Farley Dwek acted for a client on behalf of her late mother (let’s call her ‘Diane’ for anonymity and the purposes of this article), and successfully recovered care home fees in excess of £170,000 including interest, that were improperly charged over a 6 year period.
Having saved all her life and paid taxes, when at the point Diane needed care, she had to pay for it out of private funds. She may even have had to sell her home to pay for her care. If Diane had been properly assessed for NHS Continuing Healthcare Funding at the outset, her care home fees should have been funded in full by the NHS at the point of need – ie free of charge. Instead, Diane’s family had to endure a lengthy and frustrating battle with her Clinical Commissioning Group (CCG) to seek reimbursement of care fees that were wrongly charged from the outset.
We wanted to share Diane’s story, because unfortunately, it is so similar to the experiences of so many other clients we have helped through the NHS retrospective assessment process.
Diane’s story typically demonstrates how you have to be determined to fight on against Clinical Commissioning Groups, to seek justice and fairness, and not give up even when faced with inordinate NHS delays, perceived incompetence and injustice.
Read below how Farley Dwek helped Diane and her family to recover care home fees:
Diane had been found eligible for CHC Funding at a Multi-Disciplinary Team meeting in November 2010, but most unusually, the MDT’s recommendation for CHC funding was not upheld by a subsequent CCG Panel in January 2011. One can only infer from the u-turn, that financial gatekeeping was a factor. That left Diane paying her care home fees in full, out of private savings.
Farley Dwek’s involvement in Diane’s story starts in September 2012, when we were instructed to investigate the matter, following which we presented a Letter of Claim to her CCG in September 2012.
Following the CCG’s acknowledgement, Farley Dwek obtained all relevant medical and care home records from various sources to investigate the matter thoroughly. One of our specialist Nurse Assessors was appointed to prepare a comprehensive Needs Portrayal Document (some 49 pages long) which concluded that Diane, was in her opinion, eligible for CHC Funding dating back to April 2006, until she passed away in January 2012 – a whole 6 year period.
Farley Dwek returned the CCG’s Questionnaire in July 2013, and presented submissions to the CCG, who initially rejected the claim in September 2013. The premise (ie ‘excuse’) for rejection was that Diane had been assessed regularly in relation to her healthcare needs from 2009 onwards until her death in 2012, and was found ineligible. So, as far as they CCG were concerned, that was the end of the matter! The CCG were adamant that ‘robust’ procedures had been followed and they were simply not prepared to reconsider their previous assessments again, nor undertake a further retrospective review of this period either. Don’t forget – this is despite Diane’s case being recommended for CHC funding by the Multi-Disciplinary Panel back in November 2010!
However, as a ‘concession’, the CCG agreed to consider a review of an earlier previously unassessed period of claim (April 2006 to January 2009), colloquially known in CHC circles as ‘PuPoCs’ for short.
Farley Dwek argued that only reviewing this short period (2006-9) was inadequate, and that the whole period from 2006 to 2012 should be properly assessed.
Helpfully, the Parliamentary and Health Service Ombudsman (PHSO) had commented that many patients in the past had been wrongly refused CHC funding due to inadequate guidance, flawed or non-existent assessments, or due to the NHS’s failure to understand the guidance and correctly apply the criteria to determine eligibility.
In April 2014, some months later, the CCG agreed to undertake a retrospective review for the whole 6 year claim period April 2006 to January 2012, in order to ensure that their processes were ‘seen’ to be fair and robust.
Eventually, in May 2016 – some 2 years(!) after finally agreeing to undertake the review (and about 3.5 years after the Letter of Claim), the CCG finally disclosed their detailed Needs Portrayal Document (NPD) – amounting to some 97 pages – containing their formal assessment of Diane’s health needs and recommendations for eligibility. Despite the CCG’s inordinate delay in reviewing this matter, bizarrely they only gave Farley Dwek 1 week(!) to respond and serve any written Submissions in reply. Clearly nonsensical, and grossly unfair – but it does demonstrate just the how unreasonably some CCGs can behave.
Despite the plethora of documents to consider, but buoyed by our convictions, our client’s written Submissions in response were completed on time.
The matter went before the CCG’s Multi-Disciplinary Panel for further review in June 2016; and in August 2016 Farley Dwek were notified that Diane met the criteria for CHC Funding for the whole claim period April 2006 to January 2012. Result!
After protracted investigations and further information gathering by the CCG, interest calculations and negotiations, the CCG calculated Diane’s losses in excess of £170,000 including interest of over £28,000 using applicable RPI rates.
Sadly, protracted retrospective review claims like Diane’s, lasting many years, are not uncommon. CCGs are under-resourced and often under-staffed. However, in cases like Diane’s where CHC Funding was initially recommended, but then overturned without adequate reasons (other than seemingly for ‘financial gatekeeping’), you have to make a stand and fight for your rights – however long it takes, and despite whatever delays and hurdles CCGs may raise to try and frustrate your claim. Don’t give up!
If you need legal advice or assistance in fighting for your relative’s rights, contact us on 0800 011 4136 / 0161 272 5222 or visit www.farleydwek.com where you can also access lots of free information about the CHC assessment processes.
You can also download our FREE Guide here: https://www.farleydwek.com/free-guide/