Care Home Fees. How we deal with your claim

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1 Care Home Fees How we deal with your claim

2 Contents Introduction Department of Health deadline for bringing you claim Background to the law concerning Care Home Fees How we will deal with your potential claim and the claims process How will a resident in a care home be affected by a successful claim Methods of funding your claim Terms and Conditions

3 Introduction What are Claims for Care Home Fees 3 If a resident in a care home has a primary health need they should not be paying for their care. Many people in care homes may have been incorrectly assessed (or not assessed at all), meaning that they have been required to pay fees when they shouldn t have. This is unfair. Often, residents will have to sell their homes to pay for care that should have been provided free of charge. Some of the most vulnerable members of our society are being short changed. We will obtain and review in detail the records for the person in care and we will advise you throughout the process as to your prospects of recovering any of the care home fees you have paid. This brochure gives you details of: 1. Department of Health deadline for starting your claim 2. Background to the law concerning care home fees 3. How we will deal with your potential claim and the claims process 4. Methods of funding your claim 5. Our Terms and Conditions of Service.

4 4 Department of Health deadline for bringing your claim The Department of Health has announced deadlines for the registration of claims for those families wishing to claim back wrongly paid NHS continuing care costs, including the cost of care home fees as follows: 30 September March 2013 For those who paid for care between 1 April March 2011 For those who paid for care between 1 April March 2012 Failure to register your claim with the relevant Primary Care Trust within the timescales detailed above will mean that you lose the opportunity to claim. For the majority of claims the deadline to start a claim will be 30 September 2012.

5 Background to the law concerning Care Home Fees 5 The NHS supplies and pays for care in hospital. It has a legal duty to supply and pay for: Primary care at home or in a residential care home, Nursing care in a nursing home, NHS continuing healthcare in nursing homes, residential care or own homes. This sounds straightforward but isn t. Why? Care costs are very expensive NHS fund managers in every Primary Care Trust (PCT) have limited budgets but these PCTs have to decide when they must pay for a persons care To try to ensure that the provision of free NHS care is applied consistently, PCTs are legally required to work to a National Framework Unfortunately, the National Framework requires an individual assessment of the health care needs of the person needing care and this can give rise to failures by the PCTs to award appropriate funding If funding was not awarded, we obtain and assess in detail various healthcare records and other evidence to establish if the PCTs decision was wrong The Appeals Preview Processes can be quite daunting without expert help as detailed submissions to the appeal panel are required.

6 6 How we will deal with your potential claim and the claims process It is important that you understand what will be done for you to obtain financial redress from the relevant NHS Primary Care Trust (PCT) for any money wrongly paid. The main steps involved are : Instigating a review process with the PCT Obtaining assessment records held by the care home and PCT and essential medical records Reviewing the records and advising you on them Obtaining any additional evidence needed to support a review Producing a detailed medical assessment If this is unsuccessful, appealing through the PCT s local resolution process If this is unsuccessful, applying to the Strategic Health Authority s Independent Review Panel If this is unsuccessful, applying to the Healthcare Commission or the Health Service Ombudsman. If we consider that your claim is unlikely to succeed at any stage, we will let you know. Each step can be a lengthy process and it may take many months to finalise your claim. We will, however, keep you up to date as your case progresses.

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8 8 The following table details the significant amount of work undertaken in preparing a claim. Stage of Process Detail 1. Initial Screening Completion of Continuing Healthcare Questionnaire, Forms of Authority, Contingency Fee Agreement, funding enquiries and costs explained. 2. Your return and our receipt of documentation and registration of your claim with relevant PCT It is imperative that you do not delay in returning documentation/information given the deadline for submitting your claim to the PCT. 3. Obtaining Appropriate Records Medical records from GP s, hospital and care homes. 4. The Detailed Medical Assessment Upon receipt of the medical records, a detailed review of the records will take place. 5. Nurse Assessment Following the detailed medical assessment, a nurse will review the file to focus on any inconsistencies and any gaps in expected treatment, in order to strengthen the claim further. 6. Documentation to PCT At various stages along the claims process various documents will need to be produced for the PCT including: Letter of claim Review request and consent forms Assessment of decision report Written submissions. 7. Appeals Process (where applicable) There are various appeals processes where a PCT does not settle the claim at first stage. These include: Appeal to the Strategic Health Authority Appeal to the Health Care Commission Appeal to the Health Service Ombudsman.

