NHS Continuing Healthcare Funding – Don’t take ’No’ for an answer. If you believe you are right, fight on!
Here’s an example where determination in the face of adversity has paid dividends for a client who was wrongly being denied her proper entitlement to NHS Continuing Healthcare Funding (CHC).
CHC is a free package of care provided by the NHS for care fees, accommodation and social care costs. It is provided to adults 18 and over, regardless of the setting where the care takes place (eg your own home, a care home or other care facility, or hospice) and is paid regardless of wealth (ie it is not means-tested). Wealth is never a consideration.
Farley Dwek Solicitors represented the family of the late Mrs Thompson (not her real name – to preserve anonymity), and after a lengthy 7 year battle, have recently received confirmation that the care fees paid to her care home will now be refunded with interest dating back to 2006.
The case study below illustrates just how important it is to be tenacious in pursuit of CHC funding and that, with such tenacity, success is possible; even in instances where the Clinical Commissioning Group (CCG) has attempted to rebuff an early request for review and deprive families of much needed CHC funding for their elderly relative in care.
Remember: The overriding principle is that CHC funding is ‘free at the point of need’, and so, every individual who is entitled to it, should be properly assessed and receive an appropriate care package to meet their health and social care needs. However, as you will read below, the process is not straightforward, and if you don’t understand its complexities, you could be losing out!
The retrospective claim process started in 2012 when Farley Dwek Solicitors were instructed by Mrs Thompson’s family to look into recovering historic care home fees (paid between 2004 to 2011) which they thought had been wrongly paid and which should, in fact, have been paid for in full by her local CCG.
Registration deadline for previous unassessed periods of claim (or ‘PUPoC’):
Under Department of Health deadlines, families could retrospectively claim for repayment of care fees paid in relation to any previously unassessed periods of care (PUPoC), going as far back as 1st April 2004 to 31st March 2012, provided that they had lodged a claim with the CCG before the deadline of 30th September 2012.
We first wrote to the CCG in August 2012 (ie before the deadline), notifying them of Mrs Thompson’s early intention to pursue a retrospective claim to recover care home fees she had already paid.
The CCG responded in September 2012, advising that they would investigate matters in 3 stages and would:
- collate data and evidence;
- look at whether there was eligibility during the enquiry period; and
- conduct a reassessment, if necessary.
Note: It is the individual’s responsibility to prove their claim for CHC eligibility by providing detailed information about their needs and, if possible, supporting evidence in the form of care and medical records.
At the time, the CCG anticipated the matter would take 12 months to complete their investigation. A gross underestimation – as you will find out below!
The CCG sent out a standard Information Request Form, which was duly completed with the family’s input and returned to the CCG in July 2013.
In August 2013, the CCG advised that it was transferring the case to a centralised service run by a Commissioning Support Unit (CSU). The premise was that the process would be more streamlined and efficient, given the high volume of similar retrospective claims that it was investigating, following the imposed September 2012 deadline.
In November 2013, the CSU confirmed that they had undertaken their screening Checklist assessment which indicated that a full assessment should be undertaken. This Checklist was completed using the information on the application form and at this time none of Mrs Thompson’s care or medical records had been considered.
The CSU set about obtaining all relevant care and medical records. No timescales were given for completion of the review.
In December 2014, the CSU allocated the matter to a nurse assessor to review.
A Needs Portrayal Document (NPD) comprising of some 30 pages was served on Farley Dwek in February 2015, requiring any comments in reply to be served by mid-March 2015. The CCG had notice of this claim for over 30 months, but unreasonably, gave just 3 weeks to reply to their extensive NPD!
Farley Dwek drafted Written Submissions in reply with the family’s input, and submitted the document in time to meet the CSU’s arbitrary deadline.
The matter went to the CSU’s Multi-Disciplinary Panel (MDT) for consideration in April 2015, and eventually, we were notified of the outcome in November 2015. Until then, we were unaware that the Panel refused to assess Mrs Thompson’s eligibility for CHC retrospectively, because they were satisfied that:
1. Mrs Thompson’s eligibility for CHC funding had already been considered on several occasions during the requested review period (between 2008 and 2011); the outcome of those assessments was that she was not eligible for CHC funding.
2. The contemporaneous assessments and reviews conducted by the CCG during Mrs Thompson’s lifetime were robust and correct. She was not eligible for CHC funding at any time.
3. The September 2012 PUPoC deadline was intended to offer individuals in receipt of care between April 2004 and March 2012 who had never been considered for CHC funding, and may consequently have been funding their own care incorrectly, the opportunity for retrospective assessment.
4. As Mrs Thompson had been assessed for part of the requested review period – i.e. from 2008 onwards (albeit not the full period going back to 2004) – that was sufficient to conclude that her eligibility for CHC had been fairly considered at the time. As the PUPoC deadline only applied to unassessed periods of care, it was beyond the CSU’s remit to consider the case further.
5. In the circumstances, Mrs Thompson wasn’t entitled to a retrospective review.
6. The claim was rightly dismissed.
7. Furthermore, the family was now out of time to appeal [6 months from the date of the outcome letter] the outcome of any assessment conducted since 2008.
Outrageous! Effectively, the CSU had done all this work, led our clients down a merry path for 3 years, convened an MDT, only to conclude that because Mrs Thompson’s needs had previously been partially assessed during her lifetime, they could reject the matter out-of-hand – irrespective of whether those earlier assessments were procedurally and clinically sound. And, in any event, the CSU claimed that the family were out of time for appealing any past periods of care that had been assessed (where Mrs Thompson was found ineligible for CHC funding).
Although the PUPoC process is only intended to apply to previously unassessed periods of care registered before the deadline, there are circumstances where a patient or their family can retrospectively challenge the outcome of assessments already undertaken [i.e. outside the usual strict 6-month appeal deadline], where:
1. The CCG is unable to provide evidence of the previous assessment;
2. The patient/family was not made aware of assessment and/or right to appeal;
3. The previous assessments were procedurally flawed, inaccurate or clinically* unsound.
The family asserted that they were unaware of any CHC assessment taking place between 2008 and 2011, and had not been invited to contribute at any stage. Furthermore, neither Mrs Thompson nor her family had been advised of the outcome of those assessments, their right to appeal the decision and the process and timescale for doing so. The family rightly pointed out that a considerable period of care, from 2004 to 2008, had not been assessed at any time.
Therefore, we felt quite within our rights, and in time, to challenge the CSU’s refusal to review, on the grounds that:
1) the period 2004 to 2008 had never been considered, and so, was a previously unassessed period of care (PUPoC); and
2) decisions made between 2008 and 2011 were procedurally unsound.
We complained to the CSU in December 2015 about its refusal to review, arguing that any previous decision to reject CHC funding was flawed, inaccurate and clinically unsound, especially given Mrs Thompson’s abundant healthcare needs as evidenced in her care/medical records. Moreover, the fact that Mrs Thompson and her family had been denied a rightful appeal, rendered any previous decisions invalid. Finally, a significant portion of the requested review period had never been considered and was, therefore, within the remit of the PUPoC deadline. Copy of any assessments previously undertaken by the CCG were requested.
The CSU’s position remained firm. Mrs Thompson’s eligibility for CHC funding had been considered during her lifetime and, regardless of the merits of those decisions (incorrect or otherwise), it was not prepared to reopen the matter. The CSU could only consider those patients who had never been assessed for CHC funding, in-line with the PUPoC guidance. The CSU was unable to provide copy of any previous assessment undertaken by the CCG. As far as they were concerned, the matter was closed.
A formal complaint was lodged with the CCG in March 2017, requesting copy of any assessments previously undertaken. The only reference to any assessment for CHC funding was contained in Mrs Thompson’s GP records. We did not accept this as cogent evidence of a formal, robust assessment! Similarly, we did not accept that the CCG could hide behind the argument that Mrs Thompson’s eligibility for CHC funding had already been (partially) assessed and, as such, wasn’t within the remit of the PUPoC deadline. The CCG referred the matter to the CSU, which seemed equally disinterested, having already made their position clear.
We chased the CCG to provide evidence of any assessments for CHC carried out in Mrs Thompson’s lifetime, as the family had no knowledge of any such consideration, and had not been invited to attend any assessment (contrary to the NHS National Framework). Bizarrely, the CCG could only supply circumstantial proof gleaned from entries in Mrs Thompson’s records, and seemed unable to provide a copy of any actual assessment. Had Mrs Thompson, in fact, ever been assessed by the CCG for CHC funding in her lifetime? Certainly, she had never received any outcome letters rejecting funding or advising of her rights to appeal and the timescales for doing so. If the CCG was unable to provide such documentation, this was a previously unassessed period of care (PUPoC), and therefore should be considered in full.
Finally, in September 2017, the CCG eventually disclosed a number of purported CHC assessments undertaken between 2008 and 2011. The CCG was unable to supply evidence of any communication with Mrs Thompson or her family advising of the outcome of these assessments and their right to appeal. Upon review of these documents, a further complaint was lodged with the CCG, citing the lack of family involvement, the denial of rightful appeal and the inadequacy of the extant assessments in evidencing proper consideration for CHC. The CCG still did not uphold the complaint and confirmed that the matter remained closed.
Parliamentary and Health Service Ombudsman (PHSO):
Formal complaint was then lodged with the PHSO in early 2018. Following a lengthy investigation, the PHSO found firmly in Farley Dwek’s favour.
