Peters v East Midlands Strategic Health Authority & Ors [2008] EWHC 778 (QB)

[2008] EWHC 778 (QB)Case No 90P02879
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NOTTINGHAM DISTRICT REGISTRY
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/05/2008
Before
THE HONOURABLE MR JUSTICE BUTTERFIELD
Between
CHANTELLE PETERSClaimant
Nigel Godsmark QC (instructed by Freeth Cartwright LLP) for ClaimantEdward Faulks QC and Paul Stagg (instructed by Hempsons) for First and Second DefendantsOlivia Chaffin-Laird (instructed by Nottingham City Council) for Part 20 DefendantHearing Hearing dates: 19 th– 21 st February 2008
Judgment

Introduction

[1]In this action the claimant C, who is a patient and sues by her litigation friend Susan Mary Miles, claims damages for personal injuries, loss and damage sustained by her in consequence of the negligent failure of the servants or agents of the East Midlands Strategic Health Authority, the first defendant, and Dr Halstead, the second defendant, (“the defendants”) to ensure that the claimant’s mother received a rubella vaccination before she became pregnant with the claimant. As a result of the failure the claimant was born with congenital rubella syndrome. Liability was ultimately admitted and judgment was entered against the defendants in February 2000. This hearing is concerned only with quantum of damage. In reaching my conclusions I have had regard to all the evidence both oral and written, the submissions of Counsel for all parties and the authorities cited to me, whether referred to in this judgment or not. I am very grateful to all counsel for their assistance.

Background

[2]The claimant was born on 11th April 1988 and is now nearly 20 years of age. At the date of her birth her mother was a teenager and her father was in his late 50s. The congenital rubella syndrome with which the claimant was born has left her gravely disabled. She has a severe learning autistic spectrum disorder, with visual impairment, severe learning difficulties, behavioural problems and autistic tendencies. She has also developed scoliosis of the spine and thyroid problems. Despite her difficulties her expectation of life is to age 68.5. The appropriate whole life multiplier as at the date of trial is agreed at 28.94.[3]C was born into a family which, on all the evidence, faced considerable difficulties and was essentially a dysfunctional unit. Her mother was and is of limited intelligence and is described on the pleadings as ESN. The family has been known to Social Services for many years owing to poor childcare and allegations of sexual abuse by family members against the children. In about 1997 C’s mother left C and her two younger sisters and moved to live with a Schedule 1 offender. C’s father obtained residency orders in respect of the three children but found it extremely difficult to cope. There followed a catalogue of concerns about poor childcare to the extent that in April 2000 care proceedings were taken and a full care order in respect of C was granted to Nottingham City Council (“the Local Authority”) in December 2000.[4]In that year C, now aged 12, was placed at Minister View in Southwell, a Local Authority residential care home for children with learning difficulties. She presented with extremely difficult and challenging behaviour. She was violent towards both staff and other residents and also exhibited unacceptable sexual behaviour. She was a highly vulnerable, gravely disturbed and seriously disabled child.[5]Under the terms of an Order of the Court of Protection dated 3rd June 2003 Susan Miles was appointed Receiver in order to manage C’s property and affairs.[6]In 2004, C by now being 16 years of age, steps were taken by the Local Authority to find an alternative placement for her. The difficulties she presented for any caring establishment were clearly formidable and it took many months before a suitable placement was found. As a matter of history in July 2005 C’s father died, though in reality he had played little if any part in her upbringing since C was taken into care.[7]Eventually in February 2007 C was placed at The Spinnies, a private Care Home run by Creative Care Ltd where she remains. The Spinnies is located in Linby, a village about 10 miles north of Nottingham and is a newly opened private care home for seriously handicapped young people. The cost of keeping C there is about £132,000 per annum.

Agreed Heads of Claim

[8]The following heads of claim and the sums to be awarded in respect of them are agreed between the parties subject to the approval of the Court. Pain suffering and loss of amenity £180,000 Case management to date £5,839 Therapy and training to date £8,557 Future therapy and training £98,060 Equipment purchased £9,190 Future equipment £43,378 Miscellaneous to date £1,181 Future miscellaneous £122,437 Court of Protection to date £9,944[9]The agreed figure for pain suffering and loss of amenity represents a sum falling within the highest bracket of the JSB Guidelines for brain injury and, in my judgment, represents proper and reasonable compensation for the claimant under this head.[10]The remaining agreed sums represent actual expenditure already incurred and assessments of future expenditure in the light of the claimant’s probable needs and expectation of life as agreed by the experts in each discipline or representing a reasonable compromise of the competing views of the experts. I am satisfied that in respect of each proposed figure the amount is reasonable and that it is in the interests of the claimant to accept the sums agreed between the parties. I accordingly approve the agreed sums and order accordingly.[11]The remaining heads of loss are all accepted as arising from the admitted negligence. The quantum of each head of loss is in dispute. The outstanding heads are care to date and future care, loss of earnings to date and future loss of earnings, future case management and future costs relating to the Receiver.

Cost of Care – The Competing Contentions

[12]The major issue for resolution in these proceedings is who should bear the cost of caring for C. In outline the competing arguments may be summarised thus.[13]The defendants assert that the Nottingham City Council (“the Local Authority”) has a statutory obligation under Section 21 of the National Assistance Act 1948 (as now enacted and as interpreted by the courts) to provide for C. The Local Authority will pay the costs of her care at The Spinnies, though sharing that cost with the Primary Care Trust (“PCT”). There is thus no requirement for the tortfeasor defendants to make any payment to C by way of care costs. Those costs will all be met from the public purse.[14]The Local Authority assert that if it is required to fund C’s care it is entitled to look to C for a financial contribution towards her care costs from the damages she is awarded. Provision of care funding is in normal circumstances means-tested. Thus, say the Local Authority, once an award is made to C she will have to pay for some or all of her care. This assertion is hotly disputed by the defendants. They submit that the Local Authority cannot as a matter of law take account of any of the fruits of this litigation in assessing any contribution payable by C for her own care. Thus it is that the defendants have joined the Local Authority as Part 20 defendants in these proceedings. They seek against the Local Authority declarations that it is not entitled to charge C for her care, past, present or future, and that the care has been and will be free to her. In those circumstances, say the defendants, they are under no obligation to pay damages in respect of her care.[15]On behalf of the claimant it is said that she does not wish to be dependent on overstretched public resources. She has a right to full compensation from the tortfeasor defendants. She wishes to exercise that right so as to guarantee that in the future she will enjoy good quality care for the rest of her life irrespective of any changes in policy over local authority funding, whether at local or national level, and irrespective of pressures on public resources which might jeopardise the present arrangements. The dispute between the defendants and the Local Authority illustrates precisely why C should have control over her own destiny. If she has the means to pay for her own care and uses those means for that purpose there can be no arguments in the future about what if anything she should contribute to the cost of that care either now, or, if the rules change, in the future.