9 9 As you can see a significant amount of work is undertaken in preparing a file with somewhere between 9 and 48 hours spent completing client questionnaires, reviewing medical notes and producing a detailed medical assessment. Please note that our agreement with you does not include advising you in relation to court proceedings. Although the reviews opposite are effective processes for most claims, we cannot guarantee success. If you remain dissatisfied at the end of these processes we may be able to consider with you the benefits of an application to Court for Judicial Review of the process. However, if we advise you to proceed on that basis, we would have to enter into a new agreement with you on different terms to this one. It can happen that the person entitled to claim becomes unable to manage his or her affairs or might have passed away. We can help by providing certain services which include: 1. Obtaining a Grant of Probate or Letters of administration. (We can advise you separately on this.) 2. The registration of an Enduring or Lasting Power of Attorney if not already in place. (We can advise you separately on this.) 3. Applying to the Court of Protection for the appointment of a Deputy. (We can advise you separately on this.) Please note that we do not carry out any of the above as part of our work relating to your claim, there will be a separate charge for any of these services, details of which we will provide on request.

10 10 How will a resident in a care home be affected by a successful claim If you or the person on whose behalf you are making the claim is currently a resident in a care home you need to be aware that if they are awarded NHS Continuing Healthcare on an ongoing basis, the PCT will decide where care will be provided. The resident and any family members will be consulted but the PCT will make the final decision. In our experience, it is extremely rare for a resident to be moved to a different care home or nursing home but we need to make you aware that this is a possibility. We would also wish to point out that receipt of NHS Continuing Healthcare Funding will affect any entitlement to benefits such as Attendance Allowance and Disability Living Allowance. Also, when a resident in a care home is granted NHS Continuing Healthcare Funding the PCT will continue to carry out regular reviews of the case and it is possible that the resident may subsequently lose entitlement to it if his or her health were to improve.

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12 12 Methods of funding your claim You have indicated that you would like us to proceed under a Contingency Fee Agreement mentioned in section (f) but please do not hesitate to contact us if you need further clarification of any of the funding options mentioned. The possible methods of funding your claim, which we have already explained to you by telephone, are : a) Self Help You may wish to deal with this claim yourself by writing directly to the Primary Care Trust to request a retrospective review. You would not in those circumstances have the benefit of expert legal advice about any issues that might arise in the course of your claim or on review of the care home records, medical records and nursing assessments. Such advice can often identify discrepancies and flaws in the PCT s assessment process. It is ultimately a matter for you as to whether you have the confidence to act on your own and as to the value you place on the availability of specialist help. b) Self Funding You can choose to pay the costs yourself. Some solicitors charge an hourly rate for their time spent on a case. The solicitor would usually deliver interim bills every quarter for the work done during that period. You would therefore be responsible for the fees irrespective of the outcome of the case. We would stress that it is unlikely that you would recover the costs paid even if your claim is successful.

