Watch out for the CCG's latest tricks to save costs

Published 28/06/2019

Please note: This article was published prior to July 2022, and some information may be outdated.

Here are two new areas of concern which we need to bring to your attention.

If you’ve made a retrospective claim to recover care fees that shouldn’t have been paid and are due to receive reimbursement from your Clinical Commissioning Group, don’t be caught out by new tactics to reduce your compensation award. Read on…

No.1 Deducting Attendance Allowance

Take this scenario:

You’ve battled with your NHS Clinical Commissioning Group (CCG) for a good number of years, retrospectively trying to get NHS Continuing Healthcare Funding for your relative who has since passed away. The CCG has turned your relative down for funding at every opportunity, putting you through the mill, raising objections and hurdles along the way, whilst trying to wear you down. You are forced to make appeal after appeal en-route to an Independent Review Panel Meeting (IRP) conducted by NHS England. The IRP find in your relative’s favour and retrospectively award your relative NHS Continuing Healthcare Funding. That could be many thousands of pounds that the NHS are due to reimburse your relative for wrongly charged care fees. You would hope that after years of fighting to get your entitlement to funding, that the CCGs would now pay up promptly.

Not quite! A new tactic is emerging.

We know that the NHS has to make £855m in efficiency savings by 2021, and it seems that a new plan has been hatched by some CCGs ie deducting Attendance Allowance from the restitution sum payable.

For example: The IRP finds that the CCG should reimburse care home fees wrongly paid for a 2 year period. The CCG make a calculation that your relative is due to be reimbursed £100,000. However, because your relative has been in receipt of benefits ie Attendance Allowance, during that period, they allege that those benefits should be deducted and paid to the Department of Work and Pensions (DWP). This tactic is outrageous and blatantly flawed!

So, not only has your relatively wrongly been paying care fees for a number of years (that should have been paid by the Clinical Commissioning Group), and then made you fight for many years to get CHC funding, they now want to add ‘insult to injury’ by unilaterally deducting Attendance Allowance just at the point of reimbursement. Where is that permitted in the National Framework for NHS Continuing Healthcare Funding and NHS-funded Nursing Care?

There is simply no legal entitlement for Clinical Commissioning Groups to do this. If this happens to you, then you MUST object strenuously. It is wrong and unlawful, no matter what the CCG says!

Note: If an individual is still alive, the Clinical Commissioning Group are entitled to deduct Attendance Allowance from the restitution award and should repay it to the DWP.

No.2 Not paying interest

Fact: You are legally entitled, as of right, to claim interest on the retrospective compensation award that is payable by the CCG.

This is clearly set out in the NHS Continuing Healthcare Redress Guidance, effective from 1^st April 2015, which states that “Where maladministration has resulted in financial injustice, the principle of redress should generally to be to return individuals to the position they would have been in but for the maladministration which occurred”.

However, we have recently learned of one particular group of CCGs who have been trying to avoid paying interest on monies due on retrospective cases by simply ‘rebranding’ a retrospective review and calling it a “Desktop Review” instead.

In this scenario, the CCG were asked to carry out a retrospective review of a previous period of care dating back a number years and to assess whether the individual met the eligibility criteria for NHS Continuing Healthcare Funding. The CCG followed exactly the same assessment process when doing their retrospective “Desktop Review” of the claim, using the standard Decision Support Tool form prescribed in the NHS National Framework, and using all the same criteria to assess eligibility for CHC etc. But, somehow, despite all these identical factors, the CCG allege that wasn’t a retrospective review, just because they called it something different. Really? All quite novel, but it doesn’t wash!

Why is this relevant? Because the CCG now argue that they don’t have to pay interest if the decision to grant funding is based on a “Desktop Review”. Where does the National Framework for NHS Continuing Healthcare Funding and NHS-funded Nursing Care even refer to a Desktop Review? Again, this is just another blatant attempt to save money and deprive families of monies they are legally entitled to.

Trying to disguise what is clearly a retrospective review, by calling it whatever other name a CCG may arbitrarily chose to suit their purpose, is just another appalling attempt to evade payment of interest rightly due on the restitution award, and is simply wrong.