The Statutory Framework and its consequences

[16]It is convenient first to consider the relevant statutory framework and its impact on the contentions of the defendants and the Local Authority.

The duty to provide care

[17]A statutory duty is imposed on Local Authorities in certain circumstances to provide residential accommodation to those who need it.[18]Section 21(1) of the National Assistance Act 1948 (as amended by the Local Government Act 1972, Section 195(6), Schedule 23, paragraph 2(1), the Children Act 1989, Section 108(5) Schedule 13, paragraph 11(1) and the National Health Service and Community Care Act 1990 Section 42(1)) deals with the provision by Local Authorities of accommodation. It provides:
“(1) Subject to and in accordance with the provisions of this Act, a Local Authority may with approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing – (a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or other circumstances are in need of care and attention which is not otherwise available to them …” (a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or other circumstances are in need of care and attention which is not otherwise available to them …”
[19]Section 21(2A) (as amended by the Community Care (Residential Accommodation) Act 1998, Section 1 and the Health and Social Care Act 2001, Section 53) provides that in determining for the purposes of Section 21(1)(a) where the care and attention are otherwise available to a person, a Local Authority shall disregard so much as the person’s resources as may be specified in, or determined in accordance with, regulations made by the Secretary of State for the purpose.[20]The primary legislation therefore empowers the Secretary of State to direct that the Local Authority is under a duty to provide residential accommodation for persons such as C. That duty extends to those persons who are ordinarily resident in the area of the Local Authority, in this case the Part 20 Defendant, as to which no issue arises. Section 21(4) allows for accommodation to be provided in premises managed by the responsible or another Local Authority. That provision is, however, subject to Section 26 of the 1948 Act, which permits arrangements to be made with voluntarily organisations or profit-making organisations for the provision of the accommodation. It is that section that permits the Local Authority to use the private sector care available at The Spinnies.[21]In determining where C should be placed the Council is required to comply with the National Assistance Act 1948 (Choice of Accommodation) Directions 1992 and the guidance given there under. In the case of a resident such as C who may be unable to articulate a preference the Council is usually required to treat the views of her advocate or other person responsible for her as her own views.

Payment for the care provided

[22]Where accommodation is provided by a third party provider under Section 26 the Local Authority is required to pay for it under the arrangement: see Section 26(2). Thereafter the Council then recovers a proportion or sometimes the whole of the cost of the accommodation from the Primary Care Trust. The PCT’s powers to make this arrangement arise under Section 256 of the National Health Service Act 2006. Until January 2008 the Local Authority recovered 80% of the cost of The Spinnies from the PCT pursuant to an agreement dated 7th November 2007. However following a review conducted in January 2008 the arrangement was varied so that the Local Authority now has to pay 50% of the cost, the balance representing that proportion of C’s care needs which are deemed to be health care rather than social care needs.

Recovery of the cost of care from the recipient

[23]If an NHS Trust makes a contribution to a person’s care under Section 256 it is not entitled to charge that person for it, since Section 1(3) of the 2006 Act re-enacts the principle that the NHS is free of charge unless charges are specifically authorised. No such authorisation applies in the case of C. In those circumstances the PCT is not entitled to charge C for the contribution made by it to her care, regardless of her resources.[24]However, the position so far as the Local Authority is concerned is legislatively different. The general rule is that a person must pay the full cost to the Authority of the accommodation provided for him: see Section 22(1), (2). However, a person does not have to pay the full cost of the services provided he satisfies the Local Authority that he is unable to pay for the care at the standard rate: see Section 22(3). In determining whether the recipient of services is able to pay, the Local Authority is required to carry out a means-test under specific regulations. The regulations presently in place are the National Assistance (Assessment of Resources) Regulations 1992 as amended (“NAARR”). Those regulations apply whether the accommodation is provided by the Local Authority itself or by a third party. The NAARR must be applied in determining C’s ability to pay for residential accommodation. The NAARR are based closely upon and cross-referenced in many places to the regulations governing entitlement to income support, the Income Support (General) Regulations 1987 (“ISGR”).

