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Martin Searle Solicitors

Top Tips: Success in Retrospective NHS Continuing Healthcare Cases

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Despite NHS England’s deadline of March 2017 for Clinical Commissioning Groups (CCGs) to deal with all outstanding retrospective NHS Continuing Healthcare (NHS CHC) applications many CCGs are still struggling with unresolved assessments. People continue to wait years for a decision on their relative’s NHS CHC eligibility for a previously unassessed period 2004-2012, either at local CCG level or NHS England Independent Review Panel.

How can individuals ensure success in their long-neglected retrospective NHS CHC cases?

What is Retrospective NHS Continuing Healthcare Funding?

A retrospective NHS CHC (Continuing Healthcare) review follows a request from an individual or their representative for a CHC assessment which looks back at the individual’s healthcare needs over a number of years. It is no longer possible to ask the CCG to look at a period predating 1 April 2012.

Who Handles The NHS Continuing Healthcare Retrospective Review Process?

Most CCGs now handle their own retrospective NHS CHC assessments in-house, as no additional resources were made available by the government when they announced the Retrospective cut-off deadline in 2012. There are some commissioning support units and private companies who assist CCGs to administer retrospective NHS CHC cases.

The Deadline for Retrospective NHS CHC Funding Claims

In 2012, NHS England announced a series of deadlines for Retrospective assessments for people who had potentially improperly funded the cost of their primary healthcare package in any period prior to 31 March 2012.

Moving forwards, an individual or representative who believes that they have missed out on an NHS CHC assessment after 1 April 2012 can ask the CCG to undertake a retrospective assessment. There is no fixed deadline as such, but obviously the sooner a request is made the better. The CCG will only look at what they call “Previously Unassessed Periods of Care” (PUPoC). This means that one can not use the retrospective assessment route to make a late appeal against an NHS CHC eligibility decision. Those decisions must be challenged within six months of the CCG’s decision letter.

The CCG may impose its own deadlines in relation to your retrospective review request. If you aren’t going to be able to send your information by the date set, let the CCG know and ask for an extension. You may wait two or three years for the CCG to gather medical and care notes from hospitals and care homes and assign the case to a nurse assessor, only to find you are sent a Needs Portrayal document with a demand for comments within two weeks.

What is a Needs Portrayal Document?

A Needs Portrayal Document is similar to the Decision Support Tool used in current NHS CHC Eligibility assessments. The NHS CHC Needs Portrayal Document differs in that it allows the CCG to collate information spanning several years. It will cover medical and clinical information in addition to summaries of the twelve care domains which are relevant to analysis of NHS CHC eligibility. The document is designed to assist the CCG in deciding whether the individual had healthcare needs or social care needs.

Many individuals and their representatives find that the Needs Portrayal Document completed by the CCG is inaccurate or over simplistic, resulting in a negative eligibility decision. Expert advice can assist in challenging the inaccuracies and building the case for retrospective eligibility.

Evidence, Evidence, Evidence

Many retrospective NHS CHC cases that should have a reasonable prospect of success are found ineligible through lack of evidence. Care Homes shut down, GP surgeries move or merge and care and health records go missing. If you have notes from your relative’s care home or hospital stay keep them safe. Read through the care records so you know what you are looking for when comments on a Needs Portrayal are requested. NHS Continuing Healthcare eligibility is especially difficult to establish where the older person was cared for at home. Don’t let the lack of detailed notes on their care needs be the reason your relative’s eligibility is declined by the CCG. If the care agency who visited them at home still exists, ask for a statement describing your relative’s needs and the care given. Prepare and submit your own statement.

Learn The Lingo – Retrospective NHS CHC Funding Jargon

The language of NHS CHC is complex and confusing but learning it may help you establish eligibility for the period under consideration. Become familiar with the Decision Support Tool (DST) document and the domains and definitions so that you can describe the relevant healthcare needs in appropriate language. Make sure that you read the NHS CHC National Framework Guidance which explains what Nature, Intensity, Complexity and Unpredictability are. These central concepts are just as – or arguably more – important than the “scores on the doors” from the healthcare domains.

Be Realistic – Especially When Claiming Back Care Home Fees

Just because someone self-funded their care home or home care package for a lengthy period after 1 April 2012, this does not mean that they can automatically claim back care fees. A person with social care needs will have to fund their own care costs if they have assessable assets above the Local Authority £23,250 threshold. Before embarking on a Retrospective NHS CHC application, it is important to have a good understanding of what is a primary healthcare need. Otherwise months or years could be spent pursuing an application that has no merit.

CCGs like nothing better than to ‘screen out’ all but a short period under review. We have clients who are disappointed with only a few hundred pounds refunded, having expected all of the care fees to be reimbursed. Concentrating on a shorter period of time when your relative had a demonstrable primary care need for which you have good evidence is much better than a long, poorly evidenced application which the CCG will find it easy to decline.

The September 2012 cut off deadline was a badly managed process and many families have spent time and money pursuing applications that never had a chance of success. It didn’t help that large organisations and law firms used publicity such as “last chance to claim back care fees” or “did your relative pay for their own care?” NHS CHC retrospective funding will not be awarded for someone who had social care needs – no matter how long they needed care for, and no matter how much they spent on their care.

How Our Retrospective NHS Continuing Healthcare Experts Can Help

Still don’t know your NICU from your Needs Portrayal? Martin Searle Solicitors can help you navigate the NHS CHC minefield. We can provide you with a tailor-made and detailed care needs analysis and a realistic assessment of your prospects of success in the retrospective NHS CHC case. We can draft comments on Needs Portrayals and grounds of appeal for you and can attend panel meetings if required.

Contact us on 01273 609911, or email info@ms-solicitors.co.uk for more information on how we can help your retrospective NHS Continuing Healthcare claim succeed.

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