Case Summary: C v Toma (D) - Emma Melia, Spencers Solicitors

23/02/17. Case Name: C v Toma (D), Court Name: N/A, Case Number: N/A, Accident Date: 11/06/2014, Settlement Date: 21st July 2015, Total Gross Settlement £100,000.00

BACKGROUND

C was involved in a road traffic accident with D on 11th June 2014.

D who was driving at high speed, lost control of the vehicle, collided with the central reservation before then hitting the rear of C’s vehicle causing it to roll several times before going down an embankment.

C was knocked unconscious and subsequently airlifted to hospital having suffered multiple injuries including an unstable fracture of C5/C6, dislocated collar bone, fractured ribs and extensive abrasions.

C was employed as an external engineer for BT at the time of the accident and was still within his probationary period.

LIABILITY

Following careful consideration of the police report D’s insurers admitted liability on 26th January 2015.

QUANTUM

As a result of the spinal fracture C had a halo fitted to his skull secured by 4 pins. C remained in hospital for 7 days. He was discharged but told he would be required to attend hospital every 2 weeks to have the bolts tightened.

The halo was removed after 3 months and replaced with a collar which C had to wear for a further month. Following this C required intense physiotherapy treatment.

C developed hearing loss and bleeding from his right ear. He was seen by an ENT consultant who confirmed that the trauma to C’s neck had caused a degree of hearing loss. The level of hearing loss was identified at 15% and will remain permanent. C will benefit from hearing aids.

The Orthopaedic consultant confirmed that the neck injury will lead to some osteoarthritis of the cervical spine in the future.

Due to severe financial difficulties C returned to work 1 year post accident. This was against medical advice on the basis that there were limited lighter duties for him. C therefore returned to work albeit with real difficulty as he was in fear of losing his house.

C sustained significant abrasions to the right side of his face and right arm which left him with permanent scarring

On 9th July 2015 D’s insurers made a gross offer to settle C’s claim in the sum of £100,000.00 (gross) less £25,000 interim payments- £75,000.00 (net). C accepted the offer on 21st July 2 015 despite being advised it was too early to value his claim and he was at significant risk of being undercompensated. There was no organic evidence of brain injury and the extent to which C lost consciousness if at all was unknown. The Claimant engaged in intense rehabilitation under the Rehabilitation Code of Practice. The orthopaedic expert did not believe that C was at risk of developing arthritis.

Solicitors for the Claimant: Emma Melia

of Spencers Solicitors Limited

Counsel for the Claimant:n/a

Solicitor for the Defendant: The claim was settled prior to Solicitors being instructed

Counsel for the Defendant: n/a

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An Update From North of the Border: Scottish Courts Continue to Take an Increasingly Strict Approach - Charlotte Edgar, Brodies LLP

22/02/17. The Update this month focuses on two decisions that show that Scottish courts continue to take an increasingly strict approach. The first considers a refusal to set aside a default judgement; and very much serves as a warning to insurers and other large organisations. The latter deals with pre-litigation admissions, in the context of extending the period of limitation. The position looks to be quite different to the position in England & Wales, where my experience is that extensions are more common.

Scottish Court Refuses to Set Aside Default Judgment

It is fair to say that Scotland’s Sheriffs – led by the specialist Sheriffs of the All Scotland Sheriff Personal Injury Court – are becoming more and more in their interpretation of the court rules. It seems that they are never stricter than when one or other party is in default, and the recent decision of A&B Taxis Ltd v The Co-Operative Insurance has the potential to make it very difficult for defenders to successfully recall a decree, or judgement, awarded as a result of their failure to enter appearance.

On 10 February, Sheriff Wood of Perth Sheriff Court handed down a decision in the case of A&B Taxis Ltd; and it makes for tough reading for defender solicitors and their instructing insurers. Sheriff Wood refused to recall a decree for over £18,500, awarded costs on an increased scale in favour of the pursuers and was scathing of the defenders’ inadequate systems for dealing with litigation.

The Sheriff’s decision was based, primarily, on...

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FREE BOOK CHAPTER: Local Authority Services (From 'A Practical Guide to Personal Injury Trusts' by Alan Robinson)

21/02/17. Under Section 9 of the Care Act 2014, local authorities in England are legally obliged to assess anyone who comes to their notice as being potentially in need of care and support due to a physical or mental impairment. This is the case irrespective of whether the authority thinks it is likely that the person will or will not qualify for any care and support, and also irrespective of the person’s financial situation (section 9(3)(b)).