Assessment of recipient’s liability to pay - capital

[25]Regulation 21 of the NAARR, a regulation headed “Calculation of Capital”, provides as follows: “(1) The capital of a resident to be taken into account shall, subject to paragraph (2) be the whole of his capital calculated in accordance with this part … (2) There shall be disregarded from the calculation of a resident’s capital under paragraph (1) any capital, where applicable, specified in Schedule 4.” paragraph (2) be the whole of his capital calculated in accordance with this part …[26]Schedule 4 to the Regulations is headed “Capital to be Disregarded”. Paragraph 10 specifies:
“Any amount which would be disregarded under paragraph 12 of Schedule 10 to the Income Support Regulations (Personal Injury Trust).”
[27]Regulation 3 of the 1998 Regulations added a new paragraph 19 to Schedule 4 to the 1992 Regulations in these terms:
“Any amount which would be disregarded under paragraph 44(a) of … Schedule 10 to the Income Support Regulations (Compensation for personal injuries which is administered by the Court).”
[28]Schedule 10 to 1987 ISGR as amended is also headed “Capital to be Disregarded”. One such disregard in Paragraph 12 of this Schedule specifies:
“Where the funds of a trust are derived from a payment made in consequence of any personal injury to the Claimant (my emphasis) the value of the trust fund and value of any right to receive any payment under the trust”
[29]Paragraph 44 of this Schedule in its presently amended form specifies:
“Any sum of capital administered on behalf of a person by the High Court under the provisions of Order 80 of the Rules of the Supreme Court … or the Court of Protection, where such sum derives from – (a) an award of damages for personal injury to that person …”
(emphasis added)[30]It is clear beyond any peradventure that C does not have nor ever will have any assets other than such damages as she may be awarded in this litigation. The Local Authority submit, however, that it should be entitled to recover from the claimant a refund in respect of payments for past care and the cost of future care at The Spinnies. Such a refund would be on the basis of an assessment which took into account all the damages awarded to her except the sum awarded by way of general damages for pain, suffering and loss of amenities.[31]The defendants submit to the contrary. They contend that under the statutory framework the whole amount of the claimant’s award should be disregarded. Indeed, the Defendants in the Part 20 proceedings seek against the Local Authority a declaration that:
“The Claimant will not upon receipt of damages pursuant to this action become liable to pay for the costs of her care.”
[32]The issue is one of statutory construction. The question is whether the words: “an award of damages for personal injury” in paragraph 44(a) of Schedule 10 to the Income Support (General) Regulations 1987 as amended include all sums awarded in consequence of such an injury or whether they are restricted to damages in respect of pain, suffering and loss of amenity. Miss Olivia Chaffin-Laird on behalf of the Local Authority submits that I should apply a restrictive construction to the relevant words. She accepts that there is a clear judicial authority to the contrary but argued, persuasively, that I should step back from too close an analysis of the regulations and look at the broad landscape. It cannot, she submits, be right to ring-fence all the damages awarded to a claimant so that none of them can be taken into account even if millions of pounds are awarded by way of the cost of future care. The consequence of such a construction is to protect the tortfeasor from liability for his wrong doing. It cannot, she argues, be reasonable that the Local Authority should not have access to funds which have been awarded for the specific purpose of paying for the care which the Local Authority has a statutory duty to provide.[33]I have considerable sympathy with the philosophy lying behind these propositions. The difficulty is whether the propositions are right in law.[34]Miss Chaffin-Laird submits that historically where a person availed himself of Local Authority care the Local Authority was, pursuant to Section 22 and 29 of the National Assistance Act and Section 17 of the Health and Social Services and Social Security Adjudications Act 1983 entitled to look to any of the resources held by the claimant, including any claim he might have had for damages in negligence in order to recoup the costs of the care provided: see Avon County Council v Hooper [1997] 1WLR1605. In 1998 however the National Assistance (Assessment of Resources) Regulations 1992 reversed the effect of that decision and provided that a Local Authority could not look to any award of damages for personal injury for the purpose of such recoupment. Any award was henceforth to be ring-fenced from such claims.[35]If all damages awarded in a personal injury action were to be ring-fenced the result, submits Miss Chaffin-Laird, would be contrary to general principles and contrary to commonsense and justice. The Regulations should accordingly be narrowly construed.[36]In Firth v Ackroyd [2001] PIQRQ27 such an argument was considered and rejected. The Local Authority there argued that a distinction had to be drawn between damages “for” a personal injury and damages “in consequence” of such an injury. It was submitted that the purpose of the statutory scheme under paragraph 44 was to ring-fence any damages for pain, suffering and loss of amenity, so they had to be disregarded when an injured person’s assets were being assessed. However, damages awarded under any other head – including not only damages for cost of care but also damages under such heads as loss of earnings – had to be taken into account. It was said that such a construction was consistent with the definition of “personal injury” or “personal injuries” to be found in other statutes and was consistent with the trend in personal injury litigation to enable public expenditure to be recouped from unsuccessful defendants.[37]The contrary argument was essentially to the effect that if that had been the intention of the legislature it would have been made plain by the inclusion of the words: “for pain, suffering and loss of amenity” in the appropriate places. The distinction sought to be drawn by the Local Authority was, it was argued, artificial and inconsistent with other legislation. Further, support for the broader construction was to be found in a number of decisions by Social Security Commissioners.[38]I have carefully considered the relevant statutory provisions and the subordinate legislation. In my judgment the plain effect of that legislation is that in making any assessment of the claimant’s capital for the purpose of determining her liability to reimburse the Local Authority for the cost of her residential accommodation and care the whole amount of any award to the claimant in these proceedings must be disregarded and I so find.[39]I consider the reasoning of HHJ Taylor in Firth(supra) to be compelling. As he pointed out, if an injured claimant recovers damages for:(a) the pain, suffering and loss of amenities he has endured because of his injuries;(b) the earnings he has lost because his injuries prevented him from working; and(c) the costs of the care provided for him while recovering from his injury, (b) and (c) are just as much damages “for” the injury as (a). All the heads of damage equally flow from the injury.[40]Further, other legislation using similar words is also consistent with such an interpretation. Accordingly since C does not have and is never likely to have any capital or other means which can be taken into account by the Local Authority under the current legislation the only assessment which can properly be made of her ability to pay for her residential accommodation and care out of capital must be nil. The Local Authority, cannot therefore lawfully seek any reimbursement for the costs of such accommodation and care from the capital of the claimant.

