Can NHS Continuing Healthcare Funding be Backdated?
NHS Continuing Healthcare Funding (CHC Funding) assessments are often carried out in relation to individuals about to enter care. However, an assessment can also be undertaken in relation to those already in care and paying ongoing fees and on behalf of deceased residents, with representatives seeking to claim back care fees paid on behalf of their Estate.
In these cases, where care fees have already been paid, there is potential for the NHS to backdate eligibility for the funding. How far depends on the type of assessment undertaken.
At Simpson Millar, we have recovered over £12 million in care fees for our clients since 2013.
To discuss eligibility for NHS Continuing Healthcare Funding (CHC Funding), or to discuss claiming back care home fees already paid, get in touch with our Care Home Lawyers for no obligation legal advice.
What is NHS Continuing Healthcare?
NHS Continuing Healthcare Funding (CHC Funding) is a package of care funded by the NHS if an individual is deemed to have a Primary Health Need, as set out in the National Framework for NHS Continuing Healthcare and NHS Funded Nursing Care.
A Primary Health Need is the situation where the main aspect or majority of the individual’s care is focused on addressing or preventing their healthcare needs. It’s also identifiable as being over and above what a Local Authority can be expected to provide. For more information, see What is a Primary Health Need?
Assessments for Individuals Currently in Care
The National Framework indicates that the NHS has a responsibility to identify and undertake assessments for all individuals who may be eligible for Continuing Healthcare Funding.
The first stage of assessment is a Checklist, which is a screening tool to ascertain whether a full assessment is required. The threshold for this screening tool is set deliberately low, so assessments are carried out on all individuals who may be eligible. Having a ‘positive’ Checklist therefore doesn’t mean the individual will be found eligible for the funding, just that a full assessment is required.
Once a positive Checklist is completed, it’s sent to the Clinical Commissioning Group (CCG) whose responsibility it is to arrange the full assessment. It’s expected that this will take place within 28 calendar days of them receiving the Checklist; however, this can take much longer.
There can be justifiable reasons for the delay, such as evidence required to make the decision (such as care plans) taking longer to produce or be provided. However, there are often unjustifiable delays based on with capacity of the CCG departments to carry out timely assessments.
Should an assessment be delayed, it’s important that it considers the individual’s needs from the time of the Checklist. If they’re then found eligible, with the delay being unjustifiable, funding should be backdated to day 29 after the CCG received the completed checklist. As delays can extend to many weeks or months, this backdating can result in a significant reimbursement of care fees paid for the interim.
Claiming Back Care Fees for Past Periods of Care
As the NHS has a responsibility to undertake assessments for all individuals who may be eligible for Continuing Healthcare Funding, it’s possible to request CCGs carry out assessments of past periods of care.
This can apply to both living residents and those who have passed away. In each case, the assessment can be requested where it’s believed there is evidence they presented with a Primary Health Need, but weren’t assessed for their eligibility for the funding. Should eligibility be found on these ‘retrospective’ assessments, funding is backdated and residents or their Estates are reimbursed the care fees that were paid during the period of agreed eligibility.
The period of time for which retrospective review requests can be made is limited. In England, due to Department of Health Deadlines, a request for review can only currently be asked to consider back to 1st April 2012. The situation is different in Wales, where the NHS can only be asked to consider the 12 months prior to the request for review. Given the cost of care, reimbursement of care fees in either location can be significant.
In most circumstances, the NHS will only consider requests for periods of care where an individual’s eligibility for the funding hasn’t already been considered; or ‘previously unassessed’ periods of care.
Once an NHS Continuing Healthcare Funding (CHC Funding) assessment is undertaken, if there is disagreement on the outcome, there is a 6-month period to lodge an appeal of that decision. However, there are some circumstances where periods can be reconsidered, such as when individuals or their representatives aren’t correctly involved in the assessments or aren’t informed of their appeal rights on decisions of ineligibility.
If you’d like to discuss how we may be able to help you to claim back care fees already paid, or ongoing liability for residents still in care, please get in touch with our Care Home Lawyers for free legal advice.
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