How to recover care fees paid for unassessed periods of care going back to 2012
Recover care fees – Has your spouse or relative been paying care fees – whether living in a care home, other care facility, or even at home – at any time since 01 April 2012 to date?
If so, then they might be entitled to a FULL refund of care fees previously paid IF they haven’t YET been assessed for NHS Continuing Healthcare Funding (CHC) for any period of care since 01 April 2012.
For those readers new to this area, CHC is a free package of care provided by the NHS, in ANY care setting, for adults aged over 18 with a ‘primary health need’ (i.e. the main reason for care is due to their healthcare needs, not social care needs) and includes the cost of their accommodation, too, whatever the care setting.
A previously unassessed period of care is referred to as ‘PUPoC’.
Read on to see how your relative could be entitled to reimbursement of their care fees (whether paid in full or as a part contribution) for any past unassessed period(s) of care.
So, what is PUPoC?
The updated NHS guidance (published on 14 December 2023) says that PUPoC is “a specific request to consider eligibility for NHS Continuing Healthcare Funding (CHC) for a past period of care where there is evidence that the individual should have been considered for NHS CHC eligibility, but was not considered at the time, and the individual has funded that care either in full or in part.”
The three key elements for PUPoC are:
- There was no consideration of a past period of care; and
- The individual has paid for that past period of care in full or part; and
- There is objective documented evidence that the individual should have been considered for CHC but wasn’t.
How far back can I claim?
The NHS guidance says you can retrospectively consider any unassessed period of care going as far back as 01 April 2012.
For example: ‘Emily went into a care home on 30/04/13 and was assessed but found not eligible for CHC Funding. As a result, she had to continue paying for her own care fees (i.e. self-fund). However, as her healthcare needs became more complex and challenging, Emily was reassessed on 15/06/16 and found eligible for CHC Funding. Therefore, Emily can request a PUPoC review for the intervening unassessed period from 01/05/13 to 14/06/16. If successful, she will be entitled to reimbursement of the care fees she’s paid during this timeframe.
PUPoC applications can also include reviewing more than one unassessed period of care since 01 April 2012.
Thankfully, this updated NHS guidance has not altered the PUPoC deadline, and the 01 April 2012 date still remains effective. That will come as a relief to those who may still wish to try and reclaim care fees paid for any unassessed periods of care going that far back.
(In exceptional circumstances you can request a review unassessed periods before 01 April 2012, but such cases are expected to be very rare).
In our experience, a finding of CHC eligibility going back many years could potentially amount to reimbursement of a significant six-figure sum. Obviously, the longer the CHC period retrospectively awarded and the older the period under review, the bigger the sum that will be reimbursed if your PUPoC application is successful.
Who can make a PUPoC application?
PUPoC applies retrospectively to any unassessed period of care, regardless of whether the individual is living or deceased. The procedure is the same. The only difference is the question of consent or legal standing, to make the PUPoC application.
If the individual is still living – they, or an appointed representative (usually family member acting under a Lasting Power of Attorney or Deputyship Order from Office of the Public Guardian or the Court of Protection), can make the PUPoC application.
If the individual is deceased – then the PUPoC application can be made by an Administrator of the deceased’s estate (e.g. Executor under the Will) or Personal Representative acting under a Grant of Probate.
ICB will tell you how long you have to produce the documentary proof, but usually they give a 6-week time limit to respond, failing which, unless there are exceptional circumstances, the PUPoC application is deemed withdrawn. It can be extended, but it is at the discretion of ICB.
For more information about consent and your legal power to act, read these helpful blogs:
Do you have Power of Attorney to look after a vulnerable relative?
Tackling consent: Keeping control if your relative lacks mental capacity
Is it worth claiming?
Yes! The purpose of reimbursement (or ‘restitution’) is to put the individual back to the position they would have been in had the NHS carried out a CHC assessment of healthcare needs at the relevant time i.e. during the unassessed period(s) and found them eligible for CHC Funding. If that had been the case, then they would not have had to self-fund (huge) care fees from private resources, and instead, could have used/invested the money elsewhere.
