Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE TOMLINSON
Between :
MARIA LOUISE FREEMAN | Claimant |
- and - | |
CHRISTOPHER HALLAS LOCKETT | Defendant |
David Westcott QC and Nathan Tavares (instructed by Stewarts) for the Claimant
Richard Davies QC and Charles Brown (instructed by Barlow Lyde & Gilbert) for the Defendant
Hearing dates: 29,30 November and 2 December 2005
Judgment
Mr Justice Tomlinson:
Introduction
In my interim judgment which I delivered on 6 December 2005 ([2005] EWHC 3150 (QB)) I described the injuries which the Claimant Maria Freeman sustained on 25 February 2002 in a traffic accident on the M1 motorway for which the Defendant has admitted liability in negligence. That judgment must be read with this in order to understand the nature of the Claimant’s needs over the rest of her life. The Claimant has been left a C5 tetraplegic Frankel B with C6 on the right side. She is wheelchair dependent and unable to perform any transfers in consequence of the upper body paralysis. Fortunately she has survived the accident with all her cognitive and intellectual powers intact. She is an intelligent, strong-minded and self-willed person who is determined to live as normal a family life as is possible.
As a result of negotiations between the parties agreement was reached in respect of many of the issues relevant to the ascertainment of an appropriate award of damages. Certain issues of principle relating to the Claimant’s long-term future care requirement proved incapable of agreement and I heard evidence and argument about these issues on 29 and 30 November and on 2 December 2005. As I have indicated above I gave judgment on these issues on 6 December 2005. In the light of my judgment the parties were then able to agree, subject to one further point and subject of course to any appeals as to which all parties’ rights are reserved, that the appropriate lump sum award in this case would be £5,546,245.
At the same time as the argument on future care issues I also heard argument on what the parties called, by way of shorthand, the “state funding issue.” This is an argument to the effect that the award to the Claimant should be adjusted to reflect the fact that she is currently in receipt of and may be expected to continue to receive a financial benefit from the local authority in whose area she is for the time being resident. The purpose of that benefit is to fund the provision of practical assistance for the Claimant in her home. It is said on behalf of the Defendant that since the evidence points overwhelmingly to the Claimant’s condition, and therefore her needs in this regard, being incapable of material change, at any rate by way of improvement in her condition, so therefore there could be no rational basis for the local authority determining in the future either to reduce the amount of its current payment or, still less, to withdraw such funding. As at the date of trial the Claimant was receiving from Hertfordshire County Council a direct payment of £969.54 per week or £50,416.08 per annum. In consequence of my finding concerning life expectancy and thus the appropriate multiplier this argument at its highest involves an invitation to reduce the award by a sum in excess of £1,000,000. Recognising that the argument might not, in its purest form, appear attractive to the court, Mr Richard Davies QC for the Defendant proffered a sliding scale approach, engagingly described as a “cascade.” Thus it was suggested that if the court concluded that a substantial award of damages to the Claimant might induce the local authority to require from her a contribution to the cost of her care, as they assessed it to be, the court could be confident that such contribution would not exceed the current maximum weekly contribution of £310 prescribed by Hertfordshire County Council. That limit has been set by the local authority in accordance with guidance issued by the Department of Health. The relevant “Guidance for Councils with Social Services Responsibilities” is contained in a document issued in September 2003 called “Fairer Charging Policies for Home Care and other non-residential Social Services.” Paragraph 17 of that document contains the following: -
“All councils should consider whether and how to set an overriding maximum charge and should consult users specifically on this issue. In some councils, this is set at a proportion of typical local residential care charges, to ensure that no perverse financial incentive is created for users to leave their own homes.”
It was pointed out that there is no evidence of any current proposal by Hertfordshire County Council to increase the current maximum contribution. On this approach the suggested reduction from the award otherwise appropriate would be £34,296.08 per annum, multiplied by the appropriate multiplier, reflecting a supposed weekly contribution of £310. It was recognised that the court would need to do justice to the imponderables which might affect the availability and extent of local authority funding in the future. However it was submitted that the mere fact that such uncertainty exists does not mean that no adjustment should be made.
At the conclusion of the argument on 2 December 2005 I indicated that, whilst I would give judgment on the conventional future care issues on 6 December, I would reserve my judgment on the state funding issue. I now express my conclusions in relation thereto.
It is in my judgment important to be clear at the outset as to the jurisprudential route which is said to lead to the conclusion that the award of damages should be adjusted in this manner. As I understood it the Defendant’s approach was twofold. Primarily the Defendant founded upon some remarks of Lord Bridge in Hodgson v. Trapp [1989] 1 AC 807 at 819: -
“My Lords, it cannot be emphasised too often when considering the assessment of damages for negligence that they are intended to be purely compensatory. Where the damages claimed are essentially financial in character, being the measure on the one hand of the injured plaintiff’s consequential loss of earnings, profits or other gains which he would have made if not injured, or on the other hand, of consequential expenses to which he has been and will be put which, if not injured, he would not have needed to incur, the basic rule is that it is the net consequential loss and expense which the court must measure. If, in consequence of the injuries sustained, the plaintiff has enjoyed receipts to which he would not otherwise have been entitled, prima facie, those receipts are to be set against the aggregate of the plaintiff’s loss and expenses in arriving at the measure of his damages. All this is elementary and has been said over and over again. To this basic rule there are, of course, certain well established, though not always precisely defined and delineated exceptions. But the courts are, I think, sometimes in danger, in seeking to explore the rationale of the exceptions, of forgetting that they are exceptions. It is the rule which is fundamental and axiomatic and the exceptions to it which are only to be admitted on grounds which clearly justify their treatment as such.”
In reliance on those remarks the Defendant submitted that the effect of the Claimant’s submission to the effect that there should be no deduction at all in respect of the prospective benefits to be received by her from Hertfordshire County Council would be to undermine the ordinary and conventional principles of compensation. It was stressed that any award of damages is purely compensatory and thus that a claimant is required to give credit in respect of any benefit received or likely to be received and that this applies to past contributions and should also apply to future contributions. That is as I understand it an argument concerned with the proper quantification of the net expenses to which the Claimant will be put consequential upon her injury. If in consequence of the injuries sustained the Claimant will in the future enjoy receipts to which she would not otherwise be entitled, here in the shape of local authority funding of the provision of practical assistance in her home, those receipts are to be set against the aggregate of the Claimant’s expenses consequent upon the injury. The tortfeasor is ordered to pay only the net expenses to which the Claimant will be put consequent upon the injury which he negligently caused. This is an elementary aspect of the rule that awards of damages are compensatory.
In the alternative and, as I understand it, distinct from the foregoing approach, the Defendant submits that any failure by the Claimant in the future to avail herself of such financial benefit as may be available from her local authority would amount to an unreasonable failure on her part to mitigate her loss. As a corollary of that should the Claimant expose herself to a liability to contribute to the cost of her care, as assessed by the local authority, by, for example, not paying her award of damages into a personal injury trust, that too would amount pro tanto to an unreasonable failure to mitigate her loss.
