Manna v Central Manchester University Hospitals NHS Foundation Trust [2015] EWHC 2279 (QB)

Case No HQ09X05099

[2015] EWHC 2279 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 31/07/2015

Before

MRS JUSTICE COX

Between

LAMARIEO MANNAClaimant

CENTRAL MANCHESTER UNIVERSITY HOSPITALS NHS FOUNDATION TRUSTDefendant

Mr Sweeting QC and Mr Baker (instructed by hlw Keeble Hawson LLP) for Claimant

Mr. Seabrook QC (instructed by Hempsons) for Defendant

Hearing Hearing dates: 15-24 June 2015

Judgment

Mrs Justice Cox :

Introduction

[1]The Claimant, Lamarieo Manna, is now 18 years of age. He claims damages for personal injuries and financial losses sustained as a result of events that happened at the time of his birth, at St Mary’s Hospital in Manchester, on 20th December 1996. He suffered severe brain damage resulting in widespread neurological dysfunction. He has bilateral tetraparetic cerebral palsy and very severe cognitive, social and communication impairments, with profound autism. There is no dispute that he is severely disabled. His condition is permanent and he will therefore remain dependant in respect of all daily living activities for the rest of his life. The Claimant was referred to as Lamarieo throughout the trial and I adopt that course in this judgment.

[2]Proceedings were commenced on 19th November 2009. The allegations of breach of duty in the management of Lamarieo’s birth were all denied, as was causation of injury. By order of Swift J dated 24th June 2013 judgment was entered for the Claimant, on her approval, for damages to be assessed at 50% of the full value of the claim.

[3]At this trial I have heard evidence and submissions relating to those damages. While some of the individual heads of damage have been agreed, there remain substantial disputes between the parties, in particular as to Lamarieo’s future care and case management and his future occupational therapy, equipment, transport and accommodation needs. The issue at the heart of these disputes is the nature and extent of his current difficulties and of his manageability, now and in the future. That issue occupied most of the time at this hearing and is therefore considered in some detail in this judgment, which is regrettably, but inevitably lengthy as a result.

[4]In summary Mr Seabrook QC, on behalf of the Defendant, acknowledges the challenges that Lamarieo presents and the huge demands his condition gives rise to. It is contended, however, that the case presented for the Claimant paints a far bleaker picture than is supported by the objective evidence. The key to his manageability, as the Defendant’s experts suggest, is forward planning, anticipation of recognised triggers leading to violent outbursts and a support and therapy regime that affords him space and enables him to develop his independence. This can be achieved by allowing for one carer to be present at all times, plus additional hours for a flexible carer for some outings or at times of need, together with the moderate occupational activities and equipment recommended by the Defendant’s experts.

[5]On behalf of the Claimant the case advanced by Mr Sweeting QC and Mr Baker is that the evidence shows Lamarieo to be prone to violent, aggressive and unpredictable outbursts. His severe intellectual limitations and behavioural problems are the product of his brain injury. There will be no change or improvement in his condition and the evidence shows that he is likely to continue to pose a serious risk to himself and to others, including his carers, without the tight care and occupational support structure considered necessary by the Claimant’s experts. Lamarieo therefore needs two carers at all times for personal care and community activities and a structured routine and regime of activities to fill his days.

Evidence

[6]I heard oral evidence from the following factual witnesses: Lamarieo’s mother, Marva Cocking, and his stepfather, Brett Cocking; his natural father, Sam Manna, who is acting as Litigation Friend; the Case Manager, Wendy Ruffle, instructed since May 2014; and Alex Guy, appointed as Deputy in relation to Lamarieo’s property and financial affairs.

[7]The parties have agreed Lamarieo’s life expectancy and it was therefore unnecessary to call the Consultant Paediatric Neurologists, Dr Martin Smith (Claimant) and Dr Lewis Rosenbloom (Defendant). The parties relied on their agreed written reports and joint statement as to Lamarieo’s injuries and their effects. Both parties also relied on the written reports of those medical and non-medical experts who were jointly instructed: Lesley Cogher (Speech and Language Therapy), Jonathon Chan (Consultant Ophthalmologist), Tracey Shipman (Orthoptics) and Wendy Murphy (Physiotherapy).

[8]I heard oral evidence from Dr Peter Bendkowski, Chartered Educational Psychologist, called on behalf of the Claimant. The Defendant did not call any psychological evidence. I also heard evidence from the following non-medical experts called on behalf of the Claimant and Defendant respectively: Steve Martin and Donna Cowan (Assistive Technology); David Reynolds and John Shaw (Accommodation); Caroline Penny Smith and Marie Palmer (Occupational Therapy); and Maggie Sargent and Liz Utting (Care and Case Management).

[9]It is a feature of this case that there is also a large number of contemporaneous documents, in particular medical, social services and educational records. These documents have been helpful in assessing the credibility and reliability of disputed oral evidence, in particular the evidence of Mr and Mrs Cocking, which was the subject of robust challenge in a number of respects.

[10]The parties agree that in this judgment, having resolved the main issues in dispute, I should identify the sums required for Care and Case Management. The question whether they should be by way of periodical payments or a lump sum will be determined subsequently, when the total award of damages for Lamarieo can be considered.

[11]The other issues to be determined are set out in the Schedule and Counter-Schedule, as adjusted to reflect the evidence given, or further agreement reached between the parties before or during the hearing. These relate principally to the appropriate multiplier for life, and for loss of earnings for life; the recovery of the pension claim; and credit for interim payment against interest. There are other, more minor disputes, which are dealt with during the judgment.

The Relevant Legal Principles

[12]The principles that govern the assessment of damages are well established and are not in dispute. The purpose of an award of damages in personal injury claims is, so far as is possible, to put the Claimant in the position he would have been in had he not been injured. In Heil v Rankin et al

[2001] 2 QB 272

, Lord Woolf MR giving the judgment of the Court of Appeal, said as follows at paragraphs 22, 23 and 27:

“… the aim of an award of damages for personal injuries is to provide compensation. The principle is that ‘full compensation’ should be provided… this principle of ‘full compensation’ applies to pecuniary and non-pecuniary damages alike… the compensation must remain fair, reasonable and just. Fair compensation for the injured person. The level must also not result in injustice to the Defendant, and it must not be out of accord with what society as a whole would perceive as being reasonable.”

[13]This Claimant is therefore entitled to damages to meet his reasonable needs arising from his injuries. Reasonableness always depends on the particular circumstances and it applies both to the head of loss claimed and to its amount. Disputes as to future losses will often require the court to make an assessment of the chances of various future events.

[14]In relation to expenses already incurred the Claimant and those who act on his behalf have a duty to take reasonable steps to mitigate his loss. In relation to a particular choice of treatment, for example, or transport, as arises in this case, the key is reasonableness. If the choice is unreasonable it will result in injustice to the Defendant and will not be recoverable. Provided the Claimant’s choice is within the range of potentially reasonable options open to him, he will have reasonably mitigated his loss. A Defendant cannot reduce his liability by arguing that the Claimant should have chosen a cheaper option from within that range.

[15]In determining quantum the liability compromise agreed between the parties and approved by the court is irrelevant for the purpose of calculating the appropriate award of damages under each head of claim. This is agreed save, as will become apparent, in so far as it is said to explain the conduct of the Claimant in respect of sums already received for Lamarieo’s care, and offered during the trial in respect of accommodation.

The Background Facts

[16]Lamarieo was Mrs Cocking’s first child. When he was born Mrs Cocking, now aged 37, was married to his father Sam Manna, now aged 67, and they were both living in Moss Side, Manchester in Mr Manna’s two bedroom, two storey council house. Their relationship ended in 1998 and they subsequently divorced but they remained living in the same house, both sharing Lamarieo’s care until June 2000.

[17]Mrs Cocking had met Brett Cocking in December 1999 and they started living together in June 2000. She was then pregnant with twins, the first two of four children Mr and Mrs Cocking have had together. Problems in her pregnancy meant that Mr Manna continued to care for Lamarieo until March 2001, when Lamarieo went to live in Bolton with Mr and Mrs Cocking and their twins, Adrian and Christian, born in December 2000.

[18]Lamarieo has needed extremely high levels of care over the years. That care has been provided principally by his mother. There is no doubt, however, that Mr Cocking, who works as an independent mortgage advisor, has also provided a great deal of care and practical help over the years in caring both for Lamarieo, with whom he has a very good relationship, and for the other members of his family. Two further children were born, Atiya in October 2006, and Jayden in November 2010 and Mr and Mrs Cocking are now married.

[19]It is also a feature of this case that, despite the end of their own relationship, Mrs Cocking and Mr Manna acted together in the best interests of Lamarieo and continued to share his care over many years. Generally, Lamarieo lived in Bolton with his mother and stepfather from Monday to Friday each week. He went to Mr Manna in Moss Side, about 16 miles away, for three out of every four weekends on average and for some time in the school holidays.

[20]This arrangement only came to an end in September 2013, by which time Lamarieo was 16 years old. Mrs Cocking became very upset on discovering that Lamarieo had been left on his own for short periods in Mr Manna’s house. There was a disagreement between them and Mrs Cocking no longer agreed to Lamarieo having overnight contact with his natural father. Since then, Mr Manna has seen Lamarieo on only a few occasions in Bolton. In evidence he confirmed his wish to resume regular contact with his son, which is not in dispute. Mrs Cocking accepted that Mr Manna had played an important part in Lamarieo’s life, that he genuinely wished to continue to do so, and that Lamarieo should continue to see his natural father, so long as the visits were properly supervised and that there were suitable arrangements in place for him.

[21]Since 2008 Lamarieo has attended a special school, ‘Firwood School’ in Bolton, where he will remain until June 2016, when he is 19 years of age.

Agreed Expert Evidence Concerning Lamarieo’s Disabilities

[22]The findings of the paediatric neurologists are entirely consistent, based as they are not only on information from Lamarieo’s parents, but on consideration of the available medical records and their own examinations and assessments.

[23]In the years after he was born Lamarieo demonstrated evidence of evolving and severe neurological disability with microcephaly, severe developmental retardation and visual impairment. Doctor Rosenbloom, instructed on behalf of the Defendant, has examined him on several occasions over the years. In 2003 he found evidence of profound developmental retardation, such that cognitively Lamarieo was functioning below the level of a two year old child. His abnormal neurology was consistent with bilateral spastic cerebral palsy, with his left side being more severely affected. He also had visual impairment of brain origin (now confirmed as permanent by Mr Chan), had no speech, was doubly incontinent and was totally dependant in relation to all daily living activities.

[24]By 2009 he was continuing to show evidence of a very profound degree of cognitive impairment, together with obsessional behaviours. In October 2011, aged almost 15, neurological examination confirmed a very severe degree of global developmental retardation, with a persistent, evolving and clinically significant disorder of movement and of motor function. Lamarieo had suffered epileptic seizures since early childhood. Brief seizures, controlled by medication, continued between October 2011 and November 2013 when Dr Rosenbloom saw him again, aged almost 17. Apart from these significant disabilities he noted that Lamarieo’s overall health had been generally good over the years.

[25]Dr Smith examined Lamarieo on 10th November 2011 and reported essentially the same findings. Lamarieo was able to walk short distances (up to quarter of a mile) independently at a steady pace on flat ground. He required a wheelchair for longer distances. He tended to go upstairs on his hands and knees and come down on his bottom. He noted Lamarieo’s double incontinence, his tendency to constipation and overflow incontinence and his tendency to drool. He had reduced visual acuity. Dr Smith also noted that Lamarieo’s behaviour could be very challenging and that in recent years, during adolescence, there had been increasing concerns about aggression. His sleep was noted to be very poor, so that his parents invariably had disturbed nights.

[26]When Dr Rosenbloom saw him again two years later, in November 2013, he found no change of substance in his presentation. Lamarieo remained wholly dependant in respect of all daily living activities. He was assessed as being at Level II on the Gross Motor Function Classification System for cerebral palsy, characterised as ‘walking with assistance’. He was noted to be able to get around in familiar situations, to walk independently for short distances on flat surfaces, to undertake transfers and, with some supervision, to get up and down stairs. He had very limited ability to use his hands and was unable to feed himself. Nor did he use his hands for play or any daily activities due, in Dr Rosenbloom’s view, to the severity of his cognitive impairment rather than to any upper limb functional abnormalities.

[27]There was some impairment of oromotor function and he had to have mashed food because he could not chew or swallow lumps. He still had significant drooling and he had not developed speech although he could make noises. He also had significantly impaired vision. Lamarieo remained doubly incontinent. He was noted to be significantly constipated and to require occasional enemas, as well as regular medication to control this condition. He also had asthma and eczema, for which he required regular treatment by the application of special creams. He was noted to wake on occasions each night.

[28]As at November 2013 Dr Rosenbloom found that Lamarieo had continued to make only very slow learning progress. Clinically the impression obtained was that his understanding was at no more than an infantile or toddler level. His cognitive impairment was therefore very severe or profound. Dr Rosenbloom deferred to expert educational psychological assessment with respect to Lamarieo’s learning difficulties.

[29]In respect of Lamarieo’s behaviour, Dr Rosenbloom noted that it was demanding and that he could also be aggressive at times, but that at other times he was sociable, pleasant and cooperative. This particular observation is mirrored in the observations of Lamarieo by many others throughout the evidence in this case, including his parents.

[30]Dr Smith saw Lamarieo and his parents again six months later in May 2014, when he reported the same findings. He noted that an overnight admission to hospital had been required approximately 18 months previously, with abdominal pain secondary to constipation. In relation to Lamarieo’s behaviour, Dr Smith noted that during adolescence there had been increasing concerns about Lamarieo’s unpredictable physical aggression at home and at school. Lamarieo’s parents reported that this had been particularly difficult during the last six months.

[31]In relation to prognosis both experts are agreed that Lamarieo is now well established in adolescence and that his condition will continue to be much as it is into the indefinite future. He will remain ambulant for the majority of his adult life, permanently requiring a wheelchair and help from carers with transfers in the final years of life, as his mobility declines. Once he is through adolescence it is likely that the current, reasonably satisfactory control of his epilepsy will be maintained. Both experts consider that Lamarieo will need 24 hour care, although probably not waking night care. As an adult Lamarieo will have negative insight into the nature and extent of his disabilities and it is unlikely that his sleep pattern will improve. There is no prospect of him having the capacity to live independently or to manage his own household, or to obtain any form of remunerative employment. His severe learning difficulties are the greatest barrier to any prospect of independence. Both experts agree that he suffers very severe cognitive, social and communication impairments.

[32]It is not in dispute that he also has profound autism, as reported by Dr Bendkowski. The evidence of Dr Bendkowski is otherwise in dispute in a number of respects and I shall consider it later on.