This new spate of NHS tactics is extremely worrying. Most individuals wouldn’t necessarily know any better and could easily have the wool pulled over their eyes by a CCG as they attempt to make further savings.

Conclusion:

We wonder what the NHS will think of next…

If you have encountered situations where your CCG have either attempted to deduct Attendance Allowance improperly or refused to pay full interest on a retrospective award, leave a comment below…

For further reading around the subject, look at:

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

Can I claim interest on my refund of care fees paid?

Tagged Categories: CHC funding, NHS Continuing Healthcare

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43 Comments

Carole May 11, 2021 at 4:22 pm

My mother passed away in October 2020 following a battle with Parkinsons and Dementia and then succumbing to Covid. She had originally been fast tracked and received NHS funding for 12 months prior to a reassessment which concluded that she no longer qualified.

I appealed this decision but received the (successful) outcome after my mothers death, a further 12 months after I had submitted the appeal. During the period that she was not funded, she received attendance allowance. Can you confirm whether this should be paid back now that we have received a refund of the care fees that we paid? We have not been asked for it, but will the DWP contact me at some point demanding the return of the Attendance Allowance that she would not have received if the correct decision had been made in the first place?

Jenny May 14, 2021 at 8:11 am

If it’s causing you anxiety, then contact them and ask if reimbursement is appropriate.

John Petters August 25, 2020 at 11:33 am

What is the legal authority for only paying RPI? This seems to be only a recommendation from the PHSO.

chcfundinglitigant January 7, 2020 at 11:37 pm

'The Refreshed Financial Guidance attempts to blur the lines by referring to Redress. It also states legal fees will rarely be refunded, and gives CCGs power to consider ex gratia payments'

If somebody needs to resort to law, and that person wins the case, costs including legal fees are awarded in favour of the plaintiff and the defendant ordered to pay. A court case against a CCG should be no different.

Jenny January 8, 2020 at 5:54 pm

That's true CHC litigant, but surprisingly enough most lawyers want to avoid ending up in court, so it's a good strategy to make clear any public wrongdoing, any financial advantage gained by the CCG and quote the recent Appeal Court case which makes it clear that recovery of losses in pursuance of the case are considered as Restitution by the court. It's not just about winning legal costs, time spent in bringing the action on behalf of your relative caused by a lack of clarity around CHC process initially and at retrospective claim can be considered for either an ex gratia under the guidance, or ultimately by the civil court. The CCG is unlikely to want their process, or lack of it, aired in open court.

chcfundinglitigant January 3, 2020 at 2:19 pm

CHC assessments are being wrongly performed and the reason they are being maladministered is to save the NHS money and to pass the costs of nursing care onto the families. Do not forget that the assessments are beintg maladministered and the results wrongly declared by qualified and registered clinicians.

Do not simply be satisfied with getting your family's money back. When your relative's case has been maladministered by a clinician, put together a case against that clinician and have him or her struck off.

A CHC nurse assessor has lied, lied, lied and cheated my family out of a fortune. The case is going to court this year as the IRP chose to ignore all our family's evidence and to uphold the CCG's wrong decision. I am going to apply to have that nurse assessor struck off once I win the case and I am going to name and shame every individual on the IRP who failed to do their job properly.

Don't let them get away with fleecing you. Fight back and when you have won, do something for the rest of us and prevent these frauds from fleecing other people.

Jenny January 7, 2020 at 1:13 pm

That's reasonable advice from CHC litigant, but I think we're familiar with the exhaustion this process produces. We'd possibly all like to fight more and fight on, but in reality and often after 10 years and a death, it's just not an option for many.
However, I'm interested to hear how your action against an individual proceeds, so please post. I'm guessing they'll settle and pay up through the professional indemnity insurance of the professional concerned.
Another route is seeking the Equitable remedy of Restitution to be applied by the court when a public body has been proved to ( or has admitted) a wrong doing from which they have obtained financial advantage. The remedy should restore your position to that had the wrongdoing not happened. The Refreshed Financial Guidance attempts to blur the lines by referring to Redress. It also states legal fees will rarely be refunded, and gives CCGs power to consider ex gratia payments where case circumstances are exceptional. Draw these to their attention. Blanket refusals ( to assess, to properly consider retrospective cases, fast track procedure or consider adequate "redress" in any particular case) flout all these principles.

