How a client successfully challenged a decision that her father could not get NHS continuing healthcare funding to pay his nursing home fees.
George, 89, had been living alone since his wife’s death five years earlier. He had Alzheimer’s disease and a history of hearing problems. He had been getting by in his own home, with visits from care assistants, meals on wheels and a lot of support from his four daughters, who lived locally.
In summer 2008, his physical health and his cognitive functioning deteriorated rapidly. The family and the medical and social care team agreed he needed to spend some time as a temporary resident in a care home, with the aim of stabilising his condition so he could return home. George had worked very hard until he was 68 and had significant savings, stocks and shares. Using the Enduring Power of Attorney their father had made a few years earlier, George’s daughters were happy to release his savings to pay for his temporary placement.
After only a few weeks, the care home placement broke down because George’s behaviour towards the carers and other residents became very challenging. He was moved to a specialist hospital unit where the staff could manage his behaviour. He remained in the hospital for eight months.
Towards the end of his stay in the hospital unit, George was diagnosed as having a form of cancer in one of his kidneys. His behaviour to his carers was still very challenging, but the medical team said that he no longer needed NHS care and told his daughters to find a nursing home. A placement was identified but then George developed a urinary tract infection that lead to him being admitted to A&E and then moved to another hospital. His behaviour became more confused and more aggressive and he had to have one-to-one supervision on a 24-hour basis.
George’s daughters had hoped to get him back to his home to care for him there but were reluctantly persuaded that they could not manage his needs and that a nursing home placement would be necessary. They were told by Social Services that when their father’s savings had run out, they would need to sell his home to pay for his care. The family thought George’s savings would last about another year – but were not sure that he would live that long.
When George’s oldest daughter Sharon asked the doctor whether the NHS should pay for her father’s nursing home care, she was told that no-one who had their own home should expect to get anything from the state for free and that he had already had his share from the NHS, having spent eight months in the special unit.
Sharon was upset by what the doctor had said and researched the law on the internet. She asked the NHS to assess her father’s eligibility for continuing healthcare funding. An assessment was done and it concluded that George’s needs were stable, non-complex and predictable, so he would not get full NHS funding. The family had found him a nursing home placement but it had taken a long time to do this, as several care facilities recommended by the hospital and Social Services had refused to take George because of his complex needs. The nursing home charge would be £850 a week, with the NHS paying just £106.30 towards this.
Sharon went online and found Martin Searle Solicitors‘ Community Care Law information and decided to ring for advice.
Sharon got in touch with our specialist Community Care lawyers in Croydon. Care funding solicitor Cate Searle firstly told Sharon that what the doctor had told her was his personal opinion, not a correct interpretation of the law. Cate explained that if George had a primary health need the NHS should pay for his care regardless of whether he owned a house and regardless of whether he was wealthy or reliant on state pension and benefits. She added that George was not disqualified from NHS funding by having had his share in the special unit.
When Sharon gave Cate details of her father’s behaviour and physical health problems, Cate advised that Sharon should definitely appeal against the decision that her father did not qualify for NHS continuing healthcare funding. This would involve making a request for an independent review to the strategic health authority.
Cate prepared written representations for the independent review which raised the following points:
Cate asked the primary care trust (PCT) to reconsider its decision on the basis of her written arguments, but it refused. The strategic health authority agreed to arrange an independent review hearing and six months later the family finally got a hearing date.
A week before the independent hearing, the PCT told Sharon they had decided that her father should have been getting NHS continuing healthcare funding all along.
The PCT said it would pay the BUPA nursing home fees of £850 per week and repay the fees that had been paid by his savings in the eight months since he left hospital – a refund of nearly £26,000.
Although George died just a few months later his family felt that the fight to get him NHS funding had been worthwhile. After years of caring for him in his own home as he wanted they believed that the authorities should have recognised that the only reason that they could not continue to do this was because of the severity and unpredictability of his health needs.
Martin Searle Solicitors is the trading name of ms solicitors ltd, which is authorised and regulated by the Solicitors Regulation Authority, and is registered in England under company number 05067303.© 2021