“We note that this sum will not actually be paid out to the claimant’s family, who have chosen not to receive any compensation to reflect their huge efforts in caring for the claimant since 1995, preferring to leave this money within the claimant’s fund.”
“[Helen] has been largely dependent on carers and unable to live independently. She continues to suffer from periods of acute psychosis. … In addition to all this, she unfortunately continues to experience frequent seizures. Her family brought a record of recent seizures covering approximately a 6 year period. This suggests that on average she continues to experience 4 or 5 seizures per month of varying length and severity. She now lives in Bognor Regis where she has 24 hour care, which is carried out by a group of 8-10 carers, who work shifts. Her family, particularly her brother Adrian, have been very involved in her care and it is clear that they have campaigned long and hard to get her the best possible care in the circumstances.”
“I have obtained a report from a professional brain injury case manager in respect of the provision of care and case management services that I provide to my sister, Helen. Please see this report attached at exhibit ATL1. I instructed Judy Crocombe of Independent Living Solutions Ltd (‘ILS’) and Judy’s CV is attached as exhibit ATL2. As directed by the court, Judy attended with myself to fully assess the care and case management I provide to Helen, as if I were doing this as a professional. Patricia Wass of Foot Anstey LLP has assisted me with obtaining the necessary report and information for the Court of Protection. I understand that Patricia unfortunately had some difficulty in locating a suitable professional case manager who was willing and available to prepare such a report for Helen’s case. Judy Crocombe was recommended by Phil Perry, Senior Operations Manager of ILS. Please note the invoice for the work attached at exhibit ATL3. Section 2 of Judy’s report details the duties and estimated costs of case management input required by Helen per month. The court will see that the total estimated costs per annum where a suitable qualified, experienced and supervised care team leader is not available equals£47,565.60 . The estimated costs per annum where a suitable qualified, experienced and supervised care team leader is available, and pharmacy visits and supervision can be provided by him/her, equals£36,138.40 . Section 3 details the care support required by Helen per week. The total estimated costs per annum based on the hours identified for the usual care support that I provide, equals£9,705.00 . The estimated costs per annum including hours that can be completed by a case manager or care team leader equals£10,657.30 . In sections 2 and 3 it is noted that 24 hour on call costs are not included in the calculations. At the post-settlement meeting held with Senior Judge Lush in 2006, I was authorised to withdraw£23,000 a year at that stage as Helen’s primary carer and her case manager. I confirm that this payment has continued since 2006. However, the matter has now been referred back to the court for their review and authorisation. I can confirm that in respect of future payments for the care and case management services I provide, I would not seek to ask the court for more than£23,000 per annum, which is significantly lower than the total amounts detailed in Judy Crocombe’s report. If Helen were to receive care and case management services from a professional, then I wholly agree with Judy that the duties detailed in her report would be necessary to ensure Helen is safe and well. A couple of times historically I have tried to decrease the amount of care and case management that I provided to Helen, as I wanted to see whether this was possible and whether I could try and have paid employment as well. Unfortunately, there was an almost immediate clear deterioration in Helen’s physical and mental well-being and I could not bring myself to continue at the decreased hours. I found that I was soon providing the same amount of hours as I had been previously. Historically, it has been difficult for me to undertake privately employed work, as well as to ensure that Helen’s needs are met sufficiently. I would always wish to prioritise Helen’s well-being and it has only been recently that I have been able to commence private tuition for a few hours each week, earning approximately£50 per week term time (approximately£20 per hour). I am teaching adult GCSE Maths Class Wednesday evenings for 2½ hours and attending college Wednesday afternoons for 4 hours to do a PGCE. I am therefore not available for Helen during these times and I have had to reschedule a couple of her medical appointments already. I will be monitoring any effect on Helen’s well-being closely, but this is less demanding on time than previous attempts. I have previously made the court aware of my personal situation in respect of the amount of time I spend with Helen, both providing direct care to her and also in the administrative work that she is unable to do herself. I can confirm that I am not asking the court to authorise payments to me for the total amount stated by Judy Crocombe in her report. I confirm that I am in agreement with Judy’s report insofar as the background and current situation is described. I do not propose to comment on the estimated hours that she has detailed, as this is very much outside my expertise and is within the remit of Judy Crocombe herself.”
