13. Mr K complains about the ICB’s decision on 29 May 2024 not to make a payment in relation to incurred professional fees, incurred inheritance tax interest and distress and inconvenience. He says his mother’s estate has been impacted and the ICB has not recognised the distress and inconvenience experienced by the family.
14. The ICB said in line with the National Framework, professionals, such as a legal advisor, are not required for an appeal. It explained it is not responsible for any late fees regarding inheritance tax. It also would not pay for distress in this instance.
Legal and advice costs
15. Mr K says he incurred legal and professional costs in preparing the appeal against the assessment on 28 May 2021 and a secondary PUPOC (previously unassessed period of care) review.
16. Mr K says legal costs were incurred after the ICB incorrectly decided his mother was not eligible for CHC funding. He says he was not made aware of advocacy services. He says he sought legal advice to confirm the nursing advisor’s opinion and to help in informing him which points he should appeal on.
17. Mr K also sought private nursing advice. He explains given the sheer volume of the guidance and the complexity of Miss K's medical and care needs, he realised that he needed help navigating the process.
18. He says he knew any appeal would be extremely time consuming. He noted he dealt with the appeal himself, however says the legal costs and nursing costs incurred were proportionate to maximise the chance of a successful appeal.
19. The National Framework says:
‘PG 58 Do individuals need to have legal representation during the NHS Continuing Healthcare eligibility process?
58.1 No, although individuals are free to choose whether they wish to have an advocate present, and to choose who this advocate is. This National Framework (supported by Standing Rules Regulations and Care Act 2014 Regulations) sets out a national system for determining eligibility for NHS Continuing Healthcare. The eligibility process is focused around assessing an individual’s needs in the context of the National Framework rather than being a legal or adversarial process.’
20. Where the National Framework says eligibility process, this also encompasses the appeal process. We acknowledge Mr K says section 58.1 only relates to the eligibility assessment. We do not hold the same view.
21. The National Framework says the individual is free to choose if they have an advocate or legal representative. The National Framework itself does not specifically say if legal or specialist fees should be considered, only they are not required to complete the eligibility process.
22. We have considered NHS Continuing Healthcare Refreshed Redress Guidance. It says:
‘Legal costs and complaints 6. The Parliamentary and Health Service Ombudsman has indicated that it is rarely appropriate to receive a refund of legal and professional costs in bringing forward an NHS Continuing Healthcare dispute.
7. Individuals do not need to seek legal advice in order to request an assessment of eligibility for NHS Continuing Healthcare and there is also a mechanism to request a review of a decision on eligibility. CCGs and third sector services will help and advise individuals or their representatives on the process that will be followed in line with the ‘National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care’.’
23. The ICB’s decision not to pay legal costs and nursing advice costs is in line with redress guidance.
24. We have considered Mr K’s reasoning for seeking both sets of advice. He explains this was due to not being aware of advocacy services, to maximise the chance of success and the large number of records and guidance.
25. As noted in the guidance, individuals do not need to seek legal advice. It is acknowledged the CHC process can be lengthy and include a large amount of information. We have seen Mr K was able to advocate for himself during these assessments and appeals. We recognise Mr K was seeking to maximise his chance of success. We would not consider this a reason to award professional costs. We consider information about services that may be able to help are readily available from several sources, including our own website. We have not seen any evidence to show that this challenge of CHC eligibility was over and above what we would normally expect.
26. The ICB’s decision is supported by the National Framework and redress guidance. We will not consider this further.
Tax complaint
27. Mr K explains if his mother had been correctly assessed, the family would have submitted the correct amount in their inheritance tax declaration. He explains because reimbursement was not made until 2024, the estate incurred interest and the cost of amending and submitting a corrective account form to HMRC.
28. Mr K says an inheritance tax declaration was submitted to HMRC in August 2022. He says this included an allowance for a potential refund of the care period 3 September 2021 to 6 February 2022. The family paid the inheritance tax based on this amount despite not having confirmation this would be paid.
29. Mr K explains the position on the refund of the period 15 December 2020 to 2 September 2021 was not clear at the time and therefore not included. He says it was not included as it would have been speculative. The family could not have been sure if the whole period would be reimbursed and unsure how the extra inheritance tax would have been funded.
30. Mr K says if it had failed, they would have had to submit a new inheritance tax return to reclaim the excess. The family would have also lost interest on the additional tax it had paid.
31. We acknowledge the family’s estate was complicated due to needing to submit inheritance tax while an appeal was ongoing.
32. Firstly, we have considered if accounting fees should be paid. There is no guidance in the National Framework or redress guidance regarding the use of accountants.
33. The Government website includes a tool, ‘how to value an estate for Inheritance tax and report its value’. This is for the use of any individual. It is not necessary to be an accountant to use it. We have seen the government website includes a ‘Inheritance Tax: corrective account form’. There is no indication an accountant is required to complete this. We do understand that an accountant may be required when there is a large amount of assets in an estate. In cases like that it is likely an accountant would be required even if CHC eligibility was not being disputed.
