On 15 March 2012, the Department of Health introduced new guidance affecting both claims for refunds of care home fees to an individual, and the time limits for making an appeal against a decision that someone is not eligible for continuing healthcare.
Continuing healthcare is free, non-means tested care funded by the NHS for those with healthcare needs (rather than social care needs). This means that, unlike social care, regardless of what income or capital a person has, they will receive fully funded care, usually in a residential or nursing home, but it could also be provided in their own home in certain circumstances. Only those who meet the continuing healthcare criteria will be eligible to receive it, i.e. they must have primary health needs.
Currently Primary Care Trusts (PCTs) are responsible for assessing and funding continuing healthcare. However, with the passing of the Health and Social Care Bill in March 2012, this responsibility will soon be taken over by Clinical Commissioning Groups (CCGs).
Presently, an individual is entitled to a refund of care home fees already paid if they have been paying for their care privately any time since 1 April 2004 and they are found to be eligible to receive continuing healthcare retrospectively. This applies even where the individual has already passed away; the executor of their estate can make the application for a refund of care home fees into their estate. Before 15 March 2012, such a claim could be made at any time.
However, with the forthcoming introduction of CCGs, new deadlines for such retrospective claims have been introduced. For a period of care received between 1 April 2004 and 31 March 2011, any retrospective claim must be made before 30 September 2012. For a period of care between 1 April 2011 and 31 March 2012, the claim must be made before 31 March 2013.
The Department of Health has said that it will accept late applications in exceptional circumstances although provides no guidance on what it will consider to be exceptional. It is therefore advisable to ensure that any application is made within these deadlines.
New timescales have also been introduced for current cases. From 1 April 2012, an appeal against a decision that someone is not eligible for continuing healthcare must be made within six months of the date they were notified of the decision. The PCT will have three months to respond to the appeal. If the appeal is unsuccessful and the individual or their family wish to further appeal, an application for an independent review must be made within six months of the date of the appeal decision, and the reviewer has three months to respond. These new timescales only apply to cases where notification of the decision of ineligibility, or the request for a review of this decision, is made on or after 1 April 2012. Again, the Department of Health says appeals outside of the timescales will be accepted in exceptional circumstances.
It appears that these changes have been introduced for two reasons. The Department of Health wishes to draw a line under its liabilities before the CCGs come into existence, most likely to avoid complex and costly retrospective claims against a PCT that is no longer in existence. The introduction of deadlines for appeals in cases after 1 April 2012 is said to have been brought in to give individuals and their families a clearer picture of the process involved, and to bring it in line with the NHS statutory complaints process.
In reality both changes could create an added pressure on individuals and families to ensure they make any appeals or retrospective claims within these new timescales, and this will not always be easy in what is likely to be an already difficult time. However, to ensure the possibility of a successful application, people should act promptly and within these timescales.
Maria Nicholas, Solicitor
27 May 2012