How failures in NHS Continuing Healthcare assessments led to tens of thousands of redress pay-outs

More than 50,000 families have now made a redress claim for incorrect decisions made by NHS Clinical Commissioning Groups (CCGs)* which resulted in individuals and their families unfairly being forced to pay out of pocket for care home fees.

Lisa Morgan, Partner and Head of the Nursing Care team says

£287 million of redress and £25 million in interest has now been won by families wrongly denied care funding by the NHS.

Why are people entitled to compensation for NHS Continuing Healthcare assessments?

Thousands of people over the last decade were unfairly denied funding from the NHS to cover their care costs. Over 50,000 people have made claims for this from the NHS since 2012.

Some patients who were denied funding have had to drain their life savings or even sell their homes to pay for their care or the care of a loved one.

What is NHS Continuing Healthcare funding, and how do people get it?

Individuals with severe physical or mental health needs are entitled to NHS Continuing Healthcare (CHC) funding, which covers their health and social care costs – primarily care home fees.

To get this funding, patients are assessed by their local Clinical Commissioning Group (CCG) or Health Board in Wales*, the NHS body responsible for the planning and commissioning of health care services for their local area. Often, CCGs and have made errors in these assessments, unfairly shifting the bill for care on to individuals and their families.

*Where CCG’s are referred to in England, Health Boards are the equivalent in Wales.

How are people assessed for Continuing Healthcare funding? Why were they treated unfairly?

CCGs conduct an assessment tool on each patient’s ‘areas of need’, which are graded to determine their severity. These areas include:

• Behaviour
• Psychological and emotional needs
• Communication
• Mobility
• Continence
• Breathing

However, these assessments are very subjective, and the loose grading system makes it easy for the CCG to ‘downplay’ the symptoms of an individual. This can easily result in their application being unfairly refused. This is most common for people with less physically visible conditions, such as dementia.

For example, in the case of a patient with severe behavioural problems, an assessor could write “has some behavioural issues,” resulting in their symptoms being treated as less serious by the CCG.

CCGs report that only around 18% of screenings lead to a person being deemed eligible for CHC in 2015-16 (most recent figures).

Is there an appeals process?

There is an appeals process that is open to anyone who believes they or a loved one were unfairly denied Continuing Healthcare funding. However, many patients don’t appeal against unfair denials of funding because the process is long and complex, which can make it very distressing.

CCGs often refuse to admit to any failings until every stage of the process has been exhausted, making it last many months, hoping the claimant will give up. In some cases this has meant compensation has not been paid until long after the patient has passed away.

The appeals process:

1. The CCG reviews the case. Guidelines and timescales for reviews vary significantly between regions, leading to very different outcomes across the UK
2. If a patient disagrees with the outcome of the CCG review, they can take their case to NHS England for an independent (slightly different in Wales)
3. If they disagree with the result of the NHS England independent review, the case can then be taken to the Parliamentary and Health Service Ombudsman, which deals with unresolved complaints or consider issuing judicial review proceedings.
4. If this final appeal is successful, then redress is paid to the individual or their families for the fees they wrongfully paid. The average England pay out for successful claims is £28,000

On top of refunded the care fees paid, CCGs must also pay interest to successful claimants. The average amount of interest paid is £2,500.

Are appeals handled in the same way across the UK?

Appeals are handled by individual CCGs and so the outcomes vary significantly between areas – there is a real ‘postcode lottery’ for families (see tables). Some CCGs appear keen to correct mistakes made in the past, while others are willing to fight families until the last possible step to avoid paying compensation.

Top 6 areas for amount of redress paid:

Bottom 6 areas for amount of compensation paid:

Are CCGs handling complaints themselves?

Many CCGs actually pay third party businesses or commissioning boards to handle the claims made against them. This is particularly controversial as some (including Bedfordshire and West Leicestershire CCGs) have paid more in fees to third parties than they have in redress to families. The NHS has refused to say whether these organisations are directly or indirectly incentivised to refuse applications.

For example, Liverpool had 407 cases paid our £1.7m in redress, but £1.5m to third parties, whilst Leeds did everything in house – had 721 cases and paid £8m in redress.

Top 5 areas for amount paid to third party companies:

Penny Martin, Client of Hugh James, said:

My brother had the majority of dealings with Ms John, of Hugh James. We were disputing a decision made refusing Continuing Health Care for my late father. After much collation of information, and several attempts to persuade the relevant Health authority, the case finally went to appeal before a lay panel.

I met with the representative of Hugh James Ms John, who had been dealing with the case from inception until the appeal. I was immensely impressed with both her knowledge and the quantity of information that she had at her fingertips throughout the meeting. Her preparation and assimilation of the facts to lay before the panel was staggering. I could not have done such a masterful job myself. The case she presented was so strong that indeed the panel overturned the original decision and awarded my father posthumously the Continuing Health Care allowance that he should have received during the final year of his life. I cannot recommend them highly enough.

How can Hugh James help?

Hugh James is the UK’s the leading law firm in the recovery of wrongly paid care costs. We have a 60% success rate and have recovered over £170m in wrongly paid care fees for patients and their families. Our biggest single recovery so far is £450,000, with an average settlement value of £30,000.

