Watch out for the CCG's latest tricks to save costs
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 1st 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?
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!
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.
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.
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.
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.
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.
Hi,
This solicitor is an expert in care and nursing care cases : http://www.farleydwek.com
They provide an online guide to NHS care or hard copy if you prefer that.
Jim
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.
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.
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.
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.
What is the legal authority for only paying RPI? This seems to be only a recommendation from the PHSO.
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?