weeks to send out a form, making it even more difficult to complete and return it before the deadline, and some Trusts refused to supply details of previous assessments to help families complete the application forms.
- We hear that some NHS Trusts have said that if a person was receiving the small weekly nursing ‘contribution’ towards care fees, instead of full funding, the NHS won’t look at their claim – despite the fact that the claim may be perfectly valid. The whole point of the claim is to test whether this small contribution should have actually been full funding in the first place!
- Other NHS Trusts asked for all kinds of ID from the claimant in order to just get a claim registered, despite this not being required until later on. We’ve also heard reports of Trusts asking if the claimant will benefit personally financially if a refund of care fees is awarded, and using that as a reason to refuse a claim. This has to be one of the worst examples of procedural impropriety on the part of the NHS.
- Other Trusts are saying they will only look at the notes taken at funding assessments previously carried out for a particular person – and not at wider evidence – and yet it’s these very funding assessments that may well have been carried out wrongly in the first place, hence the incorrect charges for care.
- We’ve heard reports that some Trusts have said that if they weren’t aware of a particular person in care while they were in care (regardless of whether or not this was the NHS’s oversight in the first place), they will take no responsibility for a retrospective review.
- Another Trust has been putting the onus on families to obtain all the evidence for a claim (medical records, care notes, risk assessment charts, etc – something the NHS itself is supposed to do) before the NHS will even consider looking at the claim.
- Other families have been told by NHS personnel that different NHS departments don’t have any communication channels between them, and that the families themselves must contact all the different NHS departments to obtain all the necessary information to ‘allow’ the NHS to carry out its obligations in reviewing a claim.
The whole thing is one big shambles.
Not only is the current assessment process for NHS Continuing Care funding flawed, but it now seems that the retrospective review process is also seriously flawed.
It was heartening, though, to hear of one NHS Trust in the south of England who made things very easy for families by simply accepting a phone call as formal registration, and another who acknowledged that where the success of a claim was a clear foregone conclusion they would not waste time putting it through the usual tortuous review process, but simply agree to a refund instead.
If you missed the deadline for submitting your claim for a retrospective refund of care fees, it’s not clear how readily the NHS will accept a late claim. However, there’s no harm in trying. Here’s what we suggest:
- Write to the Continuing Care Dept at the NHS Trust closest to where your relative is/was based, e.g. the area where the care home is situated.
- State that you were unaware of the deadline because of poor NHS publicity – or for whatever reason you choose to state.
- Give details of the person you are claiming for, e.g. name, address, period of care for which you are claiming, etc.
- State your relationship to the person concerned and your authority to pursue a claim on their behalf, e.g. power of attorney, executor, etc.
- State that full care notes are available (if you know they are); the care home or care agency should be able to help with this, depending on how far back your claim goes.
- You may also wish to mention some of the legal issues we highlighted in our previous article about the care fees reclaim deadline.
- If you did try to get your claim registered in time but faced obstruction by, or a lack of response from, the NHS, make this clear.
- State that you wish to have your letter accepted as your initial application, and ask what you need to do next.
- Post your letter as a matter of urgency using a secure ‘signed for’ mail service to the Continuing Care Manager at the relevant NHS Trust.
There’s no guarantee that your claim will be accepted, but at least you will have done what you can.
The deadline for reclaiming care fees paid between 1st April 2011 and 31st March 2012 is the deadline is 31st March 2013.