VALUING PAST AND FUTURE CARE NEEDS

by William Latimer-Sayer, Cloisters

This article reviews some points which arose in the case of Massey v Tameside & Glossop Acute Services NHS Trust, a judgment of Teare J handed down on 23 February 2007 after 7 days of oral evidence.

The Assessment of Past Gratuitous Care

It is a little surprising that in catastrophic injury cases, the court have invariably stuck to National Joint Council (NJC) rates for valuing past care often subject to a discount for tax and National Insurance.  The problem is that a Home Help at Spine Point 8 is currently paid £6.43 per hour and in many cases it is simply not possible to employ carers at NJC rates.  If it is not possible to employ a carer at NJC rates, and professional carers must be paid say £10 or £12 per hour, it seems unfair to value gratuitous care at £6.43 per hour (subject to a discount) when the tasks performed are identical.

In Massey Teare J accepted the approach of the Claimant’s care expert, Wendy Daykin, which may lessen the unfairness of the NJC flat rates.  Her approach was to adopt the NJC aggregate rates which are significantly higher than the standard or flat rates because they take into account an uplift for care provided at evenings, weekends and during unsociable hours e.g. at night.  Thereafter the judge only applied a discount of only 20% to the notional level of earnings, which is perhaps more consistent with the deduction for tax and National Insurance for carers being paid NJC rates rather than the more usual 25% discount referred as “normal” by the Court of Appeal in Evans v Pontypridd Roofing Limited [2001] EWCA Civ 1657. 

Whilst the decision was emphasised to reflect the particular facts of the case, it is difficult to imagine why similar reasoning should not apply in other cases.  In particular the application of aggregate rates is likely to be relevant in any case involving severe cerebral palsy where care has been given by parents at all times of the day and night.  Although it may be possible to achieve a similar outcome by other means (e.g. by applying flat rates but without any discount – see further Newman v Folkes [2002] EWCA Civ 591), arguably the method adopted by the court in this case produces a fairer and more accurate calculation since it more closely reflects the wages that would have been received by an NJC carer. 

Credit for Carer’s Allowance

Defendants may take some comfort from the fact that the benefits received by the parents in respect of care provided were deducted from the award in relation to past care.  Although not referred to in the judgment this was a straightforward application of Hodgson v Trapp [1989] AC 807.  Whilst the deduction may not have been supported by previous authority, it was plainly appropriate to reduce the care claim in order to avoid double recovery and it is likely that similar deductions will be made in other cases.      

Past Gratuitous Case Management

An often forgotten head of claim, the relatives of claimants frequently spend many hours of their time sorting out paperwork, liaising with professionals and battling with local authorities to obtain the services they need.  There does not appear to be any good reason why such activities provided gratuitously on behalf of a claimant should not be compensated under the ordinary principles of Hunt v Severs [1994] 2 AC 350.  In Massey the principle of recoverability under this head of loss was not challenged and the judge awarded a lump sum of £8,750 for past gratuitous case management.

The Assessment of Future Care

Teare J’s approach to the assessment of future care is instructive for a number of reasons.  Firstly, he accepted that the Claimant’s mother was not obliged to assume any role in his life apart from being a parent.  Secondly, provision for a team leader at an enhanced rate of pay was allowed in order to assist with time tabling and to advise in relation to local employment problems.  Thirdly, the judge considered that pay to sleep-in carers would not break the Minimum wage Regulations because only time spent working, not sleeping, would count for the purposes of the Regulations.  Fourthly, an allowance was made for staff liaison.  Fifthly, provision was made for domestic assistance until the appropriate adult regime kicked in because it was considered reasonable for the Claimant’s carers to be committed to caring for him and developing his potential rather than spending time on cleaning and other domestic chores.  Lastly, and perhaps most importantly, the judge accepted the Claimant’s submission that all he needed to prove was that the model of care he put forward was reasonable.  A similar submission was made but rejected in the case of Iqbal v Whipps Cross University Hospital NHS Trust [2006] EWHC 3111 (QB).  However, in Massey Teare J took a bolder line as shown in paragraph 91 of the judgment:

“The care regime suggested by Mrs. Bingham is clearly cheaper; but that, on the authorities, is not the test. The Defendant needs to show that Mrs. Daykin’s care regime is unreasonable. I do not consider that the Defendant can show this”.

It is clearly questionable whether the Defendant actually had to prove anything at all.  But putting the quote into context the judge had already accepted that the regime put forward by the Claimant’s care expert was reasonable.  He accepted that the Claimant’s care regime would give the Claimant independence, freedom of choice, autonomy and mobility, and maximise his unimpaired cognitive ability.  Thereafter the evidential burden shifted to the Defendant to prove that the model or costs put forward were unreasonable.  The Defendant failed to do this and the Claimant’s claimed care costs were allowed in full (subject to some minor adjustments). 

In summary, the judge’s detailed analysis of the parties’ respective arguments in relation to the assessment of past and future care is well worth reading for any practitioner in this field and it is hoped that the approach taken may find favour with future courts.   

5 April 2007