By Rosalind Hughes, founder, Just Caring Legal
Most NHS-funded residents of care homes cannot legally contribute towards their essential care costs
NHS-funded residents and their families all over the country are making top-up payments towards the cost of their essential care. They are subsidising care packages that the appropriate NHS funding body has agreed is necessary. This will be the local Clinical Commissioning Group (CCG) in England, Local Health Board in Wales, or HSC Trust in Northern Ireland.* This is illegal. But unfortunately we know it is nevertheless widespread.
Depending on the circumstances, NHS-funded residents may be entitled to a substantial refund for these wrongly paid care fees. In some cases, care homes are charging many hundreds of pounds a week in illegal top-ups.
Often NHS-funded residents pay illegal top-ups because of a shortfall in their NHS Continuing Healthcare funding. It usually happens when the funding body has capped the funding at an arbitrary level below the cost of providing the care for assessed needs.
How are NHS-funded residents topping up their NHS Continuing Healthcare?
Care homes may ask NHS-funded residents to contribute towards the costs of care through:
- a one-off payment.
- a regular top-up to the weekly fee to cover a ‘shortfall’ in the NHS Continuing Healthcare funding. This may be as a condition of moving into the home or as a condition of staying there.
- an agreement for the provision of “additional” private services, when these are not in fact provided to the NHS-funded resident. The true purpose of the payment is usually to cover a shortfall in CHC funding.
Asking NHS-funded residents to contribute to care is likely to infringe consumer law
The Competition and Markets Authority stresses that such requests for payment are illegal. It recently forced the care home chain Care UK to agree to £1 million in refunds for this. The CMA says such terms are unfair under the law. It reminds care homes that “the vulnerable circumstances of the resident, at the time the contract is agreed, and when any term is being enforced subsequently, will be important considerations for a court when assessing the fairness of your terms.”
Access to NHS services is based on clinical need and not on an individual’s ability to pay. The NHS should never subsidise private care with public money (which would breach core NHS principles). And it must never charge patients for their care, or allow them to pay towards NHS care (except where specific legislation is in place). This would contravene the founding principles and legislation of the NHS.
Unless it is possible to separately identify the NHS-funded elements of the service from the rest, and deliver it separately, it will not usually be permissible for NHS-funded residents or their families to pay for higher cost services and/or accommodation. Contrast this with Local Authority social care funding, where such top-ups are permissible.
Do you know an NHS-funded resident who has been asked to pay towards their care?
If so, get in touch. With our specialist expertise in both care home fee restitution and civil litigation, we are helping many clients reclaim this wrongly paid cash. In some cases, these illegal top-ups go back many years. They may amount to tens of thousands of pounds. This is money that should never have been paid out. Remember, NHS Continuing Healthcare is free, regardless of how many savings or assets you have.
So if you believe an NHS resident you know has wrongly paid NHS Continuing Healthcare top-ups, then get in touch today. We will listen to your story and advise you on your best course of action.
*In Scotland the arrangements are different. Under Hospital Based Complex Clinical Care (previously known as NHS Continuing Healthcare) if someone has a health need then the NHS is responsible for meeting that need free of charge. However, care homes can ask residents to contribute ,subject to their financial circumstances, towards their social care and accommodation costs.) Please note Just Caring Legal only deals with cases in England.