In Wales, the legal position is different. The powers and duties of local authorities are included in the Social Services and Well-being (Wales) Act 2014, which came into force on 1^st April 2016. The Welsh provisions are considered separately below. It is important to note that, whereas the English provisions consider only adults, the Welsh provisions also cover children, and with that in mind, Part 3 of the Children Act 1989 has been largely repealed in Wales, and re-legislated within the Social Services and Well-Being (Wales) Act.

As well as the two principal statutes, there are regulations in both countries which expand on the duties and responsibilities under the Acts. In England there is Statutory Guidance which at present is only in a digital form; it can be accessed at

https://www.gov.uk/government/publications/care-act-statutory-guidance/care-and-support-statutory-guidance

In Wales there is a Code of Practice which can be accessed at

http://gov.wales/topics/health/socialcare/act/code-of-practice/?lang=en

The appropriate document should be consulted for detailed information regarding the system which is now in operation.

5.1 Qualifying for care and support: England

5.1.1 The Single Assessment

An assessment is the process of considering a person’s circumstances and making a decision about whether they need care and support to help them live their day-to-day lives. The assessment for care and support is usually carried out by a social worker, and will consider the presenting needs as well as the person’s other circumstances. The assessment:

• must be of the adult’s needs and the outcomes they want to achieve;

• must be provided to all people who appear to have some need for care and support, and therefore should not consider unrelated factors such as a person’s finances;

• must not consider whether the local authority thinks the person will be eligible for services (see R v Bristol CC ex parte Penfold (1998) 1 CCLR 315); and

• must be carried out with involvement from the adult and, where appropriate, their carer or someone else they nominate.

Unlike the community care legislation which the Care Act replaced, there is no categorisation of individuals according to type (so for example the definition of a disabled person, formerly in section 29 of the National Assistance Act 1948, disappears). Nor is there a list of potential services. There is an illustrative list in section 8(1) of what may be provided to an adult or carer, including

• accommodation in a care home or other premises;

• care and support at home or in the community;

• counselling, advocacy and other types of social work;

• goods and facilities;

• information and advice.

The Eligibility Regulations (see below) make clear that the determination of an adult’s eligible needs is made without taking into account any support which is being provided by a carer. “Instead, where a person receives support from a carer, this will be taken into account during the development of the care and support plan”, according to a discussion document in 2013. The term used for this is “carer blind assessments”. Note that this particular provision is one of those which differs significantly in Wales, as discussed below.

The duty to assess, as noted above, arises irrespective of the authority’s preliminary determination of whether the person will qualify, and also irrespective of his or her financial position. Section 9 (1) says:-

Where it appears to a local authority that an adult may have needs for care and support, the authority must assess—

(a) whether the adult does have needs for care and support, and

(b) if the adult does, what those needs are.

Note that the appearance of need is sufficient; and that there is no need for an application.

After conducting the needs assessment, the local authority is then required to determine whether the person has eligible needs, using a national eligibility framework which (unlike the former legislation) is now statutory.

5.1.2 Entitlement to Care and Support

An adult must satisfy three requirements:-

• their needs must be the result of a physical or mental impairment or illness;

• as a result they must be unable to achieve two or more specified outcomes; and

• as a consequence, there is (or is likely to be) a significant impact on their well-being.

A person is ’unable’ to achieve an outcome if they:-

• are unable to achieve it without assistance;

• are able to achieve it without assistance but only where it causes them significant pain, distress or anxiety;

• or able to achieve it without assistance but doing so will endanger their health or safety, or that of others, or

• achieving it would take significantly longer than would normally be expected.

The outcomes are:-

• managing and maintaining nutrition;

• managing personal hygiene;

• managing toilet needs;

• being appropriately clothed;

• being able to make use of their home safely;

• maintaining a habitable home environment;

• developing and maintaining family or other personal relationships; accessing and engaging in work, training, education or volunteering;

• making use of necessary facilities or services in the local community including public transport; and

• carrying out caring responsibilities which the person has for a child.

(Care Act 2014, sec 13(7); Care and Support (Eligibility Criteria) Regulations 2015, SI 2015/313)

The term “physical or mental impairment” is not defined by the Act, but paragraph 6.105 of the Guidance says that this refers to “physical, mental, sensory, learning or cognitive disabilities or illnesses, substance misuse or brain injury.” It is clear that this wide interpretation is intended to encompass such descriptions as “any disorder or disability of the mind” as in section 1 of the Mental Health Act 1983.

The eligibility criteria may be overridden in case of emergency, as with the old law.

