Retrospective CHC Claims: Who Can Claim, How Far Back and What is the Process?

Who can make a retrospective CHC claim?

The person who received the care can make a request themselves.

A third party can also apply on their behalf where they have appropriate authority to act. This might include an attorney acting under a valid Lasting Power of Attorney, a deputy appointed by the Court of Protection or an Executor acting in accordance with a Will.

Where the person lacks capacity and there is no attorney or deputy with the necessary authority, the Integrated Care Board (ICB) may need to consider the Mental Capacity Act 2005 and whether a best-interests decision should be made about proceeding with the PUPoC process.

Can you claim after someone has died?

Yes. A retrospective CHC claim may still be possible after the person who received the care has died.

The representative will usually need to provide sufficient evidence that they are an executor or administrator of the estate, or otherwise demonstrate that they have a claim arising from the death.

Being a relative does not, in and of itself, necessarily give someone authority to pursue the claim. The ICB may ask for documents such as a grant of probate or letters of administration.

This can arise where a family only becomes aware of CHC after a parent or other relative has died and substantial care fees have already been paid.

How far back can you make a retrospective CHC claim?

As a general rule, ICBs should consider previously unassessed periods of care from 1 April 2012 onwards.

Earlier national arrangements dealt with historical claims for periods before that date, so the Department of Health and Social Care expects genuinely unconsidered pre-April 2012 cases to be rare.

That does not mean an earlier claim is automatically impossible. Current guidance says an ICB should consider whether there are exceptional circumstances that justify looking at a period before 1 April 2012.

However, those cases are expected to be unusual.

Importantly, falling within the post-April 2012 period does not mean that care fees will automatically be reimbursed. It means that the period may be considered. CHC eligibility still has to be established based on the evidence available.

Was the period genuinely “previously unassessed”?

This is one of the most important questions to answer before investing substantial time in a retrospective claim.

A PUPoC is not simply any period in which someone paid their own care fees.

For a period to qualify, there must have been no consideration of CHC eligibility at the time, the person must have funded their care in full or in part, and there must be appropriate objective evidence that they should have been considered for CHC.

No CHC consideration took place

If no Checklist and/or Decision Support Tool was completed and there was no decision about whether CHC assessment was appropriate, the period may amount to a PUPoC, provided the other requirements are also met.

A Checklist or full assessment already took place

If a CHC Checklist was completed, or a decision was made at the time not to carry out a Checklist or assessment, the NHS may treat that period as having been considered – i.e., NOT an unassessed period of care.

Similarly, where a full CHC assessment took place and the person was found not eligible, the same period should not simply be assessed again years later using the PUPoC process.

That does not necessarily mean there is no possible challenge. If the original assessment did not comply with national guidance concerning the involvement of representatives, and/or communication of outcomes and rights to dispute, the complaints route may need to be considered.

Needs changed after an earlier assessment

Retrospective review may also be required in cases where an assessment took place, but there was no subsequent consideration, despite a change in needs.

For example, someone may have screened out on the CHC Checklist upon admission to permanent care and later experienced a significant deterioration in their health without CHC eligibility ever being reconsidered.

Current guidance says that where there is evidence of an identified change in need after an assessed period, this should be treated as a potential PUPoC and investigated further.

This distinction matters. An earlier CHC decision does not necessarily mean every later period has also been assessed.

What if the person received NHS-Funded Nursing Care?

Receiving NHS-Funded Nursing Care (FNC) does not automatically prevent a retrospective CHC claim.

FNC is a payment made by the NHS towards nursing care provided by a registered nurse in a care home. CHC eligibility should be considered before a decision is made about FNC.

The important question for a retrospective claim is therefore whether CHC eligibility was actually considered.

If FNC reviews included consideration of possible CHC eligibility, the relevant period may already have been assessed.

However, where FNC was paid without proper consideration of CHC, there may be a potential PUPoC to investigate. The same may apply where needs later changed materially but CHC eligibility was not reconsidered.

How does the retrospective CHC claim process work?

1. Contact the relevant ICB

You should contact the Integrated Care Board responsible for the person during the period in question and request assessment of a Previously Unassessed Period of Care.

The ICB should provide the relevant PUPoC application documentation.

2. Establish your authority to act

If you are applying on behalf of somebody else, the ICB will need appropriate consent or evidence that you are authorised to act.

Where the person has died, evidence establishing your entitlement to pursue the matter will normally be required.

3. The ICB decides whether the request is appropriate

Before beginning a retrospective assessment, the ICB should establish whether:

• it was responsible for the person during the relevant period;
• the period was genuinely unassessed;
• the person funded the care in full or in part; and
• the request meets the requirements for a PUPoC assessment.