[33]In relation to Lamarieo’s life expectancy, both paediatric neurologists used the same data sources in coming to their opinions and agreed that the probable projected age to which Lamarieo will live is between 65 and 70 years. Dr Smith preferred the higher figure and Dr Rosenbloom the lower, and each accepted that the other’s position was a reasonable one to adopt. The parties have now sensibly agreed a compromise figure of 67.5 years in this respect.

[34]Further assistance as to Lamarieo’s condition is found in the joint reports of Wendy Murphy and Lesley Cogher, who both assessed Lamarieo in 2014. In relation to his physiotherapy needs, Ms Murphy’s physical assessment in June 2014 was limited, as a result of Lamarieo’s inability to cooperate. However, she noted his postural incompetence, poorly coordinated gross and fine motor movement and postural asymmetry. Lamarieo has a crouched, flexed gait and will also bump into objects and furniture as he moves, probably due to his visual impairment. Ms Murphy also noted the history of poor sleep patterns. Although he sometimes goes through the night without waking, more often that not he will need attention two or three times each night and he invariably awakes early in the morning. Once awake she notes that someone must be with him at all times because he has no concept of personal safety and he also tends to soil himself. At her examination she observed Lamarieo pulling at his mother’s clothing until she attended to him. She noted that if his wishes were thwarted he could be physically aggressive towards people, including family members and in particular his mother, and that he could lash out, using his not inconsiderable strength. This, as she observed, is never done with malice but it makes Lamarieo very difficult to cope with.

[35]Ms Cogher noted that Lamarieo’s expressive communication is through gestures, vocalisations and facial expressions. On assessment she noted that he struggles significantly with saliva control. He has significant difficulties in the coordination of his mouth movements, together with a significant degree of ritual behaviour around eating and drinking, sensory aversion and a resistance to change. He has a limited capacity to listen and tends to focus on his own agenda. His understanding of language is related to the here and now and to concrete concepts. He may also understand and retain some names or plans for the immediate future, but his understanding is limited, as is his ability to remember. Ms Cogher also noted that Lamarieo sometimes becomes very distressed and lashes out when he is thwarted.

The Evidence of Marva Cocking

[36]In her two witness statements, prepared in May and November of 2014, and in the witness box Mrs Cocking provided a detailed account of a typical day in Lamarieo’s life and of the difficulties and the significant challenges posed in caring for him. At the request of Maggie Sargent she had also provided written summaries of the history of Lamarieo’s problems over the years, from the ages of 3 to 18, which were produced during the trial.

[37]It is accepted that Mrs Cocking is and has always been devoted to and protective of her son and this was obvious to me, having regard both to her evidence and all the other evidence in the case. She describes him as a lovely and delightful boy to be with, but the problems and challenges he poses have clearly taken their toll and she became extremely distressed on several occasions when describing them.

[38]From an early age Lamarieo had a very poor sleeping pattern and her evidence is that this still continues. When he is awake he has to be watched at all times, so that her nights have frequently been disturbed over the years. Lamarieo has no sense of danger. Feeding him has also been a very messy process and he has constantly been prone to dribbling excessively

[39]A particular challenge over the years has been Lamarieo’s recurring problems with constipation, when his abdomen will swell and she fears that he may be in considerable pain, although he cannot communicate this to her. Treatment has been by way of medication or, when required, enemas. The medication and treatment he receives, in particular the enemas, increase the frequency of his stools and cause frequent and heavy soiling, requiring regular showering, changing and cleaning both of Lamarieo and of clothing and bedding. Sometimes he puts his hands in his nappy and spreads faeces in his bedroom, requiring the carpets to be cleaned or sometimes replaced. Sometimes his nappies have not been properly applied at school and there is leakage. Lifting Lamarieo to clean him and struggling to manoeuvre him over the years has caused her to develop back problems and she currently suffers from sciatica.

[40]Lamarieo communicates his needs by making sounds and pointing at an object. He becomes frustrated if he is trying to communicate and is not being understood, or if his routine is changed in anyway. He will become very upset and will lash out. He has tantrums on a regular basis and will lash out at her and at his brothers and sister if he is frustrated, or if his needs are not met immediately. She recognises that when he bites his hands it is a sign that he is about to have a violent outburst and lash out, although he does not lash out at his stepfather.

[41]These difficulties and the physical and emotional demands of providing 24 hour care have had a significant impact on normal family life and have at times been extremely stressful and upsetting. Lamarieo behaves like a toddler but the difficulties have been compounded as he has grown older and stronger and has matured physically.

[42]Neither Mr nor Mrs Cocking has any extended family nearby or available to help out in caring for Lamarieo. The same is true for Mr Manna. Lamarieo has had short break overnight care at Avondale for four nights per month and short break overnight support two to three times during the school holidays at Christmas and Easter. Some further care, using the Direct Payments she has received through Social Services, has been provided by Bridge Family support and Crossroads for two hours on Wednesday and Thursday each week. Some additional care was obtained, from about May 2014 onwards, from a carer called Jackie Lee, who has known Lamarieo through different care organisations in the past, and who was to take Lamarieo out for four hours on three out of four Saturdays to allow Mr and Mrs Cocking to spend time with their other children.

[43]In her first witness statement made in May 2014 Mrs Cocking described Lamarieo’s behaviour as having recently become more challenging. Since September 2013 he had become more difficult to manage both at home and at school, by which she meant that he had become more violent. He developed an obsession with DVDs, for example, and easily became angry if not allowed to watch what he wanted or to buy a particular DVD from a shop. He enjoys going to school and shows enthusiasm for all his subjects. However, he was not only grabbing and pulling people’s hair but had had a number of violent outbursts, lashing out both at her and at members of staff at school. He was excluded from Firwood School for one day in November 2013 because of such an incident. His challenging behaviour led to numerous meetings at the school, as a result of which Lamarieo was moved in 2014 to another class which has a higher staff / pupil ratio of 5:3.

[44]During 2013/2014 Lamarieo went away with the family on two holidays. First, they flew to Jamaica to visit Mrs Cocking’s mother and family. Lamarieo enjoyed himself there and went swimming with dolphins. Later on the family flew to Tenerife on holiday, taking Jackie Lee with them. This made a big difference because Lamarieo had undivided attention and support from an adult all the time and on holiday he was well behaved, calm and relaxed. He did not need to use his wheelchair, as he did in Jamaica, because his carer was able to support him walking. Subsequently Jackie Lee came with Lamarieo when they all went to a friend’s wedding reception and once again he was well behaved.

[45]The presence of Jackie Lee and her care and support for Lamarieo has led Mrs Cocking to appreciate that full time care for Lamarieo would enable all the family to have a better quality of life. It is the firm wish of both Mr and Mrs Cocking that Lamarieo continues to live at home with his family in the future rather than in a residential placement, but with proper support and help in place to manage his behaviour so that they can be his parents and no longer his carers. Responding to the suggestion in cross examination that one carer would provide such support, Mrs Cocking acknowledged that this would help but stated that, with one carer, she would effectively have to continue to be the second carer, as she is at present. While she accepts that she still wishes to be involved in Lamarieo’s life her wish, as she expressed it, is that, “I don’t want to be a carer anymore. I’m tired. I want to be a mum.”

[46]The Defendant’s case was explored at some length with Mrs Cocking in cross examination. That case is as follows. Mr Seabrook submits the evidence shows that, until September 2013, Lamarieo’s behaviour was being reasonably well managed and was under control, but that there was a marked deterioration in his behaviour between September 2013 and mid 2014. This was due, he submits, to one or more of a number of factors, namely Lamarieo’s increasing problems with constipation, puberty (as Maggie Sargent suggested in evidence), or the fact that in September 2013 Lamarieo was suddenly stopped from having further overnight contact with his father, bringing to an end the shared care arrangements in place up until that point. This was, he submits, a very turbulent period for Mrs Cocking, not helped by the fact that she was getting very little by way of help and support in caring for Lamarieo at this time, due to her own unwillingness to accept more care and to use funds made available to her for that purpose.

[47]Mr Seabrook contends, however, that there was then a dramatic improvement in Lamarieo’s behaviour and progress in the second half of 2014, in particular following the arrival of Jackie Lee as his carer. That improvement has continued to the present day and is likely to continue into the future. He submits that I should approach the experts’ reports with some caution, to the extent that they are dependant on each other, or on information being supplied to them by Mr and Mrs Cocking. The recent school report and Jackie Lee’s care notes indicate, in his submission, the considerable progress that Lamarieo has made since mid 2014, and show him to have become a delightful, sociable and manageable young man, whose growing independence should be encouraged. The risks that he poses will be properly controlled by the care regime proposed by the Defendant, with proper planning and anticipation and by giving him space when necessary.

[48]Some of these suggestions were accepted by Mrs Cocking. She accepted that the holidays had gone well and agreed that, since the second half of 2014, Lamarieo seemed to be making good progress at school, growing in independence and generally doing better. She referred in this respect to the higher staff / pupil ratio now in place at the school, which she clearly sees as relevant to this improvement. She has been told that there is now a prospect of him being offered a college placement from the ages of 19 to 25 and she is currently making enquiries about this possibility.

[49]She did not accept, however, that Lamarieo’s sleep patterns had now improved. There are nights when he sleeps through, but generally a good night is when he wakes only twice and has not soiled himself. Nor did she accept that there was a particular problem with constipation and overflow incontinence in the period between September 2013 and mid 2014, and that this problem had now also improved. This condition and the problems caused by leaking nappies and by him soiling himself regularly has been a constant feature of their lives, over many years, and the problems are still continuing.

[50]Challenged as to what she had tried to do about this problem, she explained that she had tried to cope with it herself at home with medication. The enema procedure administered in hospital involves Lamarieo being physically restrained because of his resistance and distress. She finds the process stressful and upsetting and she tries to avoid it.

[51]This problem with constipation appears to be a feature of Lamarieo’s general condition and I find on the evidence that it is. It is referred to in the medical records as chronic constipation and Mr Cocking stated that over the years the doctors have simply tried to manage it. Mrs Cocking did not accept the suggestion that the incidents of overflow, leaking nappies and night time disturbances are now occasional and infrequent. Her evidence is that there are numerous occasions when she or her husband has to deal with the effects of this persistent problem.

[52]In challenging her account as to the extent of Lamarieo’s present problems generally, Mr Seabrook placed considerable reliance upon some documents collectively referred to in the trial as “care diaries”. These are some hand written notes made by those involved in Lamarieo’s care during 2014 and early 2015, principally by Jackie Lee, who did not give evidence at trial. Although he accepts that the notes are incomplete and that many of them are undated, he submits that there is no reference in them to disturbed nights, or to Lamarieo soiling himself, and that the picture they portray is one of Lamarieo now being generally settled and happy, with the occasional outburst being well managed by Ms Lee on her own.

[53]Mrs Cocking was taken through these notes in some detail, and they were put to other witnesses called on behalf of the Claimant. Mr Seabrook drew her attention to Ms Lee’s many references to there being “no issues”; or to pleasurable trips out with Lamarieo on her own to the shops or for lunch; to passages suggesting that she coped well with any difficulties that did occur; and to her descriptions of Lamarieo’s happiness and enjoyment when he was with her. Mrs Cocking’s evidence is that these care notes do not show the whole picture and that Jackie has in fact had many problems when she has been out with Lamarieo. Jackie would tell her about Lamarieo going for her when she was driving, or lashing out at strangers in the park. Jackie would ring Mrs Cocking on occasions to come and collect Lamarieo if, for example, he was refusing to leave a supermarket. In relation to each carer that Lamarieo has had, including Jackie Lee, Mrs Cocking says she has still been heavily involved in Lamarieo’s care herself. The focus of these notes was Lamarieo, his trips out and his personality, not the daily problems of nappies, soiled bedding or sleep disturbance.

[54]Mr Seabrook challenged her account that, after a particular violent outburst in McDonalds in Bolton, when Lamarieo had grabbed Jackie Lee’s scarf and pulled her over, Ms Lee had refused to take him out again on her own. This, Mr Seabrook pointed out, had not been mentioned by Mrs Cocking in her witness statements and the notes show, he suggests, that she did take him out on her own after this incident. He challenged Mrs Cocking’s evidence that one of the twins, who both adore Lamarieo, will usually go out with her now.

[55]Mr Seabrook submits that Mrs Cocking has exaggerated Lamarieo’s problems. Save for the period of deterioration in his behaviour between September 2013 and mid 2014, he submits that Lamarieo was being reasonably well managed with the care he had before that period, and that he has improved dramatically in the past year. Mrs Cocking’s evidence is that she has managed as well as she could over the years, despite the problems, because Lamarieo is her son and she has had to manage with the help that she had. She had no choice. Over the years, however, Lamarieo has always had good and bad days, both before and after the period to which Mr Seabrook refers.

Sam Manna and Brett Cocking

[56]Oral evidence as to Lamarieo’s problems and behaviour over the years was also given by his natural father and his stepfather. Describing his condition over the years to September 2013, when he stopped having regular contact with his son, Sam Manna said that Lamarieo always had to be checked during the night because he would get into awkward positions, or be unable to pull the covers off his head. He would often have to get up during the night to check on him and, for most of Lamarieo’s life, he had not had a complete night’s sleep. Lamarieo would sleep through for about fifty per cent of the time that he stayed with him.

[57]In addition, he described Lamarieo as becoming very frustrated and having tantrums if you did not understand what he wanted or respond immediately. Lamarieo had never been physically aggressive towards him. However Lamarieo has to have a strict routine and becomes very distressed if there is any disruption. On more than one occasion he tried to push the television over, or had a tantrum over something. Sometimes it was not obvious why he had the tantrum. He liked going out to the park and going on the swings, but going out with him could be difficult because of these tantrums. Sometimes he would throw himself on the floor two or three times. Generally, Mr Manna said that he would always try to please Lamarieo by letting him watch television and ensuring that he ate regularly to keep him happy.

[58]Over the years Mr Manna described how Lamarieo’s nappies needed changing regularly. His stools were large and offensive and after he had had a bowel motion he would usually need to be washed or bathed. Dribbling and feeding were also a real problem and he would have to change his clothing several times a day.

[59]Brett Cocking’s statement, dated 25th May 2015 was served late, but the Defendant had received it two weeks before trial and did not object to his evidence being admitted. Mr Cocking also describes Lamarieo as sometimes passing stools several times a day and often needing to be showered afterwards, especially when his regular medicine for constipation results in overflow. There had been two or three such incidents in the six weeks before trial. In early May this year Lamarieo was admitted to hospital for a planned procedure to deal with faecal impaction and constipation. The following day he was severely incontinent. Such a procedure is required approximately every six to twelve months. Lamarieo misses school on average for one day each month as a result of his constipation problems, or in the aftermath of an enema.