I have to confess that, as one who has not before laboured in this particular vineyard, I find these submissions startling. Naturally I accept that the principle involved is compensatory and that one should avoid, so far as possible, double recovery. But I would have expected that the purpose of an award of damages against a tortfeasor would in these circumstances be to relieve the victim of his negligence of the necessity to resort to state funding of his or her care, thereby incidentally relieving the state of the necessity to fund the care of that victim and ensuring that the state’s limited and hard pressed resources are available to fund care in the case of those whose injury or affliction has not come about as the result of the actionable fault of another who is by statute required to purchase insurance against the risk of his negligently injuring persons whilst engaging in the activity in question, here driving a motor vehicle on the public highway. I am relieved to find that there is formidable support for my view of what the law ought to provide in the shape of Dr Harvey McGregor QC – see McGregor on Damages 17th Ed. paragraph 35-209. I would also have had in mind Lord Reid’s observation in Parry v. Cleaver [1970] AC 1 at p.14 to the effect that it may be thought that Parliament in providing various uncovenanted benefits from the welfare state did not intend them to be for the benefit of the wrongdoer. Here the Claimant has told the court with conviction that she does not wish to be beholden to the local authority for a substantial part of the money which she requires in order to fund her care, pointing not least to the frustrations which all of us know inevitably attend resort to or communication with institutions which must of necessity operate through a large and inevitably changing staff and by reference to procedures which in order to be fair must sometimes seem inflexible or unnecessarily bureaucratic. I should say at once that I have no reason to believe that Hertfordshire County Council has discharged its duties with anything other than responsible, caring professionalism. That is not however the point. The point is that the Claimant, quite reasonably, would prefer to have no further dealings with them. Furthermore, instinctively I recoil from the notion that a failure to avail oneself of a state benefit could in the circumstances be characterised as an unreasonable failure to mitigate loss. I should have thought that such conduct was praiseworthy and moreover calculated to contribute to the sense of wellbeing of the person concerned. Moreover suppose one posits a victim of negligence whose injuries are such that his quality of life will be immeasurably improved by his living in a climate reliably and uniformly warmer than is our own. Perhaps it would be conceded that such a victim would not be unreasonably failing to mitigate his loss in electing to move overseas thereby positively removing himself from entitlement to English local authority assistance. But if that be right why then should another victim be deprived of the opportunity to choose to live abroad even if such a move offers no tangible therapeutic advantage?
If I were to accede to the Defendant’s argument in this case I might thereby be indirectly imposing a serious fetter upon the Claimant’s future freedom of action. I accept that in the present case the wider family and employment structure is such that it is likely that the Claimant will for the foreseeable future positively wish to remain living in Hertfordshire, indeed in or around Hemel Hempstead. The foreseeable future might well mean at least until the end of her husband’s working life. I would however find it extraordinary if our law has reached the stage where in such circumstances the award of damages to such a Claimant fell to be assessed differently from an award to a similarly injured person of whom the same finding could not be made – perhaps one whose husband’s work seemed likely to require him, in his own and his family’s best interests, to contemplate living and working abroad. Furthermore I am here concerned with an award intended to provide for the Claimant’s care for the rest of her life, which I have assessed is likely to be a period in excess of 33 years. The ordinary vicissitudes of life are such that it is idle to suppose that the wider family and employment structure will necessarily look the same over that entire period.
7. Hodgson v. Trapp was concerned with the statutory entitlement to attendance and mobility allowance, payable as of right to those who fulfil the qualifying conditions. Lord Bridge, with the agreement of all the other Law Lords who sat, said that in relation to these benefits, payable amongst others to one whose circumstances of qualifying need arise in consequence of a tort of which he was the victim, he could “certainly discern no general principle to support Lord Reid’s tentative opinion “that Parliament did not intend them to be for the benefit of the wrongdoer.”” However Lord Bridge prefaced this remark by noting that it was not necessarily conclusive of the position so far as concerned discretionary statutory payments of the sort considered by the High Court of Australia in National Insurance Company of New Zealand Ltd v. Espagne [1961] 105 CLR 569. In that case Windeyer J pointed out, at p.600, in a passage regarded by Lord Bridge as cautionary, that: -
“Nevertheless it is not, I think, possible, to enunciate an exhaustive rule for all parts of this vexed topic. And the questions that arise can never be determined in the abstract. Each must depend on the terms of the particular contract, pension scheme, charitable benefaction or statute governing the benefit conferred.”
It is plain therefore that the enquiry must begin with an examination of the statutory framework pursuant to which the Claimant currently is and may perhaps remain in receipt of a regular financial benefit from her local authority in consequence of her requirement for practical care in her home.
The Statutory Framework
Since the relevant decided cases in this area deal principally with the provision of residential care, as opposed to the provision of care services in a person’s home, it is convenient to notice at the outset that the source of a local authority’s power to provide both types of care derives from the National Assistance Act 1948. These two distinct powers have subsequently become duties, although not by the same route. The duties have become encrusted with provisions relating to the recovery of charges for, or financial contribution towards, the provision of such care or services. These provisions are not the same in each case.
S.21 of the National Assistance Act 1948 gave local authorities the power to provide residential care for those in need in these terms: -
“s.21 Duty of local authorities to provide accommodation
Subject to and in accordance with the provisions of this part of this act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing: -
(a) residential accommodation for persons who by reason of age, illness, disability or any other circumstance are in need of care and attention which is not otherwise available to them.”
This power only became elevated into a duty pursuant to Local Authority Circular (93) 10, App.1, which came into force in 1993.
As regards domiciliary care, care provided in the claimant’s own home, local authorities have had the power to make arrangements for providing such domiciliary welfare since the enactment of s.29 of the National Assistance Act 1948: -
“s.29 Welfare arrangements for blind ….etc
A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons who……are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the minister.”
The general power under s.29 was elevated into a duty by s.2 of the Chronically Sick and Disabled Persons Act 1970 which provides: -
“s.2 Provision of welfare services.
Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely: -
(a) the provision of practical assistance for that person in his home….
then, subject to the provisions of section 35(2) of that Act (which requires local authorities to exercise their functions under Part III of that Act in accordance with the provisions of any regulations made for that purpose) and to the provisions of section 7(1) of the Local Authority Social Services Act 1971 (which requires local authorities in the exercise of certain functions, including functions under the said section 29, to act under the general guidance of the Secretary of State) it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29.”
11. The duty to assess a disabled person’s needs subsequently arose under s.47 of the National Health Service and Community Care Act 1990 which provides: -
“s.47 Assessment of needs for community care services.
Subject to subsections (5) and (6) below where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority: -
shall carry out an assessment of his needs for those services; and
having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services…..”
12. S.7 of the Local Authority Social Services Act 1970 provides that: -
“Local Authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State.”
Ministerial Guidance
13. Local Authority Circular (2002) “Fair Access to Care Services” establishes criteria for local authorities to determine eligibility for the provision of care services according to needs. The Circular itself confirms that the guidance on eligibility criteria for adult social care is issued under s.7 of the Local Authority Social Services Act 1970. There is issued with the Circular a separate policy guidance document entitled “Fair Access to Care Services Guidance Eligibility Criteria for Adult Social Care.” This relates to the provision of services under the National Assistance Act 1948 and the Chronically Sick and Disabled Persons Act 1970 and provides grades according to which each eligible person’s needs should be assessed. There are four bands “Critical”, “Substantial”, “Moderate”, and “Low.” The emphasis is on the severity of the risks to a person’s independence with priority given to those in greatest immediate or long-term need. Hertfordshire County Council has adopted these categories and has determined that only those falling within the “Critical” and “Substantial” bands will have services provided. The Claimant’s independence is obviously massively compromised as a result of her injuries. I am not sure that there is any evidence as to how Hertfordshire County Council has approached the matter but the Claimant falls within at the very least the “Substantial” band but more realistically within the “Critical” band.