The ICB should explain its decision in writing, give reasons and provide copy of any evidence supporting the decision.

4. Relevant records are gathered

If the request proceeds, the ICB needs to collate the available relevant evidence.

This can include:

• Care home records
• GP records
• Hospital records
• Social care assessments
• Records from other NHS services
• Care plans and daily notes
• Documents held by the individual or family

The ICB is responsible for requesting and reviewing relevant evidence, although anything the family can provide may assist in building the picture and help the process move more efficiently.

Financial evidence is important too.

Invoices, receipts and bank statements will be required to establish what was actually paid.

5. A Needs Portrayal Document is prepared

The ICB should prepare a Needs Portrayal Document when processing a PUPoC request.

This document brings together all available evidence to create a chronological picture of the person’s needs over the period being considered.

It can be particularly important in a retrospective claim because the assessment may cover several years and the person’s needs may have changed considerably during that time.

Once prepared, the Needs Portrayal should be shared with the applicant so they have an opportunity to comment and provide further evidence.

Read it carefully.

If significant incidents, deterioration, interventions or day-to-day care requirements are missing or understated, this should be raised before the assessment proceeds.

6. The CHC Checklist may be applied retrospectively

The ICB may then use the current NHS Continuing Healthcare Checklist to determine whether a full assessment is needed.

The Checklist is a screening tool and its threshold is deliberately set low.

Where a claim covers several years, the Checklist should be applied periodically – for example, annually or at points where there was a significant change in the person’s needs.

The result may be that:

• No part of the period proceeds to full assessment;
• Only part of the period proceeds
• The entire period proceeds to a full CHC assessment.

7. A Decision Support Tool is completed

Where a full assessment is required, the current Decision Support Tool (DST) should be completed by an appropriately constituted multidisciplinary team (MDT).

The DST considers needs across a number of care domains and assists the MDT in deciding whether the person had a primary health need.

Where a claim spans several years, the period should be divided into manageable sections, generally annually. Important events such as a stroke, significant deterioration, pressure damage or improvement in health may also determine how the enquiry perios should be split.

The assessment must consider the nature, intensity, complexity and unpredictability of the person’s needs when viewed as a whole.

Crucially, a need does not stop being a need simply because it is successfully managed through good care. The PUPoC guidance specifically requires proper regard be given to well-managed needs when considering CHC eligibility.

8. The ICB makes its decision

The multidisciplinary team makes an eligibility recommendation and the ICB then makes the decision.

The ICB should write to the applicant with a detailed rationale and provide the relevant Needs Portrayal and DST.

What evidence makes a retrospective CHC claim stronger?

Retrospective cases are heavily evidence-driven.

Several years later, memories of what happened will rarely be sufficient by themselves. Contemporaneous care and medical records are essential in providing a clear picture of the person’s actual needs and the level of intervention required.

Two broad categories of evidence matter.

Evidence of care needs

This may include:

• Care plans
• Daily care records
• GP records
• Nursing records
• Social care assessments
• Incident records
• Medication records
• Risk assessments
• Professional correspondence
• Relevant records kept by family members

The evidence should show not merely the person’s diagnoses, but what care, supervision, monitoring and intervention they actually needed.

Evidence of payment

You should also retain or obtain evidence showing what was paid for care.

This can include:

• Bank statements
• Receipts
• Care home fee statements
• Invoices.

Do not discard historical financial records simply because the care period ended years ago. They may become important if retrospective eligibility is eventually established and reimbursement has to be calculated.

What should you check in the Needs Portrayal and DST?

Before treating either document as final, check whether:

• The correct claim period has been considered
• Significant deterioration or changes in needs have been identified
• Relevant medical and care records have been taken into account
• Important incidents or interventions are included
• Well-managed needs have been recognised
• The description of each care domain reflects the records
• Interactions between different needs have been considered
• The nature, intensity, complexity and unpredictability of the needs have been addressed
• The final rationale explains how the primary health need test has actually been applied

A properly completed tool does not automatically mean the correct substantive decision has been reached.

Equally, not every refusal will be wrong. Whether there are grounds to challenge a negative outcome depends on the evidence, the assessment and how the CHC criteria have been applied.

How long does a retrospective CHC claim take?

There is no single mandatory completion period for every PUPoC claim.

ICBs should establish reasonable and proportionate timescales, taking account of factors such as the length of the claim period and the availability of historic records.

For a claim covering one year or less, current guidance gives completion within six months of receiving a satisfactorily completed application and consent forms as an example of best practice.

Where the claim period exceeds one year, the guidance says the request should not take longer than 12 months, except in exceptional circumstances.

These timeframes should therefore be treated carefully: six months is a best-practice example for shorter claims, rather than a universal guaranteed deadline.

