The Welsh Assembly has announced that the cut off date for reimbursing wrongly charged care home fees paid in Wales during the period 1 April 1996 to 31 March 2003 will be 4 December 2009. 

In 2003, the Health Services Ombudsman reported that a number of people had been charged for the costs of their long term care in situations where the NHS should have been responsible.

What is continuing care?

Continuing care is available when a person has complex, substantial and ongoing physical or mental health needs.  Individuals are eligible if the nature, complexity, intensity or unpredictability of their health care needs or the risk to themselves or others means that regular input is required by one or more members of the NHS, e.g. a doctor, nurse or therapist. 

Eligibility for continuing care is assessed on a case-by-case basis.  It has been awarded to people requiring peg-feeding or regular catheterisation, individuals suffering a rapidly deteriorating and unstable, physical or mental health illness requiring regular treatment and patients in the final stages of a terminal illness.  Over recent years, Health Boards have increasingly recognised patients suffering from Alzheimer’s disease as eligible by reason of their often complex and unpredictable needs.  It has also been confirmed that continuing care can be available whether care is provided in a care home or in the patient’s own home.

Why does it matter?

Continuing care is funded completely by the NHS.  If a person is not eligible for continuing care, he or she may have to pay most or all of the care costs personally.  The local authority carries out a financial assessment to determine the amount of capital or income which must be contributed.  A person with capital of over £22,000 must pay the costs of the care themselves.

What can be done?

If a person is paying for his or her care and it is believed that he or she should be eligible for continuing care, an assessment can be requested from the Local Health Board.  The assessment is likely to include a doctor, registered nurse and/or social worker and the patient and carer should also be involved.  Individuals may appeal a decision to refuse continuing care if it is felt that the Health Board applied over-restrictive criteria with the result that NHS funding was wrongly denied to that person.

Is it possible to challenge a past decision?

Following the Ombudsman’s report in 2003, the Welsh Assembly implemented a scheme to reimburse fees which were paid by people who should have received continuing care.  Local Health Boards could be asked to review cases from April 1996 and to refund overpaid monies if it was found that the NHS should have been responsible.  This is so even if the patient had died in the meantime.

Problems with the existing system

Until 30 September, there were 22 local health boards in Wales.  Each had its own policy and criteria to determinine eligibility for continuing care.  This created a ‘postcode lottery’ with some health boards using overly-restrictive criteria and wrongly denying people continuing care.  This has led to thousands of people paying for their own care when the cost should be met by the NHS. 

As of 1 October, there are now seven health baodrs in Wales and new guidance is set to be introduced to establish whether individuals receiving care in Wales should be fully funded by the NHS rather than having to pay the cost themselves.

This guidance – known as the National Framework – was introduced in England in October 2007 and is currently under review in Wales.  Its aim is to ensure a consistent approach by local health boards when assessing whether a person is eligible for NHS continuing health care. 

There are strong indications that the present system needs an overhaul.  Age Concern estimates that approximately 100,000 people in England and Wales should receive continuing care funding but the latest figures indicate that less than 30,000 are in receipt of this care.  The new health boards and The Framework seeks to put an end to this “lottery” and aims to ensure that patients across Wales are assessed continually and in accordance with the correct criteria.

Who can help?

Our Wills Trusts & Probate department is experienced at advising on funding issues and has successfully obtained continuing care for clients, ensuring that they receive the care – and the funding – that they should.  If Age Concern’s estimate is correct, continuing care is currently received by less than a third of those genuinely entitled.  We want to do as much as possible to ensure that our clients are not among those wrongly paying for care.