14. Direct payments
Having assessed an individual as requiring the provision of domiciliary care, the local authority can either provide those care services directly, or make payments direct to the service user. The power to make regulations providing for such payments, known as “direct payments,” in England, but not in Wales, is derived from s.57 of the Health and Social Care Act 2001 which provides: -
“(1) Regulations may make provision for and in connection with requiring or authorising the responsible authority in the case of a person of a prescribed description who falls within subsection (2) to make, with that person’s consent, such payments to him as they may determine in accordance with the regulations in respect of his securing the provision of the service mentioned in paragraph (a) or (b) of that subsection.
(2) A person falls within this subsection if a local authority (“the responsible authority”) have decided—
(a) under section 47 of the 1990 Act (assessment by local authorities of needs for community care services) that his needs call for the provision by them of a particular community care service (within the meaning of section 46 of that Act), or
(b) under section 2(1) of the Carers and Disabled Children Act 2000 (c 16) (services for carers) to provide him with a particular service under that Act.
(3) Regulations under this section may, in particular, make provision—
(a) specifying circumstances in which the responsible authority are not required or authorised to make any payments under the regulations to a person, whether those circumstances relate to the person in question or to the particular service mentioned in paragraph (a) or (b) of subsection (2);
(b) for any payments required or authorised by the regulations to be made to a person by the responsible authority (“direct payments”) to be made to that person (“the payee”) as gross payments or alternatively as net payments;
(c) for the responsible authority to make for the purposes of subsection (4) or (5) such determination as to—
(i) the payee’s means, and
(ii) the amount (if any) which it would be reasonably practicable for him to pay to the authority by way of reimbursement or contribution,
as may be prescribed;
(d) as to the conditions falling to be complied with by the payee which must or may be imposed by the responsible authority in relation to the direct payments (and any conditions which may not be so imposed);
(e) specifying circumstances in which the responsible authority—
(i) may or must terminate the making of direct payments,
(ii) may require repayment (whether by the payee or otherwise) of the whole or part of the direct payments;
(f) for any sum falling to be paid or repaid to the responsible authority by virtue of any condition or other requirement imposed in pursuance of the regulations to be recoverable as a debt due to the authority;
(g) displacing functions or obligations of the responsible authority with respect to the provision of the service mentioned in subsection (2)(a) or (b) only to such extent, and subject to such conditions, as may be prescribed;
(h) authorising direct payments to be made to any prescribed person on behalf of the payee.
(4) For the purposes of subsection (3)(b) “gross payments” means payments—
(a) which are made at such a rate as the authority estimate to be equivalent to the reasonable cost of securing the provision of the service concerned; but
(b) which may be made subject to the condition that the payee pays to the responsible authority, by way of reimbursement, an amount or amounts determined under the regulations.
(5) For the purposes of subsection (3)(b) “net payments” means payments—
(a) which are made on the basis that the payee will himself pay an amount or amounts determined under the regulations by way of contribution towards the cost of securing the provision of the service concerned; and
(b) which are accordingly made at such a rate below that mentioned in subsection (4)(a) as reflects any such contribution by the payee.”
The Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2003 provide, by Regulation 4(1): -
“ If the conditions in paragraph (3) are satisfied, a responsible Authority must make in respect of a prescribed person who falls within (those conditions) such payments (direct payments) as are determined in accordance with Regulation 5 in respect of his securing the provision of a relevant service”
The relevant conditions are that the prescribed person or user is a person who appears to the responsible authority to be capable of managing a direct payment by himself or with such assistance as may be available to him and is not a person excluded under Regulation 2(2), which relates principally to those who are subject to orders made by a criminal court and is of no relevance here. “Relevant services” include community care services within the meaning of s.46 of the National Health Service and Community Care Act 1990, i.e. services of the kind which the Claimant purchases.
16. Guidance has been issued under these Regulations in the shape of a Department of Health document entitled “Direct Payments Guidance Community Care Services for Carers and Children’s Services (Direct Payments) Guidance England 2003” which serves to confirm that pursuant to the current criteria the Claimant is a person eligible to receive direct payments. It is plain from this document that the Government is concerned, for understandable reasons, to increase the number of people who receive direct payments. Thus it is pointed out in paragraph 8 that where such payments are made day-to-day control of the money and care package passes to the person who has the strongest incentive to ensure that it is spent properly on the necessary services, and who is best placed to judge how to match available resources to needs. Paragraph 10 notes that for some local authority staff the direct payments regime may require a significant change from current ways of working with people needing services. The Government notes however that those staff who have made the “cultural leap” have discovered that they experienced the great satisfaction that comes from expanding individuals’ lifestyle choices. I merely note in passing that the submission of the Defendant in this case seems rather to involve a contraction of the Claimant’s lifestyle choices.
17. Charging for domiciliary care
As already noted, the regime for recovering charges for or contribution towards services provided pursuant to s.29 of the National Assistance Act is not the same as that which is applicable to recovering charges for or contribution towards residential services provided under s.21 of that Act, which regime has been analysed in the cases of Firth v. G O Ackroyd Junior Ltd [2001] PIQR Q4 ; Bell v. Todd [2002] PIQR P11 and Ryan v. Liverpool City Council [2002] Lloyds Rep Med 23.
S.17 of the Health and Social Services and Social Security Adjudications Act 1983 provides a discretion for a local authority which provides a service under s.29 of the National Assistance Act 1948 to “recover such charge (if any) for it as they consider reasonable.” S.17(3) in effect requires or enables the local authority to carry out an assessment of means in order to determine what contribution, if any, the recipient of the service should make towards its cost. It provides: -
“If a person –
(a) avails himself of a service to which this section applies, and
(b) satisfies the authority providing the service that his means are insufficient for it to be reasonably practicable for him to pay for the service the amount which he would otherwise be obliged to pay for it,
the authority shall not require him to pay more for it than it appears to them that it is reasonably practicable for him to pay.”
There are equivalent provisions in Regulation 5(2) of the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2003.
By virtue of the general provision in s.7 of the Local Authority Social Services Act 1970 the local authority is required, in carrying out its assessment, to act in accordance with any guidance issued by the Secretary of State. The relevant guidance is to be found in a document to which I have already referred at paragraph 3 above, Guidance for Councils with Social Services Responsibilities issued by the Department of Health in September 2003 with the specific title “Fairer Charging Policies for Home Care and other non-residential Social Services.” This guidance document states on its face that it is issued under s.17 of the Local Authority Social Services Act 1970. It provides, in paragraph 5, that councils which do decide to charge for services retain substantial discretion in the design of charging policies. However the guidance “provides clear objectives, which all councils operating charging policies should aim to achieve.” I have already set out at paragraph 3 above that part of paragraph 17 which enjoins councils to consider whether and how to set an overriding maximum charge without prescribing what that maximum should be or setting out criteria pursuant to which it should be calculated. Section VIII of the document, paragraphs 57 – 61 deals with the treatment of savings and capital, although it does not expressly deal with unearned income. Earnings, which are unlikely ever to be relevant or applicable in the Claimant’s case, are to be disregarded – see paragraph 72. The Claimant does however have the benefit of a modest Civil Service pension. The treatment of this is unclear. So also to be disregarded are the earnings of a partner – paragraph 67. This comes within a section headed “Partners’ income and savings” which emphasises that a council should have regard only to the individual user’s means in assessing ability to pay a charge. It is probably clear therefore that a partner’s unearned income would likewise be disregarded. However there is no express reference to the appropriate treatment of a user’s unearned income by which I mean income derived from investments of whatever nature. This may be of some significance in relation to a user who is a person in receipt of a substantial award of damages. The Claimant’s annual care cost as it has now been in part determined and in part agreed is £133,421, more than two and a half times greater than the local authority benefit which she currently receives. On any view therefore the Claimant will be in receipt of a substantial award, further enhanced by the elements for general damages, past losses and future losses, excluding the cost of care.
