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Reclaiming care home fees the NHS should have paid

If your relative paid for a care home place and was never assessed for NHS Continuing Healthcare, that past period can still be looked at. The NHS calls it a Previously Unassessed Period of Care, and where it succeeds the fees are repaid with interest.

Two different routes, and the difference matters enormously

Families conflate these constantly, and the consequence of getting it wrong is losing a route entirely.

What the NHS is actually deciding

Eligibility does not turn on diagnosis, on the setting where care is delivered, or on an arithmetic total of domain scores. The question is whether the totality of a person's needs amounts to a primary health need.

The National Framework requires decision-makers to weigh four characteristics:

• Nature — the type and quality of the needs, and the interventions required to manage them
• Intensity — quantity, severity, continuity and frequency, including how many carers are needed at one time
• Complexity — how needs interact, and the skill and knowledge that interaction demands
• Unpredictability — how far needs fluctuate, and the consequences of a delayed or wrong response

These are analytical tools, not four separate hurdles. They must be considered in the round. The boundary they operationalise is the one drawn by section 22 of the Care Act 2014 between local authority care and support and healthcare that is the NHS's responsibility, as established in R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213.

The records that decide these cases

Retrospective claims are won on contemporaneous provider records — documents written at the time by people with no stake in the outcome. When we request disclosure, we ask for:

• Daily care notes for the relevant period
• Care plans, including original and evaluated versions rather than only the current one
• Risk assessments with review dates — Waterlow, MUST, weight, falls and dependency
• MAR charts showing medication actually administered
• ABC charts recording behaviour, and any 1:1 records
• Continence, fluid balance, repositioning and wound records
• Professional visits: GP, district nurse, speech and language therapy, tissue viability, dietetics, mental health
• Mental capacity and DoLS assessments
• Dates and reasons for any hospital admissions in the six months before assessment

A care provider is expected, on reasonable request, to produce current resident records within about two weeks and archived records within about four. In practice this is where claims stall, and chasing it properly is a large part of the work.

One thing to watch in the paperwork

Care record systems print today's data onto historic reports. A report covering 2022 may carry a risk banner or nutrition score generated on the day it was printed. Those current fields are not evidence of what was true during the period being claimed — and equally, a dated entry from the period itself carries real weight. Knowing which is which is often the difference between a persuasive submission and one that gets picked apart.

If your relative has died

The claim does not die with them. The executor or administrator of the estate can bring it, and any refund is paid to the estate. Because these claims can cover years of fees, they are frequently the largest single asset in an estate that nobody knew existed.

You will need to show authority to act — a grant of probate or letters of administration, or for a living person a registered Lasting Power of Attorney or Deputyship Order.

Can you do this yourself?

Yes, and we would rather say so plainly. You can request a retrospective assessment from your Integrated Care Board directly, at no cost, and families do this successfully. Specialist help earns its place where the period is long, the records are incomplete or being withheld, a previous decision needs challenging, or you simply do not have the capacity to fight it while caring for someone.