Michelle Wetherall January 3, 2020 at 12:27 pm

Hi Jenny,
Thanks for the reply! Like you, I struggle to find comments that I've read on different articles - frustrating!
It's a great site with a wealth of information. I now have a book which I use to log which articles and comments are of interest!
Your help on this is really helpful, especially as I am now going to throw this at my local MP to get some answers.
It's become a matter of principal now, as we have come to the end of this horrendous process and 2 days before Christmas, mum was refunded my late father's nursing fees. A bittersweet victory.
It's not just about the money now, it's about the morality of the process that stripped my dad of his hard earned already taxed savings. The entire process was shambolic and now CCG have the audacity to with hold 20% of the interest, in case HMRC claim it.
Let's see what my MP has to say and also what happens when I write to HMRC with an application for a tax refund!

pamela robson January 1, 2020 at 12:59 pm

my daughter receives CHC funding. she lives in her own flat with 24/7 care. so far, so good.
however, she is being asked to pay for things like plastic gloves, bed pads (she is doubly incontinent ) , mouth swabs as she is peg fed and needs frequent oral care.
my CCG are now telling me that my daughter has to pay for these things out of her benefit money.
is that right.

Jenny January 7, 2020 at 1:25 pm

Probably not. Coughlan case still stands and states that where CHC is in place the NHS is liable for ALL care costs including social elements.
It may also be worth doing a benefit check to establish if your daughter is getting everything she's entitled to, and if she's exempt from prescription charges. Google benefits calculators: Turn2us or Entitled2.
Hope that helps.

Jenny December 31, 2019 at 7:06 pm

Michelle, Here's the link !
https://caretobedifferent.co.uk/the-10-most-outrageous-excuses-for-not-having-an-nhs-continuing-healthcare-assessment/#comment-120189

Jenny December 31, 2019 at 6:51 pm

Hi Michelle,
Again, well done. On another thread Care to Be Different answered this question, but again I can't find it now!!
It was made clear that RPI is the correct rate of interest unless the action relates to pre 2012 and unacceptable delay to the assessment and decision.
It was also said that HMRC have been instructed the CCGs and CSUs to deduct interest at 20% from the interest element of the award in lieu of any tax that may be due. I commented that this is curious since Personal Injury awards are not taxed as income. I gather that NHS England is challenging the instruction from HMRC. I hope they do so vigorously and using current case law.
I am also confused as to how they (HMRC) can maintain this position when the Refreshed Redress Guidance aims to put the patient or their representative in the position they would have been before the omission (to assess) occurred. In law this is the Equitable principle of Restitution. In my understanding (and recent experience) it is not for the NHS Guidance ( because it is not statute) to pre determine or usurp the power of the civil courts to make restitution however much the NHS Guidance attempts to do so. eg - by declaring that Legal representation is unnecessary in bringing a retrospective claim, and that legal fees will rarely be reimbursed.
There are recent cases, one at Appeal Court level, making clear that once a public body has admitted, or has been found to have committed a wrongdoing (ie not assessing for CHC at the relevant time), then it is a matter of private law that redress claims can be made and should be considered for restitution.

