Family wins major payout after Castle Point care plan blunder

The family of an elderly woman severely bed-bound with dementia has been repaid more than £15,000 after they were unlawfully charged care home fees – when in fact her care should have been paid for by the NHS.

Essex County Council (ECC) and Castle Point & Rochford Clinical Commissioning Group (CCG) have been ordered to repay £15,455, for gross maladministration, to the family of former Basildon resident, Doreen Cowell, who died in September 2017, aged 85.

It was just a few days before she died that the CCG and ECC were forced to admit that she qualified for free care.

The result came after a protracted tussle and her son John Petter’s dogged insistence that she was entitled.

It was eventually agreed that this should span the period between February 21, 2017 to September 27, 2017.

A letter to Mr Petter from the CCG said: “I can confirm that NHS Castle Point & Rochford Clinical Commissioning Group (CCG) has determined that the late Mrs Cowell was not eligible for NHS Continuing Healthcare from August 9 2016 to February 20 2017. However, the CCG determined that Mrs Cowell was eligible for NHS Continuing Healthcare from February 21, 2017 to September 27, 2017.”

Mrs Cowell, described as a larger than life mother, grandmother and great grandmother, was passionate about gardening, boating, and cooking, but gradually dementia robbed her of speech, movements and the joy of even recognising her son and brother.

She never knew her great grandchildren.

Mrs Cowell spent her last five years as a resident at Longview Care Home in Canvey Island. An epileptic, she also suffered from a heart condition, recurrent urinary tract infections and became doubly incontinent.

Her son, who received the payment last week, said: “The entire system fails the elderly and sick, who often lose their money and are forced to sell their homes because the law is circumnavigated.

“The NHS is required by law to assess seriously ill people to see if they qualify for NHS Continuing Healthcare (CHC), which is free and it failed to comply.

“CHC is one of the best known secrets in the country as the government, the NHS and council pretend that most patients in care homes are there for social needs and ignore the fact that care home residents are ill – especially if they are suffering from dementia”.

The council, despite Mr Petters insisting that his mother was legally entitled to free care,  charged £442.33 per week for care home fees she never owed.

ECC had already been forced to pay compensation to the family in 2015, after the Local Government Ombudsman found it had failed to provide any care for Mrs Cowell, which caused deterioration in her condition and forced her to leave the house and garden she loved.

“It was a catalogue of disasters”, continued Mr Petters.

“The NHS must provide all care and accommodation; if the medical needs are beyond what the High Court determines are ‘incidental and ancillary to the care’.

“My mother was terminally ill and fell well within that definition.”

Mr Petters, who held power of attorney for his mother, refused to pay the council arguing that the law requires the NHS to complete its assessment for CHC first.

It is unlawful for a council to pay for care which is legally the responsibility of the NHS and the council admitted in 2016 that some of Mrs Cowell’s needs were beyond its legal remit to provide.

ECC took Mr Petters to the Public Guardian, falsely claiming that he was unfit to hold the power of attorney and ECC applied for control of Mrs Cowell’s finances.

A Court of Protection order was made, behind closed doors, which required Mr Petters, to pay the council over £51,000.

The Court Order against Mr Petters became void following Mrs Cowell’s death and he became executor of her estate.

After that, the council issued a legal caveat at probate court preventing Mr Petters from getting probate unless he paid £64,234 for the care home fees, something which Mr Petters describes as “effectively blackmail”.

He continued: “We were grieving the loss of our mum and the council bullied my family into paying the money, so we could sell the house and administer the estate.”

He pursued the CCG which completed a retrospective CHC assessment of Mrs Cowell’s health needs during the final seven months of her life, during which time she was hospitalised as a result of a seizure and a fall.

In June, the CCG finally admitted its maladministration and paid the council, who then paid the estate last week.

Mr Petters continued: “As it happens, the CCG had to pay the council because her care was the responsibility of the CCG.

“It was the maladministration of the CCG for not paying for her care that meant they refunded the money to the council and the council had to refund the estate.”

A CCG spokesperson said: “NHS Castle Point & Rochford Clinical Commissioning Group (CCG) offered a retrospective review of the care provided to Mrs Cowell, where a period of care was assessed and found eligible for NHS Continuing Healthcare applying the National Framework for Continuing Healthcare and NHS Funded Care.

“It is standard practice as part of the Department of Health 2015 Redress Guidance to provide reimbursement of fees that had been paid by the individual / family during that period.

“The CCG has communicated with the family of the late Mrs Cowell and supported them during this process”.

An Essex County Council spokesperson added: “The CCG have set out the arrangements governing the repayment of fees where Continuing Healthcare funding (CHC) has been awarded on review.

“Decisions on eligibility for CHC are a matter for the relevant CCG.”

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Piers Meyler

Local Democracy Reporter