The CCG was advised that the period 2004 to 2008 had never been assessed and should, therefore, be considered under the PUPoC deadline. Furthermore, the “previous assessments”, relied upon by the CCG as reason not to review, were both procedurally and clinically unsound. The family had been denied their right to participate and denied their right to appeal. The assessments themselves were inadequate and there was no evidence that Mrs Thompson had been robustly assessed for CHC funding during her lifetime. The PHSO instructed the CCG to consider the full period of care retrospectively.
In the light of the PHSO’s findings, the CCG softened its position and, in October 2019, agreed to conduct a retrospective review of the full period of care after all! At last, some common sense after more than 7 years of dogged and unrelenting perseverance!
The outcome of the retrospective assessment was favourable to Mrs Thompson. Having considered her care and medical records, the CCG agreed that Mrs Thompson was indeed eligible for CHC funding from 2006 and that her care fees should have been paid by the CCG from this date – had they carried out an accurate assessment in the first place! Any fees paid by Mrs Thompson would be refunded to her Estate in full, in addition to compound interest at the rate of RPI. Had the CCG and CSU dealt with matters more transparently and fairly, they would have saved a lot of time, resources and money, including substantial interest payments.
Mrs Thompson’s family was certainly put through the mill and had to endure more than 7 years of anxiety and frustration whilst battling against the CCG to uphold their rights. Yet, at every stage, the CCG, and the appointed CSU, seemingly did whatever they could within their power to try and put obstacles in the way to defend their position. They had misapplied and misunderstood the guidance, to Mrs Thompson’s detriment.
This was a complex, drawn-out battle. Without legal representation to fight such injustice, we wonder how many more families in similar circumstances have also missed out on their entitlement to CHC funding and had the wool pulled over their eyes?
What you can learn from this experience:
1. You really have to know your rights and the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (recently revised 2018).
2. Never take what the CCG tells you at face value. This CCG and CSU clearly did not understand the national guidance, or if they did, chose to mis-apply it in an attempt to deny Mrs Thompson her CHC package of funded care. Many would have accepted the CCG’s decision implicitly and without question; others may have given up, or been left floundering, not knowing their rights or how to argue their case in a coherent and robust manner.
3. Do not give up! This case has taken many years of perseverance and tenacious chasing, despite this CCG and CSU’s sheer ineptitude, incompetence and inordinate prevarication – seeking to frustrate the family’s rights at every corner, and putting up hurdles to obstruct their access to justice.
4. Don’t be afraid to challenge the CCG. As illustrated in this example, they do get things wrong – whether through misunderstanding, misapplication or unwritten financial gate-keeping policies!
5. Stand your ground. Complain and challenge them whenever you believe their decisions are incorrect or flawed.
6. Cases dealt with under PUPoCs guidance are unusual. Generally speaking, there is a strict 6 month deadline to appeal any MDT decisions – so beware to ensure you comply, otherwise you will lose your right to appeal!
7. Where the CCG provides a copy of a previous assessment (but it is not sufficiently robust), we would always recommend that you challenge it via a formal complaint to the CCG and PHSO, if necessary.
8. A clear procedural failing, for example: no consideration of eligibility for CHC prior to an award of Funded Nursing Care, or where family are excluded from the process, or are not informed of their right to appeal – should always result in a complaint to the CCG (and an appeal for reconsideration retrospectively if the MDT has made a decision).
9. If there are no procedural flaws, but the assessment is felt to be clinically unsound i.e. there is disagreement over the levels of need and/or application of the eligibility criteria – then this is less clear cut, but we would still advise lodging a formal complaint setting out your disagreement.
10. Prepare your case thoroughly.
11. If you find arguing your relative’s care needs with the CCG too emotive, daunting or frustrating, then seek early legal assistance. Farley Dwek Solicitors offer a full Retrospective Review Service.
Visit our website for more information and do call us on 0161 272 5222 or 0800 011 4136 for a free initial consultation, or email your enquiry to us at: email@example.com
What is NHS Continuing Healthcare?
Did you know that if your relative has healthcare needs, they may have all their care and accommodation paid for in full, free of charge, by the NHS, and such funding is not means-tested?
This funding is known as NHS Continuing Healthcare (or ‘CHC’ for short) –a pot of funding which is available for individuals with intense, complex and unpredictable healthcare needs.
Unfortunately, most people have never heard of this CHC funding, and even many medical professionals, GPs and top consultants, don’t really know or understand what it is, or how you go about claiming it. Of course, the NHS don’t advertise the availability of CHC funding as it comes out of their budget, which they naturally want to protect. Instead, many thousands of unwary families have been forced to sell their relative’s home or assets to pay for care needlessly, which could and should have been provided free of charge by the NHS.
Make no mistake though, getting an award of CHC funding is not a straightforward process and there are several steps along the route before funding is granted. Nor do the NHS make life easy for you to get CHC funding. The assessment process is complex, and it can be a daunting uphill struggle as you battle against the NHS to secure your right to CHC funding.
Here is an overview of some basics steps and terminology that you need to know when applying for CHC funding.
Am I eligible for CHC?
To determine whether your relative is eligible for NHS Continuing Healthcare funding, they must have a ‘primary healthcare need’.
NHS Continuing Healthcare is described as a “package of ongoing care that is arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need…Such care is provided to an individual aged 18 or over, to meet the health and associated social care needs that have arisen as a result of disability, accident or illness….. Eligibility for NHS Continuing Healthcare is not determined by the setting in which the package of support can be offered or by the type of service delivery.”
In simple terms, primary healthcare needs are those needs over and above which a local authority can lawfully be expected to provide.
Many people fail to grasp the vital significance between healthcare and social care needs. The difference is critical as it determines who pays for your relative’s care – the NHS, the local authority, or your relative from their private funds and savings.
Healthcare needs are provided by the NHS, free of charge and are not means-tested. Care can be provided in any setting, whether in your own home or a care facility (eg care or nursing home), and regardless of your wealth. When being assessed for CHC funding, your finances, wealth and means of funding care should never be discussed. Remember our motto, “It’s health, not wealth” that is the key consideration.
Social care needs are things like assistance with daily tasks to help with your well-being. Common examples include help with mobility, getting dressed, personal hygiene and toileting, cooking, and assistance when out and about to avoid wandering and falling. Social care needs are provided by the local authority (social services/local council) and are means-tested. If you have capital assets (eg a home, land, buildings and savings) worth more than £23,250, then you will have to pay for all of your care.
Who carries out the CHC assessment?
The NHS carries out assessments of eligibility for CHC funding through its local Clinical Commissioning Groups (CCG). There are approximately 200 CCGs in England, although this number can fluctuate due to some CCGs merging.
CCGs have responsibility for assessing, decision-making, implementing and providing NHS packages of free care.
Are there rules about conducting a CHC assessment?
When undertaking assessments of eligibility for CHC, CCGs follow the guidance set out in the National Framework for NHS Continuing Healthcare Funding and NHS–funded Nursing Care (the National Framework).
The National Framework was first introduced in 2007 as a nationwide tool to promote greater clarity, consistency and uniformity between local health authorities, who each had their own assessment criteria as to who was eligible for CHC funding, and who wasn’t. The results were inconsistent throughout the country, with some areas known to be far more likely to award CHC than others – a national postcode lottery. The National Framework has undergone several revisions since 2007, culminating in the latest edition which came into effect on 1st October 2018.
The National Framework is not law, but guidance, which the CCGs’ appointed assessors throughout the country are obliged to follow strictly. Unfortunately, whether due to a lack of training or understanding, and some may say budgeting constraints, adherence to the National Framework still remains inconsistent and can be applied selectively by some CCGs depending on whether it suits their cause.
These are the NHS’s own rules which currently span 167 pages, and which you need to know, if you are going to have a chance of securing CHC funding for your relative.
Any deviation or abuse of the assessment process set out in the National Framework, may give you valid grounds to appeal a decision where CHC funding has been rejected or withdrawn. So, we strongly encourage you to familiarise yourself with the National Framework to ensure (a) you know how the assessment process works and what are your rights; (b) can check that the CCG complies with its own guidance and carries out a fair and robust assessment; and (c) you can challenge any errors or outcome that you do not agree with and do not have the wool pulled over your eyes.
An outline of the assessment process
If your relative is already resident in a care home, or about to be discharged from hospital back to their own home or into a care home for the first time, they should consider having an assessment for CHC funding if they have a primary healthcare need – ie the main reason for care is due to health reasons, not social reasons (see above).
You can ask the hospital, your relative’s GP or other medical clinician, social worker or the care home manager to arrange a Checklist assessment.
This is a simple screening tool used to see whether your relative has sufficient healthcare needs to pass on to the next stage – a Full Assessment.
If, therefore, you are screened out at this stage, unless the Checklist assessment is defective, it indicates that your relative has low healthcare needs, and instead will need to consider alternative means of funding their care – eg a social care assessment to see if they can get any financial assistance from their local authority, or else, pay privately.
If your relative gets a negative outcome at this stage, they can always request that another Checklist is carried out in the future in the event their health deteriorates or their healthcare needs increase.
You will be provided with a copy of the completed Checklist which you should keep safe in case you need to refer to it at any future assessments.
In the current COVID-19 climate, Checklist assessments are currently on hold pending release of social isolation restrictions being lifted.