“As detailed above, Adrian is providing an incredible service to his sister Helen, acting as her deputy, case manager, care support worker and care team leader. I have no doubt, from the information I am party to, that he completes this to a very high standard, which can only be an absolute asset to Helen. Adrian is in the difficult position of juggling many roles both for/with Helen, and his own family, whilst ensuring that he is able to care as he wishes both for her and his own family. Whilst what Adrian does naturally cannot be fully quantified, this report aims to identify his many different roles and quantify his input in order to inform the court as requested above.”
“In 2006, as P’s primary carer, the deputy’s allowance was authorised to be£23,000 per year and the deputy, in his witness statement, has stated that he would not seek more than the£23,000 per annum. The Public Guardian submits that the deputy has given and continues to give a considerable amount of his time to care for P. The Public Guardian submits that the amount claimed by the deputy appears reasonable when relying on the information provided.”
“When it calculates a ‘gratuitous’ care allowance for family members who provide care to someone with an acquired brain injury, the Court of Protection broadly applies the criteria applied by the Queen’s Bench Division of the High Court in quantifying this head of damages in personal injury litigation. Accordingly, as long as such an allowance is affordable, the court will take the commercial cost of care as the ceiling and reduce it by 20%.”
“In cases where the relative has given up gainful employment to look after the plaintiff, I would regard it as natural that the plaintiff would not wish the relative to be the loser and the court would award sufficient to allow the plaintiff to achieve that result. The ceiling would be the commercial rate.”
“ESM4016 – Particular occupations: care workers – payments under Court of Protection Order or from trust fund Payments towards the cost of maintenance of a husband, wife or other close relative or dependant out of the income of a severely incapacitated person who receives funds under an order of the Court of Protection are regarded as voluntary payments and not as income of the recipients. Therefore, there will be no tax or National Insurance Contributions consequences on such payments made for caring duties. Similarly, where payments emanate out of a Trust Fund set up for this purpose there is unlikely to be an enforceable contract, therefore, there should be no question of tax being assessable as employment income or of a liability for Class 1 NICs. Caring activity under these circumstances would not be gainful employment so there will be no liability for Class 2 NICs. The services provided are unlikely to be regarded as commercial in nature or amount to valuable consideration so there will not be a charge to tax on trade profits or on income not otherwise charged to tax.”
“Earnings are usually affected by inflation and, to avoid the need for repeat applications to the court to recalculate a care allowance, there needs to be an appropriate form of indexation. Traditionally, in personal injury litigation, a carer’s allowance was linked to the Retail Prices Index (‘RPI’). However, in Thompstone v Tameside and Glossop Acute Services NHS Trust[2008] EWCA Civ 5 ,[2008] 2 All ER 553 ,[2008] WLR 2207 , the Court of Appeal held that the periodical payments payable to the claimant in respect of his care costs should be calculated by reference to the actual cost of care, as set out in the Annual Survey of Hours and Earnings (‘ASHE’), rather than the RPI. The ASHE data are broken down into numerous Standard Occupational Classifications (‘SOCs’). ASHE 6115, which was approved by the Court of Appeal in Thompstone, was formerly the SOC relating to the earnings of care assistants and home workers. In 2012 the Office for National Statistics reclassified the SOCs and split ASHE 6115 into two new codes: ASHE 6145 – care workers and home carers; and ASHE 6146 – senior care workers.”
“The deputy is entitled - (a) to be reimbursed out of P’s property for his reasonable expenses in discharging his functions, and (b) if the court so directs when appointing him, to remuneration out of P’s property for discharging them.” (a) to be reimbursed out of P’s property for his reasonable expenses in discharging his functions, and (b) if the court so directs when appointing him, to remuneration out of P’s property for discharging them.”
“A fiduciary duty means deputies must not take advantage of their position. Nor should they put themselves in a position where their personal interests conflict with their duties. … Deputies must not allow anything else to influence their duties. They cannot use their position for any personal benefit, whether or not it is at the person’s expense.”
“At present we are seeing an increasing number of requests from the OPG asking us to apply to court for approval of gratuitous care payments we are making to parents (usually as a result of their child suffering from clinical negligence and thus having a large award looked after by a deputy). My understanding of the situation is that this is/ was unnecessary where there is a professional deputy involved?”