Below are some examples of how helped our clients.

Case study 1: Mrs Doreen Homewood from Yorkshire

Doreen Homewood entered a care home in Wakefield in 2014, at the age of 82, due to a number of deteriorating health problems. She was unable to communicate her needs and required comprehensive assistance in daily life and taking her medication. She remained at the care home until she sadly died in October 2018.

Her family applied to NHS Continuing Healthcare for reimbursement of her care fees. They were turned down on multiple occasions. Following numerous appeals and finally assistance from Hugh James, care fees exceeding £100,000 have been reimbursed to the family.

Doreen’s son, Tony Homewood, said:

The assessment procedure is gruelling and no matter how well you think you can fight your own corner, trust me, it’s difficult, time consuming and the whole thing is loaded against you.

Case study 2: Mrs Barbara Stretch from Morecambe

Barbara Stretch was diagnosed with Alzheimer’s disease and lived at Ashburnham House care home in Morecambe from November 2003 until she died in June 2011.

Due to her Alzheimer’s disease she was unable to manage any of her own care. Barbara could also demonstrate aggressive and unpredictable outbursts of behaviour and was sectioned under the Mental Health Act.

Her daughter, applied for a retrospective review of eligibility for NHS care funding in 2012. Midlands and Lancashire Commissioning Support Unit (CSU) was asked to review the case on behalf of Morecambe Bay Clinical Commissioning Group (CCG). Unfortunately, it took them until 2016 to deny the funding, which Hugh James appealed.

The appeal was rejected on several occasions. Hugh James then sought an independent review in 2019. The family recovered over £43,000 this year, for fees that should never have been paid. Due to the unreasonable delays by Morecambe Bay CCG, an interest payment of almost £12,000 was included in the figure.

Barbara’s daughter, Mrs Greenwood, said:

Continue. Don’t give in. It hurts when they say no to funding. They said my mother wasn’t ill at the first meeting. I will never forgive them for that.

Case study 3: Mrs Florence Mitchell from Lincolnshire

Florence Mitchell was admitted to hospital age 84, after fracturing her hip in a fall at home. She was transferred to Harrowby Lodge in Grantham, Lincolnshire to be closer to her daughter and lived at the home until she died in 2007.

Mrs Mitchell suffered with Alzheimer’s disease which made her confused, disorientated and caused short- and long-term memory loss. She was totally dependent on care staff for all her needs.

She was awarded NHS care funding in 2006, but it was removed six weeks before she died. In 2012, her family asked Hugh James to help them get a retrospective review of full NHS funding.

Arden and GEM Commissioning Support Group (CSU) were asked to review the case on behalf of Lincolnshire Clinical Commissioning Group. After four years, they refused to review the case as Florence had been assessed before she died. Hugh James challenged this and eventually they reviewed her case but decided Florence was not eligible for care funding. Following a number of appeals, her family have now secured full NHS funding for the whole period and have been refunded £75,000 for care home fees which they should never have had to pay.

Florence’s daughter, Jacqueline Mitchell said:

This is not money we have ‘won’ – it is money that never should have been taken from my mother in the first place. When mum went into care, we were simply told she would have to sell her home pay for the costs of her care. That’s not right.

Case study 4: Mr Eric Halloway from Kent

Eric Halloway was diagnosed with Alzheimer’s disease and lived in care homes in South Kent from 2004 until he died in 2009. He sold his home to pay his care fees.

Mr Halloway suffered with severe dementia. He was also anxious and depressed, unable to communicate, incontinent and in pain. In 2012, Hugh James requested a full retrospective review of Mr Halloway’s period in care. In July 2016, an organisation working on behalf of the NHS concluded that Mr Halloway was not eligible for NHS funded care at the time.

Following numerous appeals and partial overturns, the case went all the way to an Independent Review Panel in January 2020. The panel decided that Mr Halloway was eligible for a full refund of all care fees. After 8 years of fighting, the family recovered a total of over £170,000 in settlement of the claim – all fees plus interest.

Eric’s son, Richard, said:

My father spent 22 years in the RAF – we felt it wrong that he should have been forced to sell his home and use his savings to fund his care. This process has taken 8 years to complete. I urge other families not to be swayed by the system.

Case study 5: Mrs Sheila Flower from Newport

Sheila Flower has been a resident in a care home in Newport since in 2004 at the age of 61 due to her deteriorating mental and physical health.

Mrs Flower suffers from bi-polar, diabetes, depression and hallucinations. Mrs Flower has often refused to eat and take medication and has been admitted to hospital a number of times.

Mrs Flower’s daughter contacted Hugh James in 2012 after she was denied continuation of NHS healthcare funding. A retrospective review of Mrs Flower’s needs was requested. Unfortunately, it took until 2019 for the health board to reach an initial decision regarding part-funding. Following negotiation, Mrs Flower was refunded £75,000 covering three years of wrongly paid care fees and interest.

Mrs Flowers’s daughter said:

The assessment process feels like a tick box exercise and is not a reflection of my mum’s needs. Whilst we’ve had some victory, we are still waiting for the whole claim to be determined.