Assessment of recipient’s liability to pay – income

[41]What about any income derived from that capital? Again, I reach the conclusion that this avenue does not assist the Local Authority either. Periodical payments made in consequence of personal injury are treated as income: see Regulation 16(5) of NAARR 1992. Regulation 15 deals with income other than earnings. Sums specified in Part I of Schedule 3 are to be disregarded in the calculation of income in accordance with Part II of that Schedule.[42]Part I of Schedule 3 is headed:
“Sums to be disregarded”
. Paragraph 14 of Schedule 3 provides that there shall be disregarded “any income derived from capital to which the resident is…beneficially entitled but …not income derived from capital disregarded under paragraph 1 [temporary resident], 2 [premises], 5 [business assets], 10 [personal injury award in a trust] or 16 [ intended premises] of Schedule 4.” Paragraph 19 of Schedule 4, which relates to income from a personal injury award administered by the Court of Protection, is disregarded as capital under Paragraph 19 of Schedule 4 and Paragraph 19 is not one of those provisions mentioned in Paragraph 14 of Schedule 3.[43]Since paragraph 19 of Schedule 4 is not excluded, the effect of Regulation 22(4) is that the income derived from an award of damages for personal injury which is being administered by the Court of Protection is treated as capital for the purposes of determining whether care and attention would be otherwise available within the meaning of Section 21. In the circumstances of this case as it seems to me I am bound to follow the conclusions of the Court of Appeal in Crofton v National Health Service Litigation Authority [2007] 1WLR923 where at paragraph 58 the Court held:
“The position with regard to Section 21, therefore, is that where a Claimant is awarded damages for personal injury that are administered by the Court of Protection, the sum awarded and any income that might be derived from that sum are disregarded at the threshold stage. They cannot be taken into account for the purposes of deciding whether the Claimant is in need of care and attention which is not otherwise available.”
[44]A mere reading of this tortuous analysis of the labyrinthine legislative provisions is sufficient to persuade me to add my name to the roll call of those who have condemned these regulations as being obscure, opaque and convoluted. I echo the observations of the learned editors of the current edition of McGregor on Damages (17th Edition Para 35-208) that it is high time these legislative provisions were drastically improved. As the editors observe:
“Until change comes there can be neither certainty nor fairness for personal injury victims. What is the position where there is a conventional lump sum award, with no trust and no structure? Why should there be a difference between the claimant with an award administered by the Court of Protection and the claimant who has agreed to the sum awarded being placed in a personal injury trust? What is the position where claimant and defendant consent to an award by way of periodical payments? Why should a claimant’s position be worsened by agreeing to a structured settlement?”
[45]All those questions demand answers and speedy ones at that. The Law Commission has consulted on this issue and it is to be hoped that proposals are put forwarded which are acceptable to the legislature that resolve the present morass.[46]It may be that the cavalry, or at least the front runner of it, is about to arrive. After the hearing of this action news reached the parties that Parliament is in the process of amending some of the Regulations which were the subject of argument in the case. The National Assistance (Sums for Personal Requirements and Assessment of Resources) Amendment (England) Regulations 2008 were laid before Parliament on 11th March and came into force on 7th April. The parties are agreed that nothing in the new regulations in fact affects the matters that require resolution by me, but it is obvious confirmation that changes affecting the rights and obligations of person dependant on state support do take place.

The Declarations

[47]In the light of my findings on the existing legislative provisions I make the following declarations.(1) The claimant is a person “unable to pay” for the accommodation provided to her under the National Assistance Act 1948 and hence pays a sum less than the rates agreed between the Local Authority and the service provider at The Spinnies, namely a sum assessed under section 22(3) and 26(3) of the 1948 Act.(2) The Local Authority has no power to alter the assessed sum or sums retrospectively and to increase the sum payable by the claimant for any period prior to the date on which her damages are assessed.(3) The Local Authority has no power to treat the claimant’s accommodation at The Spinnies as “otherwise available” to her within the meaning of section 21(1)(a) of the 1948 Act for any period prior to the date on which her damages are assessed in these proceedings.(4) On the proper construction of the National Assistance Act 1948 and the National Assistance (Assessment of Resources Regulations) 1992 and on the assumption that the claimant’s damages are administered by the Court of Protection on her behalf, the Local Authority is and (subject to any change in the legislation) will in the future be, required to disregard as resources the following sums when assessing the sums payable by her pursuant to sections 22(3) and 26(3) of the 1948 Act:a. The capital sum constituted by the award of damages for personal injury;b. Any interest or other income from the investment of that sum which is retained by the Court of Protection;c. Any payments made out of monies held by the Court of Protection to the claimant, to her receiver, or any other person for the claimant’s use;d. Any payments made out of monies held by the Court of Protection to a third party on the claimant’s behalf.(5) The Local Authority has no power to treat the claimant’s accommodation as “otherwise available” to her within the meaning of section 21(1)(a) of the 1948 Act for any period after the date on which her damages are assessed.[48]For the avoidance of doubt the declarations made in Paragraphs (4) and (5) above bind the parties only so long as there is no material change in the National Assistance Act 1948, the secondary legislation made under that Act or any statutory re-enactment (with or without amendments) of those provisions. With the appetite for reform clearly strong, at least amongst both practitioners and the judiciary, it cannot be long before there are indeed material changes made in the legislation. Once such changes are made the declarations as to the future cease to have effect and no doubt there will be yet further litigation to determine the consequences of the new legislation. i. I should also make clear that nothing in the declarations made is intended to prevent the Local Authority from claiming some of C’s state benefits, currently at the rate of £51.65 per week, if such a claim would be appropriate. ii. In fact these declarations will have little consequence on past liability and none on future liability if the claimant is entitled to recover the whole of the cost of her future care from the tortfeasor defendants, the issue to which I now turn.