If your relative has a “rapidly deteriorating condition that may be entering a terminal phase” in their life and needs access to CHC with minimum delay, they can request a Fast Track Pathway assessment and bypass the usual Checklist assessment which is slower. If successful, Fast Track CHC funding can be implemented within 48 hours of the assessment. Fast Track funding is generally thought of as an end-of-life scenario, where often, patients are not expected to live for more than 3 months.
In some cases, CCGs are granting Fast Track funding just to get patients out of hospital more quickly, even if their healthcare needs don’t necessarily meet the CHC criteria for funding. Of course, some families may get a shock when their relative’s needs are reviewed at 3 months only to find their funding is withdrawn.
In all other non-urgent cases, the CCGs will use the Checklist assessment.
Multi-Disciplinary Team (MDT)
If your relative gets a positive Checklist outcome, they will move on to a Full Assessment, which is carried out by a Multi-Disciplinary Team (MDT), who use a different scoring tool called the Decision Support Tool (DST).
The MDT is convened by the CCG and should comprise of at least 2 members – a healthcare and a social care professional – who have both been involved in your relative’s care and trained in the National Framework. The National Framework deals extensively with the MDT process and what constitutes a good MDT. We encourage you to read the process.
You will be invited to attend the MDT and it is essential that you do so. If you are not invited, that is ground for appeal.
This is your first chance to secure CHC for your relative, so it is vital that you prepare for the meeting well in advance. You may know your relative’s day-to-day care needs better than anyone, and so you must attend the MDT to ensure that the CCG’s appointed assessors get the full and correct picture of your relative’s healthcare needs.
Don’t be afraid to challenge any misinformation or wrong conclusions that they may draw when seeing your relative or from reading the care home records (which can contain blatant or deliberate errors and missing or misleading information). That’s why it is important you are there to correct any misunderstandings and to oversee the process is carried out thoroughly, fairly and robustly. If there is anything you are not happy about, raise your objection with the CCG’s assessors and make sure they note it down.
As this is such an important meeting, we recommend that you have a professional advocate with you to argue your case and ensure that the assessment is properly conducted.
Farley Dwek offer representation at MDTs using one of our CHC specialist nurses who will fight your corner. Visit our Supported Assessment Service page for more details.
After the MDT, the CCG’s assessors will send the completed DST to the CCG with their recommendations for funding. The outcome decision should be notified to you within 28 days after the MDT. Don’t be afraid to chase the outcome.
If unsuccessful, the decision letter should provide detailed reasons why and tell you about your rights of appeal (see below). Do not ignore the appeal deadline! Your relative may be entitled to Funded Nursing Care instead – see below.
If successful, and found eligible for CHC funding, all your relative’s assessed healthcare needs, associated social care needs and accommodation should be paid in full by the NHS and you should not be asked to pay any unlawful top-up fees.
For more information on top-up fees, read our blog: Top-Up Fees – Are They Ever Lawful?
However, be aware that once awarded, CHC funding is not guaranteed indefinitely for life. An individual’s healthcare needs can fluctuate, meaning that over time, they may increase or decrease.
Once a CHC package of care is in place, the National Framework obliges CCGs to review it after 3 months, and then again every 12 months thereafter, to ensure that it is still adequate to meet the individual’s assessed healthcare needs. If their needs increase, then the package of care will need to be adjusted to meet the increasing cost of care. Conversely, if the healthcare needs decrease or no longer exist, then CHC will be withdrawn upon review.
The National Framework makes it clear that the intended purpose of a reviews is to consider “the appropriateness of the care package, rather than reassess eligibility.”
Farley Dwek Solicitors attend review meetings to support families who worry that the CCG’s representatives could inappropriately use the opportunity to carry out a fresh reassessment of eligibility instead, and recommend that funding be withdrawn – even in cases where it seems obvious that the healthcare needs remain the same, if not increased. See our Advisory service page.
In the current COVID-19 climate, these 3 and 12 monthly reviews are being postponed, so that CCGs can release more staff onto the front line to help accelerate patient discharge from hospitals and free up beds more speedily.
Funded Nursing Care
If your relative is unsuccessful at the Full Assessment (MDT), they should automatically be considered for Funded Nursing Care (FNC), which is a weekly sum (currently £165.56) paid by the NHS to the care home if your relative has nursing needs which are provided by a registered nurse. FNC is not means-tested and is tax free.
In the current COVID-19 climate, CCGs are not obliged to carry out FNC assessments.
If your relative is unsuccessful at the MDT and you disagree with the decision, or believe that the National Framework has not been followed, or allege there has been an abuse of process, then you have 6 months to lodge a written appeal to the CCG. But, do read the CCG’s outcome decision letter carefully in case gives any different timescales and do challenge any period less than 6 months.
Local Resolution Meeting (LRM)
Initially, the appeal will be referred to a Local Resolution Meeting which is conducted by the CCG themselves at local level.
This is a two–stage process:
Stage 1 is optional and involves an informal discussion/review where you can raise any concerns with the CCG and get to understand their reasoning for rejecting funding.
Stage 2 is more formal and involves formal written appeal submissions pointing out why you disagree with the MDT’s decision. This is effectively your second chance to secure CHC funding for your relative. The appeal will be dealt with in a face-to-face meeting. However, in the current COVID-19 climate, some CCGs are conducting these appeals by telephone or video-conferencing; others are cancelling or postponing them.
If you remain dissatisfied with the LRM’s outcome, your next appeal is to an Independent Review Panel.
Independent Review Panel (IRP)
You must lodge your appeal to the IRP within 6 months of receiving the MDT’s outcome decision.
An IRP is conducted by NHS England, and is considered your last opportunity to mount a challenge and get CHC funding in place (or reinstated if existing funding has been withdrawn).
The IRP usually consists of 3 members – a lay Chair, a CCG representative and a local authority representative (both of whom have not been involved in the matter), plus a notetaker, and occasionally, a clinical advisor.
Due to COVID-19, some IRPs are still proceeding by telephone, but many have been postponed until further notice.
As ‘the buck’ effectively stops here and there is much to be gained financially (and lost if you fail), we strongly recommend you consider instructing a professional advocate to review your case, collate any missing records and information, prepare your written appeal submissions and attend the IRP with you as your appointed representative.
Warning! So many families leave it too late to get professional help – and are therefore left to fight their appeal alone without advocacy support – usually ending with a poor outcome and having to pay many thousands of pounds per month for their relative’s care.
Good early preparation is essential to give yourself the best chance of success!
Farley Dwek Solicitors offer invaluable help with your appeal. For more information, visit our Help with Appeals page.
Parliamentary Health Service Ombudsman (PHSO)
If you remain dissatisfied with the CCG’s conduct, for example, their refusal to investigate or pursue an assessment (including a retrospective period of claim), or believe there has been an abuse of process, you can lodge a formal complaint with the CCG.
Once you have exhausted their internal complaint’s procedure, if still unhappy with the outcome, you will be invited to complain to the PHSO. The PHSO will investigate a claim for abuse of process, but will not overturn a decision where CHC funding has been rejected or withdrawn just because you disagree with it. For example, the PHSO will intervene where a CCG wrongly refuses to consider a valid appeal or a previously un-assessed period of care in a retrospective claim.
In the current COVID-19 climate, the PHSO have put all complaints (new and existing) on hold for the time being, in order not to burden the NHS resources with information and evidential documents that may be needed as part of an investigation.
Farley Dwek Solicitors can offer help and advocacy support at any stage of the CHC assessment or appeal process.
Covid-19 – We would like to reassure our clients throughout this difficult period that our team will still be on hand to provide our normal level of service, and should you be in the position where you need to speak to us about your case please do not hesitate to contact us.
We are continually reviewing information and guidance in relation to the Covid-19 pandemic. Our primary objective is to protect the welfare of our staff and clients, but at present we are able to operate our business as usual and you should notice no major changes in the way your matter is being handled.
We have developed robust and comprehensive contingency plans in order to continue to service the needs of our clients, whilst heeding advice from experts and government to ensure the safety of clients, staff and the general public.
We are encouraging our staff to work from home wherever and whenever possible, but they will continue to have access to case files and emails during this period. We are operating the office on a skeleton staff who will be available to take telephone messages and contact staff working from home by email.
We do not anticipate making any changes to the person that is handling your case and you should be able to contact them in the usual way. Staff working from home will if necessary contact you using their personal mobile telephones but we ask that you do not call or contact them on those numbers and always ring the office number, or use email.
We are still able to assist with new enquiries, and you can contact us via our website, email or telephone helpline in the usual manner.
We take this opportunity to thank you for your assistance and understanding in these unprecedented set of circumstances.
Why are the NHS wasting cash on CHC retrospective claims?
Farley Dwek have a wealth of experience in retrospectively recovering care home fees that have wrongly been paid following incorrect, improper or flawed assessments for NHS Continuing Healthcare Funding (‘CHC’ for short). Here are a couple of recent examples where we have successfully recovered significant sums for families who were wrongly denied CHC Funding.
Case Scenario 1
We acted for ‘Patricia Rice’ (not her real name) in relation to a retrospective claim against the Clinical Commissioning Group (CCG) to recover care fees that were paid to the care home (between 2009 and 2012) following a flawed assessment for CHC Funding.
We notified the CCG prior to the deadline to register a retrospective review in September 2012.
In Patricia’s case, the CCG took 6 years to review this matter and then make a manifestly incorrect decision – quite disgraceful. It then took another year to complete the appeal in which they conceded Patricia was eligible for CHC Funding in her lifetime after all.
