Retrospective NHS Continuing Healthcare and The Appeals Process
Following my blog on ‘Continuing Healthcare: How can I make sure my relative is receiving the funding they are entitled to?’ which can be found here this follow up blog is intended to provide more information about making retrospective continuing healthcare claims and the appeals process.
Retrospective Claims for NHS Continuing Healthcare
The good news is that you can make retrospective claims for past periods when the patient was eligible for NHS Continuing Healthcare. When making a retrospective claim for Continuing Healthcare you can generally claim for one year retrospective payment, however, if you were never told about Continuing Healthcare – or you were not told how to appeal after the funding decision last time – you may have grounds to claim further back on the basis that the care authorities failed in their duty to provide accurate information. Equally, if you were deliberately misled at the time about care funding, the health and social care employees you dealt with may well have been negligent in their professional duty. Plus, the local authority may have broken the law when it effectively took responsibility for care outside of the Local Authority remit and asked the person in care to pay privately.
An executor can also make a retrospective claim on behalf of a deceased person however only if they can show that they have a legitimate claim. Historic medical evidence and care notes would need to be considered before making an application for any retrospective claim. The NHS can share medical information with an administrator or executor if they can provide proof of their role, as records of deceased are still confidential even after death.
To make a retrospective claim for continuing health care the process involves collecting evidence and information about the patient, contacting the relevant Previously Unassessed Period of Care Team (PUPOC) at the Clinical Commissioning Group and request that the initial checklist questionnaire is completed for the period in question. When acting on behalf of someone else, during this process you will need to provide evidence that you have authority to deal with that persons’ estate or if the person is still living, their affairs. For example, a power of attorney/deputyship order or a grant of probate.
If you disagree with a decision on a continuing healthcare claim, there is a strict appeals process to follow. When you receive a decision on NHS funding, whether that is for a current claim or retrospective claim, you should be provided with the appeals process in writing. These are the stages that you will need to follow;
If you have been turned down at the ‘checklist’ stage, you first need to write to the Clinical Commissioning Group who carried out the assessment and tell them that you disagree with the decision and set out your reasons why. It is important that you are familiar with the checklist criteria before you do this. You can ask for the checklist to be completed again.
If the patient passes the initial checklist, but has been turned down at the multi-disciplinary meeting where the decision support tool is applied, you can submit an appeal via the local NHS Continuing Care Department in writing to say why you disagree. You should give your reasons against the decision support tool criteria to make your argument relevant and succinct. It is also extremely important that you gather evidence at this stage. If you have no further evidence to what was used at the initial meeting, you will need to set out why the original evidence was not given sufficient consideration at the time. If you produce evidence which should have been available at the initial review, you will have to explain why it wasn’t produced initially. If you do not have the evidence available at the time, you should still submit your appeal and let the NHS know that you will be submitting evidence in due course. There are strict time frames to challenge decisions made by the CCG;
- 6 months from the date of the decision to notify the CCG
- Once you have submitted your appeal in writing;
- CCG should acknowledge this within 5 days and provide you with information on the appeal process
- CCG must deal with your request, complete a review and make a further decision within 3 months
At this stage, you may be invited to a Local Dispute Resolution Meeting to discuss the grounds and evidence for your appeal.
If the chair of the resolution meeting upholds the decision, you can contact NHS England and request that an Independent Review Panel is convened at regional level. This needs to be completed within 6 months of the CCG’s previous decision. To do this, you write to the NHS Continuing Care Review Panel Administrator at your regional office of NHS England, state that you disagree with the decisions made by the local NHS Clinical Commissioning Group and give your reasons why.
The independent review should be conducted within 3 months and you should receive the decision within 6 weeks of the review.
If you do not agree with the independent panel review meeting, you have 12 months from the decision to contact the Parliamentary Health Service Ombudsman to take your case further. Failing that, you may have a case for judicial review/legal action.
During the appeals process, if the patient is deteriorating, then you can request a fast track application and for another decision support tool assessment to be completed. This new claim will run alongside your appeal.
If at any stage of the appeals process is successful, funding will be backdated to the original date of assessment, or the date of withdrawal if you successful apply a decision to cease NHS Continuing Care funding.
If you believe your relative may be entitled to Continuing Healthcare Funding, or you would like to know if you have grounds to challenge a decision made by your Local NHS Clinical Commissioning Group, please contact our deputyship team.