In good health

A hot topic over the past couple of years for all elderly client practitioners has been NHS continuing healthcare and, in particular, the potential claiming back of wrongly paid fees by individuals or their estates.

Deadlines in respect of these claims have been coming thick and fast in the last few years and practitioners should be aware of an important announcement regarding a further deadline by the Department of Health that may affect many older and disabled clients.

Primary need

As practitioners will be aware, if an individual needs long-term care, the first consideration should be the health needs of that individual, rather than their ability to pay.

The NHS is responsible for meeting the full cost of care home fees for individuals whose primary need for care is because of their health. This is called NHS continuing healthcare and is often described as ‘fully funded care’.

The package of care is arranged and funded by the health service to meet an individual’s physical and mental health needs that have arisen as a result of disability, accident or illness. The package can be provided in a care home, hospital or in the individual’s own home.

The Court of Appeal case of R v North and East Devon Health Authority ex p Coughlan [2000] 2 WLR 622 determined when a person would be the responsibility of the NHS. The court ruled that the local authority will only be responsible for nursing services if they are merely incidental or ancillary to the provision of the accommodation that a local authority is under a duty to provide.

In the court’s view, “where the primary need is a health need, then the responsibility is that of the NHS, even when the individual is placed in a home by a local authority”.

The National Framework was introduced in England in October 2007 and in Wales in August 2010, with the aim of clarifying who is eligible for NHS continuing healthcare.

Prior to implementation of the National Framework, each primary care trust and health ?board had their own complex eligibility criteria ?to determine who was eligible for NHS ?continuing healthcare.

Postcode lottery

The case of Coughlan and subsequent case law and reports by the Health Service Ombudsman and Public Services Ombudsman for Wales have highlighted that in many areas health authorities’ assessment procedures were inadequate and too restrictive, wrongly denying patients the funding to which they were entitled.

The National Framework was introduced to remove the postcode lottery in England and Wales ?and introduce a national approach to determining who was eligible for NHS continuing healthcare. However, primary care trusts in England and health boards in Wales can often make arbitrary NHS care-funding decisions based on the ability to pay, rather than health needs.

Every person needing long-term care because they are ill should be individually assessed by way of a multidisciplinary team assessment by their primary care trust or health board.

Families are able to challenge a decision, but it is a hard and complicated system. The first step is to ask the primary care trust or health board to assess the individual and undertake a retrospective assessment from the date he or she went into the home or started paying for care.

Guidance states that families should be involved in the assessments, but this does not always happen. Relatives with appropriate authority are also entitled to copies of continuing care assessments and a reasoned decision.

If an assessment is undertaken and applicant disagrees with the outcome then each primary care trust and health board has an appeal process. This will often involve families attending a review panel.

In England, if a person has been contributing towards their fees since April 2011 (in Wales, April 2003), they may be entitled to a reimbursement of their fees together with interest. This is the case even if the person who required care has since died.

Close down

In England, the Department of Health announced ?a close down of claims against primary care trusts ?for wrongly paid care home fees for the period ?1 April 2011 to 31 March 2012. As such, a person ?in a nursing home may miss out on their right to request an assessment of their eligibility for NHS continuing healthcare if they do not register a claim before the deadline.

A claim can, of course, also be made by a personal representative if the person who required care has since died.

Any claim that involves a period of care ?between 1 April 2011 to 31 March 2012, ?needs to be registered with the relevant primary ?care trust by 31 March 2013. The deadline for the period of care from 1 April 2004 to 31 March 2011 has passed and claims will only be accepted in exceptional circumstances.

In addition, the Department of Health published guidance confirming the introduction of timescales within which an individual can seek review of a decision regarding eligibility for NHS continuing healthcare. From 1 April 2012, once the primary care trust has notified an individual of the decision on eligibility, the individual will have six months to seek a local review of that decision.

It is therefore imperative for practitioners ?and clients to be aware of the impending deadline ?and to register a claim of eligibility for NHS continuing healthcare.

Potential applicants (or their personal representatives) should seek specialist legal advice ?early, so that assistance can be provided with pursuing a claim.

Matthew Evans is a partner at Hugh James