The CCG have now agreed to reimburse Patricia over £140,000, including backdated interest of £26,000. What a waste of public funds!
Case Scenario 2
Mrs G (to protect her identity) instructed Farley Dwek to carry out a retrospective review to see if she was eligible for CHC Funding between 2006 and 2008.
- A Letter of Claim was sent to the local CCG (then known as a ‘Primary Care Trust’) on 26 September 2012.
- The letter was acknowledged on 17 December 2012.
- It then took an inordinate time for the CCG to look at this matter and for it to be allocated to a Nurse Assessor for review.
- The matter was held in abeyance due to a huge backlog of other retrospective cases that the CCG had to action.
- The matter eventually went before a Panel Meeting on 6 May 2016 – some 3.5 years later.
- On 19 August 2016 the CCG wrote, advising, “On the basis of the information provided there is no indication that Mrs G may have been denied access to NHS funding or that her needs were above and beyond personal and social care provision. Consequently, a retrospective review of Mrs G’s care needs will not be undertaken.”
- Farley Dwek wrote to the CCG to complain about their decision to flatly refuse a retrospective review.
- Given the CCG’s intransigence, Farley Dwek were then forced to complain to the Parliamentary and Health Service Ombudsman (PHSO) about the CCG’s refusal to conduct a full retrospective review for the period of eligibility under consideration.
- Following the PHSO’s involvement, the CCG subsequently agreed to undertake a full retrospective review of this period.
- Ultimately, Mrs G was vindicated in her claim and proven successful, as the evidence showed she was eligible for full CHC Funding during this period.
The CCG have agreed to reimburse Mrs G over £110,000, including backdated interest of nearly £35,000. (So easily avoidable!).
Your entitlement to interest
In addition to the actual care home fees that are reimbursed, CCGs are also obliged to pay interest.
According to the Refreshed Guidance, the whole essence is to put the claimant back in the position they would have been in but for the CCG’s maladministration (errors and incompetence) when failing to assess the individual correctly at the outset.
1.4 “This guidance also retains the previously 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.”
2.4 “The purpose of redress is solely to restore the individual to the financial position they would have been in had NHS Continuing Healthcare been awarded at the appropriate time.”
What rate of interest am I entitled to?
Previously, from March 2007 until 1 April 2015, interest was typically paid at the statutory court rate of 8% per annum (even though no court proceedings took place).
From experience, interest on retrospective claims can be significant and amount to a high percentage of the restitution sum to be repaid. That seems fair. If the CCG had conducted an accurate and robust assessment in the first place (or not wrongly withdrawn funding), many thousands of families would not have had to dip into their hard-earned life savings or been forced to sell their parent’s home unnecessarily to pay for their care – which should have been paid for by the NHS. Interest goes some way to redressing the loss of use of that money and putting the individual back to the position they would have been in, but for the CCG’s maladministration.
With effect from 1st April 2015, new Redress Guidance was issued and recommended that interest is generally now payable at RPI rates – approximately 1- 2% per annum, which is of course much lower than the previous statutory rate of 8% per annum.
Paragraph 1. 6 states: “The guidance recommends that the Retail Price Index is the appropriate interest rate to apply to redress.”
So, it’s no surprise that CCGs are keen to adopt RPI rates when calculating interest payable.
However, it does not state that this is the only interest rate that is appropriate. The Redress Guidance goes on to state:
“1.5. This guidance does not remove the requirement for CCGs to consider the specific circumstances of each individual case when determining the appropriate level of redress.”
“3.2. CCGs are independent decision-making bodies. When making redress payments they should employ a transparent rationale and ensure they fully consider the individual circumstances of each case, taking legal advice where necessary. CCGs have the discretion to consider making ex-gratia payments, over and above the care costs and interest, however, these are expected to be exceptional and would need to be made in accordance with a CCG’s own Standing Financial Instructions and any other pre-requisite guidance.”
So, if the CCG’s delays or their conduct in processing the assessment or appeal has been unreasonable, you can, in ‘exceptional’ circumstances, try and argue for a higher rate of interest. Don’t just accept RPI if the specific circumstances of the case dictate otherwise!
If the CCG has behaved unreasonably, as seen by the examples in scenarios 1 and 2 above, then argue for 8% interest. Had the CCGs dealt with matters expediently, more efficiently and robustly, both cases should have been resolved long before 1st April 2015, where the claimants would automatically have been awarded interest at 8%. However, due to the CCGs dragging their heels, neither case was finalised until well after 1st April – enabling the CCGs to argue that they should only have to pay lower interest at RPI rates. This is completely unfair.
In both scenarios above, it was found that the CCGs had wrongly assessed the individuals, forcing them to pay for their own care, and now to add insult, seek to hide behind the updated Redress Guidance by only offering lower interest – when they were at fault in the first place.
Withholding basic rate tax on interest payable
When CCGs provide their interest calculation, they have latterly been withholding 20% of the interest element payable and putting it aside pending the outcome of an ongoing dispute with the Inland Revenue. In all the years, claimants have been able to receive their restitution payment with interest, entirely tax-free.
However, the Inland Revenue now claims that the interest element is taxable income under the Income Taxes Act 2007, and as such, successful claimants should pay basic rate tax at 20% (even though some individuals may be below the tax threshold!). Personal injury claimants, and those who have suffered from clinical negligence, receive their compensation tax-free. So, why should CHC claimants be penalised and treated differently? The restitution and interest is merely putting them back to the position they would have been in, but for the CCG’s failings. They are not receiving a ‘windfall’, but simply their entitlement to recompense for monies which were rightfully theirs in the first place! It is the Inland Revenue who are taking advantage and gaining a windfall, not the successful claimant!
Until the dispute with the Inland Revenue is resolved, CCGs are currently holding back 20% of the interest repayable just in case they have to pay it over to the Inland Revenue.
The matter is under appeal, and hopefully, the CCGs will prevail, and the sums withheld on all cases will be released to claimants again, tax-free.
We support the NHS in their appeal to get this matter resolved, which will hopefully go a little way to redressing the balance for claimants.
Lasting Power of Attorney: Understanding the basic difference between a Will and an LPA
Many people do not understand the critical difference between a Will and a Lasting Power of Attorney.
A Lasting Power of Attorney (‘LPA’) enables you (the donor) to appoint a chosen representative (known as your ‘attorney’) to make decisions to meet your needs at a stage when you lack the mental capacity to look after your own health and financial affairs. An LPA gives you peace of mind that your entrusted attorney will be acting in your bests interests at all times and making decisions on your behalf, as if you were making them yourself.
A Will only takes effect after death and confers power to manage your estate and affairs (eg property, assets, savings, investments, jewellery etc) to your appointed Executive(s) to deal with in accordance with your stated wishes and preferences. Without a Will, your estate will be caught by the Intestacy Rules, and all your wealth and assets will be allocated in a predetermined order, possibly passing to some beneficiaries whom you might not have considered appropriate.
An LPA can only be made if you are at least 18 years old and have mental capacity to make it. Given that your attorney will effectively be stepping into your shoes, you should appoint someone whom you trust to look after your health and financial affairs. This is usually a spouse, partner, adult child (also over the age of 18) or professional adviser. You can have up to 4 attorneys. But beware, as often, the more attorneys you have, the harder it can be to reach decisions. If you wish, you can also specify which decisions your attorney can and can’t make.
Indeed, under an LPA you can also specify that you would like your attorney to take control or have some involvement in your health and financial affairs even whilst you still have mental capacity.
You can also appoint replacement attorneys in the event that one of your appointed attorneys dies, loses capacity, or no longer wants to act.
However, without a valid Power of Attorney in place, decision-making may be left to others who do not know you, or your ‘wants’ and preferences. Your preferences may be ignored and whilst decisions should be made in your best interests, that may not necessarily happen. Instead, an application will have to be made to the Court of Protection to appoint a Deputy to take control of any decision-making process on your behalf. That can be expensive, and inevitably there will be delays whilst the application goes through the court process. In the meantime, vital decisions as to your health or finances may be on hold.
If you don’t have a Will or Lasting Power of Attorney in place for your spouse or relative, then we strongly recommend you do so, as soon as possible. Visit our website to see how we can help.
Below is a personal testimony given to us by a client who encountered problems with regards to decision-making, even though her mother had a valid LPA in place. Read her story and learn from her ordeal to prevent this situation from happening to you.
Mental Capacity Act Assessment
“My late mother had LPA for both health and welfare and property and financial affairs. She appointed my husband and me as her attorneys. We were required to have regard to the Mental Capacity Act 2005 (MCA) Code of Practice . People acting in a professional capacity such as doctors, nurses, allied health professionals and social workers are also required to have regard to the Act.
In March 2014 the House of Lords published a report on post legislative scrutiny of the MCA . Paragraph 63 says:
“We were told of a worrying tendency among local authorities to use the presumption of capacity to avoid taking responsibility for a vulnerable person.” and;
“The Law Society referred to the principles of the Act being “applied perversely”, using the presumption of capacity to avoid assessing capacity, “with the implications for associated support and resources.”
My mother developed vascular dementia. We, as her attorneys, were concerned that she had lost the capacity to make some important decisions about care needs and place of residence. We expected her social workers to help us to ensure that she had a proper mental capacity assessment and appropriate support to make decisions. Instead, they repeatedly insisted that my mother had capacity without carrying out proper assessments.
