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Martin Searle Solicitors

Case Study: Retrospective NHS CHC application saves & recovers over £300,000 for Mrs J & her Estate

Summary

How Cate Searle, a community care law Solicitor in Brighton, assisted Mrs J and her family in securing lifetime NHS Continuing Healthcare funding, combined with a series of successful retrospective challenges which resulted in Mrs J being fully funded for the seven years she spent in care, saving over £300,00 for Mrs J’s Estate.

The situation

In early 2010, Cate was approached by Simon, who was Deputy property and finance for his mother, June, Simon explained that his mother had been in care since February 2007. She had fiercely resisted a care home admission, and Simon wanted to help her stay at home. Health and Social Services had told Simon that there was no option apart from a care home, because she was very challenging, refused her medication, and was a risk to herself and others. Simon was directed to apply to be Deputy and to sell his mother’s home to pay her care. Simon and his wife wrote letters to Health and Social Services saying that it did not seem to be right that Mrs J should have to pay for her care. Health and Social Services both replied that she was a self-funder.

In 2008, Simon learned about NHS Continuing Healthcare (NHS CHC) and he and his wife set out on what was to become a seven year battle with the NHS CHC Team. Assessments were undertaken in 2008 and 2009, but Mrs J was always found ineligible. Simon requested Appeals, but they were never progressed. Mrs J was paying £3,600 per month in care fees, including some 1:1 care because of her challenging behaviour.

In early 2010, Simon decided that it was time to get legal representation, because he was going round in circles with the NHS. He met with Cate Searle and they went through Mrs J’s circumstances from 2007 to date. Simon explained the sort of challenges that his mother presented to those caring for her. She refused her medication including the medication to prevent seizures, even when given covertly; and a result she had regular seizures. She refused medical assessment and treatment including after breaking her hip. She was verbally and physically aggressive to carers, residents, and her family. She frequently took steps to abscond and to harm herself. Although slight in build, she often declined to eat, as she wanted to stay slim for her husband, long-deceased. She pulled out her catheter. She was fixated with a male resident such that safeguarding action had to be taken.

What Martin Searle Solicitors did

Cate advised Simon that the best approach would be to separate out a current application from the previous three years’ messy, convoluted and procedurally flawed NHS CHC assessments and decisions. Cate said that both were vital, but separating these would give an opportunity to secure current CHC funding sooner. She could then refer the 2007 to 2009 period to the Independent Review Panel (at that time an IRP was facilitated by the Strategic Health Authority). Cate felt that there was a very good prospect of success with the current assessment; but explained that she would need more evidence to determine the strength of the 2007 to 2009 period.

Simon agreed this approach and Cate wrote to the NHS CHC Team asking for a current assessment. Separately she asked the CHC Team to send her a letter confirming that they had “done all they were prepared to do” for the 2007-2009 period. Cate intended to use this letter to persuade the IRP to take the case away from the local NHS CHC Team.

Cate looked at the care home records and told Simon that these were of quite limited value, because they did not begin to detail the complex challenges that Mrs J experienced and presented. She advised Simon and his wife to keep their own diary of what they saw when they visited Mrs J – they visited frequently – and what they were told by the carers and managers.

The current NHS CHC assessment went ahead in March 2010 but Mrs J was found ineligible. Cate helped Simon to appeal, but with no expectation that the appeal would succeed. She explained that this was simply a step on the way to IRP. The appeal was heard in late 2010 and duly failed. Cate referred it to the IRP. At the same time, she sent in a request for an IRP in relation to the 2007-2009 period.

The Chair of the IRP was very thorough, but concluded that the local NHS processes had been so poor that the current case should go back for local resolution. The local NHS were directed to start a completely fresh retrospective assessment for the period 2007 to 2009. Cate corresponded with the IRP in order to persuade them that further local resolution with this particular NHS CHC team was a pointless exercise. The IRP then agreed to list the current 2010 assessment for panel. Almost a further year passed before the local NHS put their files in to an acceptable order for the IRP.

The result

The IRP on the “current 2010” assessment and decision took place in late 2011 and Cate represented the family. The local NHS representative arrived at the Panel with a letter from the care home fresh off the press, declaring that Mrs J’s needs were “only unmanageable 50% of the time”. The local NHS felt that this was sufficient to show she did not qualify for CHC funding. Cate argued that to have needs that could not be managed at all for half of the time and managed only through skilled and intense interventions the remainder of the time indicated her eligibility.

The IRP were unanimous in finding that Mrs J had complex and intense primary healthcare needs. The NHS CHC team had to pay current funding responsibility and reimburse Mrs J’s Deputy accounts for all of the care fees paid, and interest, back to March 2010. They told Cate that they didn’t agree with the IRP decision, but that they would “live with it”. However they planned to move Mrs J to one of their own NHS run care homes. Cate assisted the family in preventing this, using Best Interest arguments.

In 2012 and 2013 the NHS CHC team re-assessed Mrs J’s eligibility and on both occasions the Assessor found that she was no longer eligible for NHS CHC. Cate assisted the family in submitting written comments to the local Panel, backed up by the family diary records. Mrs J’s funding was retained.

In late 2013, the local NHS CHC team finally finished the retrospective review for the period 2007 to 2009. Cate again submitted written comments in time for the decision to be ratified by the panel.

Mrs J died in February 2014. The Panel decision arrived in April 2014, finding her eligible only for 2009. Simon believed that this decision was made reluctantly by the NHS and in the hope that he would “go away” now that his mother had died.

Simon wanted to appeal to the IRP again – this would be the second IRP, the first at NHS England level. Cate talked to him about the emotional and financial cost that would be involved. She advised that it had been unusual to get any payment from the NHS towards legal costs last time. Simon said he wanted to go ahead.

The second IRP was delayed for several months because again the local files were not in good order for a Panel Hearing. With Simon’s agreement, Cate made an offer to NHS England that she would prepare the Panel Pack paperwork. The Panel took place in April 2015, with a different Chair and Panel members. Again the IRP were unanimous in finding that Mrs J had complex and intense primary healthcare needs for the two year period outstanding in 2007 to 2008.

Simon felt that his mother had finally received a fair hearing, albeit retrospectively and more than a year after her death. He felt that he had always been right to say that she was so unwell that she should not have been regarded as a self-funder at all. He had established this through being determined and adamant, but he said that he could not have achieved this outcome without Cate’s skilled and persistent input. While he remained saddened that his mother had been forced to accept a care home, and that he had been required to sell her home, he recognised how rare it is to secure an NHS CHC funding award that covered the whole seven year time period that Mrs J had spent in care.

If you are a Deputy or Attorney and require advice and assistance on any community care law matter, we can help. Contact us today on 01273 609911, or email info@ms-solicitors.co.uk.

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