Are we losing interest in the ‘Refreshed Redress Guidance’? Unfortunately the answer is yes.
NHS England has recently published its ‘NHS Continuing Healthcare: Refreshed Redress Guidance‘ which provides advice to health authorities in England on how reimbursements should be made. The guidance, published on 1 April 2015, takes immediate effect for settling claims where eligibility for NHS continuing healthcare (CHC) has been made in both current and retrospective cases.
The guidance states that it is:
‘about the principle of putting the individual back in the position that they would have been in had they been assessed as eligible for NHS CHC. This will therefore apply to individuals who would have funded their own care previously and had an assessment for NHS CHC been undertaken and they been found eligible then the NHS should have funded their care. It is about how to make a fair, rational and reasonable reimbursement.’
Prior to this refreshed version of the guidance, the health authorities were reliant on guidance published in March 2007. Under the previous guidance it would be possible for an individual or their representative to ask for interest to be calculated applying both the Retail Price Index (RPI) rate and the court rate, with the higher calculation being awarded.
The biggest change to occur from the latest guidance is the removal of court rate interest; with health authorities now being advised to apply only the RPI rate when calculating the interest owed to individuals and families who have wrongly paid care home fees.
It is acknowledged that the main principle of redress is to restore the individual to the financial position they would have been in had eligibility been awarded at the appropriate time. Whilst the calculation of interest should not lead to a profit for claimants, it is questionable whether the way this redress has been implemented can be seen as fair. In our experience, individuals who have not received welfare benefits during their lifetime would receive a higher rate of interest applying the court rate and this change will therefore result in lower settlement figures.
Individuals who have been awarded eligibility prior to 1 April 2015 but are still awaiting calculations of the reimbursement owed are entitled to receive both sets of calculations. However, those still awaiting the outcome of claims already registered, based on the ‘Refreshed Redress Guidance’, will only be entitled to receive interest at the RPI rate.
Consideration must be given to the Department of Health deadlines by which NHS continuing healthcare claims had to be made and the impact these changes have on retrospective claims. Since the deadlines imposed by the Department of Health for bringing claims for retrospective continuing healthcare, health authorities have been inundated with claims.
It is estimated that in excess of 60,000 claims have been made and health authorities have experienced a significant strain on resources due to the high volume of claims received. This has resulted in severe delays in outcomes being reached. Consideration also needs to be given to the fact that often health authorities are prioritising cases where the individual is still alive irrespective of what date the claim was made.
The guidance states that it follows the principles set out in the Parliamentary and Health Service Ombudsman’s “Principles for Remedy”. However, on inspection of the Ombudsman’s guidance, there are also other elements which should be considered. As well as ensuring individuals are recompensed back to the position they would have been in but for the maladministration by the public body, individual claimants should also be treated consistently. The Ombudsman advises that ‘decision on remedies should take proper account of previous decisions made on similar facts’ and any difference should be justified on the ‘objective features or the individual circumstances of the case’.
It is submitted that the application of the ‘Refreshed Redress Guidance’ by NHS England does little to ensure a consistent approach. Whilst it may be reasonable to expect the change to have been implemented for cases registered following the publication of this new guidance, it does not appear a consistent approach to take for retrospective claims; particularly those registered in contemplation of the Department of Health deadlines some three years ago. These cases are still awaiting consideration due to a shortage of resources available to health authorities and through no fault of individual claimants or their families.
These individuals may now find themselves in a position where they are awarded eligibility and only given the option to accept the RPI rate of interest. Despite the fact that someone who registered their claim on the same day or even later with a different health authority may have already settled their case and been offered both interest rates to select from.
The question is one of fairness of application and it is questionable whether the application of the ‘Refreshed Redress Guidance’ to claims already registered is appropriate, particularly given the severe delays experienced through no fault of individual claimants.