Paragraphs 57 and 58 of the “Fairer Charging Policies” document, under the rubric “Savings and Capital” provide: -
“57. Councils may take account of a user’s savings or other capital in assessing their resources, but are not obliged to do so. This section includes minimum requirements for treatment of savings. Councils need to consider and consult specifically on their policy in relation to savings including circumstances where individual users may have particular needs for savings (paragraph 94).
58. Savings may be taken into account to calculate the tariff income on the same basis as set out in the Charges for Residential Accommodation Guidance (CRAG) in LAC(99) 9. Users with savings of more than the upper limit may be asked to pay a full charge for the service. These savings levels will be updated automatically in line with any uplifts in CRAG. Councils may wish to set higher savings limits or more generous charging policies for users with savings, but should not set lower limits.”
Finally paragraph 77 provides: -
“Councils should take account of no more than the full cost of providing the service, excluding costs associated with the purchasing function and the costs of operating the charging system. It is a matter for councils to decide whether to levy a contribution to costs or to seek to recover full costs, where possible. Councils will need to consider inter alia whether to use the levels of charge to target subsidy at priority users or services and whether charging full costs for some users will create perverse financial incentives for them to enter residential care.”
21. Hertfordshire County Council appears to have adopted this guidance, although its treatment of income is unclear, at any rate to me. Before looking at Hertfordshire’s own published documents, and noting in passing that the position might not be the same in all English local authorities, I should next refer to the Charges for Residential Accommodation Guidance to which I will refer hereafter as “CRAG.”
22. CRAG
It should be noted at the outset that this guidance is, as its name implies, specifically applicable to charging for the provision of residential accommodation, i.e. the National Assistance Act 1948 s.21 function, not the distinct s.29 function.
This guidance, as amended as at 6 October 2003, covers very nearly one hundred pages of text. Paragraph 6.003 provides: -
“A resident with capital of more than £19,500 is liable to pay the standard charge for the accommodation, if in an local authority home, or the full amount of the contracted fee if in an independent sector home. If a resident has more than £19,500 there is no need to make a wider assessment of his ability to pay.”
Paragraph 6.028 appears to achieve the result that an award of damages in respect of personal injury which is held in trust is a capital asset which is to be disregarded in the assessment of means. Having regard to the provisions in the more directly relevant document “Fairer Charging Policies for Home Care and other non-residential Social Services” to which I have already referred it is a moot point whether the provisions in CRAG which deal with income are intended to be applicable by incorporation into the domiciliary care regime. If they are, paragraphs 8.005 and 8.0015 appear to provide that income from any capital held in trust “which is as a result of a personal injury” will be taken fully into account for long as the capital is disregarded.
Paragraph 10.026 provides: -
“The following periodical payments are disregarded;
Payments from a trust whose funds are derived from a payment made in consequence of any personal injury.
Payments under an annuity purchased pursuant to any agreement or court order to make payments, or from funds derived from such a payment, in consequence of any personal injury.
Payments received by virtue of any agreement or court order to make payments, or from funds derived from such a payment, in consequence of any personal injury.
Payments received by virtue of any agreement or court order to make the payments to the resident in consequence to any personal injury.
(The agreements mentioned above include out-of-court settlements.)
The payments in 10.026 are fully disregarded if intended and used to pay any item which was not taken into account when the standard rate was fixed for the accommodation provided. Otherwise, £20 is disregarded.”
In relation to the Claimant there has of course been no standard rate fixed for the “accommodation provided” because no such accommodation has been provided. Furthermore I am left in doubt what is the position concerning income accruing on capital sums deriving from a personal injury award, whether those sums are held in trust or otherwise. It may be that Hertfordshire County Council has a policy in relation to such matters but if so there is no evidence as to what it is, still less as to what it might be in the future.
Hertfordshire County Council
Finally I turn to Hertfordshire County Council’s own published documentation. I have before me a document entitled “Charging Policy Consultation until 9 December 2005.” Evidently this is not a document upon which I could base a reliable forecast as to the situation which will obtain for the rest of the Claimant’s life. First, this document provides, in language directed to the user: -
“If we ask you to pay, we take your savings, income and benefits into account. If your savings or other capital are below £20,500 we look at your income and make an allowance for your living expenses. We ask you to pay part of any income you have above the allowance we make for your expenses. We also make sure you do not pay more than the cost of your services.”
Then there follows this, under the rubric “What if I have savings”
“If you have savings or other capital worth over £20,500, we ask you to pay the cost of the services you receive. Capital does not include the value of your house or your possessions.
If I don’t have savings above £20,500 how is the charge worked out?
We look at your income and allow for your living expenses. The allowance varies according to your circumstances, such as your age, and how much you pay for council tax, rent or mortgage. It is worked out by assessing what you would get on basic Income Support or pension credit and adding allowances for your housing costs. If you are getting home care, day care or direct payments, we also add an extra £60 a week for your disability-related expenses. If you receive housing related support we add 25% of the basic Income Support or pension credit amount rather than £60. We will not ask you to pay if your weekly income is less than the allowance we make for your expenses, unless you have capital of more than £20,500.”
Finally this: -
“If my income is more than the allowance for my expenses, how much will I be asked to pay?
If your income is more than the allowance we make for your expenses, the weekly charge will be three quarters of the difference. This means that we ask you to pay 75p for every £1 that your income exceeds your allowance.
For example: If your income is £190 and your allowance is £170 the difference is £20. You would be asked to pay 75% of this money towards your services. This would be £15.
If you have capital of more than £20,500 we will ask you to pay the cost of your service. No one will be asked to pay more than the cost of the services they receive. If the cost of your home care, day services or direct payments is more than £310 per week we will not ask you to pay the extra amount above £310.”