As most historical PUPoC cases will have been dealt with by now, there are a lesser number waiting to be finalised or left in the pipeline since Covid. So, most PUPoC periods still under consideration are likely to be much smaller – possibly only going back say, two or three years. Therefore, the likely reimbursement awarded will be commensurately much smaller, but still worth fighting for as the sums involved are still likely to be considerable.
Am I entitled to interest as well?
Yes, of course!
In addition to reimbursing the actual cost of the care fees paid unnecessarily during the unassessed period, the NHS’s Integrated Care Board (ICB) must also pay interest on top. In some older cases, the interest payable can be very substantial indeed – and we have seen cases where the ICB has delayed or obstructed PUPoC reviews for so long, that the interest added has been almost as much as the principal sum being reimbursed.
TIP: Don’t be fobbed off if the ICB tell you interest isn’t payable. It is and you are entitled to it! Interest is payable in accordance with the NHS Redress Guidance 2015 (and is currently paid at RPI rates). The loss of use of that money, which should never have been paid for care fees, should rightly attract interest.
Retrospective Review Claims – Everything You Need To Know About Claiming Interest
How do I make a PUPoC application?
The ICB are responsible for requesting and reviewing the evidence relating to a PUPoC request. This includes: (1) checking that the period under review has NOT previously been considered; and (2) getting all relevant medical records and care notes relating to the unassessed period(s).
Firstly, contact your local ICB’s NHS Continuing Healthcare Department to request a PUPoC review.
The ICB will then send you an application form to complete.
Return the completed form and any evidence requested. Please note that strict timescales might apply.
The ICB will then check that they were the responsible body for the period of unassessed care under consideration and, if not, redirect your application to the correct ICB, and notify you accordingly.
The relevant ICB will then review the PUPoC request, check that the application is appropriate and confirm whether further investigation is required.
TIP: Beware of incorrect refusals to review your PUPoc request! If the ICB says the period has already been assessed (i.e., no PUPoC) and you disagree, request a copy of all previous assessments and outcome letters; the letter must be addressed to the legal representative or next of kin, not the patient (who may have been cognitively impaired!) or care home.
If an assessment was done, but it was flawed, inaccurate or didn’t apply the CHC criteria correctly – and you can prove you were not invited to participate and/or the outcome was not communicated to you at the time – then you should submit a formal complaint to the ICB.
The ICB will let you know the outcome of their decision and whether or not they will investigate this matter further.
If your complaint is not upheld by the ICB, they must explain why and advise you of your right to complain to the Health Service Ombudsman. Don’t be brushed off! If you have reasonable grounds to complain, you must take this opportunity to do so, and do it forcibly. Seek legal advice if necessary to mount a challenge.
If the ICB agree to proceed, then the PUPoC review is carried out as a paper exercise.
What do the ICB do next?
In order to review eligibility, the ICB will need to collate the necessary records (usually care and GP records, and sometimes specialist records if the person has a particular need, e.g. mental health or tissue viability).
In addition, they may ask for the individual or a third party on their behalf (typically a family member) for any records they hold such as diaries or a journal, to ensure they get the fullest picture possible.
If the ICB can’t get hold of any required records, they should let you know and keep a paper trail to avoid criticism (due to perceived lack of effort) and a complaint.
Don’t forget that the ICB are reconstructing the healthcare needs position, retrospectively, in order to assess CHC eligibility during a previously unassessed period of care. So, if there are vital missing records or entries, it might skew their rationale and lead to an adverse outcome i.e. a rejection of your PUPoC claim.
However, obtaining the evidence can take time as the ICB are reliant on other parties e.g. GP surgeries providing the records promptly. Often there are voluminous records to collate, and for some care homes it is not necessarily a priority. Usually, they are understaffed and don’t have the administrative resources to respond as quickly as the ICB would like. In some older PUPoC cases, we have known in the past for some care homes to take over 18 months to supply these essential records to the ICB (who were in no rush to chase them either!).
