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Instructing continuing healthcare funding experts - how to avoid the pitfalls

Author: Tim Davies LLB

Author: Tim Davies LLB

Instructing continuing healthcare funding experts - how to avoid the pitfalls

We are aware of a concerning trend involving companies claiming to be experts in the area of continuing healthcare who have little to no expertise whatsoever.

We are contacted on a daily basis by individuals from across England and Wales who require assistance with NHS continuing healthcare funding.  Increasingly we are becoming aware of a concerning trend involving companies who advertise their services and claim to be experts in the area of continuing healthcare but have little to no expertise in the area whatsoever. 

Following in the trend of PPI claims, there is a real danger that claims management companies may declare themselves to be experts in the area of NHS continuing healthcare funding, simply to sell on an individual’s details to a third party.  Additionally, there is the concern that a company with no experience in continuing healthcare funding may claim to be an expert simply to take money from a client, but - with no underpinning knowledge or expertise – they are likely do a terrible job or no job at all.

With this in mind Tim Davies, Director and qualified solicitor (non-practicing) at Compass CHC, has put together a checklist of points to consider for any individual thinking of instructing an expert to undertake and assist with any aspect of continuing healthcare funding.

 

1. How much of an expert is your continuing healthcare funding professional?

I would suggest this is the main area to consider before instructing someone to act on your behalf in the area of continuing healthcare funding.  Being able to explain clearly the ins and outs of how continuing healthcare funding works and how it is applicable to your particular circumstances is vital. The company should also be completely transparent about who they are and who will be undertaking the work on your behalf.

Firstly, is there a clear page on their website with profiles and biographies of the individual team members? At Compass CHC we have a page devoted to our team members detailing their experience and their role within the company.  I feel that this level of transparency allows you to research the individuals you are entrusting to work on your behalf and identify their qualifications and background experience.  If you are researching a company where no information is available, you should consider asking yourself why the level of transparency is so poor.

 

2. Do they employ qualified lawyers and clinicians? 

If the company you are instructing claims to employ lawyers and nurses to work on your case, you should be able to see details of who they are.  Do not accept being told that “we use lawyers” - if that is the case the company should have no concerns in providing their names and their solicitors regulation authority numbers to verify this statement. As outlined above, I would also expect to see a clear profile page with their details and experience on the website.

If they do not employ qualified lawyers it raises questions regarding their ability to undertake and apply an analytical, reasoned approach to drafting arguments explaining how the criteria for funding is met, or why there is a basis for an appeal.  Lawyers are highly trained in advocacy and drafting skills and whilst continuing healthcare funding is not a legal process undertaken in court, the skill set that a lawyer is able to draw upon, in our opinion, gives by far the strongest possibility of a successful outcome. This is the basis upon which I have set up Compass CHC and we have a very high success rate in matters we undertake on behalf of our clients.

I would also check if the company employ clinicians such as nurses, pharmacists or social workers?  If they do not, then the obvious question is how are they going to analyse the available evidence from a clinical perspective?  

At Compass CHC, my team is comprised of a combination of lawyers and clinicians, this allows us to review and consider the evidence firstly from a clinical perspective, then using this information we are able to draft reasoned legal arguments outlining how the criteria is satisfied and where the threshold for entitlement to NHS Continuing Healthcare funding is met.  Further, our advocates are all lawyers specialising exclusively in continuing healthcare funding matters.  Compass CHC does not undertake any other area of work which means we have accumulated vast experience attending assessments and appeal hearings at local and NHS England level and we are not distracted by work of other natures.

 

3. Research the company details

I would advise anyone considering instructing a company to assist with continuing healthcare funding to research the company itself.  A link to Companies House can be found here:  https://beta.companieshouse.gov.uk

This site will provide all the information on the company such as its published accounts, who the directors are and how old the company is. 

Key points to consider:

  • How old is the company? – If it has been formed recently it raises questions as to whether they are experts in the area of continuing healthcare funding, and there may be a greater risk in instructing a newly formed company.  Clearly a pattern of success and trading is unavailable for a new company.
  • Have they published any accounts? – If they have not it may be because they are a very new company which raises its own concerns as set out above.  If they have missed a deadline for filing accounts this should also be considered.  If accounts have been published they can be a useful tool in determining the stability and potentially the success of the company.
  • Who are the directors? – Look how the directors are described in terms of their job roles.  For example, are they lawyers or are they simply salesmen or management consultants? 

 

4. Costs and fees

I have been informed by people contacting us at Compass CHC that they have been told by some companies claiming to be continuing healthcare experts they must pay a fee, which can be upwards of £100, just to speak to an expert and discuss their particular circumstances.  I find this to be incredibly troubling and I’m firmly of the view that there should be no charge for speaking with an expert in the first instance as an initial consultation. 

At Compass CHC we place no time limit on this initial consultation.  Our experts will take as much time as is required to explain every aspect of continuing healthcare funding before gathering information to provide a preliminary view relating to your individual circumstances and outlining what action we would suggest taking.  There is absolutely no charge whatsoever in providing this initial no obligation, confidential consultation and I believe that there never should never be.

Only once we have fully explained the continuing healthcare funding process and once we have secured enough information to determine if there is a case with sufficiently strong prospects of success in your particular circumstances would we proceed further.  My team and I will not accept instructions from a potential client if we do not believe there is a case to pursue.  Unfortunately, this may not be the case with all companies some of whom could be keen to charge a client regardless of the prospects of achieving a successful outcome.  Clearly this is not in the client’s best interests.