Discussion and Conclusions
Standing back from the statutory framework, it is not easy to discern any clear Parliamentary intention on the question whether direct payments made to assist with domiciliary care are intended to be for the benefit of the wrongdoer. The enabling s.29 of the National Assistance Act 1948 deals simply with those who are substantially and permanently handicapped by illness, injury, congenital deformity or such other disabilities as may be prescribed without reference to the question whether any such condition has arisen by reason of actionable fault. Obviously congenital deformity is unlikely to arise as a result of actionable fault, and illness does not typically so result. Injury can obviously arise in all manner of circumstances, some involving actionable fault, others not. The touchstone of the duty to provide practical assistance for a person in his home enacted in s.2 of the Chronically Sick and Disabled Persons Act 1970 is that “it is necessary in order to meet the needs of that person.” It might be said that it is unnecessary so to provide in the case of a person who has received an award of damages calculated so as to cater for all his or her foreseeable needs in a reasonable manner, at any rate for so long as the award can be seen to be fulfilling that purpose. The reductio ad absurdum is I suppose that since there is a statutory duty to meet the needs of a person by way of providing practical assistance in his home, so therefore a tortfeasor need pay nothing under that head because it will be provided by the state. However it was not so contended before me and it is recognised that the test of need at any rate as typically approached under the statute is not the same as the common law approach to the question how an injured person’s needs may be met in a reasonable manner – cf. the discussion of damages at common law by Pill LJ at paragraphs 10-14 and 38-41 of his judgment in Sowden v. Lodge [2005] 1 WLR 2129, pp 2137 -38 and 2144. In that case Pill LJ agreed with a submission that the decision in Hodgson v. Trapp was intended to address the specific problem of attendance and mobility allowance. He also recorded a concession on behalf of the claimants in the Sowden and Crookdake cases that if the compensation principle requires only accommodation and care provided by the local authority under s.21 of the 1948 Act, damages cannot be awarded as if they were not so provided. Pill LJ did not indicate whether he regarded this concession as correctly made. The concession is founded on a hypothesis which is of no application in the present case. I can certainly discern no Parliamentary intention that payments made pursuant to the 1948 Act s.29 power as translated into the 1970 Act s.2 duty should enure to the benefit of a tortfeasor. If anything I should have thought that the indication was the other way. However in view of the relatively undefined manner in which the duty is imposed and the uncertainty attending its actual discharge it is unnecessary for me to reach a conclusion on this point.
Mr Davies submitted that the damages awarded to the Claimant will, if paid into a personal injury trust, be left out of account in assessing her liability to contribute to the cost of direct payments made by Hertfordshire County Council. That may be a correct analysis of the current approach, subject to the uncertainty to which I have already referred concerning income generated by the fund. Mr Davies also pointed out that notification to Hertfordshire County Council of the Claimant’s entitlement to a Civil Service pension of £5,203.10 per year, £384 net per month, does not appear to have led to any reduction in her payment or requirement for any contribution.
In the alternative and by way of fallback position as I have already foreshadowed Mr Davies submitted that Hertfordshire County Council has determined that in the ordinary course of events only those with savings or other capital worth over £20,500 will be asked to contribute to the cost of the services they receive. That submitted Mr Davies is no doubt the source of a remark made to the Claimant by her Hertfordshire County Council Social Worker Pat Hudis to the effect that if she acquires £20,000 or above she would no longer be entitled to local authority funding. Pat Hudis also advised the Claimant that once she received “her compensation” the Hertfordshire funding would cease. I do not suggest that these comments are to be attributed to or regarded as binding upon Hertfordshire County Council. I am sure that they were made in good faith and believed to be accurate. Whilst a small point, the fact that such comments can be made by the Local Authority Social Worker assigned to the Claimant’s case does to my mind serve to underline the genuine nature and the reasonableness of a desire to be relieved of the need to resort to this source of funding.
Finally Mr Davies submitted that the Hertfordshire County Council documentation also showed that the local authority has determined that the maximum contribution which will be sought from any service recipient, including a person in receipt of direct payments, is £310 per week. It is true that the Guidance for Councils with Social Services Responsibilities “Fairer Charging Policies for Home Care and other non-residential Social Services” suggests at paragraph 17 as set out above that all councils should consider whether and how to set an overriding maximum charge and should consult users specifically on this issue. It is also true that Hertfordshire’s recent consultation document contains no proposal to raise the current maximum weekly charge of £310. If therefore the status quo were preserved the Claimant’s current payment of £969.54 per week would at worst reduce to £659.54 per week.
The Claimant has twice been assessed as to her needs by Hertfordshire County Council, first on 11 December 2002 whilst she was still at Stoke Mandeville, and secondly on 27 October 2003 by which time she was already in receipt of direct payments, the first payment having been made just a few days earlier on 18 October 2003. Hertfordshire County Council and the Claimant have entered into two Direct Payment Agreements, one dated 6 October 2003 which provided for a payment of £515 per week and a later agreement dated 22 January 2004 which provides for payment of £900.87 per week. From the documents made available to the Claimant by Hertfordshire County Council and placed before the court it is wholly unclear to me how precisely these various figures have been reached and wholly unclear how it comes about that the direct payment which the Claimant currently receives is £969.54 per week. However, that is the amount which she has been receiving at any rate since April 2005.
Doubtless there are political and other considerations which will constrain Hertfordshire County Council’s approach in the future to the discharge of its relevant duties as I have endeavoured to set them out. There are however few tangible legal constraints. In making its assessment of need a local authority is entitled to have regard to its resources, the availability of which “might be a proper consideration” – see R v. Gloucestershire C.C ex p. Barry [1997] AC 584. Likewise a local authority in assessing whether a resident’s needs call for the provision of services by it can, subject to any applicable statutory constraint or such constraint as “guidelines” may impose, properly have regard to the resources of the resident. In R v. Islington B.C ex p. Rixon [1998] 1 CCLR 119 Sedley J confirmed a local authority’s “liberty to deviate from [ministerial guidance] where it judges on admissible grounds that there is good reason to do so,” although there is “no freedom to take a substantially separate course.” Ministerial guidance is essentially ephemeral in nature, subject to change without any form of legislative process. Paragraph 52 of the “Fair Access to Care Services” guidance tells local authorities that they may take their resources into account when drawing up their eligibility criteria against which they assess individuals’ needs, and when deciding which services will be provided to meet those needs but that this does not mean that councils can take decisions on the basis of resources alone. However, so as far as I can see there is no real legal impediment to any local authority altering either the basis upon which it assesses need and quantifies the cost of the required services or the level at which it sets the various thresholds in order to determine what if any financial contribution should be required from a user of the services provided. There might be some pressure on local authorities not to set the limit at which possession of capital renders a resident liable to pay the standard charge for accommodation, or for the services provided, at a level lower than that prescribed by CRAG as periodically uplifted. That is however of little relevance in the present case since the Claimant’s capital will either massively exceed any limit or be held in a personal injury trust, or both. It may be that the Claimant’s capital would, if held in trust, be on the current approach disregarded but it is by no means clear to me that income derived from the capital will be similarly disregarded. CRAG expressly provides that, for so long as the capital is disregarded, the income derived therefrom will be fully taken into account. Of equal importance I can see no impediment to a local authority setting the overriding maximum charge at whatever level it chooses.
In Sowden v. Lodge Pill LJ accepted at paragraph 41 of his judgment, p. 2144, that in making the comparison between the provision to be expected of a local authority on the one hand and a claimant’s reasonable requirements on the other a court may have regard to the power to compel a local authority to perform its duties. He made this observation in the context of the provision of residential care, not the provision of financial assistance towards the private provision of domiciliary care. Different considerations are as it seems to me relevant to the two rather different regimes. I might also respectfully add that constraints imposed upon the freedom of action of a local authority by public law considerations may be of small comfort to an individual claimant. In suggesting that a local authority is not carrying out its functions properly a claimant may find that he lacks the appropriate standing to bring proceedings, and it is of course trite law that a claimant is not expected by way of mitigation to embark upon uncertain litigation.