The Spinnies – Present and Future

[49]With the consent of all parties I visited The Spinnies informally immediately after the conclusion of the hearing of these proceedings. The Spinnies is a large Victorian house set in extensive grounds. There were 4 residents living there at the time of my visit, the maximum permissible number. They are all of a similar age to C. All those who have considered the care presently provided to C are satisfied that the present placement is meeting her needs. Having considered that evidence and visited The Spinnies myself I unhesitatingly accept that conclusion.[50]The facilities available to C and the care regime provided for her are excellent and well suited to a girl of her age with her disabilities. She enjoys swimming and she has been introduced to horse riding, which also gives her some pleasure. Her principle delight, however, is her music, though because of her disabilities she destroys her personal CD player at the astonishing rate of about 1 each week. Within the grounds there is a hot tub, a protected trampoline, and other play areas. Inside the house C has her own bedroom, and the use of a sensory room, a games room with table football and the like, and a quiet room. The staff are friendly, engaging and clearly committed to their work. C also receives specialist help from therapists who provide reflexology, shiatsu, no hands-massage, aromatherapy and chiropody. There is always a carer available to look after C at any time.[51]All that being said, C remains profoundly disabled. She communicates largely through her behaviour. She has a vocabulary of a few words only and is able to sign a few more in her unique method. She is effectively blind. She has made some progress since moving to The Spinnies, particularly in terms of her aggressive and destructive behaviour. However, she remains, and in my judgment will continue to remain, someone who requires intensive, compassionate and carefully structured care for the rest of her life.[52]It is the case for the Defendants that at The Spinnies C has a home for life. The Director and owner of Creative Care is Richard Wass, who gave evidence before me. He has a degree in Autism and also undertakes seminar work for Birmingham University. His professional background is working with those who have severely challenging behaviour. Mr Wass impressed me as a dynamic, committed and motivated man who well understands the needs of young people experiencing severe behavioural disorders and disabilities. He has previously managed homes in the private sector and has now, no doubt noticing a gap in the market, chosen to embark on what I consider to be an entrepreneurial approach to the provision of care for them. He is the owner not only of The Spinnies but two other small residential homes for young people suffering from severe disabilities. He plans to expand his estate further by the acquisition of two further properties which it is proposed will offer similar facilities.[53]Mr Wass is now only 33 years of age and although he maintained that an estate of 5 such homes was the extent of his present ambitions I consider it entirely possible that in the future he will expand his business activities still further. He explained that The Spinnies is presently registered as a Children’s Home and accordingly can take children up to the age of 20. He is in the process of changing his registration to Young Person’s Service, which will permit him to care for residents up to the age of 24. He considers that at that stage he will probably change his registration to Adult Services which would entitle him to provide care for residents up to the age of 65. He told me that his aim, at least at present, is to continue to provide a home for the young people now resident at The Spinnies for the rest of their lives and if necessary he would seek to alter his registration beyond the age of 65 if necessary.[54]The facilities provided for C and the other young people who live at The Spinnies and the way in which it is presently run would clearly not be appropriate for older residents. Notwithstanding what I accept is the genuine view of Mr Wass as to his future intentions I have considerable doubts that The Spinnies, certainly in its present form, could or would provide a home for C for life.[55]Although it is the ethos of The Spinnies that it should be run as a family home there is in reality little or no interaction between the residents. As Mr Wass explained, C’s primary source of communication is her behaviour. She has the greatest difficulty in communicating at all, even with her dedicated and devoted carers. Her carers will in any event inevitably change frequently as staff move on. She is effectively blind and has an IQ of about 25. The prospect of her forming any significant relationships with other residents is, in my judgment and having seen her at The Spinnies, remote in the extreme. It would be wholly wrong to approach C’s future on the basis that in some way she will become part of a happy family group in which she could comfortably grow into young adulthood, middle age and old age. It is simply not like that.[56]The challenge presented by C and residents like her is to seek to achieve some small level of progress in modifying and ameliorating her destructive and aggressive behaviour. That has and will continue to be achieved for at least the short and perhaps medium term but as a matter of commonsense there will inevitably come a stage when no further progress can be made. What will then be required is a comfortable and supportive environment in which C’s needs can best be managed. That in turn will require, in my judgment, a different form of care to that presently available to her and although there will be ongoing challenges facing the carers responsible for C they will be very different challenges to those existing at present.[57]Mr Wass obviously has a real facility for dealing with young people and I got the clear impression that it is in dealing with young adults that Mr Wass is particularly gifted. The other homes which he presently operates and the further properties he intends to acquire will all deal with older children or young adults. On the balance of probabilities and having considered all the evidence, including my own visit to The Spinnies, I am satisfied that her present placement, ideal as it is for C at present, is unlikely to offer her a home for life even if funding was available. Mr Wass is under no obligation to keep her there: he is entitled to terminate the contract under which she is resident on 1 months notice and the Local Authority need give only 3 months notice to terminate the contract.[58]Even aside from any contractual and practical uncertainties C does not have a placement for life whilst dependant on the Local Authority for her funding. Her placement is subject to annual review. The Local Authority makes it clear that it would wish to recover from the damages awarded to C the costs it presently bears. I have found that it is not entitled so to do. However the fact that the Local Authority wishes to pursue such a recovery demonstrates a desire on their part that C should be self-funding if that is possible. I have little doubt that if – or rather, when – the current legislation is amended this aspect of the claim will be re-visited. The continuing and wholly understandable pressure upon the legislature to change the present law is very considerable. If the present policy were to change, as in my view it will, that creates still further uncertainties so far as C’s future care is concerned.[59]Further, the Local Authority is acutely conscious of the present level of cost they are incurring. On this issue I heard evidence from Doreen Harty, the Head of Business Unit for Health and Disability at the Nottingham City Council. She has overall conduct of any provision of care in relation to C. I formed the clear impression that she was personally sympathetic to C and would, if circumstances permitted, wish to see her accommodated either at The Spinnies or in some comparable facility for the rest of her life. I consider that Ms Harty was an honest and objective witness: I wholly accept her evidence.[60]Ms Harty explained that whilst C remains within the care of the Local Authority her support package will be continually monitored, revised and assessed so as to balance the provision of appropriate care with the best financial options. New National Guidelines for assessing those in care such as C were issued in October 2007. The new guidelines operate under a formula which leaves much less to the discretion of the Local Authority. It was under the new guidelines that the apportionment between the costs met by the Local Authority and that met by the PHT was altered from a ratio of 80:20 to 50:50. That development indicates the financial uncertainty for the future. The present cost of keeping C at The Spinnies is about £2,586 per week. Until the reassessment the Local Authority were required to pay 20% of that sum, namely about £646 per week. Under the new arrangements they are now required to pay £1,293. The difference is self evidently large and projected over many years will amount to a very significant uplift so far as Local Authority resources are concerned.[61]The cost of keeping C at The Spinnies is very high. The standard cost for residential care paid by the Local Authority amounts to about £350 per week and the average cost is £600. The cost of keeping her at The Spinnies puts her in the top 10 most expensive residents supported by Nottingham City Council.