My mother’s social care records show that her local authority social care workers secretly tried to get her LPA revoked in order to avoid dealing with her attorneys, who they knew objected to their attempts to:
- Downplay her care needs
- Obstruct her wish to be able to live at home at the end of her life
- Trick her into believing that she would have to sell her home to pay for her care without assessing whether her care needs exceeded the local authority legal remit and should have been funded by NHS Continuing Healthcare.
What follows are the tactics they used to try to get the LPA revoked. All of this took place behind our backs:
a) In September 2018, according to local authority records, my mother made a comment to a social worker that was construed as an allegation that she had been “swindled” into signing her LPA. There also appear to have been some vague allegations that her attorneys had seized her property for themselves.
b) The correct course of action should have been for the social worker to regard this as an allegation of financial abuse against my mother’s family and invoke her local authority’s safeguarding policies to assess my mother’s mental capacity to make the allegation and offer her an advocate.
c) This did not happen. Instead the social worker was told by her local authority Mental Capacity Act and Deprivation of Liberty Safeguards (DoLS) lead that she had a duty to report the matter to the Office of the Public Guardian (OPG) for “human rights” reasons – despite the fact that my mother had not given consent.
d) The social worker telephoned the OPG and was informed that, if my mother had the mental capacity to make a decision about contacting the OPG (which the MCA/ DoLS lead and social care staff seemed to have convinced themselves to be the case), they could not investigate the allegation unless she requested an OPG investigation herself.
However, the social worker omitted to tell the OPG that the local authority had belatedly appointed an independent consultant psychiatrist in July 2018 to properly assess my mother’s capacity to make specific decisions, including decisions about her LPA. The consultant was appointed after my husband and I had told the local authority that we did not want my mother to be subjected to any further mental capacity assessments in respect of important decisions unless they were conducted by an NHS mental health professional in full consultation with her attorneys.
On 2nd October 2018 the psychiatrist explained to my mother that a social worker had alleged to him that she wanted to revoke her LPA. He recorded that she vehemently denied the allegation.
The consultant psychiatrist completed his report on 5th October 2018, concluding that my mother did not have the mental capacity to make decisions about her LPA, health and social care needs and place of residence, and was unlikely to regain capacity due to her vascular dementia. His opinions were consistent with those that my husband and I formed ten months earlier, in December 2017, and which were ignored by the social care workers.
The unintended consequence to the local authority of its workers’ intransigence was that it spent six months of Better Care Funding to keep my mother in a temporary placement in residential care.
On 9th October 2018 local authority social care staff, including its MCA lead, met to review the independent consultant psychiatrist’s mental capacity assessment and concluded that my mother’s attorneys had not abused their position. Needless to say, the local authority has not yet apologised for its employees’ disregard of the MCA, their calling into question our integrity as attorneys, and the harm and distress their unacceptable behaviour caused to my late mother, a vulnerable 97 year old.
Learning from my family’s experience.
1) If you are an attorney appointed under LPA, make sure you understand how a proper mental capacity assessment should be conducted so that you can spot and challenge professionals and care workers, who fail to comply with the MCA.
As well as the MCA Code of Practice I found these resources helpful:
The Office of the Public Guardian’s “Making decisions, a Guide for people who work in health and social care” . This document explains the process professionals should follow when conducting capacity assessments and page 20 explains how they should respond to challenges to their opinions.
The Open University has a free, online course “Understanding mental capacity” which I found very useful. 
2) Unfortunately the Office of the Public Guardian will not deal with attorneys’ complaints that those acting in a professional capacity have breached the MCA because it regards this as outside its remit. It will only investigate complaints against attorneys and Deputies appointed by the Court of Protection.
However, if you can influence the authorities to appoint an independent consultant psychiatrist (at their expense) to conduct a proper psychiatric and mental capacity assessment, it is possible to achieve a proper outcome, and the report can be used as input to NHS Continuing Healthcare Checklists and Decision Support Tools at a full assessment.
3) Insist that any psychiatrist appointed meets the following criteria for doctors which apply to mental health assessments under Deprivation of Liberty Safeguards (which are part of the MCA and relevant to decision making about place of residence):
The person must be:
a) approved under section 12 of the Mental Health Act 1983; or
b) a registered medical practitioner who the supervisory body is satisfied has at least three years post registration experience in the diagnosis or treatment of mental disorders
c) The supervisory body (local authority) must be satisfied that the person has successfully completed the Deprivation of Liberty Safeguards Mental Health Assessors training program made available by the Royal College of Psychiatrists.”
Year in Review. This year has seen yet another increase in the number of clients seeking help with their assessment or appeal for NHS Continuing Healthcare Funding (CHC). This is a very specialised niche area and Farley Dwek Solicitors are proud to be helping so many families get their proper entitlement to free-funded NHS care.
Getting CHC Funding can be a lifesaver for many individuals in a care facility or going into care for the first time. However, even today, so many families are facing an uphill battle against the NHS to secure vital funding which should be granted for their relative’s assessed healthcare needs, including their accommodation.
Farley Dwek Solicitors were the first, and as far as we are aware, remain the only Solicitors to provide an entirely FREE guide on NHS Continuing Healthcare Funding, which anyone can download on our website. This year over 2250 Free guides will have been downloaded or posted out, entirely free.
We have produced numerous helpful blogs on our website to help families going through the assessment or appeal process. Here are some of the year’s highlights. Click on the headings to read the full article:
This article is a must and encapsulates everything that is wrong with the CHC process!
Congratulations to Victoria Derbyshire on her heart-rending and moving exposé surrounding the national scandal of NHS Continuing Healthcare Funding. Watch the personal testimonies of families who have had to battle against the odds and the NHS ‘machinery’ to get CHC Funding for their relative. Hear stories about CCGs’ flawed assessments, incompetence, and decisions for funding which were rejected or wrongly overturned, when it appears blatantly obvious that CHC Funding should have been granted.
Hear from Andrew Farley, Solicitor, who was interviewed exclusively for the BBC programme. He said, “There are thousands of people who have been forced to sell their houses to pay for the care in circumstances when they perhaps ought not to have had to do so. The problem is that a lot of people don’t know of the existence of this funding, and even those who do know about it, have difficulty in navigating the complexities of the system. It is a national scandal that people are not being signposted to this funding.”
Andrew Farley, Solicitor, is again quoted in a Daily Telegraph article on Sunday, 10th November 2019, as he cites a case of an 80-year-old client who was left needing care following a stroke. Read his quotes to the paper and how Farley Dwek helped her save £1000 a week in care home fees. Despite initially being assessed as eligible for NHS Continuing Healthcare Funding, an annual review conducted by the CCG some 5 years later found that she was no longer eligible upon reassessment. Her CHC Funding was withdrawn without apparent good justification, despite there being no significant changes in the levels of her needs. Farley Dwek assisted the family all the way through the appeal’s process to an Independent Review Panel conducted by NHS England. They found that the CCG had been wrong, and that the client was indeed eligible for CHC Funding, as there had been no changes in the levels of needs to justify it being withdrawn.
Read about a true-life case study about an elderly lady who had been found ineligible for CHC despite the MDT’s recommendation that funding should be granted. Learn from her family’s determined fight for justice over many years, as they battled and appealed against the CCG’s intransigent and dogmatic refusal to reopen her case and undertake a retrospective review of a previously unassessed period of care. Farley Dwek Solicitors were instructed and ultimately secured over £170,000 in wrongly paid care home fees.
Despite the CCG seeking to frustrate the claimant’s application for CHC Funding at every juncture, necessitating multiple complaints, our client eventually secured CHC funding after a 5 year lengthy battle with the NHS. When it came to seeking reimbursement of the care home fees that had been wrongly paid, the family struggled to provide satisfactory proof of payment. They had kept very little documentation and the care home couldn’t assist either because it had closed and been demolished, and with it all financial records. The CCG sought to take advantage and imposed a unilateral and arbitrary deadline for providing proof, failing which they threatened to close the case, once again. So, having successfully won her case and wrongly pay for care in the first place, the CCG still tried to avoid their obligations to make fair compensation.
Read about the experiences of a family who were given incorrect information by the CCG and who told that they were having “a little meeting” for their relative in hospital which turned out to be a full-blown MDT assessment! Contrary to the National Framework, the MDT assessment took place without the family representatives being present or being given any opportunity to present their case to the assessors. Read about what happened next…
We often find that care home notes and records inadequately or insufficiently record daily entries in relation to an individual’s care needs. This could be for a variety of reasons, including poor training, lack of time and resources, or simply too few carers or nurses looking after too many patients. Deficiencies in the care records and poor record keeping can present a significant problem for families undergoing a Retrospective Review for NHS Continuing Healthcare Funding. Read a case study of an individual who suffered a significant number of falls, but unfortunately, the entries in the care home records did not accurately reflect this. The lack of contemporaneous records can be very detrimental, and here it allowed the Local Resolution Panel to downgrade her ‘high’ level of need under the ‘Mobility’ Care Domain.
This headline came from The Daily Telegraph on 2nd May 2019, where it stated that, “More than 5,000 older people died due to a fall in 2017, marking a 70% increase on the numbers in 2010.”