Michelle wetherall July 8, 2020 at 6:47 pm

Hi Jenny,
I couldn't reply on the post of 8/7/2020, so I've posted it here!
You did extremely well to recover all your costs to include Time/Stationery & Postage, having the assistance of a lawyer friend certainly helped you. I must have spent hundreds and hundreds of hours working on my father's case. The added cost of stationery and postage must have run into hundreds of pounds, especially as every letter&document posted had to be sent using the more expensive option of tracked and signed for.
I tried my very best to argue the point of restitution and the cost of early legal representation that ran into several thousand pounds, but it was strongly denied. I would have had to employ the services of a solicitor to take it further. After the successful IRP and the amount of paperwork that I had to submit to CCG to recover my late father's fees, I was just relieved it was all over. Ironic that even at this very last stage, I had to submit evidence of my identity! I did have a little chuckle though, when I wrote " I am surprised that your require evidence of my identity, especially as you have been communicating with me for the past 3 years and I have supplied you with my passport, POA, at every appeal. I have visited your offices and met with your staff, yet you still do not believe you I am?" Unbelievable!!
The task of recovering the 20% Tax that was withheld was just as drawn out. Thank you for all your previous help and advice that enabled me to push it through. My own CCG, were useless. Finance administrators couldn't even give me the help that I needed. I guess I was one of only a few that was determined to recover the tax.
I am still trying to move on from this period of my life, but given that it had a huge impact on me, I find it hard to actually close the book. Hence, why I am always contributing my experience and encouraging others to appeal. It's also an out let for my thoughts about CHC and social care and the way Government has failed to deal with it over the last 20 years. I need to get a Life!!

Paul H July 6, 2020 at 7:57 am

In case it's still relevant, on the subject of tax deducted from the award:

What's being deducted is basic rate tax (20%) from the interest element. Broadly, this is required under the Tax Acts when interest is paid in the UK. The requirement has been removed from interest on savings but not (I believe) for interest on court awards. The payer deducts the income tax and accounts for it to HMRC. The payee receives a certificate of tax deduction and can claim the tax as a credit on their tax return. If they have overpaid tax, the excess is refunded by HMRC. Broadly, higher rate taxpayers will have to pay more tax and basic rate taxpayers nothing more (and don't need to file a tax return unless they already do so). Non-taxpayers will have to file a tax return to reclaim the tax.

So it's not the CCGs trying to pull a fast one, so far as I can see.

Jenny December 6, 2019 at 3:31 pm

There was some useful information on one of these threads regarding deduction by the CCG of income tax on reimbursement of retrospective awards. I can't find it now and I think a case with HMRC was awaited. Could someone point me in the right direction please?
I'm still curious to understand how the NHS can collect income tax on money they unlawfully withheld through no or late CHC assessment, and which caused the patient to pay out care home fees from their own capital or income.
PS I did eventually receive reimbursement of my relative's care home fees . They paid up after I issued a Letter Before Action.

Michelle Wetherall December 24, 2019 at 8:59 am

Hi Jenny,
Have you anymore information on the 20% tax that is with held by the NHS following a refund?
This has happened to us. Successfully appealed at IRP and have been refunded my late father's care home fees with interest added but 20% of the interest with held by the CCG in case they have to pay tax??
I wasted at least four weeks just recently trying to get an answer from my local CCG about the validity of this and I was passed through 4 individuals to try and resolve my query. Even the business manager couldn't answer it!
Like you, I find it obscene that income tax is with held after fees were taken through a process that NHS ENGLAND now conclude was UNSATISFACTORY AND UNSOUND. My father would not have paid this tax or the fees if CCG had carried out the process in a satisfactory and sound manner. Their fault! Dad paid and is paying Tax even though he's dead!
I was eventually told I would have to claim it back from HMRC after repayment. Not a satisfactory answer or outcome.
Wondering if you or any of our readers have found out anymore?
So whilst I'm relieved that the family are at the end of this arbitrary process and we have been successful, I am still determined to "bottom this out", so that I can help others asking the same question.

James Allison October 31, 2019 at 2:12 pm

In my opinion Carers Allowance is a grey area. I have in some cases persuaded CCG's to disregard Attendance Allowance, not to be confused with Carers Allowance.
However, I have to say this is not "written in stone" as I'm unaware of any case law regarding Attendance Allowance. As others have said the Independent Review Panels are staffed by CCG's from neighbouring CRC's. No wonder so many are turned
down. Now we have a General Election looming and without doubt a hung parliament, so nothing will change on this front.

chcfundinglitigant October 22, 2019 at 1:43 pm

The Independent Review Panels (IRPs) are another part of the con. They are staffed by CCG staff from neighbouring CCGs and they ignore medical evidence of a patient's needs. I have been to one and the lengthy and detailed case I made was completely ignored, including hundreds of pages of care home records, consultants' reports and even an earlier CCG recommendation was pushed to one side by them.

