Where there has been an injury sustained as a result of negligence or as the result of an accident, an injured person will be restricted in their day to day activities to varying degrees and as a result will require care for some period of time. This care and assistance can range from having someone help with shopping and cleaning to support with eating, medications and personal hygiene.
The care that arises because of the injuries sustained, whether provided by family and/or friends, by the Local Authority, or private carers, or in combination will form part of a person’s claim for compensation. It might be the case that recovery from their injuries is made and so only a claim for past care is considered, or the injuries might be long term and so as well as past care, a claim for future care costs must be accounted for.
Care and assistance compensation claims
Often an injured person’s family and/or friends will provide care gratuitously and sometimes they will prefer to have the assistance of a family member or friend, rather than from an outside agency for example. However, this gratuitous care can still form part of the care and assistance claim, and it is a good idea for those who are caring for a family member or friend to keep a ‘care diary’ of time spent providing this care. This might include tasks such as taking them to medical appointments or time spent each week preparing meals or shopping.
It is important to remember also, that only care that is being given which is over and above that which would usually be expected can be compensated for and that if benefits are being received in respect of care and assistance, these will be deducted from any compensation claim received on account of past care.
So how is compensation calculated for gratuitous care?
Usually we would look at the hours of gratuitous care provided and apply the commercial care rate for that time and then apply a 25% discount. This discount is applied because it reflects the tax and other expenses a paid carer would have to account for. Despite this, there are situations where the discount is not applied, for example:
- In claims for future gratuitous care, where the cost of private care is also reasonable; and
- At the Courts discretion, where family or friends have gone over and above in terms of care, either by providing night time care, for instance, or giving up a career to care for their family member or friend.
Paid care and assistance
In some instances, unfortunately, gratuitous care is not sufficient alone and an injured person and their families find that additional care is needed. Usually, these will be cases where the person has suffered significant injuries. In such cases, care can be provided through the Local Authority and NHS free of charge, for example, residential care or continuing care at home.
Funding for private care can also be sought when liability is no longer in dispute between the injured person and the Defendant. When this occurs, the injured person can seek funding from the Defendant for the reasonable cost of private care, in place of, or to ‘top up’ state funded care, or gratuitous care.
In these cases where an injured person has suffered significant and disabling injuries, it will usually also be necessary to consider the long term care that the person will need in order to accurately value the cost of the care. Often an Immediate Needs Assessment (INA) will be completed to assess the type of care required, make recommendations and the likely costs involved.
An INA report is completed by a case manager who is specialised in the type of injury the injured person has sustained, for example in upper limb injuries, amputations, or brain injuries. This report is then accompanied by further reports to establish the varying care needs the injured person may have as a result of their disability. For example, an accommodation expert may be required if the person can no longer access their own home easily and adaptations are needed, or an occupational therapist might provide a report on assistive equipment required and therapies.
Following receipt of all necessary reports on the injured person’s care needs, and once their care package is in place, we can then begin to look at what the on-going care costs are likely to be. It is very important to get this right, as failure to correctly establish future care costs could mean the injured person has insufficient funds to cover their care needs for the rest of their life, or their recovery.