5.1.3Duty and power to provide care and support

This is covered by sections 18-20 of the Act. Where an individual’s needs meet the criteria, there is a duty to ensure that their care and support needs are met, provided they are ordinarily resident in the local authority’s area. If their capital or income exceeds the limits, there will nevertheless be a duty on the authority to meet those needs for care and support.

5.2 Qualifying for care and support: Wales

5.2.1 The Single Assessment

Section 19 of the Social Services and Well-Being (Wales) Act 2014 imposes a duty on local authorities to carry out assessments in order to determine whether an adult has needs for care and support. It says

(1) Where it appears to a local authority that an adult may have needs for care and support, the authority must assess—

(a) whether the adult does have needs for care and support, and

(b) if the adult does, what those needs are.

As in England, the appearance of need is sufficient to trigger the duty.

There are similar provisions for carers (not further covered in this work) and for children (see below). Section 19 requires that the assessment:

• must be of the adult’s needs and the outcomes they want to achieve;

• must be provided to all people who appear to have some need for care and support, and therefore should not consider unrelated factors such as a person’s finances;

• must not consider whether the local authority thinks the person will be eligible for services (see R v Bristol CC ex parte Penfold, supra); and

• must be carried out with involvement from the adult and, where appropriate, their carer or someone else they nominate.

Unlike the previous legislation (which was the same in Wales as in England, apart from some differences in the regime for payment for and funding of services), there is no categorisation of individuals according to type, as mentioned above; however, the question of whether a child is or is not classified as disabled remains relevant to determining the rights of his or her carers. Happily the definition of disability in section 29 of the National Assistance Act 1948, which also appears in section 17 of the Children Act 1989, has disappeared in Wales, and the definition of disability is brought into line with that in the Equality Act 2010, subject to limiting regulations (although the old definition survives in England, in section 17(11) of the Children Act 1989).

The assessment process is governed by the Care and Support (Assessment) (Wales) Regulations 2015. Part 3 of the Code of Practice specifies the minimum content of the record of the assessment. The Guidance states at para 63 that there should be a comprehensive analysis of five key elements:

• The person’s circumstances;

• Their personal outcomes;

• The barriers to achieving those outcomes;

• The risks to them or to others if those outcomes are not achieved; and

• The person’s strengths and capabilities.

Part 3 also makes clear (at para 80) that when undertaking an assessment the authority “must identify all presenting needs including those which would be deemed as eligible if a carer were not meeting those needs.” As noted above, under the English regulations, the determination of an adult’s eligible needs is made without taking into account any support which is being provided by a carer. In Wales, however, care provided by a willing carer is not ignored for eligibility purposes, but the information is intended to enable the authority to respond when the carer becomes unable or unwilling to continue to meet the needs.

As also noted above, as well as covering adults, the Welsh legislation covers children. Sections 21 to 23 govern the assessment of children in need. This is an addition to the previous law, which dealt (in section 17 Children Act 1989) with children in need, but did not provide any explicit statutory duty to carry out an assessment. The duty is similar to that for an adult. The appearance of need is sufficient to trigger the duty.

Section 21 requires that the assessment:

• must be of the child’s needs and the outcomes they want to achieve, and that those with parental responsibility for the child wish to achieve for him or her;

• must be provided to all children who appear to have some need for care and support, and therefore should not consider unrelated factors such as the child’s finances, or the finances of those with parental responsibility for the child;

• must not consider whether the local authority thinks the person will be eligible for care and support, or support; and

• must be carried out with involvement from the child and anyone with parental responsibility for him or her.

Section 21(7) creates a presumption that a child who is disabled has needs for additional or substitute care and support. The same provisions as to the identification of needs which are being met by a carer apply to a child as to an adult.

5.2.2 Entitlement to Care and Support

After conducting the needs assessment, the local authority is then required to determine whether the person has eligible needs. If they do, then consideration moves to the provision of care and support to meet those needs. There is now a national standard for eligibility, governed by the Care and Support (Eligibility) (Wales) Regulations 2015

There are four stages, which generally speaking apply to all potential recipients of care or support – adults, children, and carers. The four stages are:-

1. The need arises for a specified reason (care, disability, etc)

2. The need relates to certain outcomes

3. The person is unable to meet that need even with available support from others.

4. The need cannot be met unless the local authority provides or arranges services, or makes direct payments.

1. The specified reasons are:-

• In the case of an adult in need (reg 3), the need arises from their physical or mental ill-health, age, disability, dependence on drugs or alcohol, or other similar circumstances;

• In the case of a child in need (reg 4), they have needs as for an adult (above) or if the needs are unmet, they are likely to have an adverse effect on the child’s development;

• In the case of a carer (reg 5), the need arises as a result of providing care for an adult in need (as described above) or for a disabled child.