13 13 c) Third Party Funding i) You may have someone else who is prepared to pay the fees on your behalf, such as family members. ii) Some insurance policies may provide for assistance with legal fees in connection with such a claim. iii) Membership with some trade unions may include provision for the union to fund such a claim. We understand that you do not have any existing insurance policies or union membership that might cover your legal expenses but please let us know if you feel we should make further enquiries. d) Fixed Fee Arrangement We can consider a fixed fee arrangement, but again this would involve payment of an upfront fee at each stage of the claim, which you would not recover if the claim was unsuccessful. e) Community Legal Services (CLS) funding (formerly Legal Aid) We have also considered whether Community Legal Services (CLS) funding (formerly Legal Aid) is available for this type of case. It is available for some limited types of work provided that you are eligible financially and the LSC considers the matter has sufficient merit. However, it is not available for pursuing a claim for financial redress against a PCT as a result of non receipt of NHS Continuing Healthcare. A preliminary form of funding known as Legal Help may be available but the type of advice and assistance that can be given is limited and to be entitled to such assistance there are financial eligibility criteria that have to be met. Like many other firms we no longer undertake Legal Aid work. Legal Help can only be provided by firms and organisations that have a contract with the Legal Services Commission to provide these services. Advisers who can provide Legal Help, assuming you meet the financial criteria, can be found using the Community Legal Advice website at or telephoning

14 14 f) Contingency Fee Agreement (No Win, No Fee Agreement) If you wish us to proceed with the claim for you, we normally advise our clients to use what is often referred to as a No Win No Fee arrangement. That means, if we do not recover any money on your behalf, you don t have to pay our fees for the work done on your behalf, provided you have complied with our terms and conditions of business. Most people prefer that as they are not committing their own money to pay for legal fees for a claim which may not be successful. There are some points that we have to explain to you and we will be happy to discuss any questions you may have. i) ii) iii) You would be responsible for payment of any expenses or disbursements incurred during the progress of the claim. In particular it is likely that we will need to obtain copies of medical records in respect of which a fee of is usually payable. You would need to let us have payment of such fees. If we were getting on with the claim for you and then at some point, for whatever reason, you change your mind and decided not to instruct us any more then you would have to pay our costs up to that point. In the alternative, we also reserve the right to charge you our contingency fee based on the value of any offer to settle your claim made by the Primary Care Trust before you end the agreement. We would have thought that it would be pretty unlikely that you would wish to withdraw instructions from us after we had obtained an offer of repayment on your behalf, but it would obviously be unfair to us to do so as we would have succeeded in the claim, and we need to point this out. In some cases, which have progressed through the various review processes without success, it may become appropriate to consider making an application to the Court for a Judicial Review of the process. The Contingency Fee Agreement is a Non- Contentious Business Agreement and so cannot include for advising you in relation to any court proceedings. Therefore in the event that you proceeded with a Judicial Review the Contingency Fee Agreement would end and we would have to discuss entering into another form of agreement with you. We cannot possibly identify such claims at the outset.

15 15 If you wish us to act for you under a Contingency Fee Agreement, there is no charge for our work if you lose. If your claim is successful we will charge you 25% of the gross amount of the settlement agreement or award by the NHS Trust or Health Service Commissioner. This is calculated on the total benefit derived including the extinguishing of any deferred fees. Our fees are subject to VAT at the standard rate. If care home fees have been deferred because they are charged on property, before commencing your claim we shall have to discuss with you what arrangements can be made for payment of our fees if your claim succeeds. We shall have to discuss with you what options are available without putting you to any hardship. Please tell us at once if fees have been secured on your home so that we may consider this with you. Further, if we do not recover fees already paid but we obtain a successful review going forward our fee will be the equivalent of 3 months fees saved, plus VAT. See example 1 Example 1 Where the resident in the care home is told he no longer has to pay 500 per week ( 26,000 per year), our fee would be 6,500 plus VAT If the resident in the Care Home dies within one year, you will qualify for a reduction in this fee. See example 2. Example 2 Where the resident referred to in example 1 dies after 16 weeks, the amount actually saved is 8,000. Our fee is 2,000 plus VAT and his estate would be entitled to a refund of 4,500 plus VAT.