[62]Ms Harty emphasised, and I accept, that the Local Authority has always to be aware that they are spending public money and they must ensure that they get the best value for that money. When C was placed in a unit for 16-19 year olds in February 2007 it was not then considered that she would be there for the rest of her life. It was a high cost placement with no alternative available to the Local Authority at the time. However in the reasonably near future there will be viable alternatives. It is expected that there will be a number of new providers offering care which the Local Authority would maintain was adequate for C in the Nottinghamshire area in the relatively near future. The units are likely to be considerably larger than The Spinnies but the cost will be significantly lower, perhaps around £1,600 each week as against the present cost of £2,500. In addition there are increasing numbers of people who require to be supported by the Local Authority: the number of people with learning disabilities is rising all the time which again will put increasing pressure on the finite resources available.[63]If it became necessary to reduce the cost of C’s present care the first step would be to seek to negotiate a reduction in the level of fees charged by The Spinnies. That inevitably that would only be achieved by reducing the level of care and the facilities now available to C. Ms Harty made it plain that there could be no guarantee that The Spinnies would remain an option for C for the indefinite future. She would personally like to keep her there but she does not have an endless bucket of money and sometimes has to make tough decisions driven by the limited resources available. Sometimes, she conceded, the Local Authority had to accept second best. She thought that the present level of costs is higher than the Local Authority would expect to pay even for someone with C’s disabilities. She is receiving first class care but there can be no assurance that the standard of care she presently receives will continue in the foreseeable future. If C was paying for herself that relieves the pressure on the Local Authority budget. Further, if The Spinnies ceased to be available to C for whatever reason and she had to be moved she would have far greater options available to her if she was self-funding.[64]In summary, Ms Harty’s evidence comes to this. Everyone agrees that C should stay at The Spinnies or an equivalent establishment for life if possible. That can be achieved if she is self-funding. However, C is in a high cost placement and is a substantial drain on hard-pressed resources. Ms Harty has no choice but to seek to minimise those costs. That may mean trying to negotiate a reduction in the fees for The Spinnies with consequent compromise in the quality of care and facilities provided to C or it may mean moving her. New, cheaper, larger and untested care provision is shortly to become available. Ms Harty will have to consider that for C. She would like to be able to say that the Local Authority would not have to move her but she is quite unable to commit herself to that proposition. She has had to make hard decisions in the past and accept second best by reason of limited resources. She may have to do the same with C. C’s best chance of staying at The Spinnies or an equivalent would be if she was self-funding. As I have made clear, I accept Ms Harty’s analysis of the future risks so far as the Local Authority is concerned.[65]I accordingly find that it is highly unlikely that The Spinnies will provide a home for life for C if she remains funded by the Local Authority and the PCT. It is far from certain that she will have a home for life there even if privately funded, but her chances of achieving that or its equivalent are much greater if she is able privately to fund her care.[66]In addition to the constraints on the Local Authority budget, if C has to rely on State provision she is, in my judgment, exposed to far greater uncertainty in terms of funding. The rules on what if any contribution C has to pay for her care are Byzantine and inconsistent. They are plainly ripe for reform. Judges have repeatedly drawn attention to the wholly unsatisfactory nature of the statutes and regulations under which the contribution to be made by someone in C’s position are calculated. It is quite possible that the rules will change so that her award is brought into account in the future. She could thus lose other elements of her award intended for different purposes simply in order to fund her placement.[67]The current annual cost of care provision at The Spinnies is agreed at £134,546. It is agreed that this represents the cost of providing reasonable care for the claimant and is the sum to be taken for calculating the future care claim. The life time multiplier is agreed at 28.94, producing a future care claim after allowance has been made for a recent increase in fees of £3,893,766. Who should bear this cost? The defendants assert that the Local Authority has a statutory obligation to provide for C and should accordingly be responsible for footing the bill. That statutory obligation absolves the defendants from any liability for it. The Local Authority will pay for her to be cared for at The Spinnies or wherever else she is placed and thus there is no requirement for them as defendants to make any payment to C by way of care costs. She will be cared for at public expense and accordingly she has suffered no loss so far as her cost of future care is concerned. For the Defendants Mr Faulks QC submits that on the evidence and on the balance of probabilities C will continue to receive her care at The Spinnies free of charge for the rest of her life notwithstanding her award of damages. That being so she will have suffered no loss under this head and she should not therefore be entitled to receive any sum under that heading.[68]On behalf of the Claimant Mr Godsmark QC submits that C has a right to full compensation from the tortfeasor defendants who, by their negligence have put C into the position where she requires such care. If she receives full compensation she will essentially be guaranteed good quality care for the rest of her life without the future uncertainties of changes in policy, pressure on public resources, and being moved to somewhere cheaper because it is less expensive and not necessarily providing the same level of care. She should not be required to bear the risk that public funding of her care may diminish and that in consequence the quality of that care maybe reduced.[69]Having considered the submissions of the parties and the authorities drawn to my attention I consider that the proper approach to the assessment of damages for future care where there is a possibility that future provision will be made by the State is as follows. First, C is clearly entitled to damages to satisfy her reasonable needs for care in the future. It is for the Court to determine what is reasonable. Where a Claimant is sentient and able to express a view then the wishes of the Claimant will be very important and may even be determinative on the question of what is reasonable. However where, as here, the Claimant is incapable of expressing any wish or at least where it is not possible reliably to ascertain what her wishes are I must consider what is reasonable in terms of the competing proposals being put forward by the parties.[70]If the statutory provision meets and, on the balance of probabilities, will continue to meet, the Claimant’s reasonable needs then the Claimant will not have to pay for private provision in the future and she establishes no loss under this head. Such a conclusion is so even though it might be thought that it should be the tortfeasor rather than a public body that should be required to meet the costs of future care. Further, in deciding whether statutory provision will be made in the future I am entitled to have regard to the right to enforce the statutory duties of the public authority.[71]Relying on those principles the defendants submit that if the evidence demonstrates that care which satisfies the Claimant’s reasonable needs will be available free of charge in the future then she will in fact sustain no loss and cannot recover for the cost of future care. However the burden of proof is on the defendants to prove that the claimant would have access to State funded care in the future which will provide her for the rest of her life with her reasonable needs for care.[72]In the light of my findings of fact, together with my view about the probabilities of C remaining at The Spinnies indefinitely even if funding was available, I am satisfied that the defendants fail to establish that C’s reasonable needs for care in the future will be provided by the Local Authority. Whilst as the law presently stands C will have access to State-funded care in the future, that care is unlikely to provide her with the quality of care she presently enjoys for the rest of her life. The only way to ensure that she does receive such care in the future is for her to be self-funding.[73]In my judgment there is no reason in principle why she should give up that option at the behest of the tortfeasor defendants and make herself dependent on the State. She has an immediate right to full compensation from the tortfeasor. She is entitled to look to the tortfeasor for such compensation. She is not obliged to make herself dependent on State resources. On the evidence it would be folly for her to do so if the aim is to ensure, as all the experts agree is appropriate, that she stays at The Spinnies or at some comparable establishment. For the avoidance of doubt I find that it is reasonable for C to choose to be self-funding as opposed to relying to any extent on state provision for her care, and reasonable for her to make that choice immediately. No one suggests that there is any half-way house available in the circumstances of this case, whereby for example the Local Authority met part of the necessary care costs with the tortfeasors topping up any shortfall. In those circumstances and in the light of my findings of fact I conclude that the defendants are liable to pay the costs of past care, to the limited extent indicated, and the costs of future care to the claimant subject to the question of mitigation of damages and double recovery.

