By Charlotte Webster-
Hundreds Of healthcare consumers are to be refunded, and many could be eligible for compensation, after Provider Care Uk was ruled to have broken consumer law by overcharging its users.
Healthcare users were charged an unfair additional fee towards essential health care, leading The Competition Watchdog to rule that Provider Care UK broke consumer protection law and NHS rules by charging continuing healthcare users.
The Competition and Markets Authority (CMA) last week concluded that the provider wrongly made paying the “shortfall fee” a condition of admitting residents, where NHS clinical commissioning groups’ funding was insufficient to cover the accommodation in question. The fee was contrary to the Enterprise Act 2002 and the National Framework for Continuing Healthcare and NHS-funded Nursing Care, said the CMA.
As a consequence, Care UK agreed to pay more than £1m in refunds to residents charged the fee since October 2015, and will begin the process of contacting eligible residents by letter next month. The fee, which in most cases was above £300 per week, was charged to certain residents receiving a special type of funding from the NHS called ‘Continuing Healthcare’.
The Eye Of Media.Com have heard that many of the users are seeking legal advice for compensation, in light of any stress suffered as a result of the wrong charge.
However, the provider rejected the watchdog’s conclusion that it broke the law, blaming “unclear NHS guidance” and questioning why the CMA had “singled out Care UK” when such fees were common practice across the sector.
In its judgment, the regulator made reference to a sample agreement that Care UK asked some people to sign before admission to one of its premium care homes – which offer enhanced facilities compared with standard homes.
It added that NHS funding was insufficient to cover the costs of the available room in the home and, under normal circumstances, the person would not be admitted; however, if they agreed to pay the shortfall they would be admitted.
The CMA said requiring someone to pay the shortfall fee as a condition of providing CHC was contrary to the Enterprise Act 2002, and also said Care UK’s approach was contrary to the CHC framework.
This was revised in 2018 to clarify when top-up payments were permissible, in response to the CMA’s 2017 report on the care home sector. This found that CHC users were, wrongly, being asked for shortfall payments, but there were also uncertainties about what additional services could be self-funded under NHS rules.
NHS rules
Nhs rules states that an individual is eligible for NHS Continuing Healthcare if they have a ‘primary health need’. The rules states that the concept developed by the Secretary of State to assist in determining when the NHS is responsible for providing for all of the individual’s assessed health and associated social care needs.
In order to determine whether an individual has a primary health need, a detailed assessment and decision-making process must be followed, as set out in this National Framework. Where an individual has a primary health need and is therefore eligible for NHS Continuing Healthcare, the NHS is responsible for
commissioning a care package that meets the individual’s health and associated social care needs.
The current framework states that NHS funding should always cover assessed health and social care needs, and privately purchasing additional services should be entirely voluntary. Providers should never make this a condition of receiving NHS-funded provision.
It says there should be a clear separation between the delivery of NHS-funded and privately-funded services, so staff delivering privately-funded care should not also be providing treatment, care and support that are part of the person’s CHC care plan. Based on this, it says examples of private provision are hairdressing, aromatherapy, beauty treatments and entertainment, as well as rooms that are more expensive than needed to meet assessed needs.
A spokesperson for Care UK said the “enhanced fee” it charged covered a range of benefits for residents in a “premium setting including spacious ensuite rooms, on-site facilities such as cafes and cinemas, a wide range of lifestyle activities and a premium dining experience”.
Option
Residents always had the option of more modest, fully-funded homes as an alternative, and the CMA’s action to stop them “offering families the option of placing their loved ones in a premium home by making a personal contribution in addition to NHS funding is a backwards step in terms of consumer choice”, the spokesperson added.
“The number of families this affects within Care UK has always been very small and, as such, we agreed to settle with the CMA to enable us to focus on the more pressing challenges facing the sector at present.”