By coincidence there appeared in The Times newspaper on 12 January 2006, whilst I was preparing this judgment, an article under the headline “Elderly face cutbacks in care as councils fight to keep tax down.” The article, on p.8 by Jill Sherman, Whitehall Editor read in relevant part: -
“Town halls are planning to withdraw care services from hundreds of thousands of elderly and disabled people and to raise charges to keep council tax down this year.
Many councils are now considering raising charges for domiciliary care, which includes bathing, cleaning and dressing the elderly, disabled and infirm, preparing meals and shopping.
Finance officers across the country have been told to cut spending to keep council tax increases below 5 per cent to avoid being capped by John Prescott, the Deputy Prime Minister. The Times has learnt that authorities are planning to withdraw care from less dependent people altogether by changing the eligibility criteria for home and residential services. They are also planning to raise income by charging more for home care or providing a lower level of services.
Yesterday Sir Sandy Bruce-Lockhart, chairman of the Local Government Association, warned Phil Woolas, the Local Government Minister, that councils were now starting to “ration care” for the infirm and elderly by changing the eligibility criteria.
“People entitled to services last year will not get the care this year,” Sir Sandy told The Times after a meeting with Mr Woolas. “The picture emerging is a mixture of raising eligibility criteria for social care, charging more and making cuts. Services are being rationed.”
It is also recorded in this article under the rubric “what the services cost” that “charges for home care services are means-tested and vary hugely throughout the country.”
I place no reliance upon the untested content of this article, upon which Mr Davies has had no opportunity to comment. I refer to it simply because the process described is exactly what I would expect to occur as local authorities strive to balance their desire not unduly to increase council tax against the ever-increasing demands made upon their resources. The possibility of a reduction in the level of publicly funded services is obvious to any moderately well-informed person. It is equally obvious that the future availability and level of such services is dependent in part upon considerations which the court is completely unable to evaluate. The longer the timescale over which the court is required to form a view as to the level and availability of such services, the more hopeless is its task. In Godbold v. Mahmood [2005] Lloyd’s Law Reports Medical 379 Mitting J had to consider whether a local authority would, in the time frame there relevant to the claimant’s needs, remain under the duty derived from s.21 of the National Assistance Act 1948 to provide residential accommodation to a person in need thereof by reason of disability. He had already concluded that the claimant’s need for such accommodation would arise at a time between three and six years after trial. His conclusion was as follows: -
“……I have no confidence that the duty currently imposed by ministerial direction will exist at the time relevant to this claimant’s needs. The duty is imposed not by primary legislation or even by secondary legislation, but by a combination of primary legislation and ministerial direction. The ministerial direction can be changed or withdrawn at any time without recourse to Parliament. It is notorious that the burden of providing for the elderly and disabled, which since 1990 has fallen on local authorities, has increased and is increasing. It is not beyond question that local authorities will persuade a future Secretary of State that the burden is insupportable and should be modified, reduced or even in certain circumstances withdrawn.”
32. The Claimant in the present case is now 38 and I have concluded that she is expected to live to the age of 71. I am therefore invited to reduce her damages to reflect a confidence that Hertfordshire County Council or presumably some equivalent body will more than 20 and even 30 years hence be making financial provision for her at a level comparable to that which currently obtains. At the very least I am urged to find that there is a substantial prospect that for a significant proportion of the next 33 years the Claimant will continue to receive some sizeable contribution to her care costs. Using the approach established by cases such as Mallett v. McMonagle [1972] AC 166 and Allied Maples v. Simmons and Simmons [1995] 1WLR 1610 I am invited to make an estimate as to the chances that this state of affairs will continue to obtain, and to reflect those chances in the award of damages. This strikes me as a long way removed from the reduction to reflect statutory benefits payable as of right under consideration in Hodgson v. Trapp , a reduction which I note has in any event subsequently been confined by statute to one limited to a maximum of five years from injury – see The Social Security (Recovery of Benefits) Act 1997. It also strikes me as an utterly unsatisfactory and unprincipled way of approaching the exercise of quantifying the cost of the Claimant’s future care requirement, or perhaps more relevantly the manner in which that cost can be met. In that regard Mr Davies submitted that the notion that this Claimant should not bear any risk whatsoever, however small, is out of keeping with the normal principles for the assessment of damages for future loss and is unsustainable. However the Claimant will in any event bear the risk of increased care requirements, care cost increases not or not adequately catered for by her award and unexpectedly poor returns on capital invested. I can see absolutely no justification whatever for additionally and quite unnecessarily imposing upon her a risk which relates not to the possible deterioration in her own condition or to other matters wholly outside any normal control but rather as to the availability or source of funds to meet her needs. Funds can be secured now to meet her reasonable needs as best they can currently be assessed. Why, having assessed those needs, and being in a position to make an award to meet them, should the court relegate the Claimant to a state of uncertainty, however small be the uncertainty, whether there will be available the funds assessed as necessary to meet her needs? The notion that the Claimant should in that respect bear any risk seems to me contrary to all principle. In that connection I regard as persuasive Mr Westcott’s analogy with the periodical payments regime. The court is obliged before sanctioning a periodical payments arrangement in lieu of immediate payment of a lump sum to establish that the continuity of the periodical payments is reasonably secure. That concept embraces both the enforceability of the undertaking to pay and the source of funds. Variation of the sum payable is then subject to considerable constraints, such that only a change in physical circumstances may be taken into account, not political or social considerations. The existence of such a carefully constructed scheme seems to me to tell against the notion that a personal injury claimant should bear the risk of the unavailability of funds to meet his or her assessed needs. This is a risk of a wholly different type to the risk that the assessment of those needs may prove to have been incorrect or that the assessment may simply be falsified by subsequent events.
33. By letter dated 13 September 2004 the Claimant’s solicitors asked Hertfordshire County Council the following questions: -
1. Under which legal provision is the care currently provided?
2. Will you seek to recoup your costs once our client receives her compensation and if so under what legal provision?
On 22 November 2004 the County Secretary’s department of Hertfordshire County Council replied as follows: -
“In terms of the questions raised in your letter of the 13 September 2004 I would respond in the following manner;
Under which legal provision is the care currently provided?
I am instructed that Mrs Freeman currently receives direct payments under s.57 of the Health and Social Care Act 2001.
Will you seek to recoup your costs once our client receives her compensation and if so under what legal provision?
I am instructed that the county council will seek to recoup its costs from your client once she receives her compensation. The legal basis for this is s.57 (4)(5) of the Health and Social Care Act 2001 and Regulation 5 of the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2003.
Shortly before the trial the council apparently reversed its earlier decision and so the claim to recover the direct payments paid up to the end of December 2005, which had been included as Appendix F to the Schedule of Claim, was not pursued. To that extent the Defendant has received the benefit of the direct payments actually made to date. The Defendant accepts that he has the burden of proving that Hertfordshire County Council will continue to contribute to the Claimant’s care costs in the future. I am not sure that the issue is there sufficiently broadly started, but it may be, given that the Defendant is effectively also asking me to find that the Claimant will live in Hertfordshire for the rest of her life.
