Reducing Care Claims
A practical guide to early investigations after Crofton
June 2007
You will have read in April’s edition of Claims Online of the Court of Appeal’s judgment in the case of Crofton, where they concluded that the Defendant was entitled to reduce damages relating to care as a result of direct payments made by the Local Authority to the Claimant towards care costs. So what does this mean for you?
Without going into the extensive social security law which is described by the Court of Appeal Judges as “labyrinthine” the conclusions of the Court of Appeal were in summary as follows:
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Direct payments should be considered in the assessment of damages. | |
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A local council could and would make direct payments to meet the Claimant’s care needs. | |
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Direct payments should be taken into account in the assessment of damages and that the correct way to reflect the uncertainties was to discount the multiplier. |
Although the Court of Appeal stated that they could see no good policy reason why the care costs should fall on the public purse they accepted that these are policy issues and a matter for Parliament. It is also important to note that Crofton was a case involving an adult and with cases involving children it may be more difficult to persuade the Court to adopt the same approach.
At present direct payments can be reduced from the overall care package required by the Claimant but it is for the Defendant to prove what the Council are likely to pay. Direct payments are financial payments made by the Local Authority to allow care to be bought in for the disabled person. The Local Authority calculate how much this is by costing the care they think is necessary.
Below are a number of practical, cost effective suggestions for obtaining the necessary information at the earliest stage to prove to the Court that deductions can be made from the assessed care package.
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Identify where the Claimant lives and the correct Local Authority responsible for their care. | |
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Identify the Local Authority eligibility criteria. This can be found on their websites or requested directly from them. Sometimes a phone call to someone in the Local Authority will give you more information than you expect. | |
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Obtain consent from the Claimant for the Defendant to lead the investigations into what assessments have been done in the past in respect of care. A form of authority will be required to obtain the necessary information from the Local Authority. | |
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If no assessment has been made then anyone including the Defendant is entitled to ask for an assessment of care needs under Section 47 of the NHS Community Care Act 1990. If the Claimant is a child an assessment can be requested under the Children’s Act 1989. Ask the Local Authority what may be available based on the facts of your case. No specific identifying details need be given but it may help you estimate what the potential saving may be. | |
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Once the assessment has been received then attempts need to be made to persuade the Claimant to ask for direct payments as opposed to actual care. There is a possibility that the assessment will say that care needs are currently being met and direct payments are not an option. If this is the case consider influencing the decision by disclosure of expert evidence. If you need help with this, contact your NHSLA contact or anyone at Bevan Brittan.. | |
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The Court of Appeal in Crofton made it clear that the burden was on the Defendant to prove direct payments that were being made, including hourly rates and the amount of hours assessed. It is therefore essential this information is obtained if there is to be a successful deduction of the direct payments from the total care assessment. Witness evidence should eventually be obtained form the Local Authority to prove the details of the current direct payments or those that could potentially be made in the future although this can probably be obtained by your solicitors. |
Conclusion
It is possible that in the future Parliament will ensure that Defendants cannot benefit from Local Authority payments to Claimants. However currently it is certainly worth the time, effort and energy to carry out the suggested investigations whilst this possibility remains open.
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