Retrospective Care Funding

Posted on: 13 October 2008 by Gareth Hargreaves

Terry asks solicitor Cate Searle if he can persuade the Primary Care Trust that his mother who recently passed away should have received funding.

Cate Searle from Martin Searle Solicitors answers your questions on the intricacies of obtaining care home funding and the avenues you can take if your case has been refused.

Terry asks:

My mother who recently passed away funded her own care for five years until her money had been reduced to the point where the Local Authority took over. She suffered from Alzheimer’s and I have asked the Ombudsman to investigate her case.

Under the new framework for NHS continuing healthcare, in particular the decision-support tool, she would have qualified for full funding. The new framework is said not to be retrospective, principally I understand because all PCTs were supposed to make their assements through the Grogan and Coughlan compliant.

Is there any way that the principles of the framework can be used to persuade the PCT or the Ombudsman that mother should have qualified for funding?

Cate says:

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Cate Searle is from Martin Searle Solicitors:

Thank you for your query. You are correct in your understanding that the “Decision Support Tool” and other helpful principles/guidance in the new National Frameowrk are not retrospective. Your question: “Is there any way that the principles of the framework can be used to persuade the PCT or Ombudsman that mother should have qualified for funding” - is an interesting and pertinent one.

The new National Framework does not “re-invent the wheel”. Rather, it sets out to consolidate and codify earlier guidance, and to equalise the standard of decision making by local Primary Care Trusts.

I used the draft National Framework guidance - and an earlier draft version of the “Decision Support Tool” - to assist a client in challenging a decision made by a PCT in the south of England in January 2007 - ten months before the National Framework was to take effect; and, at the time, without the benefit of knowing what date the Government would choose to implement the new framework. I made a point of telling the PCT that I was referring to the draft, the principles of which I believed they should consider themselves as a matter of “good practice”.

In this particular case, my client succeeded in overturning an earlier decision that his mother was nto eligible for NHS Contuinuing Healthcare. It was agreed that the PCT would fund the first three months of her nursing home placement, with her needs and the issue of NHS funding to be reviewed thereafter.

However, I note that you want to challenge the PCT in terms of a decision or, perhaps, a lack of decision about your mother’s eligiable needs spanning a five year period. The National Framework may help in terms of formulating general representations about your mother’s primary health needs; but you will also have to apply the individual facts of your mother’s case to the actual eligibility criteria used by your mother’s local PCT during the relevant period(s) - also quoting from the Grogan and Coughlan cases as and here relevant to assist your case for retrospective funding.

I have assisted clients in securing a retrospective award of funding for their deceased partents, typically in cases where the individual’s healthcare needs were never assessed - or only cursorily assessed - some years ago. Those clients have recied “lump-sum” refunds to the deceased parent’s estate, representing nursing home fees wrongly charged; and interest on those lump sums. If you believe you can provide evidence to the decision-making body that your mother had needs that were principally healthcare and nursing needs rather than social care needs, then it is worthwhile pursuing a review.

You may find that it is worthwhile seeking a specialist opinion on the request for retrospective funding for your mother’s case. Each case is unique. It may be that your mother would not have qualified for “free” care for the whole five year period, but that it is possible to identify a period in which she should definitely have qualified under the relevant eligibility criteria. While it is always dangerous to generalise, my own experience suggests that historically, many PCTs did not historically give proper consideration to the speicifc nursing and supervision needs of service-users with Alzheimer’s and this might result in a less comprehensive assessment for NHS Contiuning Healthcare than for those individuals with predominant physical healthcare needs.

I do hope that this helps. Please bear in mind that this is general advice and you should seek specialist help to discuss your mother’s case in more detail to increase the likelihood of a successful challenge.

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