In the event that no deduction is made from her award for future care on account of the possible receipt of local authority funding, the Claimant is willing to give some sort of undertaking to the court to the effect that she will withdraw her application for local authority funding and will not make such application in the future unless, as Mr Westcott put it, she should find that she has no realistic alternative to reliance upon the state as a result of, for example, poor investment returns, increased care requirements or care cost increases not catered for by her award. Whilst I believe, and find, that the Claimant’s intention to cooperate with any proper mechanism intended to prevent double recovery is entirely genuine, I regard any such undertaking as impractical and undesirable. Even assuming it were desirable, it would have to deal with any number of eventualities, including, I suppose, the possibility however remote that the Claimant might be defrauded of her funds in circumstances in which she has no effective redress. In a civilised society one would hope that the state, possibly through the medium of local authorities, will always remain the ultimate safety net to provide care to those unable to care for themselves. I would regard it as undesirable to accept an undertaking of the sort which the Claimant proposes. I suppose that it would be possible to envisage some sort of undertaking from the terms of which the Claimant could be released by the Master of the Court of Protection but I do not think that it is in principle sensible to attempt to devise an undertaking dealing with the circumstances in which a long term seriously disabled person is or is not permitted to avail herself of assistance offered by organs of the state. On the other hand I am able to find and do find that, provided no deduction on account of the possible receipt of state or local authority funding is made from her award of damages, the Claimant will upon receipt of payment of the award withdraw her application for local authority funding and will not renew that application or make a similar application in the future at any rate in the absence of some unexpected development which compels her to abandon her stated intention not to resort to state or local authority funding to pay for her care. It seems to me that for the Claimant to decline to place reliance upon state funding for any part of her care will be an entirely reasonable course for her to take. It will give her control over the resources required to fund her care. It will free her of the necessity to have any further dealings with her local authority, at any rate in the guise of an applicant for funds submitting to assessment and awaiting a decision as to what she is to be given. It will free her from the inevitable anxiety which attends that process. The Claimant might have to submit to the process of reassessment at any time and the removal of concern over that prospect and the procedure associated therewith will contribute to her sense of independence and wellbeing. If the Claimant were to have to continue to rely, if only in part, upon state funding it would be inevitable that, were she to move out of Hertfordshire, she would have to submit all over again to the process of assessment with no guarantee whatever that the outcome would be comparable to her current payment. It seems to me that it is entirely reasonable for the Claimant to adopt a course of conduct which gives her an element of unfettered flexibility as to where she lives, however unlikely it may at present seem that she would wish to leave Hertfordshire. It is by no means certain that the present employment and family ties which bind her to Hemel Hempstead will be in place in ten or twenty years time. For the reasons I have already given I also regard it as entirely reasonable that the Claimant should adopt a course which would give her the flexibility to choose to live elsewhere than in England. I do not suggest that an award should be calculated by reference to the cost of living overseas. What I do suggest is that, the cost of meeting her needs in this country having been ascertained and provided, the Claimant should be free to use those funds if she so chooses in making a home overseas. By the same token she should have the flexibility to use some part of her award, if she so chooses, in purchasing and adapting a property at which she and her family may take holidays. The first of these options would be totally denied to her and the last might well be rendered impossible too if the court were to make a deduction from her award to reflect an estimate of what funding she could expect to receive were she to remain for the rest of her life resident in Hertfordshire. If the deduction is not to be on the basis of her remaining for the rest of her life resident in Hertfordshire, yet further uncertainties are introduced in relation to the basis upon which care may be provided in her supposed place of residence.
The short point is however that there is simply no principled basis upon which the court can estimate what funding the Claimant can reliably expect to receive from Hertfordshire County Council over the rest of her life. In assessing need the court is bound to make findings as to what will happen in the future since there is no other mechanism available to it, except in a case in which the regime of periodical payments subject to subsequent variation is available, in which case it may be possible in some respects to await events. This being an action begun before 1 April 2005 that regime of periodical payments is not available and in any event the security of the source of funds is not currently one of those uncertainties with which the regime is designed to deal. The possible unavailability of funds from an expected source is not currently a ground upon which a variable order may be made. However the court does not speculate unnecessarily or in an unprincipled manner. The court has assessed as best it can using the techniques available to it the Claimant’s needs over the rest of her life. The court can now order the provision of a fund to meet that assessed need. In those circumstances I cannot understand how it can be appropriate to impose upon the Claimant the unnecessary risk that funding from an alternative source may cease or be reduced rather than simply to order the provision of the fund in its entirety.
For the avoidance of doubt my thinking is not ultimately influenced by any notion that were I to make a deduction from the award to reflect state funding the Defendant and his insurers would receive an undeserved windfall. The determinative point is that there is simply no principled and fair basis upon which I could assess in what amount the deduction should be. I have more evidence than did Silber J in Walton v. Calderdale Healthcare NHS Trust [2005] Lloyd’s Report Med 398. Mr Davies says that in reality there will never be available more comprehensive and extensive evidence than I have in this case, since no local authority could ever give any guarantee or undertaking as to what its policy might be in the future. Mr Davies may be right, but other than the published material which I have set out above I have no evidence from Hertfordshire County Council indicating its current policy on any relevant matter such as, for example, the potentially critically important question of the treatment of income generated by capital in a personal injury trust. I have no indication of the Council’s intentions for the future other than what can be gleaned from the published material. I do have evidence that the Council has within the space of one year first decided to seek to recover from the Claimant all that it has paid to her by way of direct payments and then reversed that decision. I am not in a position to make any sort of principled and reliable estimate even as to what the Claimant might receive from Hertfordshire County Council in the next year, let alone what the position might be for many years thereafter. In those circumstances there is in my judgment no obligation cast upon the court to speculate. It is unnecessary and in any event impossible to undertake the exercise of estimating what the Defendant might in the future receive.
Mr Davies naturally relied upon the decision of the Court of Appeal in Sowden v. Lodge [2005] 1 WLR 2129 to which I have already referred. Although that was a decision under s.21 of the National Assistance Act, provision of residential care, rather than under s.29 of the Act, provision of domiciliary care, there is, submits Mr Davies, no material difference in the principles which should be applied. He submits that rejection in their entirety of the contentions made by the Defendant in this case, with no consequent reduction in the damages which the court finds are otherwise required to meet the Claimant’s needs for care, will be tantamount to a conclusion that what he called the Sowden principles, as set out by the Court of Appeal, can never in practice be applied, at any rate in the context of the provision of care pursuant to s.29, and, in particular, in the context of direct payments.
