In a recent Court hearing the Administrative Court confirmed that when it comes to NHS Continuing Healthcare it is essential that Clinical Commissioning Groups or CCGs (the bodies which have taken over from NHS Trusts) must ensure that handling of a retrospective request for eligibility are carried out correctly in accordance with the published process.
The partially successful Judicial Review above was brought by the son of Lily Dennison who had been resident in a nursing home between January 2006 and her death in October 2008. She was in receipt of assistance in relation to nursing costs from May 2007 but otherwise had to pay all of her own residential costs. Unfortunately the Primary Care Trust, as they were then, did not assess Mrs Dennison as eligible for NHS Continuing Healthcare funding.
This is significant as the latter covers all care funding and is not means tested in any way.
Mrs Dennison was assessed in both May and September 2007 and then again in March 2008. In 2012 the late Mrs Dennison’s son then asked her eligibility to be reviewed retrospectively. The Trust refused to carry out the assessments in full.
In accordance with NHS document, “NHS Continuing Healthcare Review Process”, Trusts were made aware that the closing date for any applications for retrospective review did not apply to those decisions that had already been made, i.e. a review of a decision rather than an assessment for a previously un-assessed period of care.
In the proceedings Mr Dennison claimed that the assessments of his mother were not clinically sound, the correct process had not been followed and that the NHS Trust’s refusal to review the assessments was both irrational and unreasonable in light of certain provisions of the new Healthcare Review Process issued by the NHS.
It was accepted by the Judge in this matter that the May 2007 assessment was not correct. The assessor had failed to explain certain areas of care required or the appropriate level of funding. They had also failed to complete the Continuing Healthcare Checklist fully. Parts of the checklist responses also conflicted with comments in the Nursing Needs Assessment Tool. The Judge therefore had no difficulty in finding that the assessment was both irrational and unreasonable in line with the application of Mr Dennison.
He also found that the Trust had broken their own local policy in relation to the assessment of May 2007.
The Judge, however, did find that the March 2008 assessment of Mrs Dennison had been carried out appropriately and found that the decision not to assess Mrs Dennison’s eligibility after this date was correct.
This decision gives hope to those who are trying to convince CCGs that Trusts simply ignored much of the guidance of the NHS and, indeed, in some cases continue to do so. Unfortunately it does not address the continuing problem of retrospective requests being subject to considerable delay, sometimes a matter of years, in deciding on eligibility.
The abdcare Team at Awdry Bailey & Douglas have considerable experience in providing advice over these issues. We also make claims on behalf of those who believe their eligibility was wrongly assessed or where an assessment should have been carried out but the NHS failed to do so.
Solicitor, James Trescothick-Martin, a member of the abdcare Team said of the matter, “this clearly shows that some Trusts do not always follow their own or national guidance put in place by the Department of Health and NHS England. Although it does not address the ongoing problem of the time taken to carry out retrospective reviews, this decision is a step in the right direction. Hopefully CCGs will follow the national framework with current claims. I hope they will also ensure that where there are procedural irregularities with retrospective reviews, they find in favour of those patients and their families who were denied CHC funding.”
An initial free appointment
For a FREE appointment, and to find out answers to the questions that need answering, please contact James at james.trescothick-martin@awdrys.co.uk or call on 0800 072 8636.
The team has offices In Marlborough, Royal Wootton Basset, Devizes & Chippenham. Alternatively visit our website www.abdcare.co.uk
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| James Trescothick-Martin |
