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March 2008
The issue of who pays for the care of an injured person often leads to a number of legal arguments. Services can be provided to people in their own homes through community care legislation.
The provision of long term care outside of hospitals has become the responsibility of individual Local Authorities. The division between NHS services, which are free when you attend a hospital where there is a primary need for healthcare, and the Local Authority where someone requires care in their own home, can result in difficult legal arguments.
Local authorites have some legal duties to people who need care. For example they have to carry out a "community care assessment." This is often known as a Section 47 Assessment which refers to section 47 of the NHS Community Care Act 1990. The duty to perform this assessment and provide the services comes from this legislation and also the Chronically Sick and Disabled Persons Act, 1970.
The provision of long term care is not free to everyone. If the Local Authority decides that an individual needs care in their home, it will then carry out an assessment of the individual’s means. There are national guidelines in place for this assessment. The financial limits vary across the UK but the current upper means test limit in England is £21,500.(i.e. if you have savings in excess of this figure you will automatically not qualify for care paid for by the Local Authority.) If your savings are less than £13,000 and you live in England, then you will qualify. If you have a figure somewhere in between the two figures you may be asked to pay a contribution towards the care. The means test limits are reviewed every April.
As we all know, Local Authority funds are limited and the Local Authority has to work within a budget. Therefore, even if a Local Authority carries out an assessment and starts to provide care, we do not know if the Local Authority will be able to continue paying for care at a particular level into the distant future.
In addition, although Local Authorities have to provide the care needed, there are times when there are more demands on their budgets and they are unable to meet the care requirements. This can result in different levels of care being provided in different geographical areas.
More and more insurers are trying to argue that the value of claims should be reduced to take into account the care which a Local Authority is or could be providing to a person in their home. For example, we act for numerous claimants who have suffered catastrophic injuries. Suddenly an individual is confined to a wheelchair and requires assistance to get up in the morning. Once this is brought to the attention of Social Services they are under a duty to carry out an assessment of that person’s needs. They will then decide if it is appropriate for them to arrange and pay for carers to go into the home once or maybe several times each day. The carers will assist the individual to dress and bathe, they may attend at mealtimes to prepare food, and may then attend at night to help the individual undress and go to bed. This care is often paid for by the Local Authority, although it is sometimes outsourced to private nursing agencies.
Some time down the line the injured person may establish that their injuries have been caused as a result of clinical negligence, or some other form of negligence. In that situation, who should then pay for the care? Should the Local Authority continue to pay for the care? Or should the organisation responsible for the negligence be allowed to take the Local Authority care into account and therefore pay a smaller amount of compensation to provide for any additional care that is needed in the future?
This is the argument we face.
Working for injured people, it is apparent that the duties on the Local Authority are to provide a limited amount of care and they can take into account the Local Authority’s financial resources in deciding what care can be offered. They have a duty to assess an individual’s care needs, and to increase the amount of care where necessary. However, they are not under a duty to provide all of the care that an individual may require as a result of their injuries. This duty falls on the party responsible for the injury, often the insurance company, or the NHS Litigation Authority if this is a clinical negligence claim against an NHS Trust. The insurer will often ask the injured person to request a further assessment by a Local Authority. The injured person should make this request if an assessment has not been done within the last 12 months, but if it has, and there has been no material change in the individual’s care needs or general health, then that request should be denied.
Individuals who are assessed as being eligible for assistance from the Local Authority can request that the Local Authority pay a sum of money for the number of hours they need so that the individual can go out and employ a carer on their own, and this scheme is called “direct payments”. Again, the insurers seek to argue that this request should be made by the injured person or the solicitor acting for him or her, and then the amount of the direct payments deducted from the amount of compensation the injured person is to receive.
The insurer’s classic argument is that if these payments are not taken into account, then there is double recovery by the injured person. One way to avoid the double recovery argument is for the injured person to offer or agree to a reverse indemnity agreement. This agreement states that in the future after the settlement of the claim, the injured person will repay to the insurer any sums of money for care or services paid to him or her from the Local Authority. This is because the insurer has already paid for this in the compensation award. This can be a difficult calculation but is one possible solution.
This situation has been looked at by various cases that have gone to the Appeal Courts. They have stated that there is no legal burden on a injured party to prove that Local Authority care is inadequate, but in a case called Sowden the Court decided that a Judge can take into account the fact that a Local Authority may be compelled to perform its duties and provide care, and therefore reduce the compensation award.
Another approach considered in a recent cases against the Criminal Injuries Compensation Authority was that the injured person had to show what his reasonable needs were. It was then for the insurer to show that these were unreasonable.
It is likely that these cases will continue to be taken through the Courts and the Appeal Courts. At Thompsons we feel strongly the burden should be on the insurer, the individual or organisation which is found to be at fault and have caused the injury.
We will continue to report on how the Courts address this issue in future, but please contact us if you require further advice on this or any other issue involving personal injury or clinical negligence claims.