Mitigation of damage

[74]It is submitted on behalf of the defendants that if C were awarded the costs of her future care and did not, instead, rely on the statutory obligation of the Local Authority to provide accommodation for her she has failed to mitigate her loss. She must, it is argued, apply for and take the accommodation which the Local Authority are required to provide for her even though she has an established right of full recovery against the tortfeasors. I accept that the claimant must take all reasonable steps to mitigate the loss to her consequent upon the defendants’ negligence and she cannot recover damages for any such loss which she could have avoided but which, through unreasonable action or inaction, she has failed to avoid. The claimant cannot recover for avoidable loss.[75]But the loss sustained by the claimant here is fixed and established. It is, for present purposes, the cost of her future care. She cannot avoid or reduce or mitigate any part of that loss. The question here is not one of mitigation of loss, but who should pay for it. In any event, as I have made clear, in my judgment it is entirely reasonable for the claimant not to rely on the statutory obligation of the Local Authority to provide for her where the alternative of recovery from the defendants is available to her for all the reasons articulated in this judgment. Even if matters were otherwise equal as between relying on the Local Authority and recovering from the defendants – which they are not – the claimant would be fully entitled as a matter of law to choose to pursue the tortfeasors. The argument of the defendants is simply unsustainable. The loss of the claimant remains the same whoever foots the bill. I am quite satisfied that there is here no question that the claimant will recover for avoidable loss.

Double recovery

[76]It is of course trite law that the claimant cannot recover twice for the same loss. Those representing the claimant were well aware of this potential problem. They sought to overcome it by offering to the court, through Mrs Miles the Deputy, an undertaking. She gave evidence that she was prepared to give an undertaking as Deputy not to seek statutory funding for C’s care, such undertaking to be qualified on whatever terms were appropriate. But when that proposition was explored it became apparent that it was fraught with difficulty. Mrs Miles had not identified the terms of any qualification to the undertaking, such as the circumstances in which she might be released from it, nor was she even sure that her terms of appointment as Deputy entitled her to offer it. She further accepted that any undertaking she gave would be personal to her and that she could not bind her successors. It was later suggested on behalf of the claimant that a suitable undertaking would be “not to make any claim for public funding of the care of the claimant under section 21 of the National Assistance Act 1948 or any equivalent subsequent legislation without leave of the Court or the Court of Protection.”[77]I am far from satisfied that there is any proper legal basis for Mrs Miles to give the undertaking she offers, and it would certainly not bind her successors. In any event I regard any such undertaking as impractical and undesirable. It cannot be right to devise an undertaking dealing with the circumstances in which a gravely disabled person is or is not permitted to avail herself of assistance offered by the Local Authority even with the caveat proposed.[78]On the other hand, I have the evidence of Mrs Miles, which I unhesitatingly accept, that she, the Deputy in effective control of the management of C’s financial affairs, is very much of the view that C’s future care should be privately funded. In those circumstances I find that, providing the court orders that the tortfeasors meet the cost of future care, Mrs Miles will not require the Local Authority to provide the claimant with care under its statutory obligations in the future, at any rate in the absence of some wholly unexpected development which compels hers to abandon her stated intention to rely on private funding. I am further confident that I can rely on any future Deputy taking precisely the same view. Such successor will be appointed by the Court of Protection and will unquestionably be a person of probity and integrity entirely fitted to be trusted not to abuse their position.[79]In those circumstances no question of double recovery arises. The claimant will recover her loss from the tortfeasors instead of recovering from the Local Authority, not as well as recovering from them.[80]The cost of past care at The Spinnies is agreed in the sum of £18, 947. However in the light of my findings and the declarations I have made the Local Authority accept that they cannot assess retrospectively and thus this sum is not recoverable from C. The only element of past care that is recoverable is the sum of £1,571.64 ( which may require updating by the time this judgment is handed down) by reference to benefit entitlement. The cost of future care for the claimant is agreed at £3,893,766. I find that the defendants are liable to the claimant in full in respect of both sums.

Loss of Earnings to date and continuing

[81]The parties accept that but for her injury C was likely to have been of low average intelligence and capable only of unskilled or semi-skilled work. As to past loss, the claimant restricts her claim to the minimum wage and discounts the period of the claim by 15% to reflect the possibility that she might not have held continuous employment from her notional school leaving age of 16 to the date of trial. That produces a figure of £20,000.[82]As to future loss of earnings the claimant seeks damages in the sum of £215,706. The claim is calculated by taking average earnings in 2006 for unskilled or semi-skilled occupations at £266.10 per week and increasing that sum by 3% to 2008 levels producing an annual amount of £14,680 per annum gross, an equivalent to £11,826 per annum net. A full working life multiplier to age 65 is 26.83 (Ogden 6 Table 10) The claimant accepts that this multiplier must be reduced for periods of non-work and submits, accepting that C was of limited uninjured educational potential, that the appropriate discount should be 32%, relying on the discount recommended in the Ogden 6 tables. That, it is argued, sufficiently reflects the uncertainties of future employment for an uninjured C: she may, it is said, have had a good work history; she may have had a poor one. The discount predicts her earnings losses on the basis of 1/3rd of her working life unemployed, and produces the figure sought on her behalf under this head.[83]For the defendants it is submitted that even uninjured C would have had very limited capacity for work. Her genetic background, her home environment, her probable moderate learning disability even uninjured and her dysfunctional family background all combine to make it doubtful whether C would have had any significant employment during her life. The defendants take no issue with the claimant’s mathematics, but submit that the discounts do not sufficiently reflect the realities so far as C is concerned. Without seeking to rationalise their approach further the defendants suggest that damages in the sum of £10,000 up to the date of trial and future earnings of £100,000 are generous sums to compensate C under these heads of claim.