A serious fall for an elderly person can have a dramatic effect and be a life-changing event for them, often leading to a loss of independence, and a rapid deterioration in their overall health. Elderly or frail people with thin bones (and thin skin) who fall badly, don’t generally have a good prognosis. Often, it is too difficult or risky to operate on a fracture, whether due to their age, frailty or risk of anaesthetic, and they can be left in immense pain indefinitely with reduced mobility. Bruises or open wounds can become infected and can take many months to heal. Worse still, they may not be able to communicate the level of pain to you or their carers due to cognitive impairment. Read our tips on how Farley Dwek can help if your relative has had a fall in a care home (or fallen out of a hospital bed).
We know from our own media campaigns, the National Survey we commissioned, and the general lack of media attention, that this area of CHC Funding is not widely known amongst the public. It has been described as the “NHS’s best kept secret”.
Independent Financial Advisors (IFAs) have a professional duty to advise their clients as to the availability of NHS Continuing Healthcare Funding, before offering to sell a wide range of financial policies to cover the cost of care. Consideration as to whether it is appropriate to arrange for their client to undergo an NHS assessment for CHC Funding should be their first priority. Your relative’s entitlement to NHS Continuing Healthcare Funding should be the first question that is considered, not the last!
Unfortunately, in our experience, most financial advisors have never even heard of NHS Continuing Healthcare Funding. However, their lack of knowledge is not actually surprising, as many medical professionals we speak to know very little about NHS Continuing Healthcare Funding either.
Nevertheless, it is incumbent upon financial advisors and other companies providing financial advice, to explore the availability of this free funded care at the outset, as it could benefit their clients. It could save taking out unnecessary financial policies or making unwanted investments, and save you large IFA commission fees.
Whilst we recognise that every patient’s care needs will be different, the NHS assessment process allows far too much subjectivity, which unfortunately can lead to abuses of process, and funding being declined or withdrawn when it is clearly needed. We see individuals who should ordinarily get CHC Funding being wrongly turned down or having it removed upon reassessment. We question whether the system is fit for purpose and whether there is a lack of independence within the Clinical Commissioning Groups when carrying out their assessments for CHC Funding.
If CCG assessors are competent and fair when carrying out their assessments, then why do so many people get CHC Funding awarded or reinstated at an Independent Review Panel Appeal carried out by NHS England – the ultimate independent review body?
In our experience, we believe that the NHS assessment system is failing families and has been for years, as confirmed by the House of Commons Committee of Public Account. If Clinical Commissioning Groups were carrying out fair and robust assessments at first instance at local level, which are transparent, fair, accurate and robust, then inevitably there would be less appeals. Confidence would be restored, and families could be comforted that the system is working for their benefit, with care being provided free of charge at the point of need.
If your spouse, relative or friend has a ‘primary healthcare need‘, ie needs over and above those which the local authority are legally obliged to provide, then they may be entitled to have all their care fees, including accommodation, paid for free of charge, by the NHS. In order to establish whether your relative meets the criteria for a primary healthcare need and is eligible for NHS Continuing Care Funding, they’ll need to undergo an assessment.
This article looks at the Multi-Disciplinary Team (MDT) assessment meeting, how it is constituted, who will be attending from the CCG, the Decision Support Tool and 4 Key Indicators, plus read our top 10 tips and useful advice when preparing for and attending the MDT. Farley Dwek Solicitors have a wealth of experience, gained over many years, in dealing with MDTs. We provide advocacy help and support for families, and take the stress and strain of the MDT assessment on our shoulders. We use specialist nurses who have all worked in this particular field for many years, and who understand the National Framework and know how to fight your corner. Farley Dwek Solicitors can help you at every stage of the assessment or appeal process.
Patient safety is paramount. So why do so many patients suffer falls at hospital?
Patients awaiting triage assessment at hospital, transfers, or ‘parked’ on a trolley waiting for an available bed, contribute to the majority of falls at hospital.
Most of these falls are unwitnessed – primarily due to the lack of staffing and close supervision. Staff may become distracted, perhaps whilst attending to other patients or emergencies, leaving vulnerable, elderly or cognitively impaired patients at risk of falling. Patients can be left for long periods of time on their own and may try to mobilise themselves, but without the necessary strength, awareness or cognitive function to be able to do so safely. Patients experiencing a fall at hospital usually result in spinal, hip, shoulder, arm or wrist injuries. With closer supervision and monitoring, these incidents could and should have been avoided.
Hospitals should carry out risk assessments to ensure that all patients are safe.
We believe that falling out of a hospital bed is a ‘never event’ – one of those events which is completely unacceptable and entirely avoidable if proper supervision and risk assessments are in place. Farley Dwek Solicitors help individuals claim compensation for neglect causing a fall.
Please call us for a free initial chat if you need help with your relative’s assessment or appeal on 0161 272 5222 or 0800 011 4136 or email to: firstname.lastname@example.org
In order to establish whether your relative meets the criteria for a primary healthcare need and is eligible for NHS Continuing Care Funding (‘CHC’), they’ll need to undergo a multi-disciplinary team assessment.
If your spouse, relative or friend has a ‘primary healthcare need”, ie needs over and above those which the local authority are legally obliged to provide, then they may be entitled to have all their care fees, including accommodation, paid for free of charge, by the NHS.
The first stage of the assessment process is to have an initial Checklist completed. You can read all about this in our previous article, “The NHS Continuing Healthcare Funding Checklist Explained.”
If your relative passes this Checklist stage, they will then go on to a full assessment, which is carried out by their Clinical Commissioning Group (CCG).
The CCG will appoint at least 2 assessors to meet with your relative in their care setting to carry out a Multi- Disciplinary Team Assessment (“MDT”).
The National Framework provides that the MDT should consist of at least 2 professionals who are from different healthcare professions, or one professional who is from the healthcare profession, and the other is a social worker.
A list of MDT professionals could include the following: Nurse Assessors, Social Care Practitioners, Physiotherapists, Occupational Therapist, Dieticians/Nutritionist, GPs/Consultants/Other Medical Practitioners, Community Psychiatric Nurses, Ward Nurses, Care Home/Support Provider Staff, Community Nurses, Specialist Nurses, Community Matrons and Discharge Nurses.
Important: These appointed professionals should be trained in the National Framework, be knowledgeable about your relative’s health and social needs, and where possible, have recently been involved in their assessment, treatment or care.
We know from experience that it is quite common for the MDT’s assessors to have little or no knowledge of your relative’s daily needs. Indeed, they may never have met them before assessment, or else have very little understanding of the National Framework and the assessment process. This can lead to tainted and poor assessments, with disastrous outcomes for families who are fully expecting their relative to be awarded NHS Continuing Healthcare Funding, and that the process will be carried out thoroughly, fairly and robustly. As you can imagine, if the MDT’s assessors have no direct prior knowledge or input into your relative’s care needs, then even in the most obvious cases where CHC Funding should be recommended, it could become an uphill struggle.
Question what training the MDT’s assessors have had on the National Framework, and also what prior involvement they have had with your relative’s care. Otherwise, proceeding with the MDT might be a pointless exercise and a waste of time, leading to a lengthy appeal.
The MDT assessment is carried out by the assessors looking at your relative’s medical condition, their medical history, in conjunction with the care and other relevant medical records and assessments, to build an overall picture of their healthcare needs.
Unsurprisingly, care home records do not always contain all the necessary evidence to support the case for CHC Funding. Firstly, it isn’t always in their best interests to keep detailed records as that might assist the resident to get CHC Funding, which invariably, will be paid by the NHS at a lower rate than the actual cost of care. Secondly, most care homes have too few staff looking after too many patients, and there’s simply not enough time in the day to write up each and every occurrence as it happens. Staff may write up care records at the end of their shift which, after a long day, can lead to errors and many important entries being forgotten, or else, partially or inadequately recorded.
However, these records can provide vital contemporaneous evidence of actual daily healthcare needs, and are therefore equally, a vital ingredient of the assessment process. Poor records can often result in a poor outcome!
As with the initial Checklist assessment, you should be given plenty of notice of the MDT meeting.
It is essential that you attend to ensure that the assessment is conducted impartially and robustly.
You can provide a vital role by assisting the MDT’s assessors with additional information about your relative’s daily healthcare needs or correcting any errors or misunderstandings they may have.
Don’t assume the MDT assessors have all the facts and are above making reproach. You will know more about your relative’s needs than them. So speak up!
It is also essential that the MDT’s assessors actually see your relative as part of their assessment. This sounds obvious, but we have heard of assessments being carried out, without them even asking to see the resident – ie clearly suggesting that the assessors had already made their minds up to reject funding in advance. How can that be right or fair? If this happens to your relative, you must object and raise your concerns as these are immediate grounds for appeal.
The Multi-Disciplinary Team will score your relative’s needs using the parameters set out in the Decision Support Tool (DST).
The DST contains 12 headings, known as Care Domains, similar to the Checklist, but with the added 12th Domain of’ ‘Other significant care needs’:
1. Breathing 2. Nutrition 3. Continence 4. Skin Integrity 5. Mobility 6. Communication 7. Psychological & Emotional needs 8. Cognition 9. Behaviour 10. Drug therapies and medication 11. Altered states of consciousness 12. Other significant care needs.
Common misconception: The DST is not the assessment of needs itself. It is just a tool to aid the MDT assessors record the level of your relative’s health needs in one document, based on information they’ve gathered, so that they can make a recommendation eligibility for CHC Funding.
Each of the 12 Care Domains contains a description (‘descriptor’) of the level of need ranging from ‘no needs to ‘severe’ or ‘priority.’
