NHS Continuing Care – The cut off dates

25 Oct

shutterstock_53929345 (30) - CopyThe cut off dates

So far there have been two and there is a third one on the way.

The first one was in 2007 and if claims were not submitted by 30 November 2007, then the PCTs would not look back earlier than 1 April 2004.  In the first few months, in my experience the PCTs would still accept the claims and on occasions, when there was only a small amount of time the wrong side of the cut off date, would accept the whole claim.  After a while however, if you put in a claim before 1 April 2004, they would just bring the review period forward to start at 1 April 2004.

I took one case to Judicial Review and was granted permission by the Court to proceed to a full hearing.  We settled the claim before we went to trial, so there is no case law made on that matter.  We were claiming about £42,000 of fees the wrong side of the cut off date and settled for the client on £35,000.  The costs that were paid by the PCT would have been around £40,000 in total.  In other words, the PCT paid £75,000 instead of the £42,000 we were asking for.  It would clearly have been cheaper to just give us the funds we were claiming in this case.

Judicial Review is a formal litigated process.  It is a special kind of litigation undertaken in the Administrative Court.  It is a form of litigation that relates to the decisions of a public body.  The case is about asking the Court to look at the decision made by a public body and asking the Court to form a view as to whether is was within their power or within their scope or if they had misdirected themselves in respect of the law.

The decision the PCT made, may be challenged as irrational, if it “is so unreasonable that no reasonable authority could ever have come to it” – This is known as ‘Wednesbury unreasonableness’ following a case of that name and I have been advised that the Courts are very reluctant to come to this conclusion even in circumstances where, to the lay person, a decision has been made which seems manifestly unreasonable.

The purpose of a case of Judicial Review is to ask the Court to look at a decision made by a public body, if the Court finds that the decision was unreasonable/misdirected/outside their scope etc, then the Court cannot substitute it’s own decision, all they can do is point the public body in the right direction and return the matter back to the public body to remake the decision.  The public body then remakes the decision using the direction given to it by the Court and can come to the same conclusion as before sometimes.  This outcome can seem unfair and almost perverse, but that is the nature of Judicial Review.

As far as the first cut off date, litigation on that is now probably very hard, as the matters involved would be so old, the new cut off date is different.  In principle the Courts currently tend to be sympathetic to public bodies trying to save money in these straightened economic times, so that is not a good enough argument.

The arguments are around whether they PCT publicised the cut off date enough, so that it was brought to the attention of the pubic in general.  With the first cut off date, there was information on the Department of Health webpage, which can be hard to navigate.  There was information put up in GP surgeries, but this was then reliant on the individual or more likely their attorney requiring GP services during the notice period.  There were also adverts in the public notices section of local newspapers, but with small adverts and falling readership of newspapers, then this is not particularly good notice.  For the later cut off date, they have placed more prominent adverts, so they may have given sufficient notice.

As far as the later cut off date though, there is an argument to say that it is intrinsically unreasonable, as it has no statutory basis for it’s introduction and it is for too short a period in time.  There has been cut off dates about claims for lots of things for a long time now, the classic one most people know from adverts on the TV for personal injury claims, they have 3 years from the date of the claim to make the claim or they are time barred from doing so.  There are “air accidents” with a cut off time of 2 years, but this is relatively short.  There is nothing with a period of claim as short as 18 months, which is what the new cut off date bring the period of claims down to.  This is therefore too short and therefore of itself, potentially unfair.  The purpose of the cut off date is to make life administratively easier for the new bodies that take over from PCTs, in light of the changes in the NHS.  The reason is not statutory, it is not about public benefit (other than money saving), it is only about making the administration easier and as such again, potentially unfair.

I’ve been told that there is already a case of Judicial Review being brought and I’ve been contacted by someone and we may be bringing another one.  We shall have to wait to hear what, if anything, the Courts have to say about the cut off date.

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