Can I claim back care home fees which have already been paid? Frequently Asked Questions

by Ridley & Hall in James Urquhart-Burton, NHS Continuing Healthcare posted May 2, 2023.

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Is it possible to reclaim care home fees which have already been paid?

Yes, if you or your loved one have been paying for care, it may be possible to claim a refund of those care fees, if there is evidence that they should never have been paid in the first place.

How can it be that care home fees are wrongly paid and need to be refunded?

Where a person needs care and support, the local authority will usually assess your needs and then undertake a means test to determine what you should pay towards your care costs.

The Integrated Care Board (“ICB”) is the NHS body which has a duty to assess your eligibility for NHS Continuing Healthcare Funding (“CHC”) wherever it appears there is a need.

CHC refers to non-means tested NHS funding, payable to anyone who has intense, complex or unpredictable needs.

The trouble is, both the public (and, worryingly, some professionals in the care industry) do not know about or understand CHC. That, and failings in the system, result in people being overlooked and not assessed, or not being assessed as frequently as they should be.

How do I make a claim for care home fees?

You can contact the ICB to request “retrospective review” of your eligibility for CHC. It is worth thinking about:

How you / your loved one meets the eligibility criteria and how you will position this to the ICB;
The period of time which you want to be retrospectively reviewed;
What evidence is available to prove the case; and
Whether you have legal authority to bring the claim, if you are bringing it on behalf of someone else.

If you are in doubt, seek advice.

Are there any bars to bringing a claim?

In England, you can seek a retrospective review of eligibility back to 1 April 2012 – the ICB won’t look back any further. In the past, the Department of Health has announced “close downs” of claims for past periods of care, with associated deadlines for bringing those claims. It is best to take action as soon as you are aware.

A retrospective review is not a suitable avenue to challenge previous CHC assessments already completed; such challenges should be brought as an appeal within 6 months of the decision being made. Conversely, retrospective reviews are to assess previously “unassessed” periods of care.

There may be exceptional circumstances where previous assessments can still be challenged, despite appeals not having been registered at the time. Alternatively, it could be that although previous assessments have taken place, there are still lengthy unassessed periods for which eligibility should be considered. If you are concerned you should seek legal advice.

How is eligibility assessed retrospectively?

The ICB will gather available health and care records to paint a picture of the individual’s needs throughout the period to be assessed.

Given the passage of time, health and care providers will not keep records indefinitely, so making prompt enquiry is important.

As with all assessments, the procedure is for the ICB to complete the NHS Checklist in order to screen the case and determine if a full eligibility assessment is necessary. If it is, then the Decision Support Tool will be completed and a recommendation made on eligibility by an MDT. The process must comply with the National Framework for NHS Continuing Healthcare Funding.

Here are links to all three of the aforementioned documents:

NHS Checklist

Decision Support Tool

National Framework

The ICB has decided that my parent is not retrospectively eligible. Can I appeal?

As with all eligibility decisions, the ICB must offer a right of appeal. The first step is to engage in Local Disputes Resolution with the ICB and the second stage is to ask for an Independent Review Panel convened by NHS England

Should I get help from a solicitor?

Whether or not to instruct a solicitor to act for you in your retrospective claim is a personal choice. Many people find the support and expertise of a solicitor to be invaluable, particularly when it comes to presentation of the case and making difficult decisions about how to progress.

One of the key benefits of using a solicitor is that they are bound by a code of conduct and ethics, are regulated, and must carry professional indemnity insurance.

What does it cost to instruct a solicitor?

Our specialist solicitor, James Urquhart-Burton will have an initial discussion with you about your potential retrospective claim, free of charge; no forms to fill in. We will quickly come to a decision whether we can offer to act for you on a No Win No Fee basis. Where we can act for you under a No Win No Fee Agreement, our legal fee is 25% of any monies recovered, plus VAT. If we do not win your case then you do not pay us anything.

Where we cannot act on a No Win No Fee basis, we may offer to act for you on a private fee-paying basis and we will always provide estimates for the work involved.