Here’s an example of the ‘Behaviour ‘domain…
|Description||Level of need|
|No evidence of ‘challenging’ behaviour.
| No needs
|Some incidents of ‘challenging’ behaviour. A risk assessment indicates that the behaviour does not pose a risk to self, others or property or create a barrier to intervention. The individual is compliant with all aspects of their care.|| Low
|‘Challenging’ behaviour that follows a predictable pattern. The risk assessment indicates a pattern of behaviour that can be managed by skilled carers or care workers who are able to maintain a level of behaviour that does not pose a risk to self, others or property. The individual is nearly always compliant with care.|| Moderate
|’Challenging’ behaviour of type and/or frequency that poses a predictable risk to self, others or property. The risk assessment indicates that planned interventions are effective in minimising but not always eliminating risks. Compliance is variable but usually responsive to planned interventions.|| High
|‘Challenging’ behaviour of severity and/or frequency that poses a significant risk to self, others or property. The risk assessment identifies that the behaviour(s) require(s) a prompt and skilled response that might be outside the range of planned interventions.|| Severe
|‘Challenging’ behaviour of a severity and/or frequency and/or unpredictability that presents an immediate and serious risk to self, others or property. The risks are so serious that they require access to an immediate and skilled response at all times for safe care.|| Priority
Remember: If there is disagreement between members of the MDT about a level of need, the higher level must be applied.
Many families mistake the DST ‘scores’ as being the most important determining factor for awarding funding. However, the DST is just a forum to record the level of need. What is important is how these needs impact upon the 4 Key Indicators (sometimes called ‘characteristics’), namely: Nature, Intensity, Complexity and Unpredictability.
DST scores, whilst of course important, are not always the overriding factor in determining eligibility for CHC Funding. You’ve got to look at the bigger picture and take a holistic approach. You have to consider the totality of the individual’s needs by applying the 4 Key Indicators to see whether there is a primary need for healthcare overall.
Essentially, you need to look at the interaction between the different care needs across the 12 Care Domains and see how they impact upon each other.
It is not simply a question of saying, “My relative has scored ‘1 severe’, ‘3 highs’ and ‘4 moderates’ in their DST, so they must qualify”. If the evidence does not suggest the patient’s needs are complex, intense and/or unpredictable, they will not qualify for funding, whatever the assessed levels of need (excepting, of course, one “priority” level of need or two “severe” levels of need which would fulfil the Key Indicators).
When thinking about the 4 Key Indicators, consider the following:
- How often do care interventions arise over a 24-hour period and how long does it take staff to meet the need on each occasion; how many members of staff are required for each intervention (Intensity)?
- Do the staff need any specialist training, knowledge or skill in order to meet the needs and do needs interact (Complexity)?
- Are the needs unstable and/or rapidly changing (Unpredictability)?
This will build a picture as to whether your relative needs trained staff to manage these healthcare needs with skilled intervention over a sustained 24-hour period to prevent deterioration.
Attending a full assessment in front of a Multi-Disciplinary Team can be a stressful and daunting experience, and often fills families with much anxiety. Most family representatives don’t really understand the National Framework, how the assessment process works, what is expected of them at the MDT, or what they should or shouldn’t say. The MDT’s assessors will be far more experienced and should know the National Framework inside out. They should come with an open mind so that they can conduct a fair and thorough assessment and make an impartial recommendation as to your relative’s eligibility for CHC Funding.
However, listening to families, and what we know from our own experience, we often hear that MDT assessments do not go as expected. Sadly, some assessors appear to come with a predetermined outcome (i.e. to refuse funding) and no matter how much the family try to argue their case, they feel overwhelmed by the assessors’ aggressive or indifferent stance.
The MDT is your first real opportunity to secure long-term fully-funded free care for your relative. It Is therefore critical that you give this meeting your best shot. Otherwise, your relative may end up paying huge sums for their own care and accommodation.
Good preparation for the MDT is the key.
Here are our top 10 tips:
1. Get the MDT in plenty of time and ensure you are at the assessment when it starts. Don’t allow the assessment to start without you. Who knows what’s been done or said in your absence.
2. Speak to the relevant care home staff in advance as they may be questioned by the MDT’s assessors about your relative’s daily care needs. Inaccurate or ‘loose’ phrasing may paint a misleading or entirely different picture of your relative’s needs.
3. Ask the assessors what qualifications they have, what their experience of conducting MDTs is, how they know your relative, and what aspect of their care they have provided.
4. Participate in the meeting and don’t be a bystander! You know your relative’s needs better than the assessors – so stand up, speak up, and don’t be afraid to correct any misinformation they have.
5. Point out to the assessors any of the care records, risk assessments or care plans etc, that you think are particularly relevant and check they’ve been considered by the assessors.
6. Look at Practice Guidance Note 22 of the National Framework which lists the type of information and evidence that the MDT assessors should consider before making their recommendations funding.
7. Don’t ramble on about unimportant matters. Whilst we know that you’ll want to tell the MDT’s assessors all about your relative’s care needs from ‘A – Z’, it is vital that you stick to your key arguments and don’t get side-tracked pontificating about areas of care where there are ‘no’ or ‘low needs’. Focusing on irrelevancies or making poor points, will only serve as an own goal and could severely undermine your relative’s chances of securing funding. We recognise that this is often easier said than done, when you are emotionally involved.
8. It’s a good idea to take someone along with you for notetaking, as a good record may become useful evidence if you need to lodge an appeal.
9. Do not discuss nor engage in any discussion about how your relative’s care will be funded at this stage! It is completely irrelevant and has no place in the assessment. The MDT assessors are there solely to determine whether your relative has a ‘primary healthcare need’ and make a recommendation as to their eligibility for funding. It is not their job to discuss whether your relative can pay privately for their own care.
10. Don’t sign any agreement to the DST. There could be key matters which the MTD assessors have overlooked, misinterpreted, mis-stated or not given sufficient weight to, which could impact upon their recommendations. Signing your agreement to the DST may unwittingly prejudice at any later appeal, if needed.
The NHS assessment process is supposedly designed for families to attend and argue the case for funding themselves. Unfortunately, in our experience, very few families who embark upon this process, successfully manage to get to grips with the National Framework or have the particular skills required to secure funding.
The common error that families frequently make, is thinking that their relative must surely qualify for CHC Funding, when in fact their health needs are not sufficiently high enough. The barriers to getting CHC funding are stacked against you and the bar is set very high.
Farley Dwek Solicitors have a wealth of experience, gained over many years, in dealing with MDTs. We provide advocacy help and support for families, and take the stress and strain of the MDT assessment on our shoulders. We use specialist nurses who have all worked in this particular field for many years, and who understand the National Framework and know how to fight your corner. Farley Dwek can help you at every stage of the assessment or appeals process.
Get our Free Guide or call us on 0161 272 522 or 0800 011 4136 for initial free advice.
For further reading, we recommend that you look at:
Practice Guidance Note 21 of the National Framework: What are the elements of a good multidisciplinary assessment of needs?
The problems encountered by the NHS in assessing Continuing Healthcare Funding were highlighted in the recent House of Commons Committee of Public Accounts (NHS continuing healthcare funding) Thirteenth Report of Session 2017-19, which said in summary:
“NHS continuing healthcare (CHC) funding is intended to help some of the most vulnerable people in society, who have significant healthcare needs. But too often people’s care is compromised because no one makes them aware of the funding available, or helps them to navigate the hugely complicated process for accessing funding. Those people that are assessed spend too long waiting to find out if they are eligible for funding, and to receive the essential care that they need. About one-third of assessments in 2015−16 took longer than 28 days. In some cases people have died whilst waiting for a decision. There is unacceptable variation between areas in the number of people assessed as eligible to receive CHC funding, ranging from 28 to 356 people per 50,000 population in 2015−16, caused partly by Clinical Commissioning Groups (CCGs) interpreting the assessment criteria inconsistently. The Department of Health and NHS England recognise that the system is not working as well as it should but are not doing enough to ensure CCGs are meeting their responsibilities, or to address the variation between areas in accessing essential funding. NHS England wants CCGs to make £855 million of efficiency savings in CHC and NHS-funded nursing care spending by 2020−21, but it is not clear how they can do this without either increasing the threshold of those assessed as eligible, or by limiting the care packages available, both of which will ultimately put patient safety at risk.”
We know that interpretation of the 12 Care Domains set out in the Decision Support Tool at a Full Assessment, is subjective. Hence, it is possible for two different assessors to assess the same individual’s eligibility for NHS Continuing Healthcare Funding (CHC) but come up with a completely different conclusions as to their entitlement for CHC Funding.
The inconsistency as to who does and doesn’t get NHS Continuing Healthcare Funding has often been described as a ‘postcode lottery’.
Whilst we recognise that every patient’s care needs will be different, the NHS assessment process allows for too much subjectivity, which unfortunately can lead to abuses of process, and funding being declined or withdrawn when it is clearly needed. We see individuals who should ordinarily get CHC Funding being wrongly turned down or having it removed upon reassessment.
This could be due to a number of potential reasons, including the CCG’s appointed assessors having insufficient training; not getting to grips with the National Framework for NHS Continuing Healthcare Funding; carrying out cursory or grossly inadequate assessments; attending assessments perhaps with a wrongly preconceived view as to the outcome ie that the individual just won’t qualify for CHC because they have social and not healthcare needs; they don’t listen to the family members who know their relative’s needs best; or simply because they are adopting a partisan approach to protect NHS budgets for ‘financial gatekeeping’ reasons (albeit that, of course, will never be admitted as it is contrary to the National Framework!)
