Residential care – capital to be disregarded – s21 NAA – court of protection – income – personal injury
S had suffered a catastrophic head injury in a road accident at the age of 13. Settlement was approved in 1997 whereby Judgment was entered for S for damages to be assessed on the basis of 50% of damages on full liability. Evidence was given by a care worker, by S’s case manager and by an expert Occupational Therapist. An issue arose as to damages for future losses, namely whether they should be assessed on the basis that the Claimant was to live in her own accommodation adapted to her needs (the private arrangement) or on the basis that she was to live in residential accommodation shared with other disabled people and provided by the local authority (the residential arrangement) and secondly, whether if S was to live at home, damages were to be quantified on the basis that S would have to pay for it herself or on the basis that the local authority would have to provide it for her. Since the accident, S had attended a residential school between 1994 and 1998. In 1998, she became a resident at a Residential Home managed by the Holly Bank Trust. That Home accommodated disabled young people between 18 and 25. S would therefore have had to move on in the next 2 years. S submitted that in order to be in a position in which she should have been but for the accident, she should be compensated so that she could live independently in her own home and secondly that that arrangement would provide her with a choice as to who cared for her; that she would have a higher standard of care; that she would not become institutionalised; that there would be continuity in the care she received.
The judge found that the submission that a private arrangement would afford a higher standard of care was difficult to assess. It was realistic to suppose that if carers were dedicated to looking after only S for 24 hours per day, S would receive more immediate attention. The non-residential option gave S greater privacy, which was a matter of importance. There were also advantages in S having continuity in her care, but there was no evidence that that continuity would be better achieved by one arrangement rather than another. However, there were important issues in favour of a residential arrangement. S enjoyed meeting different people at the residential home where she lived, which would not be the same if she had private accommodation. At any residential home there was likely to be more space than S would have in a private bungalow. S made use of that space and enjoyed both going around the premises and going out into the grounds. Moreover, S had lived in a residential arrangement for 10 years. There was no indication that S had been discontent with her living arrangements. The real issue was what was in S’s best interests, which was a matter for expert evidence. Having heard expert evidence, the Judge was of the view that it was in the S’s to have a residential arrangement and her damages were to be assessed on that basis.
Given that the court had found that S had not shown that it was in her best interests to have a private arrangement it was not necessary to consider the defendant’s argument that were S to live on her own, the local authority would have been under a duty to provide her with her own accommodation. The judge nevertheless addressed the argument, concluding that, if the decision had been that damages were to be awarded on the basis of a private arrangement, he would not have upheld the argument that damages should be assessed on the basis that the local authority would have provided accommodation for that purpose. His reasoning for this conclusion was that had the LA determined that there were various ways in which they could properly provide for S’s needs, including a private arrangement and a residential arrangement they proposed to provide a residential arrangement, the LA would not necessarily be in breach of its statutory duty under s21 National Assistance Act 1948 if it chose to provide residential accommodation, nor could it necessarily be compelled to provide accommodation for a private arrangement. The requirement under s21 NAA 1948 was that the accommodation be appropriate to the needs of the client and this 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. Further the LA had some margin of appreciation as to what accommodation should be provided and the judge would not have considered that a LA could be criticized if it came to the decision that a residential arrangement met S’s needs and provided her with accommodation accordingly.
See also Crookdake v Drury