Future Case Management

[84]Having regard to the family background, C’s agreed limited uninjured potential and all the evidence in the case I am persuaded that C’s employment prospects were speculative. She came from a culture where her family relied on State benefits and where the incentive to obtain and keep employment was not strong. The claimant’s proposed discounts representing the possibility that C might not have held down continuous employment both to date of trial and thereafter do not, in my judgment, sufficiently reflect the realities of her situation. I accept, as Mr Godsmark argues, that she might have had a good work history, but I regard that possibility as somewhat remote. More likely, her employment would have been sporadic throughout her working life. I find that the appropriate discount to reflect that conclusion for the period up to trial is 40% and for future loss the appropriate discount is 50%. Subject to the accuracy of my arithmetic that produces an award for past loss of earnings of £14,390 and for future loss of £158,645. Future Case Management Past case management costs are agreed at £5,839. It is not disputed that C will require a Case Manager for the future. The dispute between the parties relates only to the cost of providing that service.[85]The claimant’s present Case Manager is Mrs Ainsworth. She gave evidence before me. She has been performing that rôle since 2004 and knows C. She considers that during periods of stability in C’s life she should visit C once every 6 weeks for about 3 hours each time as a routine, amounting to 24 hours each year. She also anticipates two additional crisis intervention visits each year lasting 5 hours and thus making an additional 10 hours, totalling 34 hours in all. Including travelling time and costs that amounts to £4,340 per annum. The application of the agreed whole life multiplier of 28.94 produces £125,600 for the standard aspects of case management. Mrs Ainsworth further considers that it is reasonable to expect that C will move placement 3 times in her life. During those years the task of the Case manager will be more onerous, requiring much more intensive and active intervention resulting in an additional cost of £8,680 for each of the 3 years. Applying the appropriate multiplier of 2.53 to that sum produces an additional claim of £21,960 making a total claim under this head of £147,560.[86]Mrs Ainsworth points out that C has no family who are able to take an active part in her management. There is accordingly an imperative need for someone to watch over C and her care regime and to act as her advocate. In particular there should be someone experienced in place to monitor the quality of care provided to C over the years and make recommendations if she has to move.[87]The defendants accept that it is important for C to have the security of a case manager, but submit that the intensity of management proposed is simply not justified. They submit that the proper sum under this head is £32,992 based on an annual cost of £1,140. Mr Faulks QC points out that this is not case management in the ordinary sense, where the client is living at home and the case manager has to ensure that a team of properly trained carers are in place. On the contrary, all the evidence demonstrates that Mr Wass and his team have shown themselves capable of providing a high standard of care. Further, the company running The Spinnies is appropriately registered and thus standards will be monitored of the client at home. No such services are required of her in this case.[88]Miss Douglas, the defendant’s care expert, initially considered that 2 visits a year together with regular telephone contact would be sufficient, though in evidence she resiled from that position and accepted that rather more input might be reasonable.[89]That said, I conclude that there is force in the defendant’s submission. C is receiving excellent care at present. So long as she remains at The Spinnies under its present management there is no reason to believe that will change. Routine visits by a Care Manager at the frequency and particularly the length – close to 3 hours each visit - proposed by Mrs Ainsworth are simply an unnecessary luxury. Nor do I consider that the need for crisis intervention at the frequency and length proposed is established. Further, as and when C moves it is reasonable to assume she will be placed in an establishment providing a similar level and standard of care.[90]I do however accept that it is reasonable to assume that C will move placement 3 times in her life. At such times the role of the Case Manager will be very important in ensuring that a suitable new placement is identified and thereafter in supervising the arrangements under that new regime thoroughly in the first few months. I accordingly find that the claim for £8,680 on the occasion of each anticipated move is justified and after applying the appropriate multiplier of 2.53 I award the sum of £21,960 for that aspect of case management. For the rest, making some allowance for very occasional crisis intervention, I consider that a total of 18 hours per annum for a Case Manager together with travelling costs will properly and reasonably protect C’s position. On the figures presented by Mrs Ainsworth, which as rates I find to be reasonable, the appropriate multiplicand is £2,650. The agreed multiplier of 28.94 produces £76,691 which together with the sum of £21,960 makes the award under this head a total of £98,651, again subject to the accuracy of my arithmetic.

Future Costs for Court of Protection and Deputy

[91]The claimant seeks an award under this head totalling £165,742. Of that sum, future Court of Protection costs are agreed at £21,042. The dispute concerns the balance. The claimant’s Deputy is currently Mrs Miles, a very experienced professional Deputy, appointed to that position by the Court of Protection and also the claimant’s litigation friend. She gave evidence before me and impressed me as a scrupulously careful and realistic professional who fully understood her rôle and the duties expected of her. The approved charging rate for her services is £203 per hour exclusive of VAT. Mrs Miles assesses that she is likely to spend between 20-25 hours each year on the affairs of the claimant and claims £5,000 per annum accordingly – which in fact equates to about 21 hours each year. The total claimed is calculated by applying to that sum the agreed whole life multiplier[92]The defendants called no evidence on the issue, but suggest that the proper award should be based on a figure of £1,000 per annum – about 4 hours a year. Mr Faulks submits that this would be quite sufficient to pay for anything the Deputy needed to do, though on what evidential basis was never clear to me.[93]I reject the submission of the defendants without hesitation. The responsibility of a Deputy in a case such as this is considerable and provides an essential tier of management in caring for C, who has no one other than the professionals to guard her interests. I give full weight to the fact that there will be a Case Manager in place but conclude on the essentially unchallenged evidence of Mrs Miles that the annual sum claimed is reasonable, proportionate and appropriate. I accordingly award the sum of £165,742 under this head of claim.

Conclusions

[94]The parties were agreed that the form of the award and the precise terms of my Order should await the determination of the disputed issues. Accordingly this case will be listed again at the convenience of the parties either for approval of an agreed Final Order or for further submissions. In order to permit constructive dialogue to take place between the parties, the usual embargo on disclosure of the contents of this draft judgment is relaxed to enable disclosure to all those affected by this litigation including the parties, counsel, solicitors, and any financial advisers.[95]At the adjourned hearing I will also consider any application for permission to appeal.[96]Finally I should like to acknowledge my immense gratitude to all counsel appearing in this case, whose assistance has been invaluable.

Cited in 1 later judgment