Many people consider using a solicitor for NHS Continuing Healthcare battles, because going through the Continuing Healthcare application and appeal process can be exhausting.
So what are the relative merits of using a solicitor vs. doing it yourself?
Having someone take the load off your shoulders and fight your corner on your behalf can be a huge relief. Solicitors can provide a very valuable service in this respect. Your decision whether or not to instruct one may depend on what stage you’re at in the funding application process.
In the early stages of the whole process you don’t really need to instruct a solicitor. Instead, get as far as you can yourself by being as well-informed as you can be.
Also, remember that a specialist Continuing Healthcare adviser can be just as good as a solicitor, especially if they have previously worked inside the Continuing Healthcare system.
Solicitors work in different ways: Some solicitors can help you through the process before the funding decision has been made. Others can help you appeal a funding decision afterwards – and many do that on a no-win-no-fee basis if there are care fees that can potentially be reclaimed. This can be a good option if you don’t have the energy to pursue it yourself, and you may be happy to pay whatever fees are involved to save you that stress and hassle.
Some NHS assessors can get very defensive if you take a solicitor along to an assessment – but that’s not to say you shouldn’t! People certainly do. Some assessors try to make you believe that a solicitor is not allowed to speak in an assessment. This is completely untrue.
Having an adviser or solicitor for NHS Continuing Healthcare assessments can help ‘encourage’ the assessors to stick to the assessment guidelines. Having someone in a legal capacity present, even if you do most of the talking, shows the assessors how serious you are – and that you’re unlikely to accept any nonsense. Many people find it beneficial, even if it doesn’t always work out that way.
5 things to remember if you do decide to instruct an adviser or solicitor for NHS Continuing Healthcare:
- Make sure they understand NHS Continuing Healthcare inside out and that they have an in-depth understanding not only of the established funding assessment guidelines (National Framework, Checklist, Decision Support Tool, etc – plus the Fast Track assessment process), but also the tactics the health and social care authorities use to try to avoid providing funding. Many solicitors may know a bit about it, but this may not be enough to fight your corner effectively. Make sure it’s a specialist.
- Keep in mind that you will know your relative better than anyone – and you will have vital (and unique) evidence of health needs and input for assessments and reviews that the solicitor will need to take into account.
- It’s a good idea to still attend funding assessments yourself even if you are using a solicitor. You will pick up on inaccuracies and misstatements of fact – plus any errors in the care home notes – much more easily.
- A solicitor can be a welcome sounding board when things happen along the way that you need a legal view on, and it’s often just good to know there’s someone on your side. It’s also good when that person is not afraid to ruffle a few feathers with the health and social care authorities to give you some extra legal clout.
- Only you will have the raw emotion that goes hand in hand with fighting for someone you love, and this can be a powerful thing. In addition (and similar to point 3 above), you will notice things about the Continuing Healthcare funding assessment process for your relative that a solicitor, working from more of a distance, may not. This is a important reason for staying closely involved in the process at all times, and supporting the work your solicitor is doing as much as possible.
You can get a long way through – indeed, all the way through – the Continuing Healthcare assessment and appeal process yourself, with good information and advice. At the same time an adviser or solicitor can be invaluable to ease the load when the going gets tough. (And it can get very tough.) Be sure to agree all fees up front.
Plus, of course, you may need legal help with other matters, for example, powers of attorney, Court of Protection matters, mental capacity assessments, local authority payments and disputes, care home contracts, making a Will, etc. As with any adviser, make sure the solicitor you choose is well-versed in the specific area of law you need help with.