This case examined whether and to what extent a local authority and health authority were both liable to the patient for the future costs of her care, when she had been left gravely handicapped as a result of the negligence of a health authority, but where the local authority also had a statutory obligation under the National Assistance Act 1948 s.21 to provide for the costs of her care.
The claimant was a young woman who had severe behavioural, learning and physical disabilities, due to congenital rubella syndrome, contracted through the negligent failure on the part of the NHS to ensure that the woman’s mother got a rubella vaccination when pregnant. The issue was about who should pay for the cost of past and future care, now that the woman was an adult, and facing a lifetime of registered residential care of a highly specialised nature.
The usual arguments about the legal inability of the Local Authority (under the National Assessment of Resources Regulations) to take into account a damages award arising from a personal injury claim, with the consequence that the tortfeasor’s insurers would not have to pay for the loss that they had received premiums to insure against, were rehearsed and upheld by the judge, who was bound by the earlier authorities. However, he stepped back from the close legal argument about the charging framework, and considered a logically prior question – did the young woman have an obligation to depend on the State for her lifetime care in the first place, or could she choose, despite the existence of a statutory duty on the part of the LA to meet her needs – to be self-funding, and therefore insist on the full damages payment?
The defendant tried to argue that it was failure to mitigate loss i.e. that not choosing the State-funded care that one was entitled to, was something that a defendant could point to as wiping out the claimant’s right to damages.
The judge was not impressed by this approach, and said that the loss in question was the cost of future care which would forever remain a fixed concept; that there was no way the client could mitigate against that loss, and that the question was simply one of who should pay. He indicated that despite having an enforceable right against the LA, there were many sound reasons for not leaving the claimant to the whims of state policy about long term care funding, and sound reasons, too, for foreseeing that a secure home for life would never be possible if she were to be the client of the State, because of its duties in relation to other people in need, and the prudent management of its very limited resources. The only way that such arguments and conflict about the future could be avoided was by putting the victim’s Receiver (now a Deputy) in funds, via the damages claim, so that she would have the means to maintain the claimant fully for the rest of her life, without recourse to the State.
Judgment for the claimant
In the light of this case, readers are reminded of material that this site distributed in the wake of Dean Bell v Todd and South Tyneside Council, over 5 years ago “Close liaison is therefore required between claimants’ solicitors and the social services department when a care plan is being drawn up for someone who has a pending action underway or planned. The single most helpful thing a local authority can do, in relation to maximising the victim’s damages, and saving the authority’s money for other clients, is to discuss with the solicitor the options for the family of the victim or a Receiver being helped through interim payments to purchase privately arranged care for the client, whatever is needed. If this is done, the care and attention needed, is plainly ‘otherwise available’, and this puts the onus on the defendant’s insurers to take the point that the individual should ‘make do’ with local authority arranged care, instead of being funded to make private arrangements through the Receiver. “
The advice to LAs now, as back then, was that the only way one can avoid the difficulties caused by this line of cases about disregarding capital and income from damages claims for Court of Protection clients needing registered care, was to work closely, innovatively and radically in a brokerage capacity alongside a client’s Receiver, with a view to avoiding the client ever becoming dependent on the State in the first place, wherever possible. The judge in this new case points the way forward in any situation where there is a committed and energetic Deputy who can see that for the client to be a privately funded client avoids the whole issue about NAA charging and difficult questions about the real appropriateness of registered or unregistered care, maximises the damages claim, and can provide a secure means for independent living in the community, if only the will is there, to make the necessary arrangements. This author’s view has always been that the expertise of the local authority social services department was valuable and essential to ensuring that the client’s representative would be well-informed about what to commission and from whom it could feasibly be commissioned.
There is now no reason why a local authority cannot take on Deputyship for incapacitated clients who have no-one else willing to step up to this role. This would give the LA a finance AND a welfare decision-making responsibility, under the Mental Capacity Act, and it could then ensure that whatever is has to be purchased is purchased privately through the Deputy’s auspices, albeit with the benefit of the LA’s social work expertise.
This case has now been determined by the Court of Appeal, for this judgment please see Chantelle Peters (by her Litigation Friend Susan Mary Miles) v East Midlands Strategic Health Authority and Nottingham City Council (2009)