16 16 You will appreciate that you may pay a much lesser sum for costs by choosing, for example, the self funding option or a fixed fee arrangement. However, the self funding option and fixed fee arrangement would require you to pay our costs if your claim does not succeed. You may consider it an advantage that Contingency Fee Agreement provides that, if we do not recover any money on your behalf, you don t have to pay our fees for the work done on your behalf, provided you have complied with our terms and conditions of business. However you would be responsible for any expenses such as fees paid for copies of health records during the conduct of the claim. Most people prefer that as they are not committing their own money to pay for legal fees for a claim which may not be successful. See example 3 Example 3 We act for the resident of a care home who has been living there for 2 years at a cost of 500 per week. The Primary Care Trust following a review agrees to refund those fees. The fees refunded amount to 104 weeks at 500 = 52,000. If we were acting under a Non Contentious Business Agreement our fee would be assessed at 25% of 52,000 = 13,000 In addition VAT of 2,600 would be payable. A total of 15,600 will be deducted from the compensation and our client would receive 36,400. Had the same client chosen the Self Funding option we would charge an hourly rate of 220 for the work we had done. If the work had taken us, for example, 46 hours we would charge 10,120 plus an additional 2024 VAT. This means the total to be deducted from the compensation would be 12,144 and the client would receive 39,856. It is not possible for us to estimate at the outset of a claim how much time will be spent on it but we would suggest that a typical case generally takes between 45 and 50 hours. Of course, if the attention required is less, then our charges will be less and if the attention required is more, then our charges would be proportionately more.

17 17 However, the most significant difference between the two schemes is that had the claim failed then the client for whom we were acting under a non contentious business agreement would owe us nothing whereas the client who had chosen the self funding option would owe us 12,144 for our costs. This would have to be paid to us out of his own pocket. Had the same client chosen the fixed fee option he would have the same liability to us in the event of his claim failing. When agreeing a fixed fee we would have to base our fee on the individual merits of the case known at the outset of the claim. We would also take into account the anticipated time and effort on our part that the claim would require. For these reasons the fee payable under a fixed fee arrangement is unlikely to be very much different to the amount of the fee payable under the self funding option described above. Before entering into a Contingency Fee Agreement it is in your best interests to give careful consideration to all the funding options open to you and to consider the advantages and disadvantages of every option. g) Conditional Fee Agreement (No Win No Fee Agreement) This is another type of no win, no fee arrangement which some solicitors may offer you. However, we do not believe this type of agreement is appropriate because a conditional fee agreement is used when your opponent (in this case the PCT) is obliged to pay your costs if the claim is successful (like a claim for injuries in a road accident). In the case of reclaiming care home fees, PCTs are not obliged to pay your costs, win or lose. We only mention this to you because you might have heard of it or even been offered this kind of fee agreement by others. Please do not hesitate to contact us if you need further clarification of any of the funding options mentioned above.

18 18 Our Terms and Conditions of service Acceptance of instructions to act We can decide whether or not to accept instructions from a client. If we refuse instructions we do not have to give a reason, though we will never refuse instructions for unlawful or discriminatory reasons. Goldsmith Williams is committed to promoting equality and diversity in all of its dealings with clients, third parties and employees. Please contact us if you would like a copy of our Equality and Diversity Policy. Responsibilities In order to do our job properly we will : Act in your best interests, Review your file regularly and keep you updated as to progress by letter, telephone or , Explain to you any additional work required as the matter progresses, Explain to you the review procedures, Give you our best advice about whether to accept any offer of settlement, Give you our best information about the likely costs of your claim. In order to help us, you must : Give us instructions to allow us to work properly Provide us with evidence proving your identity and your relationship to the person who has received care Not ask us to work in an improper or unreasonable way Not deliberately mislead us Co-operate with us Inform us if you are declared bankrupt. Cancellation of Terms We draw your attention to your right to cancel the Agreement. If you wish to do so, please let us know within 7 days of signing the document, as explained within paragraphs of the Contingency Fee Agreement. Conflict of Interests If a conflict of interest arises then we may not be able to continue to act for you. We will notify you in writing if a conflict arises and advise you of your options. Regulation Goldsmith Williams is authorised and regulated by The Solicitors Regulation Authority under number We are not authorised by the Financial Services Authority, so we cannot give you investment advice nor can we advise you about mortgage products. Copyright We retain copyright in documents that we provide to you or a third party on your behalf. You can use the docu ments solely for the matter that you have asked us to deal with and not for any other purpose. Law and jurisdiction Our agreement with you to provide legal services and these terms of business are governed by and construed in accordance with English law. Your file Your file is confidential and we will not let anyone see it without your permission. However, your file may be requested in some circumstances. We are proud to be registered as an ISO 9001 quality assured company. However, as part of this, it may be necessary for us to allow inspectors to view your files. The inspectors will