We question whether the system is fit for purpose and whether there is a lack of independence within the Clinical Commissioning Groups when carrying out their assessments for CHC Funding.
There is generally no issue with individuals being screened at the initial Checklist stage and moving forward to a Full Assessment, where appropriate. However, too often we find that individuals are wrongly refused CHC Funding at CCG ‘local level’, or on appeal at a Local Resolution Meeting (also conducted by the same CCG!). We know from the number of appeals we conduct for families, that too many individuals are turned down for CHC Funding initially, then go on successfully to receive funding on appeal. There is clearly a failure in the system, as too many valid claims for CHC Funding are turned down.
If CCG assessors are competent and fair when carrying out their assessments, then why do so many people get CHC funding awarded or reinstated at an Independent Review Panel Appeal carried out by NHS England – the ultimate independent review body?
If proceeding to appeal at NHS England, families can expect many years of frustration and anxiety as they battle for CHC Funding for their relative. As we know, it can take several years from completing the initial Checklist assessment to a Full Assessment (using the Decision Support Tool), and if refused, wading through the tiered Local Resolution Appeals process, and ultimately on to appeal before NHS England. The average waiting time from a Local Resolution Meeting to an Independent Review Panel Meeting is currently anywhere between 8 to 12 months, followed by another lengthy wait to get NHS England’s final written decision.
NHS England are currently inundated by a backlog of appeals stacking up. All require careful consideration as you would expect. Essentially, this appeal is your last real opportunity to get CHC Funding for your relative. Don’t rely on the PHSO (Parliamentary and Health Ombudsman!)
However, in our experience, we believe that the NHS assessment system is failing families and has been for years, as confirmed by the House of Commons Committee of Public Account (see above). If Clinical Commissioning Groups were carrying out fair and robust assessments at first instance at local level, which are transparent, fair, accurate and robust – then inevitably there would be less appeals. Confidence would be restored, and families could be comforted that the system is working for their benefit, with care being provided free of charge at the point of need.
The amount of appeals pending or in process, and time and energy spent by families arguing with the NHS would be dramatically reduced. Early successful outcomes would prevent undue stress, anxiety and anguish for families who would not have to fund expensive care for their relative from hard earned savings or the sale of assets (usually a home), whilst pursuing an appeal.
Full Assessments should be undertaken by two or more professionals from different healthcare professions – a healthcare and a social services care professional. They should be fully trained in the assessment process and knowledgeable about your relative’s daily healthcare needs. Sadly, it is common for some assessors not to have been fully trained in the National Framework processes or have even met your relative prior to the assessment. That’s where some of the problems lie.
Indeed, we have learned that some social workers are not independently trained but are in fact actually trained by CCG workers. Arguably, could this compromise their independence and cloud their thinking? We have been supplied with evidence from an enquirer who sent us copy correspondence from a social worker, who wrote to him as follows:
“Although we social workers are trained, we are trained by the same CCG workers so the CCG workers would only tell us if the care needs are provided by carers then it’s social care needs. In my 22 years in social work, I have yet to attend training that will train social workers to be: properly trained in the limits of needs which can legally be supplied by the local authority.”
This startling revelation not only confirms that the social worker has had no training in the eligibility criteria for CHC, but moreover, merely follows the CCG’s lead as to what constitutes a primary healthcare need and what is a social need. The distinction is, of course, critical because healthcare needs are provided by the NHS, and are free of charge regardless of wealth; whereas, social needs are provided by the Local Authority and are means-tested (and could mean you have to pay for your relative’s care!).
How can individuals, their families and advocates have confidence in the NHS Assessment system if some of the appointed representatives carrying out assessments admit they have not had independent training and merely follow what has been told to them and follow the CCG’s ‘party line’? Perhaps it’s a case of the ‘blind leading the blind’? That doesn’t inspire faith in a robust NHS assessment process. It’s no wonder that many cases go on to successful appeal.
We strongly suggest that in any Full Assessment, you ask:
- What qualifications do the assessors have?
- What CHC training have they had?
- How well they knew your relative and what input they have had into their daily care?
- How many prior assessments they have carried out?
- What percentage (approximately) they have recommended eligibility for CHC Funding and what percentage against?
In any event don’t sign any agreement to the Decision Support Tool as it might prejudice any subsequent appeal.
Read our related blogs:
Get an NHS Continuing Healthcare assessment, it could stop you getting into debt.
We were recently contacted by an enquirer who told us of her despair after being harassed and bullied by the Local Authority to repay her mother’s care home fees which had been funded under a ‘Deferred Payment Scheme’.
Essentially, if your relative is not eligible for NHS Continuing Healthcare Funding, then they may pass over to the Local Authority, who can provide funding for your relative’s care if they have capital or savings less than £23,250 (which includes the value of their home).
In some circumstances, individuals may be asked to contribute to the cost of their care if it exceeds the Local Authority set ‘bed rate’ for that particular care home.
For example: If the cost of your relative’s care in a care home is £1,200.00 per week, but the Local Authority will only contribute a fixed rate of £800.00, then your relative will have to pay (ie top-up) the difference unless they move into a different care home within the approved £800 budget. If, your relative stays in the more expensive care home but is unable to afford the full cost, they can liaise with the Local Authority and be considered for payment on credit terms under a ‘Deferred Payment Scheme’. Under this arrangement, the Local Authority will fund the shortfall in the care home fees (i.e. £400 per week) on the understanding that your relative will repay them at some future stage – either upon the sale of their home whilst living, or out of the sale proceeds upon death.
Invariably, to protect their position and give comfort and security, a Local Authority will insist on taking a legal charge over your relative’s property, so that in the event of it being sold one day, they will be able to recoup the monies due to them out of the sale proceeds.
Under the Deferred Payment Scheme there will be a contract in place between the Local Authority and your relative (or their representative/Attorney appointed under a Lasting Power of Attorney), to repay the Local Authority’s monies at a stipulated time or event happening, eg upon the sale of their home.
WARNING: If you have signed this contract as your relative’s representative, the Local Authority could pursue you personally for repayment – holding you directly and personally liable to make repayment. Given the legalities of a contract under the Local Authority’s Deferred Payment Scheme, there is unlikely to be any ‘wriggle’ room if you default in making payment. The Local Authority can issue Court proceedings against you and take enforcement action to recover monies contractually due to them.
In the enquirer’s situation, she was acting in her capacity as her mother’s representative and was forced to sell some private land she owned to offset the monies owed to the Local Authority under a Deferred Payment Scheme. However, despite her best endeavours, the sale proceeds weren’t enough and left a shortfall. The Local Authority issued Court proceedings against her to claim the balance due, and in doing so, incurred legal costs, court fees and additional interest, which were all added to the sum claimed. Unfortunately, she was emotionally and mentally overwhelmed by the whole situation and buried her head in the sand. The matter became too much for her to cope with. Instead of engaging with the process, she did nothing, hoping it would all go away. It didn’t, and now she has a County Court Judgment registered against her name, causing her greater anxiety and depression. Her anxiety is so bad, that she dreads getting her daily post. Due to the stress of the situation, she has lost weight and it has made her unwell.
Advice: If you get into this situation, do not bury your head in the sand and ignore the matter. You must seek legal advice immediately. Speak to the Citizens Advice Bureau or an approved debt management company, lawyer, or other relevant organisation, to get help and advice. You may be able to reach an agreement with the Local Authority if you are in financial hardship.
However, it transpires that the enquirer’s mother was, in fact, belatedly assessed and found eligible for NHS Continuing Healthcare Funding – a package of free-funded care provided by the NHS that is free at the point of need if you have a ‘primary health need’ and which is not means-tested. Arguably, had her mother been properly assessed at the outset some time ago, and been awarded NHS funding at that stage, then all the care home fees would have been paid for in full by the NHS, meaning that:
- There would be no need to involve the Local Authority and enter into a Deferred Payment Scheme;
- There would be no registered legal Charge on her property;
- She would not have had to sell her own private land to try and fund her mother’s debt owed to the Local Authority;
- There would be no Court claim, no lawyer’s fees and no interest payable.
Typical: Like most of the population our enquirer had never heard of CHC at the time her mother went into care. There was clearly a failing by the hospital, care home, NHS or Local Authority at the outset to mention the availability of NHS Continuing Healthcare Funding and/or to have her mother robustly assessed to see whether she was eligible for funding when she moved into a care home setting. Instead, our enquirer has been placed into debt and has had the stress and anxiety of dealing with the Local Authority and their appointed solicitors, whilst racking up additional Court fees, legal costs and interest.
Lesson: This whole situation could possibly have been avoided. You MUST spread the word and tell others about the availability of NHS Continuing Healthcare Funding!
Before you discuss payment of your relative’s care home fees or consider entering into any contract about funding your relative’s care, or engaging a Financial Advisor, you MUST first consider whether it is appropriate to arrange for your relative to be assessed for NHS Continuing Healthcare Funding. If found eligible for this fully-funded package of free care, it could save your relative thousands of pounds in care home fees, avoid huge stress and anxiety, and also avoid being diverted down the wrong path towards potential debt.
Remember our motto: NHS Continuing Healthcare Funding is all about “health, not wealth!”
Farley Dwek Solicitors offer various services to help families at every stage of the NHS care funding assessment process or appeal. Call us for a free initial consultation on 0161 272 522 or 0800 011 4136