Reclaim Care Home Costs for Free- New MSE guide

MM80

Please find below 2 excerpts which are relevant to requests under
the Access to Health Records Act.
1) FROM : www.legislation.gov.uk/ukpga/1990/23/sec...
(4)No fee shall be required for giving access under subsection (2)
above other than the following, namely—
(a)where access is given to a record, or part of a record, none of
which was made after the beginning of the period of 40 days
immediately preceding the date of the application, a fee not
exceeding [F3such maximum as may be prescribed for the purposes of
this section by regulations under section 7 of the Data Protection
Act 1998]; and
(b)where a copy of a record or extract is supplied to the
applicant, a fee not exceeding the cost of making the copy and
(where applicable) the cost of posting it to him.
2) FROM ICO's WEBSITE:
http://ico.org.uk/for_organisations/data...
Yes, an organisation receiving a subject access request may charge
a fee for dealing with it. If you choose to do this, you need not
comply with the request until you have received the fee. The
maximum fee you can charge is £10. There are different fee
structures for organisations that hold health or education records
(where the maximum fee is £50, depending on the circumstances).

[FONT=&quot]I cannot see why the solicitors did not request this info under legislation of the AHRA, and possibly could have had all relevant records on their desks by end of 2012...?

Sorry for long note.......


also can post links now - so link to my FOI requests and complaint is:
https://www.whatdotheyknow.com/request/procedures_in_place_to_[/FONT]

Dollar49

Read with interest, MM80. So far I have paid £49 for Medical records, and nothing for the care records from the home, (I did have to pay for postage for the records of £10 but I have them in my possession again now, as the lawyers took copies and sent them back) but, as we cannot obtain the payment records and to ensure my payments are proven, I am faced with paying out £200 for copies of cheques for 4 years. Two banks have helped me for nothing, but they were only obtaining about 10 each. Time is running out now, as banks only go back 7 years and the payments to the nursing home started in Jan 2007, so I am faced now with do I send for the cheques or do I wait for the NHS to say I have no other option, as the previous owners of the home refuse to answer any letters etc.
Waiting for lawyers to get back is so frustrating.

MM80

Hi Dollar 49.

I think if you can get your solicitor to get some transparency from NHS that they are saying yes to CHC, I would definitely pay the fees, get the proof, and demand an ex-Gratia payment for all costs incurred.

The financial side of the matter should have no bearing on someones health needs.

MM80

Also...

Possibly check ICO register and see if old care home is still registered as a data controller...?

http://ico.org.uk/esdwebpages/search

Also - check whether you can ask banks for a list of transactions instead of statements. If possible I believe this might be a cheaper option.

Dollar49

Thanks, again. Unfortunately the bank statements although they clearly show the debits, do not show to whom the payments are made. However, I will pursue what you suggest , then if they do say yes, I will get the proof. I tried the link for the ICO but the names I entered were not recognised.

MM80

An email shot off to add to my complaint to my solicitors:



Dear *****

1) Please find below a link to a radio interview with Care Minister Norman Lamb. It is only available to listen to for one more day..
http://www.bbc.co.uk/programmes/b042lgwk

I would draw your intention to Norman Lamb's quote at about 52.16 in which he states that just because someone has qualified for CHC, and their condition stabilises due to the care being provided, does not justify a need to remove CHC, unless that person can maintain that level of stability/improvement without CHC.
We have made it absolutely clear to all concerned, that my fathers condition never stabilised or improved. This is a fact. There is no argument to this point whatsoever.
2) Please find a link below for details about maximum possible fees NHS can charge for health records ( most relevant sections under headings "Will I be charged to access my health records?" and "Can I access the health records of someone who has died?" ):

http://www.nhs.uk/NHSEngland/thenhs/records/healthrecords/Pages/what_to_do.aspx

Please also find below 2 excerpts which are relevant to requests under
the Access to Health Records Act.
1) FROM : www.legislation.gov.uk/ukpga/1990/23/sec...
(4)No fee shall be required for giving access under subsection (2)
above other than the following, namely—
(a)where access is given to a record, or part of a record, none of
which was made after the beginning of the period of 40 days
immediately preceding the date of the application, a fee not
exceeding [F3such maximum as may be prescribed for the purposes of
this section by regulations under section 7 of the Data Protection
Act 1998]; and
(b)where a copy of a record or extract is supplied to the
applicant, a fee not exceeding the cost of making the copy and
(where applicable) the cost of posting it to him.
2) FROM ICO's WEBSITE:
http://ico.org.uk/for_organisations/data...
Yes, an organisation receiving a subject access request may charge
a fee for dealing with it. If you choose to do this, you need not
comply with the request until you have received the fee. The
maximum fee you can charge is £10. There are different fee
structures for organisations that hold health or education records
(where the maximum fee is £50, depending on the circumstances).

On 04/04/2014, ***** incorrectly indicated health records from NHS/care home could cost £400-£500 during our telephone conversation. If your firm has evidence to the contrary, with regards maximum fees under the AHRA, I would appreciate you point me to the legislation which allows it. My understanding from the links and quotes above, shows quite simply, the maximum charge allowable is £50.00.