If a claim is significantly delayed, ask the ICB to explain the reason in writing and provide an updated timetable.

What happens if a retrospective CHC claim is refused?

The appropriate challenge route depends on the stage at which the decision was made.

The ICB refuses to treat the period as a PUPoC

If the ICB decides that the request does not qualify as a Previously Unassessed Period of Care, it should explain its decision and the reasons for it.

If you remain dissatisfied, challenge can be made via the NHS complaints process.

The retrospective Checklist is negative

Where the Checklist concludes that no full assessment is needed for all or part of the claim period, the ICB should provide the completed Checklist and explain the next steps.

Again, you can dispute the decision via the NHS complaints process and the outcome letter should explain how to go about this.

A full assessment finds the person ineligible

Where a full retrospective CHC assessment has taken place and the ICB decides that the person was not eligible for some or all of the period, the usual CHC appeal process applies.

The first stage is the ICB’s local resolution procedure.

If the dispute is not resolved locally, the next step is to ask NHS England for an Independent Review.

Before challenging a decision, identify exactly what the ICB has got wrong. This may include:

• Incorrect factual findings
• Important evidence being overlooked
• An inaccurate Needs Portrayal
• Misapplication of the levels of need
• Failure to recognise well-managed needs
• Procedural problems
• An incorrect or inadequate application of the primary health need test.

An appeal should be based on the evidence rather than pursued automatically simply because the outcome was disappointing.

How much can you recover through a retrospective CHC claim?

Where the ICB decides that the person was eligible for CHC for all or part of the historical period, it should arrange reimbursement without delay.

Current guidance says the aim is to restore the individual to the financial position they would have been in had CHC eligibility been agreed at the correct time.

The reimbursement should therefore cover the relevant care costs incurred plus interest at the RPI rate, compounded monthly.

Payment should normally be made to the individual or, where appropriate, their estate.

The amount recoverable will depend on:

• The period for which CHC eligibility is established
• The care costs actually incurred
• Any other relevant funding already received
• The calculation of interest

This is why evidence of actual payments is an important part of a retrospective claim.

How can Farley Dwek help with a retrospective CHC claim?

The hardest part of a retrospective claim is often not completing the application form. It is reconstructing several years of changing health and care needs from scattered records and showing how that evidence relates to the CHC eligibility criteria for each relevant period.

Farley Dwek’s Retrospective Reclaims Service combines specialist CHC solicitors with experienced nurses to investigate and pursue retrospective claims.

Depending on the circumstances, our work can include:

• Obtaining historical care and medical records
• Carrying out an initial screening exercise to assess the merits of the claim
• Identifying potentially unassessed periods of care
• Reviewing the evidence from a clinical CHC perspective
• Examining the ICB’s Needs Portrayal, Checklist and Decision Support Tool
• Identifying factual, evidential or procedural problems
• Dealing with the ICB during the retrospective assessment process;
• Challenging an adverse decision where the evidence supports doing so; an
• Calculating and negotiating reimbursement, including interest, where retrospective eligibility is awarded.

Historical records can contain thousands of pages of care notes, medical evidence and financial documents. Important details may be scattered across different organisations and different years.

Our role is to identify the evidence that matters and relate it to the CHC eligibility criteria, rather than simply presenting the ICB with a large bundle of records.

If you or a relative paid for care from April 2012 onwards and you are concerned that NHS Continuing Healthcare should have been considered, speak to our specialist team for an initial discussion about the period involved and the evidence that may be available.

Frequently asked questions

Can I claim for care before April 2012?

Possibly, but only in limited circumstances. ICBs should generally consider PUPoC requests for periods from 1 April 2012 onwards. Current guidance allows earlier periods to be considered where exceptional circumstances justify it, but those cases are expected to be rare.

Can I claim if my relative has died?

Yes. A retrospective claim may still be possible, but you will need to demonstrate the appropriate legal authority to act, such as being the Executor or Administrator of the Estate.

My relative already had a CHC assessment and was found ineligible. Can I still make a PUPoC claim?

Not normally for the same period.

If a full CHC assessment already took place, that period has been assessed. Concerns about the original decision may need to be pursued through the appropriate review or complaints route instead.

However, a later unassessed period following a material change in the person’s needs may still need to be considered separately.

What if care records are missing?

The ICB should gather available relevant evidence and attempt to obtain records needed for the assessment.

Missing records can make it more difficult to reconstruct the person’s needs accurately. Families should therefore preserve and provide any relevant care, medical or financial documentation they still hold.

Will I receive interest if the retrospective claim succeeds?

Current guidance says reimbursement should cover the relevant care costs incurred plus interest, with the aim of restoring the individual to the financial position they would have been in if CHC eligibility had been agreed at the correct time.