[60]Mr Cocking states that Lamarieo still does not sleep through the night. Sometimes he will sleep right through, but sometimes he will wake up several times a night and this happens, on average, once or twice a week. They will often be up and down several times, especially when he has soiled himself and needs to be showered.

[61]Mr Cocking works during the day but, before he leaves and after his return, he helps with Lamarieo’s care because he is now physically almost a fully grown man and is very strong. He can also be aggressive and will lash out, not at him but at female carers and at his mother in particular. This happens on a daily basis, although some days are worse than others. This lashing out is not a physical attack in the sense of dragging his mother to the floor, but it is an attack movement, in which he goes to grab her.

[62]Mr Cocking has witnessed Lamarieo’s ups and downs over the years. His routine has to be followed and he has often had to rush home from work when Lamarieo has had an outburst and his mother cannot calm him. The care now provided by Jackie Lee has helped to reduce Lamarieo’s outbursts, but if he becomes upset or wound up he or his mother have to step in to help Jackie to deal with him. There is always at least one of them present to help her. Lamarieo can be difficult to manage and aggressive in public and Jackie is not prepared to take Lamarieo out on her own because of this. Sometimes she will do it on her own if they are pushed but it is not ideal. He himself will sometimes take Lamarieo out to the pub, where it is a familiar environment, or for a walk around the estate. He would not however take him out anywhere unfamiliar without help.

[63]During these outbursts Lamarieo cries and lashes out at people and things and can damage property. Mr Cocking described a recent attack upon Mrs Cocking in the kitchen, when the twins had to help get Lamarieo off her. These outbursts tend to happen in spells. They can go for a few weeks without anything happening and then Lamarieo will have outbursts every day for a week. He thought that his chronic constipation maybe one of the triggers for these episodes.

[64]The high level of care and support that he now has at school has, in his view, resulted in an improvement in Lamarieo’s behaviour and in his interaction with others. He is, however, an eighteen year old with the mind of a toddler and the improvements in his general abilities are small. It is becoming more difficult to cope with his behaviour as Lamarieo grows stronger. There have recently been further problems and the school have contacted them to discuss this. Part of the problem is the unpredictability of his condition. They think they have turned a corner, but there is then another blip and Lamarieo goes back down again.

[65]Asked about Jackie Lee’s notes, Mr Cocking considered that she was trying to paint a positive picture of Lamarieo for them. She would not therefore refer to every negative aspect which was part of his everyday life, such as soiled nappies or sleep problems. She did nevertheless tell them about the problems she had had with Lamarieo, even thought she had not written about them in her notes. He agreed that Jackie Lee had made a real difference to their lives. He also agreed that her notes showed her real love for Lamarieo and for all the family, but the occasions when she or other carers were with him alone were not ideal and he did not believe it was safe. Sometimes Lamarieo has been aggressive towards Jackie, and he will also lash out at passers by when she is with him. About three to four weeks before the trial there was such an incident in Sainsbury’s, when Lamarieo was with Jackie and started playing up.

[66]This account was vigorously challenged in cross examination. Mr Cocking denied that he was grossly exaggerating Lamarieo’s difficulties and the problems in managing them. He also denied that he was giving an untruthful account in order to bolster a case for two carers being required to attend to Lamarieo.

Documentary Evidence

[67]In considering the disputed oral evidence I have had careful regard to the extensive documentation available, including the care notes made by Jackie Lee and others. The various medical, educational and social services records in bundles 1, 4, 6 and 7, contain many references to Lamarieo’s disabilities and in particular to his behavioural difficulties over the years, which have been of real assistance in determining the pattern, nature and extent of his problems and the support he now needs. The chronology is important, given the case being advanced by the Defendant.

[68]As early as June and July 2002, when he was just five years of age, Bolton Social Services assessed Lamarieo as a child with severe learning difficulties, some dysfunctional behaviours and no sense of danger. He was noted, for example, to be pulling hair or scratching people’s faces, throwing things and pushing his twin siblings over. School records for 27 February 2004 include references to the parents’ concerns about Lamarieo pulling hair and hitting out.

[69]In the GP notes there are references to his behaviour being out of control, for example on 23rd May 2005, aged eight, and to him hitting and scratching the twins. On 6th February 2006, aged nine, his behaviour was noted to have “worsened again after a good period”. On 18th April 2006 the community nurse Phil McNally noted that Mrs Cocking was describing his behaviour as demanding and he gave her advice on handling him.

[70]Some 15 months later on 25th June 2007, aged 10, the consultant community paediatrician noted that “his behaviour can still be difficult at times but his mother thought it had improved generally…” Yet after just six months, on 26th November 2007, his behaviour was noted to have deteriorated. He was hitting out at or “nipping” his mother several times a day and was also attacking his younger brothers. This aggressive behaviour was noted to have increased in frequency and intensity and Lamarieo was referred to Learning Disability Health Services.

[71]The referral report of Phil McNally, dated 13th December 2007, was based on discussions with Mrs Cocking and classroom staff, and on his own observations of Lamarieo. The similarity with Lamarieo’s behavioural difficulties in more recent times is striking.

[72]He observed that these behaviours came in two stages. At stage one Lamarieo would cry or bite his hand and stamp his feet, at which point there was still an opportunity to defuse and divert, although this was not always possible. Stage one could escalate quickly to stage two, involving screaming, nipping others and pulling people’s hair. Stage two behaviours could be displayed immediately if the trigger were strong enough. These behaviours were noted to occur in any setting, but the most common environments for Lamarieo to find himself in were home and school. A number of potential triggers for Lamarieo’s aggression were identified including, for example, objects in a room being out of place, or Lamarieo being unable to perform a task and becoming frustrated. These same triggers have been identified in relation to his more recent outbursts. In 2007 Mr McNally made a number of recommendations, noting that “… working with Lamarieo on his behaviour will be difficult without a consistent approach between the school, home and short break carers.”

[73]On 14th April 2008, after reviewing Lamarieo in clinic, the consultant paediatrician noted that his behaviour continued to be a problem for his mother, and that he was very strong and would lash out at her, although he was noted to behave better for Mr Cocking.

[74]On 31st March 2009 the Firwood School Annual Review for Lamarieo, now aged 12, referred to his general behaviour in these terms:

“Lamarieo is usually a positive and fun class member but his moods can be very volatile and he can go into crisis very suddenly and sometimes seemingly without reason, and often cannot be brought back from a state of high anxiety by any means other than distraction or withdrawal from the situation or environment which is causing him distress. He has grown more cooperative and has grown happier as the year has progressed, although he does need daily reminders not to grab, pull hair or pinch. Lamarieo has been allocated a 1:1 supervision in the yard to prevent him targeting other students.”

[75]Two years later the Annual Review dated 21st June 2011 made no reference to volatility or crisis and provided a very positive description of Lamarieo’s behaviour and of his progress at school for that year. He was described as a very sociable, kind-hearted person who was very popular and who was developing into a very capable teenager and participating well in lessons.

[76]During the February 2011 half-term holidays, however, Barbara Copeland (Bolton Social Services) observed an incident on 24th February 2011 when Lamarieo was taken out, became anxious and grabbed the arm of a passer by. Later that year, on 15th September, in clinic with Miss Kapur concerning Lamarieo’s constipation problems, Mrs Cocking was noted to be extremely distressed and frustrated by Lamarieo’s condition and behaviour.

[77]In his report written in January 2012 Dr Smith noted that Lamarieo’s behaviour could be very challenging and that “… in recent years during adolescence there have been increasing concerns about aggression.” School records for February 2013 refer to challenging behaviour displayed by Lamarieo “over the last year.”

[78]Between September 2013 and March 2014 a series of school records containing staff and parent/carer comments reveal a mixed picture. There are many references to Lamarieo’s happiness and enjoyment of school activities, and to his excellent behaviour. These are interspersed, however, with significant outbursts of aggressive behaviour. The Case Manager, Wendy Ruffle, referred in her report to a series of “crisis meetings” held at the school, as well as to the reports and annual reviews addressing his progress. These outbursts are documented, for example, as occasions when Lamarieo grabbed someone’s hair with force, scratched one of the welfare assistant’s faces, or “went for” a staff member or “went into crisis”. There are references to him lashing out at home more than usual over this period and to him becoming angry and unsettled.

[79]There are also many references to Lamarieo’s chronic constipation and overflow incontinence during this period. There is, however, no medical record or report identifying these problems as triggers for Lamarieo’s violent outbursts, and I note that the letter to the GP of 13th January 2014 refers to his constipation as being “much better controlled” on the medication at that point.

[80]On 17th October 2013 the school prepared an Individual Behaviour/Positive Handling Plan (IBP) for the academic year 2013/14, which included a Risk Assessment. In this IBP the immediate concerns were identified as follows:

“Can become angry when things aren’t as he’d like Grabbing hair (pupils and staff) Pushes and slaps students and staff when surprised, angry or no apparent trigger Moving from [behaviour level] 0-3 more quickly and regularly Copies negative behaviour of others If hit on the head by another student (intentionally or unintentionally) he may respond by grabbing and hitting. His response may not be immediate and occur sometime later If he does not want something he waves it away or swipes it off his table Concern managing Lamarieo’s behaviour in the community.”

Various supportive and handling strategies, involving two members of staff, were identified. Lamarieo was assessed overall as posing a high risk. Grabbing hair (pupils and staff) Pushes and slaps students and staff when surprised, angry or no apparent trigger Moving from [behaviour level] 0-3 more quickly and regularly Copies negative behaviour of others Concern managing Lamarieo’s behaviour in the community.”

Copies negative behaviour of others

[81]Three incidents on 19th November 2013 led to a fixed, one day exclusion of Lamarieo from school on 20th November. The Head Teacher wrote to Mrs Cocking informing her that Lamarieo had pulled a member of staff by the hair and that the person had been unable to return to work for a short while. His behaviour had compromised the health and safety of people at school and new coping strategies were going to be developed. The internal, incident record indicates that in fact there were three incidents that day, involving hair pulling (at 9.55 a.m.), lunging at a staff member in the corridor (at 12.30) and then violently pulling a female member of staff’s head back (at 2.30 p.m.), causing injuries which necessitated medical treatment and absence from work.

[82]Subsequently, on 3rd February 2014, there was an incident in which Lamarieo tried to push the computer screen on to the floor and grabbed and pulled another student’s hair. Class staff decided that it would not be safe for him to attend the after school club that day. There are a number of entries in the school records in January and February 2014 referring to aggressive outbursts. The social worker Heather Riding noted on 7th February that there appeared to have been an escalation in his volatility and level of aggression in recent months.

[83]On 25th February 2014 notes taken at a Social Services multi-disciplinary meeting, at which Jackie Lee was present, included the following:

“Meeting called to discuss Lamarieo’s behaviour in all settings. All felt there had been an escalation of behaviour in the last few months. Objectives to share good practice across looking at what had been successful in different settings and apply these to provide consistency for Lamarieo across all settings.”

[84]There are further references in the medical notes later on in 2014 (12th August and 16th December) to Lamarieo being “very distressed and agitated… left with carer to sit in the car aggressive ++” and to him “kicking out and screaming” during a medical examination.

[85]In support of the submission that there has, since about mid 2014, been a dramatic improvement in Lamarieo’s progress and behaviour Mr Seabrook relies, in addition to Jackie Lee’s care notes, on the general progress reported in the school’s Annual Review for 2014/15, dated 9th December 2014. By this time the staff/pupil ratio had been increased to 5:3, Lamarieo’s behaviour was said to be much improved in school and at home and Mrs Cocking was noted to have described the change in his behaviour as “amazing”.

[86]I shall return to this Review again later on, but in relation to his general behaviour it was noted that:

“Lamarieo has settled well into his new class and adapted to small changes in routine. His incidences of challenging behaviour have significantly reduced. Lamarieo can still become anxious when things are not quite as he feels they should be, however his level of acceptance when staff give information or instructions regarding situations he finds difficult, is increasing all the time.”

[87]Notwithstanding these observed behavioural improvements recorded in the Annual Review shared with Mr and Mrs Cocking, it is significant, in my judgment, that the internal, contemporaneous school records addressing safety and risk assessment indicate that Lamarieo is considered still to represent a high risk. These include the existence of his own “personal emergency evacuation plan” as a “high risk student: behaviour”.

[88]The Risk Assessment carried out on 15th January 2015 assesses Lamarieo, before controls are applied, at Level B on seven identified hazards (indicating a possible risk of injury of major severity or a likely risk of injury of significant severity). He is assessed at the highest level, Level A, on the hazards regarding injuries to other students, staff and to himself, and of damage to property (indicating the likelihood or possible risk of catastrophic or major injury). The existing controls in respect of Lamarieo’s “limited self-help skills” are said to include “two members of staff to support personal care routines”.

[89]His IBP for April 2015, to which the contributors are the five staff members in his present class, identified their immediate concerns in very similar terms to those identified in the IBP for the year 2013/2014, set out above. His overall risk assessment for April 2015 has been documented as “High” and a detailed set of behaviours and responses required are identified in the “Behaviour Watch” document attached. All of these responses are clearly designed to prevent Lamarieo from causing injury to himself and to other students or members of staff.

[90]Mr Seabrook submits, relying on Liz Utting’s observations, that the necessary classification of risk within the school setting is very different from that required in the home. Duties of care owed to other pupils and staff members, together with obvious intimacy issues relating to his care, necessitate a higher degree of control and structure within the classroom setting. Even at school, provided Lamarieo has the right level of support and control within the right environment, the controls identified as required in the Risk Assessment are said to reduce his risk to Level E, the lowest level.

[91]I accept that the obligations owed by the school necessitate a high degree of care and control but the significance of the January 2015 Risk Assessment, in my view, lies in the recognised unpredictability and potential seriousness of Lamarieo’s outbursts. The risks arising from the hazards identified include, for example, his vulnerability in unknown social situations, particularly while in community settings, his reaction to touch, difficulties in empathising with or understanding the social behaviour of others, reaction to busy or noisy places, sensitivity to certain sounds, sights or tastes, and his inability to understand instructions and requests or to express his wants and needs.

