Don’t be short-changed! Get reimbursed the full amount for your care fees

If you have been successful in obtaining a retrospective award of NHS Continuing Healthcare funding (CHC), this article could save you money and ensure you are not unwittingly short-changed. Read our tips to find out how to receive full reimbursement of your care fees.

Following a successful retrospective review of either a previously unassessed period of care (PUPoC) or an appeal against an incorrect decision refusing to award CHC funding, you will be entitled to restitution i.e. reimbursement of the care fees that were wrongly charged.

Authority for this can be found in the NHS Continuing Healthcare Redress Guidance which unequivocally affirms that entitlement through the 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.”

Simply put – if your relative had been assessed for CHC at the outset, or indeed correctly assessed at the appropriate time (‘maladministration’), they would not need to pay care fees and, so, are entitled to have them repaid in full (‘redress’).

In addition, the NHS Continuing Healthcare Redress Guidance states that you are entitled to interest as of right on your redress awarded.

To put you ‘back to the position you would have been in’, interest is backdated to the start of the eligibility period – which is when you would have had use of that money e.g. for investment.

Interest is added at Retail Price Index rates (RPI) for awards of restitution after 1st April 2015. The interest added can be substantial, especially in large, historic periods spanning several years.

Consequently, and quite obviously, it follows that the longer the retrospective period awarded, the bigger the interest payable and the overall redress award.

Of course, the ICB will require you to prove the sums you’ve paid before they will make any reimbursement! Typical documents they’ll want to see, include:

Invoices from the care home/care provider. The ICB will only reimburse the cost of care (not luxuries such as hairdressing, manicures and pedicures etc). So, the invoices are important, not only to show the dates of care and sums paid, but to check that no extras slip through the net and get reimbursed to you in error.

Statement of Account from the care home/care provider to confirm when the monies were paid/received. Just because the sums were invoiced, it doesn’t necessarily follow that they were paid promptly, in full, or even at all. There can be many reasons for delayed or part payment e.g. a dispute with the care home or lack of immediate funds.

Bank statements are the ultimate proof that the invoiced sums were paid, and when. These often trump the Statement of Account as a source of proof.

Beware as most banks only keep bank statements for 6 years. However, local branches often keep records for much longer (if they exist!).

Not having proof of payment can provide ICBs with an excuse not to make full restitution or to delay payment. The burden is on you to prove what you have paid for care, and if you can’t, why should the ICB reimburse you? Their attitude is akin to saying, if you want reimbursement, prove it!

That is why it is critical to keep all documentary proof of payment. The better the records, the easier it will be to persuade the ICB to make reimbursement in full. No proof can mean no reimbursement (or at least make it far harder to get some monies back).

So, don’t be in a rush to dispose of this vital evidence so readily, as it can be time-consuming to collate after the event – or at worst, can be irreplaceable – especially if a care home has changed ownership or IT systems, or has closed down.

There are ‘tricks of the trade’ and ways round scenarios where documentary proof is no longer available, but inevitably, even if you can persuade the ICB to look at this favourably, the awards of restitution are generally much lower – primarily because the ICB will offer their average ‘bed rate’ for that care home and not necessarily the actual rate paid.

The main problems we encounter are with NHS Integrated Care Board (ICB) offers of restitution. These are as follows:

1. Lack of Transparency

Some ICBs may only present you with an offer letter of restitution but not show you how they have derived this sum. If you accept their offer at face value without checking it carefully, how can you be sure their headline figures are correct? You might be short-changed! You are trusting the ICB to get it right and pay proper restitution; but this is the same ICB who may have previously wrongly rejected your application for CHC in the first place!

ICBs should willingly share their calculation breakdown with you, and if not provided, you must ask them for it!

2. Nationwide variance

There is a clear disparity across the country as to how the ICBs work out their restitution calculations and apply interest. There is no standard formula or uniform template that they are obliged to adopt. Each ICB’s finance team have licence to calculate reimbursement as they see fit. Methodology does vary. Some calculations are quite logical and simple to follow, whilst others can leave you scratching your head and subscribing to a course on mind reading!

This disparity in approach can, of course, lead to different amounts of interest being added. There’s no point arguing with the ICB that there is a better way (i.e. more favourable outcome to you!) of doing the calculation as their methods are hard-baked and they won’t be persuaded otherwise. You are basically stuck with your ICB’s methodology and it is essentially a question of checking the fundamentals are done correctly, ensuring the calculation stacks up and looks reasonable.

In order to check the ICB’s figures presented, we would expect their interest calculation to include a list of all the invoices (dates & amounts), when they were paid, RPI figures utilised and the amount of interest added.