In relation to this submission I first respectfully doubt whether the Court of Appeal in Sowden intended to set out any new principle. In paragraph 2 of his judgment Pill LJ went out of his way to point out that the two cases together decided by the court did not after all involve consideration of some of the points of law of general importance which may have been contemplated, but rather an application of the law to the facts of the case. Secondly, if any principle is established by the case, it relates to provision of care under s.21, not to provision of care under s.29 which latter regime the Court of Appeal simply had no need to and did not address. Furthermore there is a crucial distinction between the s.21 and s.29 regimes which is that in the former case it has been enacted by secondary legislation that a local authority cannot look to any award of damages for the purpose of recouping the cost of care provided – see the National Assistance (Assessment of Resources) (Amendment) Regulations 1998 (SI 1998/497). Whilst not adverting to this distinction, Longmore LJ in Sowden nonetheless noted that the decisions in Firth v. G O Ackroyd Junior Ltd [2001] PIQR Q4 and Bell v. Todd [2002] PIQR P11 were informed by this legislation. As I have already pointed out, the position as to recoupment under the s.29 regime is that it is a matter of discretion informed only by ministerial guidance which is in any event, as I read it, inconclusive as to the threshold of income and capital at which contribution might be sought and silent as to the maximum level of contribution. In the Firth case the Deputy Judge decided that there was no evidence from which he could infer that there was a real or substantial risk that the law (sc.the 1998 Regulations) could be changed in such a way as to require a claimant, in receipt of an award for damages for personal injuries, to pay for the cost of residential care provided by the local authority in whose area he lived. As far as I can see no argument was directed to the question whether the primary duty to provide residential care pursuant to s.21 might itself be altered. The local authority was of course a party to that litigation. In any event the risk of a local authority in the future discharging its discretionary obligations under the s.29 regime in a manner different to that which it currently adopts is, as it seems to me, a risk of an altogether different nature and order from the risk of a change in legislation which provides a specific and clear rule that an award of damages is to be disregarded for recoupment and contribution purposes. I also consider that in the ordinary way the regime pursuant to which direct payments are made for domiciliary care is very much more vulnerable to adjustment in order to save costs than is the direct provision of residential care.
In Sowden it was not argued that the court should not be prepared to assume that the existing statutory regime pursuant to which the local authority has a duty to provide care and accommodation would remain in place. Similarly, it was not argued that any doubt attended the question whether the claimant would continue to be relieved of the need to pay for or contribute towards the cost of provision of such care and accommodation by the local authority. In those circumstances, as it seems to me, the decision in Sowden has no application to the issues which I have to decide. The primary finding of fact which informed the decision in Sowden was that the claimant had not established that in all the circumstances private funding of care in a private home was a reasonable choice – cf. Pill LJ’s discussion and application of the appropriate test as established by the Court of Appeal in Rialas v. Mitchell [1984] 128 SJ 704 at paragraphs 10-14 and 38-41 of his judgment at pp. 2137-8 and 2144. By contrast, in the Crookdake case heard by the Court of Appeal at the same time as Sowden, the primary finding of fact was that the provision of residential care by the local authority even supplemented by top-up payments to meet the claimant’s specific needs would not meet the claimant’s requirements in a reasonable manner. It was incidentally in the context of the inquiry into the reasonableness of local authority provision and the fact that in the Crookdake case no evidence had been called by the defendant of what the local authority had provided or would be likely to have provided that Pill LJ made the following observation at paragraph 63 of his judgment:-
“While claimants, and those advising them, must be expected to cooperate with local authorities discharging their statutory duties, they claim in the action that to which they believe the claimant is entitled and there is no legal burden on them first to disprove that statutory provision will be adequate. It may of course be prudent to call evidence, as in any situation where a judgment upon the facts is to be made, as to why statutory provision is inadequate.”
Mr Davies suggested that this passage provides support for the proposition that a withdrawal by the Claimant of her application for further direct payments would amount to an unreasonable failure to mitigate her loss. I do not believe that Pill LJ was directing his mind to the question whether a claimant such as Mrs Freeman would be acting unreasonably in declining to avail herself of financial assistance from a local authority. I think he was directing his mind to the very different question what sort of evidence a claimant might reasonably be expected to call in cases such as Sowden and Crookdake where the adequacy of local authority residential care is in issue. Mr Davies, in my judgment, puts more weight upon the observation than it can properly bear.
In my judgment nothing said in Sowden was intended to be of guidance in a case such as the present. Nor with respect to Mr Davies can I identify in the Sowden decision any principle which either should be or is capable of application in the present context. The starting point in the present case is that it is reasonable for the Claimant to be provided with care in her own home. Nothing said in Sowden gives the court any assistance as to how it should approach and evaluate the possible continued availability of direct financial assistance from the local authority towards the provision of that care. The continued availability of the type of assistance there to be provided by the local authority, residential care, was taken as read. For reasons on which I have already touched I can understand why that assumption may have been made. Furthermore the residential care there under discussion was for a person who had suffered catastrophic head injury in consequence of which she had severely reduced cognitive and intellectual powers. The continued availability of state funded residential care for such persons is I should have thought obviously more secure than is the current regime of direct payments for domiciliary care. Crookdake demonstrates that there may be scope for argument in such cases whether a claimant’s needs are met in a reasonable manner by the provision of residential care, possibly supplemented by top-up payments. No such considerations are relevant in the present case which concerns a claimant whose cognitive and intellectual powers have fortunately survived her injury, and where it is axiomatic that she must be assisted in the attainment of so normal a family life in her own home as is reasonably possible.
For all these reasons I have concluded that I should make no deduction from the award of damages to the Claimant to reflect the possible continued availability to her of direct payments from Hertfordshire County Council. I recognise that this conclusion leaves open the possibility of double recovery but I have already found that that will not in this case in fact occur. No doubt a copy of my judgment will be made available to Hertfordshire County Council – indeed as a responsible local authority I have no doubt that it would wish to be satisfied that adequate provision is being made for the care of the Claimant before it ceases the payments which it has until now been making to her. I do not consider that this outcome represents an injustice to the Defendant or his insurers. They have simply failed to prove that which they set out to prove. It is perhaps worth bearing in mind that they were not prepared to offer to the Claimant an indemnity in case her current local authority funding should in the future be withdrawn or reduced. They wished in that regard to cast on to the Claimant the entirety of the risk, whatever it may be. No principle of law either requires or encourages the court to reach that result.
As I understand it the Claimant has resolved that, in the event that I reach the conclusion which I have set out in paragraph 41 above that there should be no deduction from her damages on account of the “state funding issue,” then she will receive her damages as a lump sum rather than in part by way of periodical payments. The Claimant has in that regard relied upon expert financial advice which has not been disclosed either to the Defendant or to the court. The Defendant has adopted a neutral stance on the issue. In those circumstances I do not consider it appropriate to order that the damages should either wholly or in part take the form of periodical payments.
On 9 December 2005 the Claimant’s solicitors wrote to the Defendant’s solicitors as follows: -
“In that same event [i.e. no deduction from damages on account of what has been referred to as “the state funding issue”] the Claimant would, if invited to do so by the court, dismantle the Maria Freeman Trust and receive her damages personally and, in consequence, without any of the protections which you contend would derive from their being paid into a personal injury trust.”
Subject to any argument which may be addressed to me on this point I do not consider that the court has any role to play in this decision either. I understand why it is said that the Claimant would respond to such an invitation from the court, since it is presumably thought that the court might take the view that compliance with such a request is essential in order to avoid double recovery. However I do not take such a view. I have already concluded that the Claimant unless compelled by circumstances beyond her control will not attempt to recover from the local authority the cost of care provision for which has been made in her award of damages. The Claimant is entitled to receive her damages personally and it is a matter for her, upon receipt of appropriate legal advice, to decide whether those damages should be paid into a trust fund.
Finally I should record that Mr Westcott developed further arguments in reliance upon the Claimant’s rights contained in Article 8 of the European Convention on Human Rights and the obligation upon the court deriving from s.6(1) of the Human Rights Act 1998. I have decided in the Claimant’s favour without the need to consider those arguments, which were controverted by Mr Davies, but they will of course be available to Mr Westcott should the case go further.
I should also record that I am immensely grateful to all counsel who appeared before me for their very considerable assistance.
There will be judgment for the Claimant in the sum of £5,546,245.