2. The need must relate to a set of standard tasks. These are:-

• Ability to carry out self-care or domestic routines

• Ability to communicate

• Protection from abuse or neglect

• Involvement in work, education, learning or leisure activities

• Maintenance or development of family or other significant personal relationships

• Development and maintenance of social relationships and involvement in the community.

“Basic self-care” is defined in regulation 1. It consists of:-

“Tasks that a person carries out as part of daily life including

• Eating and drinking

• Maintaining personal hygiene

• Getting up and getting dressed

• Moving around the home

• Preparing meals

• Keeping the home clean, safe and hygienic”

In addition there are two specific eligible tasks for, respectively, adults and children. For an adult the task is to be able to fulfil their caring responsibilities for a child. For a child (or a child carer) the task is to achieve developmental goals.

3. The person (and his or her parents, if s/he is a child) is not able to meet that need, either-

• Alone, or

• With the help of others willing to provide support, or

• With the assistance of community services to which the person has access.

The effect is that, if a person is able to meet the need with the support of a carer, they are ineligible – as opposed to England where assessments are “carer blind”.

4. The person is unlikely to achieve one or more of the personal outcomes unless the local authority provides or arranges for care and support to meet the need.

The responsibility for determining whether the person is eligible and whether generalised services have been tried and have failed is on the assessor. The Part 4 Code says:-

“33. The eligibility criteria must not be used as a tool to require individuals to demonstrate they have exhausted every other possible avenue of support before becoming eligible for local authority assistance.

34. It is the responsibility of the local authority to identify and record … how the personal outcomes will be achieved.”

5.2.3Duty and power to provide care and support

The requirement of the former legislation that an assessment determined whether there was a need for “services” has been repealed. The new legislation, in section 34, sets out an illustrative list of ways in which a local authority may meet needs, as follows.

The following are examples of the ways in which a local authority may meet needs under sections 35 to 45—

(a) by arranging for a person other than the authority to provide something;

(b) by itself providing something;

(c) by providing something, or by arranging for something to be provided, to a person other than the person with needs for care and support (or, in the case of a carer, support).

(2)The following are examples of what may be provided or arranged to meet needs under sections 35 to 45—

(a) accommodation in a care home, children’s home or premises of some other type;

(b) care and support at home or in the community;

(c) services, goods and facilities;

(d) information and advice;

(e) counselling and advocacy;

(f) social work;

(g) payments (including direct payments);

(h) aids and adaptations;

(i) occupational therapy.

Where an individual’s needs meet the criteria, there is a duty under sections 35 to 45 to ensure that their care and support needs are met, provided they are ordinarily resident in the local authority’s area. If their capital or income exceeds the limits, there will nevertheless be a duty on the authority to meet those needs for care and support.

As well as imposing this right, it also strengthens the position of a “child in need”; it converts the power to make provision for carers into a duty; and it adds a duty to meet the needs of those who, although they fail to meet the eligibility criteria, are considered to be at risk of abuse or neglect.

The primary responsibility is to those who are ordinarily resident in the local authority’s area. There is power to meet the needs of those whose needs are insufficient to meet the eligibility criteria; and there is still a limitation on meeting the needs of those who are subject to immigration control.

5.2.4 Duty to meet the needs of adults

These are little different to the previous law, except that the duty is extended to self-funders. The relationship with needs being met by a carer (discussed above) is explicitly stated in section 35(6) – the duty to meet the needs of an otherwise eligible adult “does not apply … to the extent that the local authority is satisfied that those needs are being met by a carer.”

5.2.5 Duty to meet the needs of children

Unlike the limited duty under the previous legislation, section 37 makes explicit the duty to provide all children with the care and support they are assessed as needing, or to protect them from harm.

The duty under sec 37 does not apply to children who are “looked after”, for which the Act makes detailed provisions in Part 6 (Sections 74-125). The provisions for looked after children which are found in the English Children Act 1989 (section 22) have been superseded. In addition, the effect of the Welsh legislation is to remove the definition of a child in need from section 17 of the Children Act 1989 and replace it with the definitions of the new Act. Part 3 of the Children Act 1989 now only applies to England.

The Act does not contain any provisions which deal with a disabled child or their carers when a young person is in transition to adulthood.

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