Care and assistance and future care needs

There are a number of ways in which a Claimant’s care and assistance can be funded. In very serious cases, where the Claimant requires residential care, the local authority has a duty to provide this free of charge. Treatment and care may also be available from the NHS.

Where the Defendant has been found liable for the Claimant’s injuries, the Claimant usually has the right to choose whether the local authority, the NHS or the Defendant should be responsible for the future funding of care.

When the court assesses the value of the future care claimed, they will disregard the availability of NHS treatment and care. However, the court will not disregard the availability of care from the local authority. Where the Claimant seeks to recover privately funded care from the Defendant instead of, or in addition to, local authority care, it must be established that this private care is reasonable.

The cost of care and assistance

Once an appropriate care regime has been established, the cost of implementing that care needs to be considered. The experience of the carer, the nature of the care and where the Claimant lives will all be relevant when considering the reasonable cost of the care.

The Claimant will be entitled to recover an attractive rate of care, rather than only the cheapest care prices. The past costs of care can be a useful indication of what the future costs will be, as will the rates charged by local care providers. Higher rates will apply where the care is specialised or required at weekends or at night.

If a person looks after an injured partner, relative or friend, and provides care above and beyond what they would usually provide for that person, then they may be entitled to claim damages for that additional care.

For example, if someone is severely injured and cannot care for themselves (i.e. they need help with basic aspects of personal care such as washing and dressing) then the time that their partner spends providing this care can be added to the claim.  Similarly, if a married couple routinely share their domestic tasks on a 50/50 basis, but then due to an accident the wife has been involved in, the husband carries out all of the tasks for a period of time whilst the wife recovers, then the additional time he spends can be claimed. Other tasks such as transporting the injured person to medical appointments, caring for them in hospital, and childcare can also be claimed for, as can other domestic activities such as DIY, gardening and decorating.

In the majority of cases, the care or assistance is valued by working out how many hours per week on average has been provided. An hourly rate (usually around two thirds of the standard cost of professional care) is then applied. This hourly rate is discounted from the cost of professional care in order to remove tax, National Insurance and any profit element of the care and reflect the fact that it is non-professional care and has been provided gratuitously.

It is vital that Claimants are awarded sufficient funds to cover their future care and assistance costs, so that their compensation does not run out, either prior to their recovery or during their lifetime. Claimants and their families must therefore ensure that they instruct experienced solicitors who will obtain all the necessary evidence in support of this aspect of the claim and calculate the loss appropriately.