The only way to deal with the CCGs is to sue through the courts.

Denise October 22, 2019 at 3:36 pm

Unfortunately, any litigation is a long drawn out process and my experience with CCG's (where I obtained fully funding for my Mum for the last two years of her life), care home records and indeed, hospital records are not always correct. As such I took notes of every visit with my Mum, every phone call, incidents and any medical attendance she had whilst she was either in hospital or the care home or with me when I took her out for the day. Then just prior to any DST meetings I checked the care home records and obtained and paid for her up to date medical records and on more than one occasion found these to be incorrect including such matters as details of doctors visits and/or nurses visits were missing. I also understood at that time that one of the most fundamental points when claiming CHC is that the CCG takes into consideration how long and how often medical attendance is required. As such it is prudent to take notes so that any records can be checked accordingly.

James Allison July 18, 2019 at 4:16 pm

Hi,

This solicitor is an expert in care and nursing care cases : www.farleydwek.com

They provide an online guide to NHS care or hard copy if you prefer that.

Jim

James Allison July 18, 2019 at 8:28 pm

Please note, I have no connection with this solicitor. I only put the URL because colleagues have told me they are excellent in dealing with the problems of NHS care in Registered Care Home and Nursing homes.

Jim

James Allison July 18, 2019 at 2:28 pm

I have helped some people having problems relating to care homes and nursing homes, but usually pass them on to a solicitor with extensive experience in this field. I am a qualified Welfare Rights Lawyer but I am not a solicitor. I mainly deal with people with benefits problems such as Disability Living Allowance, Personal Independence Payment or Attendance Allowance.
I used to sit on Tribunals for claimants appealing these benefits, but had to retire at 70. I'm now 78 years old but still do some work to keep my brain active.

Jim Allison July 16, 2019 at 11:19 am

Hello,
If you are in care home that also provides nursing care, then the nursing care should be paid for by the NHS .i.e CHC.
From my experience there is a problem with what the care organisation calls itself, a nursing home does provide nursing care, because it's nursing home. Many homes call themselves care homes, but still provide nursing care, for example if a district nurse calls to give treament such as injections then that is nursing care and should be paid by the NHS CHC.
Some care homes have no qualified nursing staff, so they are entitled to charge for the care they give.
This is a minefield for elderly people and their family. If in doubt seek advice from a solicitor experienced in this field.

Jenny July 17, 2019 at 12:33 pm

Well done Denise. It makes you wonder whether anyone gets any training in this area, or whether it suits them all to make it up as they go along. They'll try absolutely anything against people already in a stressful situation. Shocking.

Jenny July 17, 2019 at 12:29 pm

Good. Don't let them get away with it. Make clear that you and/or your brother will be at the assessment and that you require adequate notice of their intention to carry out the DST - so that you can prepare comments for each domain and put your points across and ensure they are noted at the DST.

Jenny July 17, 2019 at 12:25 pm

With respect Jim, that's a bit confusing. The first thing to establish are the care needs of the individual. If those show a Health Need or a Primary Health Need (depending on which version of case law, National Framework or NHS literature you read) across adequate domains then CHC is appropriate. Requiring the attention of a district nurse occasionally, or for one or two procedures is unlikely to be sufficient.
Once the eligibility for CHC is established then Coughlan clearly states that the location of the care is immaterial - which is why the demand of various CSUs to individuals to enter care homes if in receipt of CHC was challenged in the European Court of Human Rights. A man who developed catastrophic injuries abroad, and who had a young family and a business he could better run and participate in from home was the case in point.
In some cases, (my relative's being one) if it is in the interest of a CHC receiving individual to remain in a Residential care home and receive regular visits from a GP and DN team to meet their needs, rather than increase confusion and anxiety by moving to a Nursing Home, then The National Framework covers and allows for this. (It would have to in order to be Coughlan compliant).
Thus, when a care home with no nursing staff is charging for care, it is essential to establish through a DST assessment whether the individual has Health Needs, and not assume they are Social Care needs chargeable to the individual or via the Local Authority.