[92]In addition to the Risk Assessment prepared by Firwood School, Bolton Social Services carried out an “Unplanned Review - Reassessment” between 11th September 2014 and 26th March 2015. In it the assessor, Heather Ashworth, referred amongst other things to Lamarieo’s problems with chronic constipation and frequent bouts of excessive soiling. Addressing need under the heading “Managing my Actions” she identified a ‘Rating 1: Critical’ and she listed a number of behaviours in respect of which Lamarieo requires support, as follows:

“1. Lamarieo can be physically aggressive towards others during heightened behaviours. He is not a morning person. 2. Lamarieo can be destructive of property, this includes throwing items, grabbing out. 3. Lamarieo can become very anxious and does not cope with change well. He will self harm through biting hands/fingers, increased verbal noise. 4. Lamarieo does not like the invasion of his immediate personal space and is likely to respond aggressively to this. 5. Lamarieo is prone to dropping to the floor and sit down when he is out and about in the community. More so when tired and/or bored with activities. 6. Lamarieo does not cope well with busy environments; the noise, volume of people, sounds. He can be obsessive about items. 7. Lamarieo will smear faeces. He will also become distressed when his pad needs be changed. 8. On arriving home from school, if he “launches” his shoes this is an indication of agitation and heightened behaviours.”

[93]In relation to ‘Personal Care’, his rating was again reported as “Critical”, as was the case in respect of all the needs referred to in this assessment. Ms Ashworth’s decision was as follows:

“Lamarieo is doubly incontinent. He wears pads which need to be changed regularly. He can become distressed if he needs changing so needs to be checked regularly. Lamarieo can require 2:1 support during all personal care. Depending on Lamarieo he can be supported by one care staff and have access to a second person if needed. This can usually be determined by Lamarieo’s mood. He has been known to smear faeces. He will wake in the night when he needs changing. Once changed, he will settle back down again. Lamarieo requires a shower both in the morning and the evening. He requires full support with all aspects of his personal care.”

[94]In relation to ‘Keeping Safe’, the following is recorded:

“Lamarieo has a minimal sense of danger, however he is kept safe as a result of the level of support and supervision he receives from his family and staff in provider services… Lamarieo is prone to falls or tripping up due to his poor balance. Lamarieo has no sense of danger and needs assistance to be closely supported when out and about… Lamarieo has 1:1 support with access to a second family member in his home, either to swap places with the other because he is very support intensive and/or additional support is required in personal care tasks. In the community 1:1 and access to a second carer.”

In the community 1:1 and access to a second carer.”

[95]As regards ‘Accessing the Community’ it is reported as follows:

“Lamarieo needs support to attend all medical appointments in the community. He requires 1:1 with access to a second person… Lamarieo needs structure and routine in all aspects of his life more so social and leisure. This is to ensure he remains in good health, kept mobile and more importantly manage his behaviours and moods. Not having meaningful and active activities causes heightened behaviours and upsets the family home considerably. During these times, supporting Lamarieo becomes physically and emotionally draining for his parents and siblings… Lamarieo enjoys being outdoors and being active.. Lamarieo doesn’t use public transport due to the unpredictability of his behaviours and the risk posed to self and others when in heightened behaviours… Lamarieo will be settled and happy in his days due to varied and stimulating activities. These will occupy his mind and keep him physically active.”

Maggie Sargent regarded it as highly unusual, in her experience, to have this level of prescription in a Social Services assessment addressing need, and as a clear indicator of the serious risk Lamarieo is assessed as presenting, as at March 2015.

[96]The Case Manager, Wendy Ruffle, was formally instructed in May 2014. She has since then liaised with Social Services and discussed Lamarieo’s needs with his parents and with Jackie Lee at a meeting on 26th May. Ms Lee was noted to be already involved with Lamarieo through the Direct Payments scheme. In her report Ms Ruffle described Lamarieo’s poor sleep pattern and problems with constipation, and the fact that he was displaying challenging behaviour on a regular basis. At school he did not interact directly with his peers. He could work alongside other students but was not working with them. The staff tended to give him space and to allow him time to calm down, but this was not always possible and Lamarieo could lash out if his agitation increased.

[97]In relation to the activities of daily living she noted that Lamarieo was going out into the community “on good days” with Jackie Lee as his main carer. She reported, in this respect, “1.100 Jackie Lee reported that Lamarieo enjoys going out into the community. She has to be very careful where she takes Lamarieo due to his difficulty coping with noise and enclosed, crowded spaces. 1.101 It would be safer to go out with Lamarieo with two carers to enable safe management of his behaviour should he become agitated.”

[98]Ms Ruffle’s recommendation is that the provision of care and support should ensure that two adults are available in the house at all times to maintain Lamarieo’s safety, as well as two carers being available to enable Lamarieo to go out into the community independently from the family at least twice per week. A behavioural management strategy will, in her view, be essential to assist new support workers to understand how to work with Lamarieo in the most effective way.

[99]On review on 28th January 2015, having regard to the recent school Annual Review, Ms Ruffle noted that, since the introduction of extra care at home and the increased teacher to pupil ratio at school, Lamarieo’s behaviour had settled down and that he had been able to engage in more social interactions with his family and with peers. Nevertheless her understanding is that Lamarieo still becomes frustrated, agitated and aggressive on occasion, and that his outbursts are unpredictable.

[100]In January 2015 Ms Ruffle prepared her own Risk Management Plan, in relation both to “Community Access”, when Lamarieo goes out into any public space, and to “Risk to Others” in general. The risk level was assessed in both as “High” applying the risk assessment matrix as to likelihood and severity of consequence set out in the plan. The identified risk, that in the community he may lash out at a member of public and that, more generally, he may lash out at family members, carers or the general public, was reduced to “Moderate” by the measures identified as necessary to minimise that risk. In relation to Community Access the two measures were:

“1. 2 people to accompany Lamarieo into the community. 2. When Lamarieo is having a bad day (to be communicated by his family) go to familiar spacious environments.”

In relation to Risk to Others the measures were:

“1. 2 adults available to respond to Lamarieo’s needs at all times. 2. Allow Lamarieo space when he is feeling frustrated. 3. Find a method of communication which Lamarieo can use and understand so that he knows what is expected of him or can ask for what he needs.”

[101]Ms Ruffle acknowledged that she has had only minimal observation of Lamarieo herself before preparing her reports and assessments. However, her assessments were all based on the discussions she had not only with Lamarieo’s family and Jackie Lee, but also with his school teachers and the statutory services. The Risk Management Plan, in particular, was based not only on information from Mr and Mrs Cocking, but on what Jackie Lee had told her.

[102]Ms Ruffle considers Lamarieo’s behavioural difficulties to be cyclical. Notwithstanding the improvements noted at school, she said that Mrs Cocking had spoken to her very recently on the telephone about concerns with Lamarieo’s increasing aggression and there are still, in her view, “flash points” that need to be managed safely. She had witnessed one such incident herself in July last year, when Lamarieo hit his mother in the eye as she tried to get him out of the car and into the dentist’s surgery.

[103]Ms Ruffle disagrees with the suggestion that having one principle carer in place together with additional, occasional support, as proposed by the Defendant, would be sufficient in Lamarieo’s circumstances. Even with the male agency carers who have recently taken Lamarieo out on planned activities, these outings have not been problem free. She described an incident involving Lamarieo lashing out at his mother when one of these carers, known as Sampson, tried to take him back inside the house because his nappy was found to be soiled. Since then Sampson had decided that he should not take Lamarieo out on his own. This was a sudden escalation to aggression in what was a quite straightforward situation and it is indicative of the difficulty in predicting when such an incident will happen.

[104]A further example of unpredictability of this sort is to be found in the notes made by the physiotherapist, Liz Cowan. At the request of Wendy Ruffle, Ms Cowan assessed Lamarieo at home on 5th December 2014 and proposed a treatment plan. She noted on one occasion in her treatment records that, on 22nd January 2015, when she attended school for a physiotherapy session with Lamarieo:

“Lamarieo happily came into the little room and lay on the mat and took his shoes off. Unfortunately he then became upset and lashed out towards my head – no real contact made. For safety and in the hope of keeping him settled we moved into the classroom.”

[105]Against this background I have considered carefully the “care diary” notes of Jackie Lee and others, given the Defendant’s reliance upon them. In my judgment they do not bear the evidential significance that Mr Seabrook seeks to attribute to them.

[106]First, the various care notes we have, including those made by Jackie Lee which form the bulk of them, are accepted to be incomplete or undated. They do not therefore provide a continuous record.

[107]The first two, typewritten pages describe, in brief terms, eleven days in Lamarieo’s life between the 5th and 18th January 2014. There are many references to soiling and sleep problems and to incidents of aggressive behaviour, Lamarieo lashing out at his mother, for example, and almost knocking the iron out of her hand on one occasion.

[108]There are then thirteen very brief, handwritten entries on a “Daily Evaluation” sheet made in 2015 by, I assume, agency carers, one of whom may be Sampson according to the signature. They cover odd days in January, February and April, ending on 9th May 2015 and they refer only to various outings with Lamarieo. It is correct that some of them note that there were “no issues” or that Lamarieo was “settled” or “happy”. However, given the detailed assessments being contemporaneously carried out by Firwood School and Bolton Social Services, and the assessments of Wendy Ruffle and others involved in Lamarieo’s care and management, such brief entries cannot reasonably be regarded as indicating that Lamarieo’s behaviour was no longer causing difficulty, or that he was not still prone to unpredictable episodes of violence in the earlier part of this year.

[109]Secondly, Jackie Lee’s notes, which span a period from January 2014 to April 2015, are not official entries on care logs, in the form that the courts are used to seeing in such cases. Maggie Sargent considered, with some justification, that they are not the detailed notes you would expect a professional carer/support worker to make. They do not include, for example, bowel action charts or behaviour charts, or ABC notes (Antecedent, Behaviour and Consequence), where carers record and log particular behaviours, so as to enable those who are providing care and support for that individual to improve the management of that care. Those who employ and supply care workers are now always asked to specify the risk assessments that have been carried out, the risks that have been identified, the training that is required and the steps that have been taken to protect carers from injury. The notes made by Jackie Lee do not therefore provide detailed information of the kind that is normally to be expected from someone providing personal care and support. In my view that affects the reliance that can be placed upon them as providing an accurate picture of Lamarieo’s condition and behaviour during this period.

[110]Thirdly, Ms Lee’s notes are plainly written by someone who is a close friend of the family or who is regarded, as Wendy Ruffle observed, as a member of the family, and who obviously has great affection for Lamarieo. Ms Lee knew the family before she became Lamarieo’s support worker and the relationship between herself and his family is therefore different from that which the family would have with a professional carer. There is some force in Ms Sargent’s observation that her notes reflect that relationship. She refers, for example, to being “emotional watching Jayden and Lemar have so much fun”, or says (about Lamarieo) “bless, I love him to bits”, or “I have so much respect for Marva, love her to bits” and “had great weekend with Lemar and all his family”. Further, from February 2015 onwards, the notes have been written so as to appear as if Lamarieo himself were the author. Ms Lee writes, for example, “my first day at Alan’s was very exciting”, or “Jackie sprayed me with Alan’s aftershave. She likes me to smell good when she gives me a big hug,” or “can’t wait for dad to come home from Scotland.”

[111]It is correct that these notes do not make repeated references to Lamarieo’s poor sleeping patterns, or to him regularly soiling himself, but it is incontrovertibly the case on all the evidence that chronic constipation, overflow incontinence and poor sleep patterns have been a regular feature of Lamarieo’s life over the years. Their absence from Ms Lee’s notes is in my judgment an indicator of their regularity and familiarity, rather than of any absence or reduction in their frequency.

[112]I do not accept Mr Seabrook’s submission that these difficulties are now occasional or infrequent, or that Mr and Mrs Cocking have exaggerated them. The suggestion that Mr and Mrs Cocking have misled the professionals involved in assessing Lamarieo, or have exaggerated the problems currently being experienced is unsustainable. I find both Mr and Mrs Cocking to be honest and reliable historians, whose accounts are supported by the other evidence in the case, in particular the documentary evidence and the evidence of Sam Manna, Wendy Ruffle, and experts instructed in this case.

[113]In their most recent reports both the paediatric neurologists refer to Lamarieo’s significant constipation and poor sleep patterns and advise that there will now be no improvement in his sleep disturbance difficulties. Wendy Ruffle spoke to both Mrs Cocking and Jackie Lee in mid 2014 and noted Lamarieo’s regular and severe constipation and the lack of a well established sleep pattern. The occupational therapist, Caroline Penny Smith, visited Lamarieo and his family again in January 2015 and confirmed in evidence her understanding as to his continuing sleep disturbance and soiling problems.

[114]I agree that the evidence indicates there were particular problems with constipation and incontinence on occasions between September 2013 and the early part of 2014. Intermittent flare ups are, however, a feature of this condition and the medication that Lamarieo receives for it. Occasionally he has to be admitted to hospital for more invasive treatment, with all the problems of incontinence and overflow that ensue. This problem also exacerbates his poor sleep pattern. I accept the evidence of Mr and Mrs Cocking that Lamarieo’s wakefulness at night and problems with constipation are features which are still presenting now as they have done in the past. They occur irregularly and will vary in seriousness, but they are both constant and extremely unpleasant features of Lamarieo’s life, which they manage as best they can. It appears unlikely that there will now be any significant improvement.

[115]Nor do I accept the submission that reliance can be placed on Jackie Lee’s notes as indicating that she has been managing Lamarieo’s care on her own without difficulty, or that there has been a dramatic improvement in his behaviour since mid 2014. It is correct that there are many references throughout her notes to Lamarieo being happy, excited and giggling, and to him having fun and doing things which are aimed at encouraging his independence. There are also, however, a number of references to him being anxious or upset and, on occasions, to him hitting out or pulling his mother’s hair, pulling her hair when she was driving, going for his younger siblings, or grabbing at Jackie Lee’s coat, falling to the floor screaming and hitting out.

[116]Some of her notes are headed “Incident”. The first (undated but probably before May 2014) describes a day when Jackie Lee and Mrs Cocking were in a BHS store and Lamarieo could not have a CD that he wanted. Ms Lee has noted that Lamarieo pulled her scarf and that she went to the ground while Lamarieo was screaming, hitting out and trying to get out of his wheelchair. He then became very angry and was hitting out at Mrs Cocking. Ms Lee noted “It was hard to keep him in his wheelchair and ensure the health and safety of others.”

[117]The second, dated 23rd July 2014, describes Lamarieo grabbing his mother by the hair while they were both out shopping and to him becoming angry. In the car he went for his three year old brother and is said to have “attacked” his mother again. The note indicates that Mrs Cocking called Jackie Lee to come and help them and that, when she arrived, Lamarieo hit out at both of them but they managed to move out of his way. Later on she states that she took him for a walk but he went for her, raising his hand and trying to grab her and screaming. She notes once again, on 1st November 2014, that Lamarieo became angry and upset and grabbed at her when he could not find the DVD he wanted. He then hit out at her again when she could not help him.