Of course, problems can still occur if historical records are no longer available, for example, if the care home has transferred hands, has gone into liquidation, or been physically demolished.
TIP: We strongly recommend that you also get a copy of ALL these records too, as soon as possible, so you can see if there any missing from the ICB’s collated records and, moreover, to check that the ICB have considered all the relevant entries when carrying out their PUPoC review. For more reading around the subject, look at these previous blogs:
June’s feature on flawed CHC assessments and the importance of good record keeping
Learning lessons as “Four Seasons Healthcare goes into administration”
Need help getting copies of your relative’s care home records?
Have you got authority to act ?
If proceeding with PUPoC, the ICB will require you to provide suitable legal authority to act and to share this sensitive information with you.
NB: You only have 28 days to return this authority to the ICB, otherwise the PUPoC application will be deemed closed, and you’ll have to reapply (and the ICB might not be as sympathetic second time round!).
Exclusions from PUPoC
If your relative was previously assessed during a particular period but was found ineligible and they were properly informed of the assessment, decision and their right to appeal, they cannot be reassessed for that same period under PUPoC. Instead, the correct route is to lodge an appeal. Beware! Strict time limits apply to lodge an appeal.
But, if your relative was in receipt of Funded Nursing Care (FNC) but there was no prior consideration of eligibility for CHC, or regular FNC reviews were not undertaken and there has been a change in need, then they can still pursue a PUPoC.
Don’t Miss Out On Funded Nursing Care!
What happens next?
Unlike years gone by, when PuPoC claims were subjected to inordinate, frustrating and farcical delays, often spanning many years, under the new NHS December 2023 guidance, ICBs are supposed to respond in a timely manner. Ideally, ICBs should now complete their PUPoC review within 6 months where the period under consideration is up to one year. Periods greater than one year should be completed within 12 months except in exceptional circumstances. This is the most significant change in the updated December 2023 guidance.
Needs Portrayal Document
The ICB will populate the relevant information taken from the records into a Needs Portrayal Document (NPD), which follows the same format as the Decision Support Tool (with the 12 Care Domains) used to assess current eligibility for living patients.
Once the NPD has been completed, the ICB will share it with you. You can then see what information they have included (and even request a copy of their evidence) and take stock of anything that is missing or has been inaccurately or incompletely stated in the NPD. This can be a very time-consuming exercise and can’t be rushed.
The ICB will invite your comments and any additional evidence you may wish to include. This is an opportunity for you to do your own NPD (or simply add your comments to theirs).
You will be asked to respond within 28 days. Be warned, the ICB may not be amenable to an extension! That seems grossly unfair, given that the ICB can take many months to prepare their NPD, but you have to ‘bust a gut’ and respond within such a short timescale. In many cases, that can be hugely unrealistic, especially if there are copious volumes of records to review spanning many years.
Never trust the ICB to do a perfect job! Populating the NPD is an entirely subjective task and entries that are highly relevant to your PUPoC claim may be overlooked or understated. The ICB are approaching this review from a different perspective (which inevitably will not chime with yours), and therefore, may seek to underplay needs across many key Care Domains to support a finding of ineligibility. Your job is to go through the records with a fine-tooth comb and forensically compare their entries listed against the various medical records and to check for accuracy, and any missing gaps, and build a case supportive of eligibility for CHC. This is a very laborious task and an acquired skill, and is an area where we recommend you seek professional legal help.
If you win and the ICB accept your PUPoC application, the award or reimbursement can be quite substantial and, of course, satisfying – knowing that you have recovered care home fees that shouldn’t have been charged in the first place.
You’ve been awarded CHC but how do I get reimbursed?
It’s great that the ICB have found that your relative should have been awarded CHC Funding for past care, but you now need provide proof of what fees were paid, in order to satisfy the ICB to make full reimbursement. Typically, the ICB will insist on seeing invoices and a statement of account from the care home/care provider, and bank statements to cover the PUPoC period awarded.
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