Linda Samuel July 15, 2019 at 11:17 am

I am just two months into claiming NHS Continuing Healthcare Funding. A DST assessment was done well over six months ago, but the more I delve into it the more evidence I find that it was not carried out lawfully. The NHS assesser who was allegedly there on the day did not sign the visitors book in the home, therefore it appears that she was not actually there, they have not applied The Coughlan Test to my mother's claim, the incorrectly done assessment was only done at the instigation of my brother, some four months after my mother went into the nursing home. Also, the assessment form actually makes statements about a different person! I wrote to the NHS trust and after six weeks they responded with a letter telling me I was way over the six months allowed to appeal. I didn't tell them I wanted to appeal in my first letter, but that I believe their previous assessment was incorrectly carried out, therefore I expect a new assessment to be carried out , this time in a lawful manner. I have thoroughly read both of the Care to Be Different books and found them extremely useful and informative. I am just about to send my second letter in response.

Denise July 15, 2019 at 10:45 am

My experience with the CCG with my mother was that when I was first told that my Mum had to go to a care home before the mental health team would give her medication for her alzeimers, (even though two years later when she passed away she still knew who I was and my name and other members of the family) was that they tried to just put her in any old home regardless of her needs and when I refused they said that she would then have to go through the DST before leaving the hospital. In that DST meeting the hospital had not written the correct information on my Mum's file and I had good arguments for this. As such they then decided that the first DST meeting was null and void and I could choose her care home. I did this but was informed that I had to contact the DWP since she was no longer entitled to attendance allowance but having read this article and checking on this have found that a person is entitled to their attendance allowance if they fund themselves!! As it happens I was successful in obtaining full CHC funding for my Mum for the last two years of her life but if I had not been would the DWP have informed me that she would then have been entitled to her attendance allowance once more... I doubt it!! The social services also informed me that when I was first told that Mum would have to go in a care home that I would have to be a third party funder and pay the difference between what was deducted from my Mum's pension and what the local authority would pay but I did a lot of research on this and found out about CHC funding and that the social services could not enforce this third party funding in the event that Mum was not awarded CHC.

Jenny July 5, 2019 at 9:37 am

Having delved through the dodgy rationale behind the NHS Refreshed Financial Guidance imposing RPI on redress payments, I gather one of the reasons IRP was selected over Court rate interest was the need to deduct AA from payment to avoid profiteering by claimants. To deduct this (or indeed income tax) from redress paid with RPI level interest is unlawful.
If anyone is interested I'll try and find the reference for the AA and RPI arguments.

Michelle wetherall October 30, 2019 at 9:09 am

Hi Jenny, I am interested in your comment. I'm trying to find information on restitution and the 20% they CCG intend to keep once interest has been calculated. Short of trying to contact HMRC to see if this is lawful.....I can't see how CCGs can lawfully do this when it is only advice from HMRC ........they advise that indexation elements of the CHC redress payment constitutes taxable interest under the income tax act 2007. The CCG say they are obliged to with hold 20%. Obliged to with hold!!!!
They are not executor of my late father's estate....I am! Surely it is the responsibility of an executor to administer all financial matters.....including paying any Tax!
I would appreciate any up to date information you have.
Kind regards MIchelle.

D Jolly July 1, 2019 at 3:37 pm

What about the costs payed to your solicitor if you win and the cost of a charge on the property at the land registry it seems you have to pay these costs after selling the house to pay for care wrongly taken by the NHS , It is a bit like expecting to pay for the water used by the fire brigade after a fire or the police's petrol after chasing bank robbers. The biggest robbery since time began and we just stand like sheep and get robbed!

chcfundinglitigant December 31, 2019 at 12:15 pm

The only way to deal with them is to fight back. I am about to take a CCG to court over this. The CCG has lied, cheated and done everything possible to deprive my family of the money which is rightly ours. They calculate that most people will not sue them as it is not the easiest process in the world. Stand up and fight.