60-second interview: Farley Dwek Solicitors

Q: How important is the adviser's role in this new landscape of care?

AF: I think people need to be made aware of it. This is the issue. We're finding that people out there need to be educated and aware of their rights. We've had some publicity, some articles in the nationals [about NHS Continuing Care], and people have been ringing up on the back of those. We're going through each one of those enquiries on an individual basis. A lot of it is about ignorance of what people are entitled to.

Q: Why don't the public know? Where does the fault lie?

HM: It's a difficult question. In relation to the NHS Continuing Care deadlines themselves, there was an obligation within primary care trusts (PCTs) to advertise the deadlines, but there were no clear instructions on exactly what that required. In a lot of cases, it appears to be a page on a website that you wouldn't necessarily find unless you were looking for it. There's also a suggestion that care homes should be advising people if they believed that their relatives who are in care meet this criteria. But, again, there's a lot of care home staff who don't seem to be aware of the types of funding available. Their primary concern is the care of the patients, not where the money is coming from.

Q: Is this a matter of complex bureaucracy? Is the system confusing whoever should be delivering that message?

HM: Potentially yes, certainly with the care homes. It's not straightforward criteria, so it may be difficult for a member of staff to be able to identify someone who is eligible. In relation to the PCT whose job it is to fund that type of care, ignorance really isn't quite the same excuse for them.

Q: Do you think that the adviser can play a proactive role in this situation? Or is it still down to other agencies?

AF: It's more a question of them making their clients aware of this and asking whether they have thought about this. Now [post-31 March 2013], the period for which you can actually claim back these fees retrospectively is shortened and going forward it's a case of looking at whether we can help people prevent having to pay those fees on an ongoing basis. I think the adviser's role could be telling clients they should consider whether this is applicable to their mother, father or whomever. If people aren't made aware that they potentially may be eligible then they're not going to know where to turn.

Q: You're working on about 250 cases. Where did this influx come from?

AF: We've been working with a PR company. The national press has been very interested in it, and off the back of some prominent articles, we've had hundreds of enquiries. Obviously not every enquiry turns into a case. Even for those cases we have taken on, there's still a long way to go to establish whether someone is going to be eligible for the funding.

Q: What's the reaction from those who are making the enquiries?

AF: Most of them are initially horrified that they've had to pay out tens of thousands of pounds (or their mother and father has) when they've saved all their lives for old age. If someone is financially eligible for support, they will automatically get the funding regardless of their health needs.

But most callers who have had to sell a home know somebody who had no money who's automatically getting their care paid for and they see a great inequality in relation to that. But most of them simply didn't know that if they meet the criteria they could be eligible for this support. I think if people are told something by somebody who is maybe connected with social services or the NHS, they tend to believe it and don't question it.

And that's the experience we've had from a lot of our clients. They're told something, believe it and don't do anything further. This is a legal entitlement, if you are eligible on healthcare grounds, that people are unaware of. It's not about best financial advice or prudent financial planning. It's not about good or bad tax advice.

Q: Now the deadline has passed, what happens if someone only reads about this now?

AF: If they haven't registered their intent with the relevant PCT to have the period of care between 1 April 2011 and 31 March 2012, the PCT can say they didn't let them know in time therefore they're not looking at that period.

HM: There was a similar deadline in 2007 and our understanding is that only exceptional circumstances were ever accepted by a PCT, if the person was out of the country for an extended period and could not have known about it. Ignorance of the deadline in itself, unfortunately, is not accepted. That's a very hard line.

AF: And that's despite the fact that they've done very little as far as we're concerned to publicise it.

Q: What guarantee is there that people should have found out? Is there any monitoring in place?

HM: In the same way as last time, they were asked by the Department of Health to advertise. They have all as far as I'm aware advertised but to the minimum. The deadlines were there to be known. People not knowing about the deadlines wasn't PCT's fault and they can, on the basis of the Department of Health deadline, refuse to review a period if it's not registered. It's a very hard line but it's one they've successfully used before, which is why we've been doing as much as we can.

Q: Is the care landscape changing for the better?

HM: When it comes to the NHS Continuing Care funding, the deadlines haven't changed anything. The criteria remain the same and will continue to. The only thing that's changing is the person's eligibility to have a retrospective period considered. There are faults in the system, there are people who are assessed wrongly. That continues to be the case. You can continue to look back to March 2012 and there are a lot of people currently in care who we believe are paying for their care in a situation they shouldn't be, so there are ongoing claims to be made.

Q: Do you have enough support from the healthcare system?

AF: Not really because everything that has happened to make the public aware of this has been through our own efforts. I think the NHS and PCTs should have done more to help. I haven't seen any adverts anywhere. Apparently they are making information available but I've not seen anything on TV, billboards or in newspapers. As a member of the public I've certainly not seen anything.

Q: Who else should play their part?

AF: IFAs have a key role to play in raising the profile of this national disgrace. If the government is to avoid being accused of a cover up it has to give the NHS the resources it needs to communicate this policy effectively. Putting it up on a single web page where it will never be found is scandalous. We estimate the government has earmarked at least £100m for the relatives of victims but we believe they are quietly satisfied at the relatively slow take thanks to a strategy of trying to keep the issue low profile.

Andrew and Hannah can be contacted at www.farleydwek.com