3) On 09/05/2014 NHS ENGLAND FOI DEPT has advised us:[FONT=&quot] Nursing care homes are data controllers in their own right and NHS England can only supply information under our data controllership. Therefore, this information would have to be requested directly from that data controller. The Information Commissioner’s Office (ICO) publishes a register of data controllers if you wish to search for specific nursing care homes to contact:-[/FONT][FONT=&quot]
http://ico.org.uk/what_we_cover/register_of_data_controllers[/FONT]

Please find below link to **** ****'s Data Controller details on this register belonging to the ICO:
*(link to care home Data Controller details via ICO's Register)*


Considering the points above, my conclusions are that:

1) Since 2012, nothing has prevented you from requesting health records under the AHRA from:i) NHSii) **** **** Ltd2) Since 2012, nothing has prevented you from obtaining a statement from us, precisely detailing my fathers circumstances, and advising on your thoughts of CHC eligibility as of 29/08/2006.My partner and I have spent a considerable amount time researching the facts to comprehend more fully the current situation. Something we had put our trust in yourselves to do. Our conclusions appear to contradict most of the advice/explanations that have been provided by yourselves thus far.

Recalling the last part of my fathers life is distressing enough, this farcical process is adding insult to injury.

I do not expect to be invited to 5 star dining, and cook the meal myself....

Yours truly

*** ******

Dollar49

Have read your proposed email with interest. Wonder what response you will get ? I AM getting updates from my lawyers but the whole thing is taking forever because the NHS have so many claims. I still dont know whether it will be a yes or a no, but am doing as much as I can to find proof of payments.

Doc_N

MM80 wrote: »

[FONT=&quot]
My solicitors tried to dissuade us by stating that under the AHRA, NHS could charge many hundreds of pounds to provide copies of these records.


[/FONT]

MM80 wrote: »

An email shot off to add to my complaint to my solicitors:

I'm guessing your solicitors aren't too well versed in dealing with these claims. Are they claiming to have any particular expertise, and a track record of success - which is really what you need.

MM80

Doc_N wrote: »

I'm guessing your solicitors aren't too well versed in dealing with these claims. Are they claiming to have any particular expertise, and a track record of success - which is really what you need.

They do have supposed expertise in this field and claim to be one of the biggest 2 firms dealing with these cases......

We honestly did our research before instructing. We knew we could go for the claim ourselves and had even read Martin Lewis' guidance etc. but......

We have had experiences with apparatchiks before, and too be honest the way NHS and Care Homes are behaving, are to have been expected.....

We were in a very hard situation financially and were starting a new business venture, and just did not have the energy or patience to take on the task ourselves, so decided to leave it to a firm that "specialises" and let them earn 30% for dealing with the expected difficulty in claiming.....

My wife would have been eligible for legal aid, but the solicitors disuaded us from this option stating they would expedite the application, and obtain necessary paperwork quicker if we opted for the 30% "no win no fee" ( the apparatchiks we had a 2 year fight with before was legal aid itself.... and my name would be known by all there - did not want 2 fights on our hands - hence our option for 30% too.....)

Since 2012 the solicitors updates have only been at our prompting/request and they never let it be known until March this year, that they had not received paperwork from Care Homes, and to date we do not even know if they exist......

Also this was the response from my FOI requests: ( look forward to your thoughts...)

1) The number of live and active cases/claims/applications to reclaim retrospective care home fees, received on or before 30/09/2012, that the South London CSU is dealing or dealt with.
563

2) How many complaints have been noted / received from the applications (from point 1.)
4

3) How many of these cases/claims/applications (from point 1) have outstanding paperwork to be collated from other departments and care homes.
Unable to give as not available.

4) How many of these cases/claims/applications (from point 1) have been finalised/satisfied.
No cases have been fully completed.

5) Please confirm if there is any chronological order/logic for the finalised/satisfied claims (from point 4.)
Cases are being managed by Nurse Assessors once all documents/evidence has been received.

6) On any cases that were successful (from point 4), please confirm if backdated interest was paid on amounts due, and if so, please confirm at rates they were calculated.
No cases have been completed to date where payment is required.

MM80

In response to revelations from FOI in previous post just before, this is the email shot off to solicitors today:

Please confirm when the copy documents held by SLCSU, that ******* ***** has promised to send, arrive at your office.

Please find attached response received from NHS FOI Dept. It should all be self explanatory.

This has given us even more belief/gusto/determination to get this case to a judicial review, and have a judge's opinion on the procedures of the apparatchiks at ********** "retrospective cases department"

Please confirm that you acknowledge our intended course of action, and that as our instructed solicitors you will act on our behalf and see it through. I must make it clear that I do not want to entertain any suggestions or propositions, that vary too much from the proposed expectations & course of action. We do need to be singing by the same hymn sheet and have our instructed solicitors fighting our cause. This has now simply become an instance of seeking justice, in the interest of the greater good for the public.

We are aware that a Judicial Review needs to be applied for within 3 months of an "irrational/illegal/improper" decision. We fully understand the P&H ombudsman route, but do not care to entertain this at all. Our proposed course of action:

1) File correct and relevant official complaints (re: Wandsworth "retrospective cases department" and our retrospective claim) , demanding them to start acting "properly, rationally and legally". (ignoring and evading the AHRA request is one instance of them acting illegally thus far....)

2) When case is being heard or considered, we fully expect an illegal/improper/irrational decision,in particular when we put forward our case for ex-gratia payments( I will instruct our accountant to do various detailed projections etc. to reflect the "absolute truth/validity"of this part of the claim )

3) To have filed for a judicial review within 48 hours of receiving this expected "illegal/improper/irrational decision."

4) Take case to High Court for Judicial Review, although I do not believe they would let this happen and possibly yield just before the court date, but who knows..... but in the public interest - I actually feel this should be heard by a high Court Judge.

Yours truly,