 

Different funding options – the pros and cons

At Compass CHC we offer one route of funding that we believe offers the best value for money and cost certainty to our clients and that is a fixed fee service. 

 

Fixed fee

We undertake all our work for a fixed fee.  This provides the client with absolute cost certainty from the outset.  There is no possibility of our clients being informed that the case was particularly complex and more time consuming than envisaged and further costs are required.  The client is able to calculate from day 1 whether there is a cost to benefit ratio in their favour, for example is it justified to pay X to potentially save Y in ongoing costs.  As with all aspects of the work we do, and the manner in which we operate, we attempt to be completely open and transparent. 

 

Paying by the hour

Many companies and law firms will offer to undertake work on an hourly rate basis.  I have experience of law firms undertaking work of this nature charging an hourly rate in excess of £250 exclusive of VAT.  On this basis, every minute of time will be recorded in six minute blocks (at £250 an hour this equates to £4.17 a minute and £25 for a 6-minute block) and it is quick to see how costs may rapidly accumulate.  There is no cap at which costs can be incurred on an hourly rate basis and estimates of total costs can quickly be overridden if matters are more complex or protracted than was initially anticipated. 

In my experience the process can be exceptionally frustrating and significant time can be spent, chasing and badgering the NHS to undertake the work that they should be doing in the time frame it should be undertaken in.  On an hourly rate basis, this can result in significant costs accruing and could result in an individual having to discontinue a case because they simply cannot afford the accumulating costs. This wouldn’t be the case under a fixed fee structure.

Finally, at Compass CHC we are uncomfortable with the concept that a company charging an hourly rate benefits financially from matters taking longer.  It is clearly in the client’s best interests that continuing healthcare funding is secured as swiftly as possible and I do not see how a system of payment that results in greater fees for the company if a case takes longer is of benefit to the client. 

 

No win – no fee / contingency fee agreements

As a company, we have written before about what we consider the perils of no win no fee funding arrangements (sometimes called contingency fee agreements). 

My view is that such arrangements can be exceptionally costly to a client as the costs in the event of being successful can be tens of thousands of pounds greater than on a fixed fee funding arrangement.  Whilst the idea of only paying if a case is successful may appear attractive, it’s my opinion that a company should only take a case on in the first instance if there are strong prospects of success.  Clearly paying a huge fee for a successful outcome is not the best option if a successful outcome could, and should be achieved for a fraction of the cost.

In our experience a typical no win – no fee arrangement would be structured as follows:

  • An initial fee of upwards of £1000 or more is required by the company to review the strength of the case before they decide whether to offer a no win no fee arrangement.  This clearly flies in the face of the idea of no win no fee as a large fee has already been required!  The danger with no win – no fee arrangements is that there is a real danger the company will only seek to offer such funding arrangements where the prospects of success are a near certainty, and rejecting all other cases.  Clearly if they will not be paid unless they win, it may mean that a company is not prepared to risk their time. 

This results in many cases with good prospects of success being rejected and individuals who ought to have received continuing healthcare funding may be cast adrift by the very “expert” they sought to assist them. At Compass CHC we have taken and secured NHS continuing healthcare funding for clients on a number of cases that our competitors have rejected taking forward on a no win- no fee funding basis.

  • When dealing with a retrospective recovery of care fees already paid the company will seek a percentage recovery of any costs they recover.  This percentage can range from anywhere between 30% to 40% or more plus VAT.  As a working example, a successful outcome is achieved and £60,000 is recovered in care fees that ought not to have been paid. If a no win – no fee agreement was in place on the lower end of the spectrum of 30% a fee of £21,600 inclusive of VAT would need to be paid to the company.  This would rise to £28,800 inclusive of VAT on a 40% agreement. I simply do not believe this in any way represents good value for money for a client. On average our fees would not exceed 1 tenth of these costs for even the most complex and protracted case.
  • Dealing with securing funding on an ongoing basis we have experience of companies requiring a percentage payment of what the annual fees would have been in the event of a successful outcome.  Therefore, an individual paying £60,000 a year in a nursing home would be liable to pay £21,600 inclusive of VAT once the funding has been secured on a 30% agreement and £28,800 inclusive of VAT on a 40% agreement.  Again, I do not believe such costs are justifiable or warranted. 

 

5. Is the company independent of the NHS?

Increasingly I have experienced different arms of the NHS offering free advocacy services or signposting and recommending individuals to NHS England backed companies. Our view at Compass CHC is that any expert offering assistance in the area of NHS continuing Healthcare funding simply must be independent of the NHS.  Given that complaints and appeals in relation to funding being denied are directed at the local NHS body under the umbrella of NHS England I am of the view that there has to be complete independence and detachment from the NHS in order to avoid any possibility of a conflict of interest.

Compass CHC are completely independent of the NHS and would never accept payment from any branch of the NHS or NHS England in order to maintain our impartiality and ensure complete independence. We offer a completely free, no obligation, confidential advice line where individuals can discuss any and all matters relating to continuing healthcare funding at no cost. Should you wish to contact an expert member of our team we can be reached on 0121 227 8940

 

In summary, I am not stating that there are no credible alternatives to Compass CHC; indeed there are a number of experienced specialists providing an invaluable service to individuals in the area of continuing healthcare.  However, my advice would simply be to do your research and ensure that the company you are talking to really are experts in the area of continuing healthcare funding. 

Author: Tim Davies LLB


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