[118]I accept, on the evidence, that there was an escalation in Lamarieo’s behaviour in late 2013 and the first half of 2014. Jackie Lee was present at the Social Services meeting on 25th February 2014, when everyone who was there agreed that this was the case and that there was a need to discuss ways of managing him and to share good practice.

[119]I find on the evidence that Jackie Lee did initially refuse to go out with Lamarieo on her own after the “scarf” incident, when Lamarieo attacked her. Although this does not appear in her notes and Mrs Cocking does not refer to it in her witness statements, I accept Wendy Ruffle’s evidence that Ms Lee told her this at interview. Wendy Ruffle interviewed both Jackie Lee and Mrs Cocking on 26th May 2014 and referred expressly in her report to Ms Lee’s concerns about taking Lamarieo out into the community.

[120]Caroline Penny Smith also recorded her understanding that this was the case in the statement prepared following the joint meeting of the occupational therapy experts on 13th May 2015.

[121]As Jackie Lee’s notes indicate, however, and as both Mr Cocking and Wendy Ruffle said in evidence, Ms Lee has in fact continued to take Lamarieo out on her own on occasions after this incident. I find that she did so because of the special relationship she has with this family, her genuine affection for both Lamarieo and his mother and her wish to help them out when she can. While the evidence shows that his behaviour became more settled in the later part of 2014, I find that there have still been further, violent outbursts on occasion. I also accept the evidence of Mr and Mrs Cocking that there have been further problems with aggression in the weeks running up to this trial, as they both described.

[122]The key feature in relation to these violent outbursts is that they are unpredictable. While I accept that there are some well recognised triggers, this is not always the case. Even when a trigger event happens, the evidence shows that it is not always possible to avoid it, or to defuse the situation before the violence escalates.

[123]There is no doubt that these challenging behaviours are the product of Lamarieo’s brain injury and his profound cognitive impairment. At times he is sociable, pleasant and cooperative, as Dr Rosenbloom stated. At other times, however, he is aggressive and very difficult to manage. Dr Smith also noted his unpredictable physical aggression, both at home and at school. Caroline Penny Smith described him in her report as a delightful young man who is well supported by his family. Her evidence in the witness box, which I accept, is that he is also a very challenging and very difficult young man to work with, who has complex needs.

[124]Given that these behaviours are the product of his brain injury, the question is whether there can legitimately be said to have been a major improvement in his general behaviour and in his performance at school in recent months, as the Defendant contends, negating the need for the care and support regime advocated on behalf of the Claimant. In addition to the carers’ notes, Mr Seabrook places considerable reliance, in this respect, on what he suggests is the promising Annual Review from Firwood School for the 2014/15 academic year.

Educational Psychology Evidence

[125]In his report Dr Rosenbloom properly deferred to expert educational psychology assessment with regard to the details of Lamarieo’s learning difficulties. Assistance was given in this respect by Dr Peter Bendkowski, chartered educational and practitioner psychologist, who carried out a home visit and also spent a whole day at Firwood School observing Lamarieo on 14th November 2013. Dr Bendkowski was also in court to hear the evidence of the factual witnesses and the suggestions being made in cross examination as to Lamarieo’s progress and improvement in recent months.

[126]Dr Bendkowski’s qualifications and expertise are accepted. He has many years experience in this field. His opinion, which he said remained the same after hearing the evidence given in court, is that Lamarieo has very limited cognitive skills coupled with autistic traits, which are quite profound. His learning difficulties are therefore severe and he has challenging behaviours across a range of settings.

[127]Cognitively his ability to interpret and interact with his environment is very restricted in scope. He has no spoken language and his communications are therefore heavily dependant on the experience and interpretive skills of those around him with ordinary intellect. His understanding of language is at a very low level for his age. He understands some concrete ideas that are linked to activities and he also understands prohibitions and permissions. However, he can manage only simple ideas and concepts. His understanding of the world is restricted to basic and immediate ‘cause and effect’ situations, and the following of set routines that are familiar to him. His ability to link ideas into meaningful sequences of behaviour is very limited.

[128]In relation to his autism, Lamarieo displays difficulty in accepting new situations and has a strong attachment to known routines and patterns of activities. For example, in his free time at school he likes to watch cookery programmes and he will tolerate others in the same room provided they do not interfere with this activity. It is very difficult to move him on until the programme has ended. Moving him early can cause him to react quite badly. His interactions with others also show autistic features. During group activities he tends to sit separately from others and he shows a low tolerance of others being in his proximity. Members of staff become concerned about his reactions if another student makes a noise, or moves near him in a way that can cause him to react quickly. He actively avoids eye contact, which is very limited in group situations as is facial expression and body language. He does not mix well with other students.

[129]At Lamarieo’s age the emphasis at school is on personal development and learning life skills. With respect to learning he has very limited skills. He is totally reliant on the staff to structure and guide him, even when engaged on activities to which he has had long exposure over time. Directing him to do something is usually done by verbal instructions accompanied by gestures. His problems with vision may contribute to his difficulties.

[130]As Dr Bendkowski emphasised, it is necessary to understand the context for Lamarieo’s achievements, as noted in the Annual Review. The National Curriculum Four Key Stages are too high for pupils with significant special educational needs. Special schools in the United Kingdom therefore use the system of “P Levels” in which the attainment targets apply to pupils aged 5-16, with special educational needs, working below Level One of the National Curriculum. Lamarieo’s levels have therefore been achieved using PECS (the Picture Exchange Communication System), an aided form of augmentative and alternative communication used extensively for children with global developmental delay and for those with autism spectrum disorder. It aims to support oral language and it relies on visual cues to help to understand very basic communication. It is highly structured.

[131]As at November 2013, when Dr Bendkowski was observing him at school, Lamarieo’s understanding of communication was judged to be at a very low level of functioning. His Level P5 for Personal and Social Education suggested that he could take part under close supervision in activities involving two or three others, by maintaining interactions and taking turns in a small group with support. Overall his attainments showed him to be at the middle to upper range of the P Levels. However, he had not achieved levels 7 or 8 for any areas of functioning, which showed a low level of functioning for his age.

[132]Dr Bendkowski also noted consistent behaviours that indicated when he was becoming distressed, for example biting his hand or rocking backwards and forwards. His observation was that Lamarieo found social interactions hard to deal with. While at the school he saw no instances of challenging behaviour that led to violence, although he did see difficulties in moving him on from one task to another, when he bit his hand, rocked and made noises. This caused the Teaching Assistant to move her chair away from him, to avoid him lashing out, and to stay away until he stopped rocking. The staff he spoke to related a series of problems they were having on a regular basis with Lamarieo’s aggressive outbursts. He could not be relied upon to cope with interactions from adults he did not know and he also had to be dealt with very carefully by those who were familiar with him in order to avoid injury.

[133]The incident log for September and October 2013 contained a number of incidents of face-scratching, hair pulling, hitting out and other students being pushed over. There was also passive resistance by floor sitting. These problems have existed from a very early age, as the school records show, and the approach has for some time required staff to try to read his behaviour and to head off problems before they escalate.

[134]In Dr Bendkowski’s opinion Lamarieo’s low level of cognitive ability, his restricted social skills and his aggression all result in the need for a high level of supervision and support, both now and in the future. He is not safe to be left unsupervised in a normal household and he has little awareness of danger. He will need the equivalent of 24 hour care for the rest of his life. This means, in relation to personal care, that he cannot be left without a carer for any period of time. Whilst this person does not have to be in his presence for the whole of any given 24 hour period, there must be someone in close proximity to ensure his safety and also for the safety of others. Lamarieo can be left in a secure indoor environment for very short periods of time when he wishes to be on his own, with the proviso that he can be monitored and that there is a carer nearby to intervene if necessary.

[135]After his time at Firwood School comes to an end, he will continue to need highly structured activities throughout the day, to keep him safe and to prevent his behaviour deteriorating. These activities will require carers/educators who are used to challenging behaviours and severe learning difficulties, and who are trained in appropriate restraint techniques, if necessary. The extent to which a balance is required between planned activities and more informal leisure periods will vary as he grows older. There will however always be a need for carers or other support workers to lead him through a typical day and ensure variety. A single person could not work with Lamarieo on his own. He would need the presence of at least two workers with him throughout each day.

[136]In challenging this evidence Mr Seabrook suggested that Dr Bendkowski had painted a bleak and depressing picture which was unjustified; and that the most recent Annual Review had shown substantial improvement in Lamarieo’s behaviour and excellent progress in his academic subjects. Dr Bendkowski did not accept this analysis and, in my view, his reasons for rejecting this suggestion are compelling.

[137]In relation to ‘progress’ in the academic subjects, it is correct that the entries in the recent Review praise his progress and achievements in a number of respects. These include, for example, Lamarieo’s stated enjoyment of music and use of different instruments, his use of a range of techniques in art, and his good concept of number and shape-placing in mathematics. On first reading it is easy to lose sight of the context for these and other, encouraging observations.

[138]Lamarieo has profound cognitive impairment. He is, to use the phrase often repeated throughout this trial, an 18 year old with a toddler’s brain. Toddlers with normally functioning brains, as Dr Bendkowski pointed out, will progress incrementally. Lamarieo has severe mental retardation, with an arrested state of development. He will not therefore progress, as that term is usually understood. The P Levels that Lamarieo has achieved in this 2014/15 year demonstrate this. P Levels are descriptors of a young person’s capacity to engage in certain activities and it is misleading to think of them as equivalent to National Curriculum Levels. The P Level measures are used to describe an accrual of skills within that level, but there is no incremental progress for someone with Lamarieo’s condition. A student with an arrested state of development who is functioning at a particular level will not therefore progress to the next level.

[139]Glowing as the written descriptions of his achievements are, the recent report indicates that in all the subjects save for Personal and Social Development (PSD), there is no real change in his P Levels for 2014/15 from those in the previous year. I accept Dr Bendkowski’s evidence that the increased P Levels to Levels 7 and 8 in PSD (for interaction, independence and attention) are most probably accounted for by the highly structured classroom environment he is in now and the higher pupil/staff ratio in his class, up to 5:3 from 5:6 in 2013. It is of significance, in my view, that this 5:3 ratio is the highest that Dr Bendkowski has ever seen.

[140]Save in this respect, however, the progress described in the various school subjects describes Lamarieo’s gaining of further skills within the particular P Level, and not any incremental gaining of intellectual power. Lamarieo is therefore doing more things, probably due to the highly supportive classroom environment, but he is only functioning at the same level. He cannot build on these achievements to progress to the next level.

[141]The increased P Levels for his Personal and Social Development are important, however, because this subject is concerned with Lamarieo’s behaviour. Dr Bendkowski agrees that late 2013 to early 2014 appeared to be a period of some crisis for him. However, after the provision of the increased staff/pupil ratio, and, possibly, the careful selection of those students who were to be in the same group as him, Lamarieo is noted to have settled well and the incidents of challenging behaviour have significantly reduced.

[142]The improvements described must also be understood in context. The reference, for example, in the paragraph dealing with ‘Relationships with Others’, to Lamarieo as someone who is a “very sociable boy” who now “…delights in the company of others”, indicates when the paragraph is read as a whole that Lamarieo is now looking at someone in the “morning circle” routine when their name is called, which he was not doing in 2013. There is no evidence, in the school report or elsewhere, that he is now making contact with others outside the classroom environment. His social interaction is still limited and the school environment is highly controlled. In this highly structured and controlled environment his level of acceptance, when staff give information or instructions, is increasing, which is encouraging. He has also become more co-operative with his personal care needs, and if someone loads his spoon for him he can feed himself independently. These improvements, in Dr Bendkowski’s view, are a clear indicator of what can be achieved for Lamarieo with the right regime of structured activities and close supervision.

[143]In relation to the period of deterioration between September 2013 and mid 2014 Dr Bendkowski rejects, as do I, the suggestion that it was due at least in part to the fact that he was prevented from seeing his natural father. That suggested reaction to the separation pre-supposes a level of cognitive ability that Lamarieo does not possess. Lamarieo’s insistence on routine is in the present. He is unable to ruminate on things. His long term memory deficit means that it is unlikely he would remember the next day that he had seen his father the day before, even if he had been pleased to see him at the time. Recognition is not the same as recall. He can recognise his father and show pleasure in seeing him, but to say that he was unhappy because he was no longer seeing him is to misunderstand the nature and extent of his profound disability.

[144]This evidence of Lamarieo’s difficulties with memory is supported by Lesley Cogher, speech and language therapist, who notes in her joint report that his understanding of language is related to the here and now and to concrete concepts. While he may also understand and retain some names and some plans for the immediate future, his understanding is limited, as is his ability to remember.

[145]The preponderance of the evidence in this case is therefore that Lamarieo has presented with difficult and challenging behaviour over many years, since his early childhood. These behaviours are the product of his brain injury, arising from his severe learning and communication difficulties and his profound autism. His problems with constipation may also have exacerbated the difficulties. The evidence also demonstrates the unpredictable and erratic pattern of these challenging outbursts over the years. As Mr. and Mrs. Cocking describe, there are good periods and bad periods. Despite the more settled behaviour described in the recent school report, episodes of challenging and aggressive behaviour are continuing to occur from time to time and, in my judgment, they are likely to continue to do so in the future.

[146]On the evidence I consider that the most likely explanation for his deterioration during 2013/14 is that his condition is cyclical, and I accept Dr Bendkowski’s opinion in this respect. He emphasised that individuals with this mix of physical disabilities, autism and profound mental retardation will go through times when they are upbeat and amenable and times of crisis when they are not. The reasons for this are unknown. Sometimes it is simply inexplicable. What is known is that with increasing age comes cognitive decline, so that the chances of unpredictable periods of aggression become greater over time.

[147]I found Dr Bendkowski to be a thoughtful, measured and impressive witness. In my judgment his evidence as to Lamarieo’s abilities and behaviour does not present an overly bleak picture. It is, rather, a picture injected with realism, supported as I find by the other evidence in the case, but notwithstanding Lamarieo’s profound difficulties he is also optimistic as to what can be achieved for him with the appropriate level of support.

Conclusions: The basis for determining Lamarieo’s needs

[148]Lamarieo is a dearly loved child and an important member of a large happy family. He is also a profoundly disabled child due to brain injury sustained at birth. His parents wish him to remain with them in the family home, with support that will enable them to lead normal lives of their own and with their other children, while still playing a full part as Lamarieo’s parents.

[149]His epilepsy is reasonably well controlled and is likely to remain so. His cerebral palsy affects all four limbs. He is visually impaired but cannot wear glasses because he always pulls them off. He is independently mobile but sometimes needs assistance when walking. He is highly dependant on others for all aspects of his personal care and daily living as a result of his profound cognitive, social and communications impairments. It is these which inhibit the use of his upper limbs and hands.

