Emerald Law helped a family recover £160,860.16 after their late aunt was found to have paid privately for care that should have been funded by the NHS.

When a loved one moves into residential care, families are often told that savings, pensions, property or other assets must be used to cover the cost. But that is not always the case.

In this matter, Emerald Law Solicitors helped a family recover more than £160,000 after their late aunt, referred to as Ms B to protect the family’s privacy, was found to have been eligible for NHS Continuing Healthcare funding for more than two and a half years.

The situation

Ms B had lived independently in Marlborough, Wiltshire, before moving into residential care in December 2015 at the age of 85.

Her health had deteriorated significantly. She had a range of complex and escalating needs, including:

• Alzheimer’s disease
• Frailty
• Recurrent falls
• Serious weight loss
• Dysphagia
• Mobility issues
• Altered states of consciousness
• Episodes of aggression

Despite the seriousness of her condition, Ms B continued to pay privately for her care until she died in March 2020.

As her savings were depleted by care home fees, her family entered into a deferred payment agreement with the local council. Her flat was later sold to repay the loan, significantly reducing the estate she had worked hard to leave behind for her family.

The problem

It was only after Ms B died that her family discovered she may have been eligible for NHS Continuing Healthcare.

NHS Continuing Healthcare can cover the full cost of care for adults with significant health-related care needs. It is not based on income, savings or property. Instead, eligibility depends on the nature, intensity, complexity and unpredictability of the person’s condition.

For Ms B’s family, this meant there was a serious question to answer:

Should she have been paying privately for care at all?

How Emerald Law helped

Ms B’s family approached Emerald Law Solicitors in 2022.

Our NHS Continuing Healthcare team carried out a detailed review of the available evidence, including care home records, medical records, adult social care records and wider clinical information.

We then argued that Ms B should have been eligible for NHS Continuing Healthcare funding from 4 August 2017 until her death on 1 March 2020, due to the nature, complexity, intensity and unpredictability of her health needs during that period.

Following a final multidisciplinary team assessment involving a trained nurse and a social worker from the local authority, Ms B was found to have been eligible for NHS Continuing Healthcare for two years, six months and 27 days.

The outcome

The case settled for:

£160,860.16

This represented a substantial recovery of care fees that had been wrongly paid privately.

For Ms B’s family, the outcome was about more than money. It helped restore a significant part of the inheritance Ms B had intended to leave behind.

As her niece explained:

“I am so pleased that I engaged Emerald Law to investigate whether my aunt should have been eligible for NHS Continuing Healthcare funding. Emerald Law discovered that this was in fact the case, recovered a substantial proportion of the care fees, and we have at last received the inheritance my aunt intended for us.”

She added that the family were “very grateful” to Emerald Law for the professional advice and successful outcome, which had financially helped the family.

Why this case matters

Many families assume that if they have been told to pay privately for care, there is nothing they can do.

This case shows that is not always true.

If someone has significant, complex or unpredictable health needs, they may be eligible for NHS Continuing Healthcare. This can apply whether they are receiving care in a care home, hospital, hospice or their own home.

In some cases, families may also be able to bring a retrospective claim to recover care fees that should not have been paid privately.

Phil Turner, NHS Continuing Healthcare specialist at Emerald Law Solicitors, said:

“NHS Continuing Healthcare can make a life-changing difference, but many families do not realise it may apply to them.

“If someone has significant, complex or unpredictable health needs, families should not assume that a decision to pay privately is correct. They should seek advice as early as possible, particularly because retrospective cases rely heavily on the quality and availability of historic evidence.”

Could your family have a claim?

You may wish to seek advice if your loved one:

• Pays privately for residential or nursing care
• Has complex, intense or unpredictable health needs
• Has conditions such as dementia, Parkinson’s, stroke-related needs, mobility issues, weight loss, falls, dysphagia or behavioural changes
• Has never been properly assessed for NHS Continuing Healthcare
• Has been refused NHS Continuing Healthcare and you believe the decision was wrong
• Has since passed away, but may have been eligible during their lifetime

Even if care fees have already been paid, it may still be possible to investigate whether NHS funding should have applied.

Book a free initial consultation

If you are concerned that your loved one has wrongly paid care fees, our NHS Continuing Healthcare team can help you understand your options.

We can review the circumstances, explain whether there may be grounds to challenge the position, and advise you on the next steps.

Book your free initial consultation today.