The high cost of long-term care in the UK is a well known problem to anyone responsible for funding it. Depending on the circumstances, the cost of such care can be the responsibility of a number of different entities and sometimes costs may be shared. Where this is the case, there is room for argument, as a recent case illustrates.
It involved a young man referred to as ‘C’, who was born with a vascular injury. The treatment he received for this from his local NHS Trust was negligent. As a result, he was left with serious injuries and requires around the clock care in his home. On reaching the age of 18, he sued the Trust, using his father as ‘litigation friend’ – someone who sues on behalf of another person who is unable to represent their own interests because of actual or legal incapacity. The NHS Trust admitted liability but disputed the sum claimed as compensation.
The Trust’s argument was based on the principle that any compensation award it made would be ignored by C’s local authority when calculating its contribution to his care costs. The practical effect of this would be that the local authority would need to provide for C’s care free of charge, which in turn would mean that any settlement made by the Trust would constitute a windfall, being surplus to C’s needs. Accordingly, argued the Trust, it should not be ordered to pay compensation.
This argument has been accepted by the courts in cases in which the care was being provided on a residential basis.
The High Court calculated that the cost of domiciliary care for C was £122,000 per annum. It also deduced that the cost of care which would be provided by the local authority was £70,000 per annum. The Court ruled that the Trust’s liability would therefore be limited to the shortfall of £52,000. This decision was appealed.
The Court of Appeal considered that the High Court had failed to appreciate the difference between capital derived from a personal injury and income derived from that capital for the purposes of charging for domiciliary care. The capital of such an award is ignored for the purposes of calculating liability for care costs. However, the guidance on such awards is silent on how the income derived from the invested capital is to be treated. The Court of Appeal ruled that the High Court was incorrect in its assumption that the income derived from the capital sum would also be ignored by the local authority, although no evidence had been heard on that point. Until the local authority’s policy on its treatment of income derived from the capital sum were known, the appropriate compensation could not be decided upon.
The claim was remitted back to the High Court so that the local authority’s evidence could be obtained and the appropriate sum calculated.
In such cases, it is evident that the responsibility for paying for the future care needs of the injured person can move from the person who caused the injury to the local authority (and hence to the taxpayer), because the local authority is obliged by law to pay for care. The Court of Appeal commented on this unfairness, but said it was a matter for Parliament, not the courts, to resolve.