[150]He is doubly incontinent and requires to be changed frequently. He has serious problems with constipation, which is managed by regular medication and occasional hospital treatment, often resulting in overflow incontinence. This is a regular feature of his daily life, varying only in frequency and intensity. His sleep pattern is poor and erratic. He will occasionally sleep through the night but usually wakes two or three times and often requires a soiled nappy to be changed. Whenever he wakes he needs someone to be with him. He can be unsteady on his feet and cannot be allowed to wander. He has no sense of danger. All these features are permanent. Caring for him, managing him in the shower and lifting him as he grows has caused Mrs. Cocking to suffer from problems with her back.

[151]His intellectual limitations, arrested development and learning difficulties are severe and he is on the autistic spectrum. He cannot communicate save by noise, gestures and occasional touching and his ability to understand language is very poor. He functions at the cognitive level of a toddler and will not progress intellectually, although he may accrue or develop further skills within his relevant P levels with appropriate, structured activity and support.

[152]Due to his brain injury he has presented with episodes of extremely challenging behaviour over the years and he continues to be prone to aggressive outbursts when he will lash out at people, usually women, scratch their faces or pull their hair forcibly.

[153]All the experts have seen Lamarieo on just one or two occasions, as Mr Seabrook points out, and the Court has in mind the potential limitations of a snapshot view in considering their assessments. In my judgment, however, all the evidence in this case leads inexorably to the clear conclusion that Lamarieo’s violent outbursts are unpredictable and that his condition is cyclical. Anger, volatility and his labile nature are features of this condition. There are some well recognised triggers for his aggressive behaviour, which careful anticipation and tight management will sometimes be able to defuse, preventing an escalation, but this is not and will not always be the case. The triggers can also be wholly innocuous or unforeseen events, such as loud noises (for example the fire alarm at school), or the way in which objects are placed, or changes in the sequence of events. Sometimes there can be an outburst without such a trigger. This, as I find, will continue to be the pattern in the future.

[154]Lamarieo has done markedly better at Firwood School, in terms of both behaviour and learning life skills, since the pupil/staff ratio changed. He clearly benefits from the highly structured and controlled environment and from close supervision. Episodes of challenging behaviour still occur from time to time, however, both at school and at home and there will continue to be flash points which need to be managed safely.

[155]His time at this school will come to an end in July 2016. He may secure a place at a college for a further period of education to the age of 25 but, even setting aside funding issues, whether he does secure a place is presently uncertain. There is, in addition, no certainty that he will be assessed as suitable for an adult centre.

[156]Mrs. Cocking has been his primary carer over the years, although Mr. Manna and Mr. Cocking have both provided a great deal of ‘hands on’ care and support themselves.

[157]Mrs. Cocking admitted that she had little assistance with care for long periods of time, that she had struggled with the idea of having care workers in her home and that she did not ask for more help. The Defendant’s case is that this demonstrates both her ability to manage on the amount of care she has had and her likely future resistance to further care. I do not accept this analysis. Marie Palmer, Occupational Therapist called on behalf of the Defendant, has reported that trust is a major issue for Mrs. Cocking and that it is very important that she feels she can trust others to care properly for Lamarieo before she is willing to leave him in their care. I accept that assessment having heard Mrs Cocking’s evidence.

[158]There are references in the Social Services records to this, essentially protective attitude towards her son. On 20 October 2011, for example, Mrs. Cocking was noted to be unhappy about different people coming in to care for Lamarieo and that she needed to feel confident about the carers. Wendy Ruffle described Mrs. Cocking’s internal struggle in this respect over the years, both wanting more care and knowing it to be necessary, yet at the same time being resistant to handing over the care of her son to people she does not know and who do not know him.

[159]In my judgment this explains, in part, the slow progress there has been in introducing the necessary care and therapeutic regime since Ms Ruffle was instructed in May 2014. The other reason, as Ms Ruffle explained, is that the present family accommodation is wholly unsuitable for the necessary support package for Lamarieo. There is simply insufficient space for multiple carers/therapists and the existing space is already fully utilised by the family.

[160]Other entries in the Social Services material, for example a meeting on 6 February 2012, refer to Mrs. Cocking’s worries about using all the Direct Payments she has received. This, I find, also explains her admitted reluctance to use the sums she has received to date for Lamarieo’s care, both the Direct Payments and the Interim Payment made by the Defendant at the time of Swift J’s order on 27 June 2013. I do not accept that this indicates Mrs Cocking’s opposition or resistance to further care, as Mr. Seabrook suggests. On the evidence I find that her reluctance to spend this money has been due to her concern to ensure the protection of funds for Lamarieo’s care, given the uncertainty as to the future and how much money there will be for his needs. The liability compromise is clearly relevant in this respect and I find that this was not an unreasonable attitude for her to adopt in the circumstances.

[161]The evidence, however, is that this attitude is changing. Having help from Jackie Lee in caring for Lamarieo has contributed to this change and Mrs. Cocking has now also accepted help from other carers. Most recently, in the Social Services “Unplanned Review – Reassessment” in March 2015, Ms Ashworth noted Mrs Cocking’s comment that “…she finds the day to day emotional and physical support of L all consuming and this has often taken her away from time with younger siblings and her husband…without paid support she is not sure how they can continue. They all love and cherish L but find it a daily struggle to keep him occupied and maintain his moods.”

[162]I accept Mrs. Cocking’s evidence that she now wants to have Lamarieo living with them all in a suitable property, where he can have people caring for him and who have access to him without disrupting the lives of her other children. The weight of the evidence is that Mr. and Mrs. Cocking are both willing to accept help for Lamarieo from professional carers in appropriate accommodation. The transition will need to be managed carefully but there is little doubt, in my view, that Mrs. Cocking’s genuine wish is now to stop being Lamarieo’s carer and to have professional help for her son.

[163]It has been agreed that Lamarieo’s life expectancy is to 67.5 years of age. QUANTUM: AGREED SUMS General Damages

QUANTUM: AGREED SUMS

[164]These have been agreed at £250,000 with interest to date of trial (15 June) of £27,900.00.

Past Losses

[165]Before trial the total sum agreed for the past losses claimed, including past care, was £299,998.00. The relevant, individual heads of claim drawn from the Schedule appear at paragraph 7 of the Claimant’s written closing submissions and it is unnecessary to repeat them here. Interest, net of £940 earned on the interim payment (this point is dealt with further below), is £125,929.15 giving an overall total of £425,927.15. Further past losses agreed in the Counter Schedule, or subsequently agreed by the Occupational Therapists, are set out at paragraph 8 of the closing submissions. Together with interest of £8,523.51 this gives a total of £28,683.18.

[166]Paragraph 9.2 of the submissions lists a number of miscellaneous past losses in respect of Travel and Holiday costs, which were in dispute on the Schedules. Save in relation to two items, at paragraph 9.2.9 and 9.2.11, which are claimed as pleaded, the Claimant has made sensible concessions in order to avoid disputes over what are comparatively minor sums.

[167]The two disputed items relate to the two week family holiday in Jamaica in October/November 2013 to visit Mrs. Cocking’s family. The first claim is for £1,200 for the cost of a driver. The Defendant suggests in the Counter Schedule that some transport costs would have been incurred by the family in any event, in particular since, as Marie Palmer reported, the area where Mrs. Cocking’s mother lives is remote. In fact, it appears from her report that Mrs. Cocking informed Miss Palmer that it was the remoteness of her mother’s area that led the family to stay in a hotel about 14 miles away, for the sake of Lamarieo’s health, and therefore to incur the costs of a driver to and from her mother’s home. In the circumstances I consider that this was a reasonable expense which was reasonably incurred and I allow it in full.

[168]The second item claimed, as a therapeutic activity, is the sum of £264.00 for swimming with dolphins, for the Claimant and carer. The Defendant makes the valid point that the Claimant would have incurred costs for activities in any event and allows half this sum in the interests of proportionality and to allow something for the carer’s activity costs. I shall therefore award the sum of £132.00.

[169]The total sum awarded for the items set out at paragraph 9.2 of the submissions is therefore £10,998.29 rather than the sum which appears at paragraph 9.2.15. There will be a small adjustment necessary to the interest due on that sum, which I calculate as £4,650.08, but which the parties will no doubt be able to agree.

Agreed Future Losses

[170]The Court of Protection Fees to be incurred in future are agreed at £332,000.00.

[171]In addition, the Occupational Therapists agreed those items of equipment as set out in Appendix 1 to the Claimant’s written submissions. The total figure in Appendix 1 (£15,052.59) is different from that which appears at paragraph 10.2 of the submissions (£17,335.39). This needs to be clarified and will, I assume, be capable of agreement.

QUANTUM: DISPUTED SUMS AND ISSUES TO BE DETERMINED

[172]I shall deal with these in the following

[173]In March 2015 Mr. and Mrs. Cocking privately purchased a Land Rover Discovery HSE SDV6 3.0 Automatic for £47,200.00. The Defendant says that this was an unnecessary extravagance. Mr. Seabrook accepts that the Defendant cannot insist on the Claimant purchasing a vehicle through the Motability Scheme but he contends that the Land Rover was unsuitable and inappropriate for Lamarieo’s needs.

[174]The question is therefore whether the Defendant has shown that Mr and Mrs Cocking behaved unreasonably in purchasing this vehicle which, it is agreed, is not an approved vehicle under the Motability Scheme.

[175]The family previously owned and drove a Ford Galaxy purchased through the Motability Scheme. The contract for this vehicle was due to expire in August 2014 and 12 weeks notice is required to purchase a new one. It is not entirely clear on the evidence where the original idea for purchasing a Land Rover Discovery came from, and there may have been some time pressure. However, I reject the Defendant’s suggestion, implicit in the cross examination of Mr. and Mrs. Cocking, that they deliberately decided to opt for a much more expensive car than was needed, and that they were motivated by greed.

[176]The family have previously taken road trips up to Scotland, where they all enjoy going. In provisionally selecting the Land Rover, Mr and Mrs. Cocking thought that all the family would be able to travel up to Scotland in comfort and safety and would be able to go “off road” in it, which Lamarieo would enjoy and which they were unable to do in the Galaxy. Mr. Cocking’s evidence that his wife felt uncomfortable about owning a car that she regarded as “above our station” because of her son’s disability, is entirely consistent with other evidence in the case as to her motivation in securing compensation for Lamarieo and with my own assessment of her as a witness.

[177]I find on the evidence that before the Land Rover was purchased Mr and Mrs Cocking spoke to Alex Guy, the Deputy, about it, and that in December 2014 Mr. Guy asked Caroline Penny Smith to advise on its suitability. A meeting then took place between Mr. and Mrs. Cocking, Ms Penny Smith and a Motability expert, when there was a lengthy discussion about the benefits of purchasing the Land Rover and what could be done to make it appropriate for Lamarieo’s needs. Both Ms Penny Smith and the Motability adviser considered it a suitable vehicle for Lamarieo with appropriate additions, and there is no evidence which contradicts that assessment. Mr. and Mrs. Cocking accepted that advice and purchased the vehicle. With more headroom than the Ford Galaxy and equipped with, among other things, a safety guard, a specialist step and a Houdini harness, I accept their evidence that it has enabled Lamarieo to travel in it comfortably and safely with his family, together with the necessary luggage and equipment and his present manual wheelchair.

[178]In challenging this item of expenditure in its entirety, it is not clear what alternative vehicle the Defendant is in fact suggesting should have been purchased at this time, or at what cost. Mr. Seabrook accepts that he cannot submit that the Claimant’s decision to purchase a vehicle privately rather than through the Motability Scheme was itself a failure to mitigate. Instead it is suggested that the Land Rover was extravagant and unsuitable for Lamarieo’s needs. As Mr Sweeting submits, the Defendant would only be entitled to a sum representing the difference between reasonable expenditure and the alleged unnecessary extravagance in this respect.

[179]The suitability of the Fiat Qubo recommended by Marie Palmer, by way of future funding for travel, is in dispute and the decision not to purchase that vehicle cannot therefore be said to be unreasonable. The alternative vehicle being proposed by Ms Penny Smith, a VW Caravelle, is more expensive, with a purchase price of £50,000, and Mr. Guy considers its resale value to be less than that of the Land Rover. Another Ford Galaxy would have had a lower purchase price but also a poorer resale value than the Land Rover. The Land Rover Discovery therefore represented a better business decision.

[180]On the evidence I am not persuaded that there was here a failure to mitigate. In purchasing a vehicle suitable for Lamarieo’s present needs, as adapted, and which also represents a good investment, after taking professional advice, I find that the Claimant has mitigated his loss and has acted reasonably. He is therefore entitled to recover this expenditure. b). Credit for Interim Payment against Interest

[181]The aggregate rate of interest is agreed at 42.28%. In August 2013 and in accordance with the order of Swift J the Defendant made an Interim Payment of £200,000.00 to the Claimant. That is the only Interim Payment made in this case. The dispute between the parties is whether the Claimant should give credit for this Interim Payment by stopping the accrual of interest upon an equivalent sum of special damages or upon part of the claim for general damages.

[182]For the reasons set out in the Claimant’s closing submissions the question of what the Interim Payment on damages represents is financially significant. If credit is given by halting the accrual of interest on general damages from August 2013, the Defendant gets the benefit of a reduction in the interest claim in the sum of £7,460, the aggregate rate for interest on general damages from August 2013 to June 2015 being 3.73%. If, alternatively, credit is given by halting the accrual of interest on special damages from August 2013 the Claimant need only give credit for £940 of interest saved, the aggregate rate on special damages for the same period being 0.47%.

[183]Neither the Order made by Swift J nor the agreement between the parties relating to the payment of an Interim Payment of damages specifies what that payment represents. Nor is there any rule of Court specifying what the Interim Payment represents, CPR 25.7 referring to interim payments of “damages” and providing that the Court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment.

[184]The Claimant’s written submissions at paragraphs 5.6 - 5.9 seem to me to be entirely correct. Neither Counsel addressed this point in oral submissions. The usual assumption is that an interim payment will be sought and paid to a claimant to fund expenditure that will thereafter become part of the claim for special damages (see Cobham v Eeles

[2010] 1 WLR 409

, at paragraph 4). That applies in the present case, as the schedule of payments/purchases produced by Wendy Ruffle demonstrates. Indeed the Defendant is critical of the fact that more of the interim payment has not been used to fund additional care for Lamarieo. It therefore follows logically that credit should be given for interest on that sum from the special account rate. As counsel for the Claimant point out, it would have been open to the Defendant to seek the Claimant’s agreement to an offset against interest on general damages, when negotiating the interim payment, if the general damages rate were favourable to them. There was no such agreement in this case. The set off, in my judgment, should be against interest on special damages.

