Jump to content, skipping navigation or jump to sub navigation

Something to shout about - closing retrospective reviews

21/03/12

On 15 March the Department of Health announced that it is to close the continuing care retrospective review process. 

The letter from Sir David Nicholson confirms that the Department of Health intends to introduce a close down for any new cases requesting assessment of retrospective eligibility for NHS Continuing Healthcare (CHC).  The letter sets out the three separate deadlines that will apply in respect of retrospective review claims as follows:

 Time Period
  Deadline
 1 April 2004 - 30 September 2007  30 September 2012
 1 October 2007 - 31 March 2011  30 September 2012
 1 April 2011 - 31 March 2012  31 March 2013

This follows on from the cut off announced in 2007 for cases where the majority of the time period was prior to 2004. As a result PCTs should be prepared for an increase in the number of requests received. 

It is important that PCTs communicate the closure of retrospective reviews in a clear and effective manner. Communications can include using the local press, notice boards in hospitals and through local advocacy groups.  This is a really important process since the PCT (or in future CCGs) will need to be able to demonstrate that the PCT appropriately communicated the closure period in order to prevent claims being brought after the deadlines. 

The communications from the Department of Health confirm that late applications will only be considered in "exceptional circumstances".  What these circumstances are will be down to the individual PCT/CCGs and the Department of Health has not provided any guidance on what may be considered as exceptional.

The SHAs are finalising communications toolkits for PCTs to use to communicate the cut off arrangements to ensure a clear and consistent message across the country.

Currently PCTs have the responsibility for assessing eligibility for NHS CHC.  However, from 1 April 2013 it is likely that this responsibility will transfer to the clinical commissioning groups. 

Time limits for review

On the same day the Department of Health published guidance confirming the introduction of time scales within which an individual can seek review of a decision regarding eligibility for NHS CHC. 

  • Once the PCT/CCG has notified an individual of the decision on eligibility, the individual will have six months to seek a local review of that decision.
  • The PCT/CCG is required to turn around that review request within three months of receipt.
  • The individual then has a further six months from the date of the PCT/CCG decision in which to request an independent Review of the decision through the SHA.
  • The SHA will need to conduct the Independent Review within six months of receipt of the request.

It is very important that any decision letter being sent out sets out the timescales and method of seeking a review to ensure that this can be enforced.

The deadlines are inevitably going to result in an increase in applications to PCTs.  We have become aware of probate solicitors undertaking reviews of closed cases to assess whether a person may be eligible for NHS CHC and anticipate that the closure process will accelerate the uptake of this practice.  As such, PCTs should have in place clear and effective mechanisms for dealing with retrospective reviews.  

Disclaimer

This update is intended to give general information about legal topics and is not intended to apply to specific circumstances. Its contents should not, therefore, be regarded as constituting legal advice and should not be relied on as such. In relation to any particular problem that you may have you are advised to seek specific legal advice.

subscribe to our publications

We provide legal intelligence in the form of publications and alerts on a wide range of issues. To subscribe sign-up here.

[Bevan Brittan] has an excellent reputation for assisting central and local government and public and private health sector organisations.
Chambers UK, A Client’s Guide to the Legal Profession 2014

Back to top