Did You Pay for Care the NHS Should Have Funded?
It’s a question we hear all too often from families. "My relative's care cost their life savings! We've just found out they might have been eligible for NHS Continuing Healthcare (CHC) funding all along. Is it too late to do anything about it?"
Message a member of the CHC team at jub@winstonsolicitors.co.uk
In many cases, the answer is no, it might not be too late. That’s where retrospective CHC claims come in.
It is possible to ask an Integrated Care Board (ICB) to conduct a retrospective assessment to reclaim care fees that have already been paid. This is often called a claim for a "Previously Unassessed Period of Care" (or PUPoC).
Here’s our guide to when you might be able to make a claim.
What are Retrospective CHC Claims?
Simply put, retrospective CHC claims are for a period of care in the past where an individual may have been eligible for CHC funding, but they were never assessed.
If a retrospective assessment finds that the person was eligible, the ICB (and sometimes the Local Authority) may be required to repay the care fees for that period. This can apply to a person who is still living, or it can be done after their death, with the repayment going to their estate.
When Can You Ask Retrospective CHC Claims? Two Common Scenarios
While every case is different, two main situations often lead to a successful retrospective claim.
Scenario 1: No Assessment Was Ever Done
An ICB has a legal duty to assess a person for CHC whenever it "appears there may be a need" for it. Unfortunately, this doesn't always happen.
You should consider a claim if your relative:
- Paid for their care in full (either at home or in a care home).
- Had clear and significant healthcare needs (e.g., advanced dementia, a severe stroke, complex medication needs, mobility issues requiring hoisting).
- Was never assessed for CHC funding, or was not assessed regularly as their condition deteriorated.
This applies whether your loved one is still with us, or if you are acting on behalf of their estate after they have passed away.
Try out our free retrospective claim calculator
Scenario 2: You Have a "Gap" Before a Current CHC Award
This is a common and often very strong argument. The situation looks like this:
- Your relative has recently been assessed and awarded CHC funding.
- However, you had to pay for their care for months, or even years, before this successful assessment.
- You have evidence (like care records) that their needs were just as high before the assessment as they were on the day they were approved.
- The ICB did not assess eligibility during this time.
If this is the case, we can make a powerful argument that the ICB should "backdate" the funding to cover this unassessed "gap," as the eligibility was clearly present long before the ICB agreed to assess.
Who Can Make the Claim?
It’s important to know who has the legal authority (or "standing") to request the assessment.
If the patient is living, the claim can be made by the person themselves. Or, more commonly, by their registered Attorney (under a Lasting Power of Attorney) or a Deputy appointed by the Court of Protection.
If the patient has passed away, the claim falls to the representatives of their estate. This means the Executor (who is named in the Will) or the Administrator (who is appointed if there was no Will).
Your Toolkit - What You Should Secure for a Claim
A retrospective claim is an evidence-based process. You can’t just say the needs were high - it needs to be proven. If you are considering a claim, you should try to ensure that the following are available and have not been destroyed:
- Care Records: This is your most important evidence. This includes the full set of daily care home notes, care plans, risk assessments, medication charts, and any other monitoring charts.
- Financial Records: You must be able to prove what was paid. Secure copies of all care home invoices, or a statement of account from the care home, and corresponding bank statements showing the payments.
- The Current DST: Where you are arguing that the patient was eligible prior to their CHC award.
If you are in Scenario 2, you must get a full copy of the Decision Support Tool (DST) and the meeting notes that led to your current funding award. We need to understand the specific rationale for why the ICB agreed to fund. This document is the blueprint for proving the same rationale applied to the earlier, unassessed period.
What if You're Unsure About Past Assessments?
This is a very common situation. Many families feel an assessment may have been done but are not sure or were not properly informed at the time. Or perhaps they recall it happening, but couldn’t say when it was and whether there was an “unassessed” period of care and therefore still a viable claim.
The first step is to ask the ICB to provide the entire assessment history for your relative.
If a CHC assessment happened and was not appealed at the time but should have been, the opportunity to claim may be lost in relation to the time period it relates to. However, obtaining full copies of all the documents is important, because we can review it to see if assessments were missed, if the correct process was followed, or if there were gaps for which a claim should be explored. This is where seeking specialist advice from a team like ours is crucial.
Retrospective CHC claims are complex and can be a long battle, but it's about fairness. If the NHS should have been responsible for funding, it is only right that families are not left out of pocket.
If any of this sounds familiar, please contact our specialist CHC team. We can help you to understand your position and navigate the process.
Call 0113 320 5000 or email jub@winstonsolicitors.co.uk
