Residential care – capital to be disregarded – s21 NAA – court of protection – income – personal injury
C suffered a serious head injury when he was knocked from his bicycle by D’s car. D admitted liability for the accident. C was in a coma for 10 weeks. He was eventually transferred to a disability living and rehabilitation centre where he was provided with one to one care. All his care and treatment was paid for by the NHS or through private funding. Though C made a good physical recovery, he was left with profound cognitive and intellectual deficits, having suffered maximum brain damage in the frontal and temporal regions. It was common ground that no further improvement in his condition could be expected. The medical evidence was that C’s consequential behavioural problems were more easily managed if he was quiet and by himself and that he generally responded badly to being in the vicinity of other people. C argued, and D accepted, that the consequences of his injury were such that he was ill suited to residential care and that the award of damages should therefore reflect the need to provide accommodation for C in his own home with 24-hour care. Though there was agreement between the parties as to the cost of the necessary care regime, D argued that C’s local authority was under a statutory duty, pursuant to s21 National Assistance Act 1948, to provide C with the requisite care and accommodation.
· that the nature and standard of accommodation and ancillary care services provided pursuant to that duty had to be appropriate to C’s needs;
· that the LA could not charge C for that care and accommodation because his fund of damages and the income it generated fell to be disregarded in assessing C’s ability to pay; and
· that in consequence C had not sustained any loss with regard to accommodation and care.
In reaching his decision, the judge referred to the cases of Firth v Geo Ackroyd, Bell v Todd and Ryan and Another v Liverpool Health Authority, all of which involved claimants who were patients. In each case it was held that an award of damages for personal injuries and any income generated by a fund administered by the Court of Protection were to be disregarded in determining the liability of a patient to pay the LA’s costs of residential care provided under the 1948 Act. The only remaining issue in this case, therefore, was whether the care and accommodation that the LA was to provide was materially different from C’s future requirements as assessed in relation to the quantification of his common law damages.
The judge concluded that, in light of the available evidence, it could not be said that there was no material difference between the provision that the LA was obliged to make and the assessment of C’s requirements for the purpose of quantifying his claim for damages. The reasons for that conclusion stemmed from the fact that it was accepted that it was in C’s best interested to be accommodated in his own home, rather than a residential care setting and the requirement under s21 NAA 1948 that accommodation be appropriate to meet the needs of the client was a less demanding one than the common law criterion that “…the accommodation should be in the claimant’s best interests and that which most nearly restores her to the position in which she would have been but for the accident” (see Sowden v Lodge). That difference could be demonstrated in a number of ways:
· Firstly, the judge accepted C’s argument that, in order to enjoy as natural a family life as possible, he reasonably required a property that would be large enough to accommodate not only him and his residential carers, but also, form time to time, his wife and daughter. The LA however, was under no obligation to provide a property capable of accommodating the wife and daughter.
· Secondly, although C would be able to express a preference as to type and location of accommodation under the 1992 Choice of Accommodation Directions, the LA was only required to make arrangements for a person to be accommodated in his preferred accommodation if it appeared to be suitable in relation to his needs as assessed by them. The LA had some margin of appreciation as to what accommodation should be provided and there could be no certainty that the LA, in the proper discharge of its duty, would match the accommodation that was the basis on which C’s claim for future loss stood to be calculated.
· Thirdly, C was entitled to be put in a position in which he could make arrangements for long term accommodation and care, whereas it would be open to the LA to discharge its obligations to him, subject only to the Choice Directions, by a series of short term placements in rental accommodation.
· Fourthly, C’s freedom of choice as to his domestic arrangements would inevitably be circumscribed by being dependant on the LA for his accommodation, particularly, for example, should C’s wife wish out of the LA’s area.
Further, C’s care was particularly demanding as he was unable to initiate any activity and needed prompting with regard to virtually every aspect of daily life. His carers would also have to be alive to the situations that could trigger his agitated outbursts. The care regime had been costed on the basis of engaging suitably qualified and experienced carers and unless it could be assumed with confidence that the LA would fund a care regime at a cost of the order of £85,000 per annum – and there was no evidence of this – it could not be said that that there was no material difference in the care to be provided by the LA and the requirement as assessed and agreed for the purposes of this claim. The judge also rejected D’s argument that if there was any shortfall between C’s requirements as assessed for the purposes of the claim and C’s needs as assessed under s47 National Health Service and Community Care Act 1990, then that deficiency could be met by an award of damages. Although the 1992 Choice Directions clearly envisaged ‘top up’ payments, there was no sound evidential basis on which to assess such shortfall.