Reclaiming unfairly-paid care home fees "could be impossible for thousands of families"


Thousands of people could be denied the right to reclaim unfairly-paid care home fees as the government's appeal cut-off date looms.

wrongly paid care fees

Many families are unaware that they might have wrongly been charged for their sick relatives' care, yet have only until 30 September 2012 to register a request for a retrospective assessment to reclaim wrongly paid care home fees.

By law, people who have resided in nursing or care homes due to illness may be entitled to reclaim unnecessary fees. Claims can arise from a wide range of physical and mental medical conditions and may be met even if the cared-for person has since died if it can be shown that the person in need of care had a primary health care need.

A successful appeal can be financially crucial, since care fees – up to £50,000 a year – are often borne at the cost of relatives' homes or life-savings.

The 30 September deadline was set by the Department of Health (DoH) and applies to people who have paid and who have not been assessed by the Primary Care Trust (NHS) to see if they are eligible for full NHS funding (also known as NHS continuing health care funding). For fees paid between 1 April 2004 and 31 March 2011 the deadline to request an assessment is 30th September 2012.

According to the DoH, the deadline was drawn up to avoid a logjam of claims and to make sure that primary care trusts (PCTs) can handle them within a reasonable period of time.

Although eligible patients should have been contacted by their appropriate PCTs, many do not know that the fees they have been paying could have been unnecessary and can still be challenged.

Head of the care home fee recovery team at Simpson Millar LLP, said the problem lies with the system which fails to recognise the distinction between illness and old age. Those in charge of patients who clearly have a primary health care need have a duty to ensure the patient is assessed to see if they are entitled to full NHS funding. Instead there is an assumption that the patient should self fund the cost of their care especially if they own their home.

"In 1999, the Court of Appeal ruled that the NHS should pay full costs if a patient is in care due primarily to ill health," noted Daxa. "However, there is no obligation on the PCT to meet costs in cases of general age-related frailty which is classed as social need as opposed to a primary health care need."

"Since the differences are sometimes so subtle that only a health expert will spot them, the decisions on whether or not to award funding have been inconsistent."

Daxa added that even though PCT assessments have to comply with National Framework guidelines on patients' health and requisite levels of care, the system is deeply flawed.

"Despite DoH rules, health professionals and family members are often left out of the picture, while assessors have even been known to ignore patients' records," said Simpson Millar whose firm acts for many people seeking redress against PCT failures.

"The result of this inconsistency, along with the imposition of the 30 September deadline, is that reclaiming unfairly-paid care home fees could be unjustifiably denied to thousands for genuine patients who are entitled to full NHS Funding which like the NHS is free and the patients' needs are not taken into consideration. The DoH’s deadline is unfair and will deprive many genuine people who should not have to sell their homes to fund the cost of their care."

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