Future Losses

(c) Appropriate Multipliers

[183]In this case the Claimant contends that a whole life multiplier of 28.43 is appropriate. This is a fixed term multiplier, for a term of 49 years, using Ogden Table 28, giving “Multipliers for pecuniary loss for term certain”. The Defendant does not dispute that Table 28 produces that figure but contends, in the Counter-Schedule, that the correct multiplier is to be obtained by using Table 1, namely “Multipliers for pecuniary loss for life (males)”, in accordance with the methodology set out at paragraph 20 of the Explanatory Notes to the Ogden Tables. That approach, it is said, “allows for the distribution of deaths around the expected length of life” and results, Mr Seabrook submits, in an impaired life multiplier of 27.69 (the figure in the Counter-Schedule was originally 26.76).

[184]Save for submitting that the Defendant’s approach is correct and that I should adopt it, Mr Seabrook did not deal with this point in any detail or refer me to any authority in his closing submissions. The relevant law is set out at paragraphs 4.5 – 4.7 of the Claimant’s written closing submissions and is not in dispute. I therefore intend to deal with this issue briefly because, in my judgment, Table 28 is the correct table to use in calculating the relevant multipliers in this case, adopting the approach of both Swift J in Whiten v St George’s Healthcare

[2011] EWHC 2066 (QB)

and Foskett J in Reaney v University Hospital of North Staffordshire NHS foundation Trust

[2014] EWHC 3016 (QB)

, after a full review of the competing arguments and authorities. It seems to me unnecessary and unhelpful to conduct that detailed analysis again here, because I entirely agree with their reasoning and their conclusions, which apply equally in the present case.

[185]In this case the parties have agreed a life expectancy of 67.5 years for the Claimant, being the mid-point between the life expectancy assessments of the paediatric neurologists. Those assessments were made by reference to this Claimant’s mortality risks as a whole, not just those risks associated with his cerebral palsy, so the experts have already factored in impairment of life. The medical evidence has therefore established how long this Claimant can be expected to live. As the authors of McGregor on Damages (19th edition, paragraph 38-216) point out, “….since mortality will already have been taken into account in coming to a view on life expectancy, to use Tables 1 or 2 will result in a double discount, evidenced by the fact that the use of Tables 1 and 2 invariably produces a somewhat lower figure than emerges from use of Table 28….in paragraph 20 of its explanatory note….the point about double discount appears to have been missed by Ogden.”

[186]Adopting the same approach, the Claimant’s calculation of the multiplier for future loss of earnings, set out at paragraph 4.8 of the closing submissions, seems to me to be entirely correct. Discounting the figure of 27.82 by 0.82 from Table A for contingencies other than mortality, on what I accept is a conservative basis, results in a multiplier of 22.81 (the discount figure seems to have been discounted twice in the Schedule, which explains the difference).

(d) Loss of Future Earnings and Pension

[187]The Claimant’s future earnings are claimed at the level of median gross annual earnings, giving a figure of £21,451.00 net per annum, and there is no dispute as to the multiplicand. Applying the multiplier of 22.81 (see above) the award for future loss of earnings is therefore £489,297.31.

[188]The Defendant makes no allowance in respect of loss of pension. The basis for this, as set out in the Counter Schedule (Mr Seabrook made no submissions upon it), is that the Claimant “has not made any allowance in his loss of earnings claim for employee contributions that would have been deducted from his salary”. This, it is said, would “broadly cancel out any benefit from employer contributions.”

[189]This, however, is to misunderstand the claim being made, as Mr Sweeting submits. The Claimant is not claiming the pension that his own contributions would have provided, in which case it is accepted that a deduction would have to be made. He submits, rather, that the Claimant is entitled to his full loss of earnings, including the contributions he would have made to a pension, since he is entitled to make those contributions in order for him now to be able to purchase a pension. This claim is therefore confined to the additional contributions that his employer would have made.

[190]I accept that submission and award the sum claimed under this head. These are contributions that employers will have to make under the terms of recent pension legislation, requiring them to designate workplace pension schemes and automatically enrol all employees aged between 22 and state pension age with earnings at the income tax threshold.

[191]The relevant calculation is set out at paragraph 11.4 of the closing submissions, applying the multiplier of 22.81 to the figure of £700, making the award one of £15,967.00.

(e) Future Care and Case Management

[192]There is no dispute that this Claimant will need an extremely high level of privately paid care for the rest of his life. The claim is split essentially into two periods: care to the age of 19, and care from age 19 for life. It is hoped that when he leaves school next year Lamarieo will be offered a further educational placement until the age of 25, but there is presently no guarantee as to that or any other placement being available.

[193]The central dispute between the parties relates to care in the home setting. The experts agree that Lamarieo needs 24 hour care. Maggie Sargent recommends that two carers should be available at all times during the day because of the particular challenges posed by Lamarieo and the difficulties presented for those who are providing that care. Liz Utting’s recommendation is for one carer for 14 hours in the day plus additional hours for ‘double up’ purposes to be organised flexibly, for outings away from home and in times of need. This flexible care translates to 28 hours per week if he does not have a further education placement from the age of 19 and 14 hours per week if he does.

[194]There are also disputes as to the appropriate rates for carers and for a Team Leader, and as to the appropriate rate for case management. Both experts have agreed the need for a sleeping night carer with waking night carer contingency for six weeks per annum.

[195]Both experts are registered nurses and both are well qualified to express an opinion as to different care needs and the merits of different care regimes. Ms Utting has worked in both hospital and community settings and has wide experience in service and education management for people with learning disabilities, autism and complex needs. Mrs Sargent has considerable practical experience over many years in assessing the care needs of those with severe disabilities living in the community, and in establishing and supervising appropriate care regimes. She is currently a director of a national care consultancy and case management company which provides case management services to those with profound disability.

[196]Liz Utting considers that it is unnecessary for Lamarieo to have two carers daily all the time in the home, in addition to the family support. Her views, in summary, are as follows. The present arrangement, with one external carer, is adequately meeting his needs. She sees no reason why this should change in future and considers that his care will be better managed when he has his own accommodation and input from a psychologist in relation to behavioural management, and from carers and a case manager. Two carers, she considers, would be likely to crowd Lamarieo and disrupt the family household. There should be no problem in organising and planning ‘out of home’ activities, thus knowing when ‘double up’ care is likely to be required. His outbursts are caused by well-known and recognised triggers which can be anticipated, avoided and controlled in the home environment. This is different from the school environment, where there are duties of care owed to other pupils and to staff which do not apply at home. Lamarieo is responding well to the present 1: 1 support at home and one dedicated carer will be adequate in future.

[197]In any event, she suggests, there will be many occasions during the day when other people involved in the care delivery, such as the physiotherapist, case manager and occupational therapist, will be in attendance at the home, so that the dedicated carer will not be alone all the time. In addition, Mrs Cocking has made it clear that she intends to continue to play a major role in his care and the care team will support her in this. While she is not suggesting that Lamarieo’s parents should be relied upon to support him, it is inevitable that Mr and Mr Cocking will want to spend time alone with Lamarieo and as a family, when a carer will not be required. Given the spontaneous nature of his behaviour there is no guarantee, in any event, that aggressive outbursts or similar incidents will not occur from time to time, even if two carers were with him. Even when there has been more than one person with him he has still, on occasions lashed out at someone.

[198]Relying upon Ms Utting’s analysis and conclusions Mr Seabrook submits that, in more spacious and appropriately adapted accommodation, with proper planning and anticipation, and with both support and space afforded to Lamarieo, the allowance she proposes is both generous and realistic. It will meet his needs and keep under control any risk of violent outbursts.

[199]Mr Seabrook criticises Mrs Sargent’s conclusions on the basis that they are based heavily on what she was told by Mr and Mrs Cocking in January and July 2014 and on her visit to the school in June 2014, when things were very much worse for Lamarieo and since when the situation has improved. At the time of the joint statement by the care experts (June 2015) she was mistakenly of the view that the school were “still struggling” with Lamarieo, and she also understood that his exclusion from school had been for a longer period than just one day. This, he submits, undermines the value of her opinions as to the care required in this case.

[200]In turn, Mr Sweeting criticises Liz Utting’s conclusions, based as they are on just one meeting with Lamarieo and his parents, on 16 December 2013. This was at a time when, on the Defendant’s case, Lamarieo was in the middle of a period of crisis, which raises questions as to why she was able to be so sanguine at that stage about his behaviour, needs and prospects. Further, although she has had the relevant education documentation, she has never visited Firwood School and observed Lamarieo herself, or spoken to the staff about him. In addition, unlike Mrs Sargent she has never visited or spoken to Mr Manna either.

[201]I have taken these and other criticisms into account in assessing the evidence each of these experts gave, but ultimately my clear view is that the recommendation of Mrs Sargent is the more persuasive, supported as it is by the other evidence in the case and my determination of the main areas of dispute between the parties as set out above. As Mr Seabrook fairly acknowledged, his submissions as to the appropriate level of care and case management would depend largely on my findings as to the nature and extent of Lamarieo’s challenging behaviour and needs, and as to whether there has been the remarkable improvement he suggests, with still further improvement likely in the future.

[202]Given my conclusions on those issues, I am in no doubt that in the case of this exceptionally challenging young man, two carers will be required at all times, for the sake both of his own safety and the safety of others. This provision will not, in my view, overwhelm or crowd him unnecessarily. Experienced carers can avoid that risk and ensure that he has sufficient space while simultaneously ensuring his safety and well-being.

[203]The weaknesses of Ms Utting’s analysis were exposed in cross-examination. Although she stated that she was not proposing the incorporation of Lamarieo’s parents into the care regime, this seemed to me to be implicit both in her report and in her evidence, at least so far as his mother is concerned. Lamarieo’s ability to manage so far with one external carer is largely due to his mother fulfilling the role of second carer. Mrs Cocking’s devotion to her son and her wish to remain involved in his life “as a mum” does not indicate her intention to continue to act as his carer. Indeed the evidence shows the opposite to be the case. She is now anxious to resume a normal family life with all her children, free from the heavy burdens imposed by Lamarieo’s demanding and daily needs.

[204]The authorities establish that a tortfeasor cannot avoid payment for commercial care in reliance upon the fact that a family member has, in the past, demonstrated by their devotion their ability to care for a claimant. That family member is not obliged to act as carer or case manager and is entitled to be freed from the need for constant supervision. (See Iqbal v Whipps Cross University Hospital NHS Trust

[2006] EWHC 3111 (QB)

; Massey v Tameside & Glossop Acute Services NHS Trust

[2007] EWHC 317 (QB)

; and Crofts v Murton

[2009] EWHC 3538 (QB)

[205]The same difficulty arises in respect of Ms Utting’s suggestion, at one point in her evidence, that Lamarieo would be spending some of his time with his natural father, in the additional property being claimed, which could accommodate one dedicated carer, presumably with Mr Manna assisting as required. Leaving aside the fact that Mr Manna, now aged 66, would be unlikely to be able to provide regular, physical care of the sort required, the Defendant is in any event disputing that a suitable property should be funded for Mr Manna in addition to a more spacious and suitably adapted home for the Claimant to live in with his mother and family. I address this claim later on.

[206]There are similar problems with Ms Utting’s suggestion that the one dedicated carer she proposes would not be alone during the day because others involved in the overall regime, including visiting therapists and the case manager, would be “involved in the care delivery”. There are a number of difficulties with this. On the Defendant’s own case this did not seem a very hopeful proposal so far as the occupational therapist is concerned, since very little occupational therapy is recommended for Lamarieo in the home. Thus, as Ms Utting had to concede, such a therapist would rarely be there. The frequency of visits from the physiotherapist and speech therapist is also yet to be determined. The suggestion that the team leader could act as a second carer when required was, as she accepted in the witness box, inconsistent with her failure to allow for any additional time in this respect, and to allow simply for an uplift to the pay of the one carer who would be involved at any given moment.

[207]It seems to me inherently illogical to state that one dedicated carer will be sufficient, while simultaneously suggesting that others can be expected to assist as second carers in this way. It is also unrealistic to expect specialist therapists, tasked to assist Lamarieo to develop specific skills within his capabilities, to provide support in relation to his general care needs. As Ms Utting recognises in her report, those charged with caring for him will need to have the aptitude and ability to support him appropriately and will require “specialist training in behavioural management techniques…to include non aversive physical intervention techniques as there are likely to be times when they will need to physically hold him and employ breakaway techniques.”

[208]This recognition by Ms Utting of the serious challenges posed by caring for Lamarieo serves in my view to demonstrate the inadequacy of flexible, “double up” care of the kind she proposes. While I accept that additional care could be arranged in advance for some outings, Lamarieo’s needs are not confined to one period in the day. He has different needs at different times, spread over the course of the day. There are therefore real, practical difficulties in setting up a regime with one carer, allowing for flexible care as needed. Further, the arrival of a different carer on one day, for the purposes of a particular outing, seems to me to be fraught with difficulty given the evidence that Lamarieo does not react well to strangers or to changes in his routine.

[209]Most important of all, given the risk of aggressive outbursts at any time, flexible care of the kind proposed simply cannot accommodate the unpredictable. The unpredictability is the product of his brain injury. While there are some, well recognised triggers, the evidence shows that they will not always be responsible for an eruption, either in the home or in the community. Sometimes an entirely innocuous event will trigger an outburst. Sometimes it will not be possible to anticipate or avoid a triggering event. Nor will it always be possible to prevent the escalation from first to second stage of a violent outburst. Sometimes an outburst will move straight to second stage. Ms Utting herself recognised that, even when there has been more than one person looking after him, Lamarieo has still lashed out on occasions. I cannot accept that Ms Utting’s evidence that, in such circumstances, the presence of two carers would make a bad situation worse. Sometimes Lamarieo may require restraint, or his space may need to be invaded for a while, as she expressed it, until he has calmed down.

[210]This is not to concentrate on the negatives, as Ms Utting suggested. Addressing the risks posed by the effects of his brain injury does not detract from a proper recognition of his endearing personality and the lovable qualities that he undoubtedly has. In my judgment Mrs Sargent’s reliance upon the documentation and risk assessments in this case is entirely justified. The consistent theme throughout the evidence is that two people will need to be present for Lamarieo’s personal care needs and community activities. Even assuming he gains more skills within his present level of functioning, the preponderance of the evidence is that he will never progress to the extent that one carer will be able safely to manage him.

[211]Dr Bendkowski’s opinion as to quality of life is of particular importance in this respect. Over his anticipated 40 years of life Lamarieo will need to be kept occupied during the ‘working day’ and to have a routine of varying activities to maintain and hopefully expand his skills. His condition prevents him from deciding for himself what those activities should be. For such a structured programme he will need to have two people with him for the whole of that day. It would be too much to expect one person to be with Lamarieo for 6 to 8 hours and to keep him actively engaged in this way. Two people will be required to sustain those structured activities smoothly and effectively.