19 19 simply check that we gave your case the appropriate attention. They will not disclose any confidential information to anyone else. You may write to us at any point to say that you do not wish your file to be made available for assessment. This will not affect the service you receive from us in any way. External firms or organisations may conduct audit and quality checks on our practice. These external firms or organisations are required to maintain confidentiality in relation to your files. We keep our files for six years, at which point we destroy them, unless you ask us not to. If you do not go ahead with your case, we may destroy your file at any time. Any paper file that we do have will be retained for at least 6 years. There are exceptions : Where a minor is involved the file will be retained indefinitely Will documentation is retained indefinitely Probate documentation is retained indefinitely Original title deeds will be forwarded to you for you to retain unless you specifically request us to do otherwise Where required otherwise by Statute. Please contact us if you have any queries on the above. Call Recording All inward and outward telephone calls are recorded. This is for two reasons: 1. It helps us to have a record of your instructions to us and any information that we give to you over the telephone 2. We can also use this to monitor the level of service being provided to clients, which assists us in developing our service to clients by providing staff training where necessary. We do not open paper files in the majority of cases. We Copies of Calls operate an electronic file system and all documents are scanned onto our secure case management system. In late 2007 we began to operate using electronic files only and any such files are retained in the same format. If you want a copy of a recording please ask the person dealing with your matter however it is not always possible to provide a recording as there can be technical problems which lead to calls not being recorded or we are unable to trace the call. Using your information We will use all information you provide primarily for the provision of legal services. However we may also use it for related purposes including updating and enhancing our records, analysis to assist in managing our practice, statutory returns, legal and regulatory compliance. Confidentiality We have a duty to keep information about you confidential. However, we may be required to allow outside organisations access to our files, such as the SRA and the assessors for our ISO 9001:2000 Outsourcing We may require external third party companies to undertake work in connection to assist in the smooth running of your claim, such as nurse assessors. We will have an agreement in place with any such outsourced provider to ensure that we are confident of their ability to work to a certain standard, have the necessary expertise, data security processes and resources to carry it out. Interest In accordance with the requirements of the Solicitors Accounts Rules 2011, any money received on your behalf will be held in a client account. We will pay a sum in lieu of interest on monies held in line with the terms of our payment of interest policy. It is important to note that interest will not be payable in all cases and that the rate received will be lower than that available to you had the monies been invested privately. The written policy is available on request.

