Retrospective Review Success Story

Farley Dwek Solicitors acted on behalf the late Mr X in pursuing his retrospective claim for NHS Continuing Healthcare Funding against his local Clinical Commmissioning Group (CCG). We successfully argued that he was eligible for CHC Funding for a short period of care leading up to his death. Mr X recovered reimbursement of care home fees that were wrongly paid to the care home during this period.

However, that isn’t the end of the matter. The case raised an interesting point of principle…

Under the terms of the contract with the care home, Mr X’s family were charged ongoing fees for an extended period of care fees beyond his passing. Mr X’s family argued that this was unreasonable, but the care home stuck to their contractual rights and insisted on payment for the full extra period.

We turned to the CCG and sought reimbursement for this additional period from them instead, but they, too, refused to repay Mr X’s family. The CCG argued that they were only liable to reimburse actual care fees paid for the support provided up to the date of death, not beyond.

We disagreed and contended, that if the CCG had carried out a robust assessment of Mr X’s eligibility in the first place, they would have found that he was indeed eligible for CHC Funding at the outset. In that eventuality, the CCG would have entered into a standard contract with the care home and taken over responsibility for direct payment of Mr X’s fees. Upon death, all future payments for care fees would inevitably have come to an immediate end pursuant to that contractual arrangement (CCGs understandably don’t pay a day longer than necessary), and there would be no further liability to the care home for fees beyond the date of his passing.

However, the CCG refused to consider reimbursement of any additional fees beyond the date of death.

Farley Dwek lodged a complaint with the Parliamentary and Health Service Ombudsman (PHSO) who investigated the matter. They agreed with our position and found that had the CCG awarded CHC at the appropriate time, Mr X would not have needed to take out a private contract with the care home and therefore would not have been liable for these extra fees post-death.

The PHSO referred to the NHS Redress Guidance, whose core essence is to put the complainant back to the position they would have been in, but for the CCG’s maladministration. The CCG had failed in their duty to make proper restitution, and accordingly, have now agreed to reimburse this additional period following the PHSO’s intervention.