You really need to understand how the ICB  has reached their figures and be comfortable that they are correct. So don’t be shy to go back to the ICB for clarification and, if unsure, get them to explain the workings behind their headline totals. Don’t give up if you get stone-walled. You have a right to know how they have calculated their offer before you accept it.

3. Incorrect periods

It is rare that the ICB will offer restitution based on the wrong period. However, they might short-change you by a day/week or so, when calculating the start or end days of the restitution period awarded. Believe it or not, a day or two out, can add many hundreds of pounds to your offer, especially after adding interest. So, do check the calculation carefully!

Also watch out for the ICB’s trick of refusing to reimburse care fees beyond the date of death where the individual is contracted to continue paying for their room for a certain period post RIP. These fees should be included in the offer of restitution.

4. Incorrect addition of principal sum or interest

This is rare, too, as ICBs usually have formulae built into their spreadsheet calculations which automatically populate the correct sum.

However, quite worryingly, Farley Dwek Solicitors, alarmingly tell us they have recently seen a spate of miscalculations, where totals of the principal sum to be reimbursed and/or the interest applied, have been incorrectly totalled. Unusually, this seems to be due to human error, but such errors can happen, and if not spotted, can mean many thousands of pounds being inadvertently wiped off your restitution monies. So, be alert and be sure that you are not being short-changed!

5. Incorrect RPI rates

You really have to know your way round the Office of National Statistics RPI rates to understand how these interest calculations work, especially given ICBs have much flexibility and variance in how they choose to apply interest.

On the whole, we find that the general public has absolutely no idea about this area, and so, quite understandably, rely on the ICB’s integrity to present a robust interest calculation to back up their offer. However, somewhat conveniently, some ICBs can ‘overlook’ the latest RPI end rate figure when calculating interest. Such omission can cause a significantly shortfall in the  restitution sum payable.

To avoid being short-changed and for peace of mind, we strongly recommend you contact Farley Dwek Solicitors, who offer their Restitution Calculation Service.

6. Delay

The Redress Guidance states: “It is important that once an eligibility decision for NHS Continuing Healthcare is reached, CCGs should promptly pay any redress sums owed to individuals or their representatives. Disputes about aspects of the redress payment or other aspects of a case should be dealt with subsequently.”

Some ICBs are naturally far quicker and more efficient than others when it comes to preparing their interest calculations and offer letters, and making payment. It’s the luck of the draw. In theory, as there is no prescribed timescale for replying, ICBs can drag out this end part of the process. Around 30 days is about an acceptable average to make an offer after providing proof of payment and then another 30 days to make payment after you have accepted their offer.

Don’t accept unreasonable delays or excuses. Chase your right to prompt repayment!

7. Deduction of tax

All ICBs are mandated to deduct tax at 20% from the interest element awarded and must withhold it in ‘escrow’ (to your favour) pending the outcome of an ongoing lengthy dispute with HMRC. The latter argue that the interest is taxable. The NHS disagree. For once, we support the NHS here, and hope they will prevail and return all withheld funds to the families soon!

8. Repayment

It appears that some ICBs have taken legal advice and may require you to sign a document before they will release payment.

Beware, as some clauses allow them, unilaterally, to recoup the restitution monies from you at a future time of their choosing and without any real justification. This is an unconscionable, incredulous and a bizarre state of affairs that must be resisted at all costs. If the ICB have gone to the trouble of retrospectively assessing, awarding and paying out a redress award, how can they possibly then have the temerity to recoup these monies, purely on their say so, at some future stage – possibly even years after the money has been spent by the family! Don’t be put under duress to sign any unfair terms like this.

Our Tips:

1. Do you own calculation of what care fees were paid so you can see if it looks similar to the ICB’s restitution offer.
2. Check to see if their methodology looks reasonable. If you are not sure, ask!
3. Does their basic maths stack up?
4. Be sure that you are not being short-changed and don’t take the offer or calculation at face value.
5. Chase the ICB regularly for progress if you want to be paid!
6. If you can’t agree the amount of restitution, you must challenge it! In the meantime, you can ask the ICB for an interim payment on account of the amount they will agree (or have offered), but on the strict understanding that it is NOT in full and final settlement AND that it does not prejudice your rights to seek further monies.
7. Do not sign any unreasonable clauses requiring you to repay the ICB back at some future point.
8. Get help! If you are struggling to make sense of the ICB’s offer or calculation, Farley Dwek Solicitors offer different service levels to help you according to your budget, and requirement for help to ensure you aren’t short-changed. They can even manage the whole process for you and negotiate restitution with the ICB to make sure you get the right among of reimbursement to which you are entitled.

For further reading around the subject, look at these helpful articles:

How to recover care fees paid for unassessed periods of care going back to 2012

What Evidence Do I Need To Prove My Claim For Past Care Fees Paid?