20 20 Telegraphic Transfer Fee (TT) On completion of your claim we may send your monies by Telegraphic Transfer to you. The fee is a profit charge for carrying out this important work on your behalf. It is not the fee charged by the bank. Electronic Communication We are happy to use as a way to communicate with you, but you should be aware that confidentiality cannot be ensured nor is delivery of such mail. If you prefer us not to use , please tell us in writing. Data Protection We will control and process your personal information in accordance with the Date Protection Act Rights Any advice that we give is for your benefit, as our client. Third parties may not use or rely on our advice. Distance Selling We may not have met you, in which case the Consumer Protection ( Distance Selling) Regulations apply. This means you have a right to cancel your instructions to us within seven working days of our receipt of your instruction. You can cancel your instructions by contacting us by , post or fax at this office. Once we have started work on your file, you may be charged if you then cancel your instructions. Marketing We may from time to time use your data to market our other products and services or pass your details to reputable third parties to do so. If you do not wish this to happen you may opt-out by ticking the appropriate boxes in the Contingency Fee Agreement. Your right to complain As part of our commitment to customer satisfaction, Goldsmith Williams has a rigorous complaints procedure that you can access at any time. Please let us know as soon as possible if you have any problems or you would like a copy of our Complaints Procedure. If you have a complaint about the service you receive from us, at any time, you should raise this with the person responsible for your case. If they cannot resolve the matter then you should speak to the manager of the team. If, after that, you are dissatisfied with how your complaint has been dealt with, you should contact our Customer Services Manager, Barbara Hillen on , by co.uk or by writing to us. Your complaint will then be dealt with in accordance with our complaints procedure, a copy of which is available on request. Please do not store up any complaints, please raise them straight away. Should you still not be satisfied with the outcome of your complaint or feel it has not been handled properly you may contact the Legal Ombudsman on or them at org.uk or write to them at PO Box 6806, Wolverhampton, WV1 9WJ, within 6 months of receiving our final decision on your complaint. Banking Crisis Please note that we will not accept liability to repay monies lost through any banking failure as all monies are placed by us in accordance with the Solicitors Accounts Rules. All client monies are deposited with either Barclays or Yorkshire Banks. The Financial Services Compensation Scheme ( FSCS ) limit of 85,000 will apply for an individual s total monies. Please note that some deposit institutions have several brands which can be checked with your bank or the FSA ( We would also advise that in the event of a banking failure we may need to disclose clients details to the FSCS. Client Balances We have a duty under our Code of Conduct to return any monies to you following completion of your claim. If for any reason we are unable to make contact with you, we will therefore need to engage the services of a tracing agent who will be able to do

21 21 (i) (ii) this on our behalf. The costs incurred in carrying out this additional work will be deducted from any monies due to you. Assessment Under sections 70,71 and 72 of the Solicitors Act 1974 you are entitled to have our bill of costs assessed by a court. Goldsmith Williams is entitled to charge interest on any outstanding amount of the bill in accordance with article 5 of the Solicitors (Non-contentious Business) Remuneration Order Ending the relationship You can tell us to stop acting for you at any time. We can only stop acting for you if we have a good reason and can give you reasonable notice. Examples of when we may stop acting are where: There is a conflict of interests The relationship between us breaks down (iii) We cannot obtain instructions from you or your instructions constantly change (iv) If we do not believe your claim has reasonable prospects of success (v) If we do not have appropriate funding to fund your claim This list is not exhaustive and it merely gives examples. If you end the relationship or we end the relationship due to a failure by you to keep to your obligations, you remain liable for our costs and disbursements plus any costs and disbursements for the transfer of your file to your new advisers. Introductions and referrals If you are introduced to us by a third party then this introduction is regulated by the SRA s Code of Conduct. Goldsmith Williams are authorised and regulated by the Solicitors Regulation Authority under number Goldsmith Williams Solicitors (full details can be found at It s our duty to inform you if we have a financial arrangement with your Introducer and to tell you how much we pay them. Your Introducer should do so as well. Please see our Terms of Business letter for a breakdown. Despite any financial arrangement, any advice that we give you is independent and you are free to raise questions on any aspect of the transaction and of course you are free to choose another solicitor to act on your behalf. Your Best Interests We have had over 25 years experience and some of our clients have chosen to use the services of an Introducer. It is entirely your decision as to whether instructing an Introducer is right for you. All our clients are asked at the end of a transaction to complete a Client Satisfaction Questionnaire for feedback on how well they rate our services and we ve not yet had any responses that criticise an Introducer. Our Code also prohibits us from acting for any clients who have been acquired as a result of marketing or publicity or other activities which, if done by a person regulated by the SRA, would be in breach of any of these rules. This means we cannot act where you have been referred to us by an Introducer who has either : Used misleading or inaccurate publicity Made unsolicited visits or telephone calls ( Cold Calling ). If you feel that either of these points relate to you please let us know as soon as possible as we will be unable to act for you. We confirm that the information disclosed by you to us will not be disclosed to your broker without your consent.

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