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May 2008

Recent Case on who pays for the Costs of Care

On 12 May 2008 the Honourable Mr Justice Butterfield gave the judgement in the case of Chantelle (“C”).

The background to the case is that C claimed compensation for her injuries caused as a result of the failure of the doctors treating her mother to ensure that she received a rubella vaccination before she became pregnant with C. As a result of the failure C was born with congenital rubella syndrome. The Defendants admitted liability and this hearing was only to deal with the value of the award of compensation.

C has autistic spectrum disorder, visual impairment, severe learning difficulties and behavioural problems. The experts involved in the case agreed that she would require life long care. She had no family able to care for her and had been in the care of the Local Authority since the age of 12.

The Local Authority had found a placement for her in an adult residential home where she is receiving very good care. The Local Authority pays for this at a cost of £132,000 per year.

The Defendants argued that there should be no award for future care, as the Local Authority would pay for this. C argued that she should not be reliant on the public purse as there was clear uncertainty about what would be provided in the future.

The Local Authority said that they appreciated this was a good placement for C but it is expensive and if a cheaper alternative was found in the future they would have to consider it.

The Judge decided:-

1. The Local Authority could not take into account any compensation paid to C in assessing whether she had the finances to pay towards the costs of care because the Court of Protection would administer any money paid to her. Therefore she was entitled to have the care paid for by the Local Authority. However the rules may well change in the future and there was no guarantee that C would or could remain in her current placement.

2. C had a right to claim all of her compensation from the tortfeasor (the party who had caused her injuries) and she was not obliged to give up that right and rely on the Local Authority just because the Defendant asked her to. Therefore the Defendants will have to pay all of her future care costs.

However this is a first instance decision and leave to appeal has been granted to the Defendants. It is likely that the Defendants will take this matter to the Court of Appeal and we will report on the decision of that court in due course.

This decision gives a clear indication by this Judge that Claimants should retain the choice and their independence from the state. Defendants should be made to pay for the costs of care, rather than that cost being passed to the Local Authority and the Public Purse.