34. We do not consider the ICB is responsible for accountancy fees. We would not expect public money to fund an estate’s accountancy. Hiring an accountant was Mr K’s choice. We cannot say the ICB got anything wrong in its decision not to pay accountancy fees.
35. Secondly, the ICB did not agree to pay a HMRC late interest charge. Mr K explains in his complaint the deadline for submitting his inheritance tax was August 2022. The decision to reimburse the period 15 December 2020 to 2 September 2022 was not made until 19 December 2023. This was over one year after the deadline. Therefore, Mr K had to inform HMRC more tax was due and incurred a late interest charge.
36. There is no guidance in the National Framework or redress guidance regarding inheritance tax. We would not consider the NHS has a role to play in inheritance tax submissions.
37. We have considered what the ICB has said in its decision. The ICB explained the inheritance tax return would be made on the value of the estate at the time of making the declaration and that any changes later can be made by submitting a corrective account form. In his complaint Mr K has acknowledged this is correct.
38. Mr K explains the outcome of the appeal regarding the period 15 December 2020 to 2 September 2021 was not clear at the time and therefore not included. We note the outcome of 3 September 2021 to 6 February 2022 was also not know at the time however was included. We can see the ICB are correct to say a corrective account form could have been sought for a refund if too much tax had been paid. We have already noted Mr K’s reasons for not doing this.
39. We acknowledge this was frustrating for Mr K and his family while they were dealing with his mother’s estate and the CHC process. An individual is responsible for providing information to HMRC for tax purposes. The ICB is not responsible for any errors in information provided in relation to the inheritance tax. We have seen the ICB did not get anything wrong here.
Distress
40. Mr K requested £2,500 in recognition of the significant and prolonged lasting impact caused to his mother and her executors because of the ICB’s handling of this matter. Mr K tells us the ICB rejection of this request did not consider the inconvenience of drafting and preparing appeals, amending inheritance tax declarations and chasing the ICB.
41. Mr K explains his mother was extremely concerned the ICB had informed her she was not eligible for CHC and the impact this would have on the family. He explains the process placed significant stress on members of the family. This is addition to the significant time spent on caring for his mother, dealing with her estate and the appeals process.
42. The ICB said it recognised that the CHC processes can be stressful and that it does take a significant amount of time including appeals. It concluded it would not be offering a financial award.
43. NHS continuing healthcare refreshed redress guidance says:
‘Redress 2. CCGs (ICBs) are independent decision-making bodies. When making redress payments they should employ a transparent rationale and ensure they fully consider the individual circumstances of each case, taking legal advice where necessary. CCGs have the discretion to consider making ex-gratia payments, over and above the care costs and interest, however, these are expected to be exceptional and would need to be made in accordance with a CCG’s own Standing Financial Instructions and any other pre-requisite guidance.’
44. In line with guidance, the ICB has the discretion to consider making ex-gratia payments. It says these are expected to be exceptional. It does not say what exceptional means.
45. Mr K says he has taken legal and nursing advice in his appeal. We agree Mr K would still have spent a significant amount of time on the appeal. We can see he has had assistance which would have helped during the process. This would have reduced the impact the process had on the family.
46. We understand the CHC process can be complex. Most CHC cases will involve several organisations and include large amounts of information. It is understood a CHC case will take a significant amount of time. There is no specific time limit on how long an appeal should take. We have seen the time taken from the appeal being made to a decision was under two years. This is not above and beyond for CHC appeals.
47. We have also considered at what stage this appeal was concluded. The ICB resolved this appeal at the first stage before it went to an independent review. This would indicate the appeal was not exceptional. As CHC decisions are discretionary, appeals are common. The National Framework sets out clear guidance on how to appeal. We have not seen anything in this appeal which we would consider exceptional.
48. We have also considered our Principles for Remedy. It explains:
‘5 Putting things right Where maladministration or poor service has led to injustice or hardship, public bodies should try to offer a remedy that returns the complainant to the position they would have been in otherwise. If that is not possible, the remedy should compensate them appropriately. Remedies should also be offered, where appropriate, to others who have suffered injustice or hardship because of the same maladministration or poor service.’
49. We consider when the ICB overturned its decision and awarded CHC costs, it placed the complainant and their mother’s estate, back to the position it would have been. Our guidance goes on to say where appropriate others may be awarded remedy for maladministration or poor service. In deciding what is appropriate, we have referred to NHS redress guidance which says ex-gratia payments are expected to be exceptional. As noted above we have not seen anything we would consider as exceptional.
50. We acknowledge how important Mr K’s complaint is to him and his family. Mr K was dealing with an appeal at the same time as caring for his mother and then her estate. We acknowledge this would have been a difficult time for him and his family. We consider the ICB’s has appropriately addressed Mr K’s request for financial remedy. We cannot say it got anything wrong it its decision making. We will take no further action.