[212]For all these reasons I accept the recommendation of Maggie Sargent that two carers are required at all times during the day for this Claimant. There is no guarantee that he will be offered a placement at a college, or elsewhere, or on what basis, and this regime should therefore run as from July 2016, after Lamarieo leaves school.

Rates

[213]For the same reasons I accept Mrs Sargent’s evidence that it will not be easy to recruit and retain carers who can look after Lamarieo, given his challenging behaviour and the need for a very tight package of care. There is in fact no real disagreement between the experts that experienced staff will be required, with social care qualifications and with behavioural training and input from a psychologist, who can develop the skills necessary to manage, care for and communicate with Lamarieo effectively and consistently.

[214]Maggie Sargent allows for such experienced carers at rates of £10.50 per hour on weekdays and £11.50 per hour at weekends, plus a team leader at an additional £5.00 per hour. Liz Utting allows £10.00 per hour and an additional £2.00 per hour for the team leader post, on the basis that these are rates above those advertised for similar roles, both locally and nationally, and which reflect the need for carers with the necessary attributes. It is agreed that there will be additional training and holiday costs, and provision for carers’ pensions as from 2016.

[215]Mrs Sargent’s experience nationally is that it is necessary to try and attract carers who will see this as a job offering security over the years. It is not an incremental job and, since there is no career progression, it is likely that some carers will leave, but the rates she proposes will make it more likely that experienced staff of the right calibre will both be attracted to the job initially and will want to stay. These are important considerations in this case. In my judgment the figures she proposes are not excessive and I accept that they reflect market rates. Mrs Sargent has extensive, practical experience of organising care regimes in such cases and I accept her evidence that these rates reasonably reflect the need to attract and retain suitable carers in this case. I therefore award the carer and team leader rates allowed by Mrs Sargent.

[216]I also prefer Mrs Sargent’s proposed allowance in respect of case management hours. I do not accept the submission that 160 hours per year is excessive. It is in fact only some 3 hours per week, which seems to me to be a reasonable and moderate allowance given the work likely to be involved in organising the “package” for this complex and demanding case. Similarly, the allowance of 14 hours per year for crisis intervention by the case manager is entirely reasonable.

[217]There is little between the experts in relation to case management rates, Ms Utting costing this at £95 per hour and Mrs Sargent at £98.00. Ms Sargent selected a rate which was mid-point in the range between £90.00 and £107.00, the latter figure being the rate charged currently by Bush & Co. On the evidence before me, however, that is a very high rate and I accept Ms Utting’s evidence that it is beyond the usual range. I therefore award an hourly rate of £95 for case management in this case. Travel costs are agreed.

[218]I do not allow the claim for three carers to accompany Lamarieo on holidays (see paragraph 2 (h) of the joint statement). In respect of family holidays Liz Utting has allowed for two carers for two weeks per annum, paid 14 hours per day with an additional ‘out of pocket’ weekly expense allowance. I accept Mr Seabrook’s submission that two carers represent a sufficient and reasonable allowance in relation to accompanying Lamarieo on holidays. I address the issue of holidays further below.

[219]I anticipate that the parties will now be able to calculate the annual sum required for care and case management on the basis of these findings. Consideration can then be given to whether it should be awarded as a lump sum or as periodical payments.

(f) Future Physiotherapy and Speech and Language Therapy

[220]The future costs for physiotherapy sessions, including initial assessment, are based on the joint report obtained from Wendy Murphy and are set out at paragraph 11.6.1 of the Claimant’s closing submissions, as adjusted to reflect the agreed life expectancy and changes in the multiplier. The total sum is £49,150.00 and there appears to be no dispute either as to this sum or the cost of the tandem cycle (£5,550) and trampoline, plus one replacement (£800) also recommended by Ms Murphy.

[221]The cost of hiring the Jubilee hydrotherapy pool in Bolton, also recommended by Wendy Murphy, is agreed by the Defendant at £1.35 per session for 92 sessions per annum. The total award, applying the adjusted multiplier, is £3,531.01. The Claimant does not pursue the costs of hiring the pool for family swim sessions.

[222]The costs of future speech and language therapy are based on the joint report of Lesley Cogher. The sums themselves, which appear at paragraph 11.6.2 of the submissions, are not in dispute. Adjusting the multiplier for the separate annual periods, namely for the first two years, to the age of 25, and thereafter for life, the total award is £43,605.00.

(g) Future Occupational Therapy and Equipment

[223]The Defendant relies on the reports and views of Marie Palmer, whose evidence is that the level and type of occupational therapy provision and equipment envisaged by Caroline Penny Smith is unwarranted. The Claimant’s case is that the provision allowed by Ms Palmer is so grossly inadequate as to call into question whether she is properly fulfilling her role as expert to the court.

[224]The very limited heads of agreement between these experts as to necessary items of equipment are set out in Appendix 1 to the Claimant’s closing submissions, in the total sum of £15,052.59. The distance between them in relation to future occupational therapy and equipment generally is considerable and it is unusual to see disagreement to this extent in litigation of this kind. The reason for it, having heard evidence from both experts rigorously tested in cross-examination, is what I find to be a wholly unrealistic approach adopted by Marie Palmer towards necessary provision for this Claimant.

[225]Given that Lamarieo’s life expectancy is agreed to be to the age of 67.5 years, her lifetime allowance for occupational therapy of just £2,375.00 (allowing only 25 hours at £95.00 per hour) is in my view wholly inadequate. Her reasoning, that “the carers and team leader will be able to identify and manage his needs in relation to activities” is in my view simplistic. It is also inconsistent with her expressed view that two carers would crowd Lamarieo and worsen his behavioural problems.

[226]In respect of leisure activities, she rejects all the recommendations of Ms Penny Smith and Steve Martin (assistive technology), allowing no item of sensory or multi sensory equipment of the kind he has been benefiting from at school. She allows only for the purchase of a SenSit chair, a Protac Ball Blanket and the ‘one-off’ purchase of a trampoline, now removed from her recommendations since this was already recommended by Wendy Murphy. She does not consider that Lamarieo “will have any future equipment needs for indoor or outdoor activities over and above that which would have been expected.” This assessment, in my judgment, is also inadequate and it is inconsistent with other opinions and with the documentation in this case, for example the most recent Social Services assessment of 26 March 2015, emphasising the need for meaningful, varied and stimulating social and leisure activities to occupy Lamarieo’s mind and to keep him physically active.

[227]Mr Seabrook submits that Ms Palmer has concentrated on enabling independence, which does not always depend on overloading someone with stimulating activities, or on the provision of a “factory line” of elaborate equipment. Mr Sweeting’s response, which I accept, is that the minimal provision allowed by Ms Palmer is extraordinary and is wholly out of kilter with awards made in this area.

[228]Ms Palmer’s minimal allowance is the more surprising since she accepts that Lamarieo has profound neurological problems exacerbated by the physical difficulties caused by his cerebral palsy. She maintained her position in evidence despite agreeing with Ms Penny Smith in the joint statement that Lamarieo presents with severe developmental delay, cognitive impairment, visual impairment, challenging behaviour and very limited communication. She also agreed that it was essential to take his cognitive and behavioural problems into account in relation to the provision of equipment, to encourage him to maintain his maximum level of mobility and activity and, significantly, that it is important to assist the carers in relation to his future care.

[229]Her suggestion (at page 3 of the joint statement) that his behavioural issues should improve with the establishment of routine and structure and improved bowel management indicates, in my view, an inadequate understanding of the nature and extent of Lamarieo’s disabilities. It is also inconsistent with the other evidence in the case, in particular the evidence of Dr Bendkowski, which I accept, as to the daily activities and stimulation that Lamarieo will need, all of which will be likely to help in controlling his behaviour and in enabling him to maintain the degree of independence he has gained already with the intensive structure and support he has at school. I found Ms Palmer’s approach to be unhelpful and her evidence unsatisfactory and I do not accept it.

[230]The first question is therefore whether the future occupational therapy provision recommended by Caroline Penny Smith, at paragraph 4a of the joint statement, is excessive and unwarranted, as the Defendant suggests. Ms Penny Smith’s qualifications and experience in this area were not challenged. She has had many years of experience, in both the NHS and working independently, in assessing the needs of individuals with neurological disorders, including challenging behaviour, visual impairment and autism. Her assessment is also up to date following her second visit to Lamarieo and the family in early 2015, when she was able to review his condition generally and update herself on his condition and his needs.

[231]In my judgment her recommended therapy provision is entirely reasonable for this Claimant. It is based on intensive input for the first ten weeks, with the necessary, initial assessments of both client and equipment, and training for carers on use of that equipment, costing £13,017.50. I accept her evidence that setting up therapy for someone with Lamarieo’s disabilities is particularly difficult, and this sum is a reasonable sum for that initial, intensive period. She then provides for ongoing therapy for monitoring and updating, at £1748.00 each year to the age of 30, acknowledging the necessity to adapt to Lamarieo’s changing needs as he grows and to ensure that the progress he has made can continue. After he reaches the age of 30 the allowance of £12.380.00 represents about two hours of therapy per annum, which I regard as relatively modest. The travel and mileage costs included are also reasonable.

[232]The disputed items of equipment, inclusive of occupational therapy input and costings addressed above, are helpfully listed in the two tables at Appendix 2 to the closing submissions. I prefer the approach and recommendations of Ms Penny Smith. The Defendant provided no written submissions in relation to any of these items and dealt in only very brief terms in oral submissions with the claim for a powered wheelchair. Referring to the contents of the Counter-Schedule is now unhelpful since the case has moved on, given the oral evidence from the experts at the hearing and my finding that Ms Palmer’s evidence is unsatisfactory. In relation to those items other than those covered under the remaining heads below, which are dealt with separately, I find the items recommended by Caroline Penny Smith to be both reasonably required and reasonably costed.

[233]These include the manual wheelchair, insurance and Jay back seating system recommended. I have considered carefully the further recommendation for a powered wheelchair, given that Lamareio is ambulant and will have the benefit of two carers. However, manoeuvring Lamareio when he is out and about has proved difficult at times and the care notes refer to him sometimes tipping the manual chair. The difficulties are likely to increase, depending on the age and stature of his carers, as he grows older and uses the chair more often. Mrs Cocking is already suffering from back problems and will be unable to push Lamareio in a manual wheelchair for any distance, especially over undulating terrain. I accept Ms Penny Smith’s evidence that, although he will not use the power chair all the time, there will be times when he does use it. I note also that putting him in his wheelchair is one of the methods presently used to calm him. Use of this wheelchair will also increase as he grows older. I therefore consider that this is a reasonable item for this Claimant.

[234]So too is the Vela Tango chair, which provides full postural support and will help to maintain Lamarieo’s physical posture; and the high stair gate recommended, which will provide protection for someone with visual impairment who tends to wander in the night and can stumble. The whirlpool bath is not, in my view, an unnecessary luxury for someone who is so limited in terms of what he can access and I accept that it will have relaxing, sensory and therapeutic benefits for Lamarieo. The claims for a mattress protector, changing table and adapted cutlery are all appropriate, reasonable and wholly unobjectionable in my view.

[235]In relation to the outdoor sensory equipment recommended, the Defendant’s general contention that all the sensory provision recommended for Lamarieo will result in overstimulation is unfounded. The aim, which I regard as reasonable in this case, is to increase opportunities for Lamarieo and to ensure that the purposeful activity currently being provided at school is replicated at home when he leaves. I accept Ms Penny Smith’s evidence that it is also to ensure that those who are caring for him will have a variety of different options during the day. It will be the function of the occupational therapist to ensure that Lamarieo is not overloaded and that, through proper training, the equipment is all used appropriately.

[236]The philosophy underpinning all the equipment recommended, including items of assistive technology which I deal with shortly, is the need to provide quality of life for Lamarieo and to ensure that he does not sink into repetitive behaviours. Even if he does secure a place at college until he is 25, we know nothing about the pupil/staff ratio there will be, or whether his placement will be full-time or part-time. As Dr Bendkowski pointed out, the equipment recommended will enable those working with him to do more than simply ‘mind’ him while he watches television and eats snacks, or take him to the park and KFC or McDonalds. Enjoyable as those activities will be on occasion, positive engagement and the ability to provide a variety of structured activities throughout his days is a legitimate aim for this Claimant in ensuring that he has real quality of life. In my view the outdoor sensory equipment, including a specialised swing and roundabout and a sensory garden, is reasonable as are the costs allowed of £5000 every two years, and the Claimant is entitled to them.

[237]The tables at Appendix 2 also include other, disputed items relating to miscellaneous expenses, holidays and future travel.

(h) Miscellaneous Expenses

[238]It is not in dispute that Lamarieo will incur additional costs in respect of future DIY/decoration, gardening, cleaning and laundry, together with the associated costs as set out in the table. The costs allowed by Ms Penny Smith are for Lamarieo’s needs, independent of his parents and acknowledge that it will not always be safe for the various tasks under these heads to be done by Lamarieo and carer together. The sums claimed are all entirely reasonable and I reject the lower costings advanced by Ms Palmer.

(i) Holidays

[239]Ms Penny Smith recommends provision for additional holiday expenses, namely(a) long haul holidays for Lamarieo and the family every two years, principally to enable visits to Jamaica to visit Mrs Cocking’s family more regularly; and

(b) European holidays for the family every two years. She has costed for business class flights for four people, namely Lamarieo, one carer, a second carer or parent and also one sibling, on the basis that he can provide some interaction with Lamarieo during the flight and that it will be difficult for the other parent to look after four children on his or her own. Mr Seabrook submits that this provision is disproportionate and unjustified and that the family would have been paying for their own holidays in any event.

[240]I am entirely satisfied that the cost of business class flights is justified and reasonable in this case. Lamarieo’s particular behavioural difficulties, his problems with incontinence and his autism and consequent difficulties in enclosed spaces and with strangers in close proximity to him, all justify the additional costs of the extra space and facilities that business class travel affords. It is correct, as Mr Seabrook pointed out, that he was sedated on the flight to Tenerife, a small amount of medication being sought and prescribed for this specific purpose, and that there were no problems. It is not however unreasonable to view sedating Lamarieo for each flight as an undesirable solution in the long term.

[241]I consider that the costs of business class travel are reasonable and justified for Lamarieo, one carer and one carer/parent, who will be able to provide the interaction necessary. The other children of the family are old enough to enable the other parent to supervise them sufficiently in my view. Subject to my determination as to frequency of flights, dealt with below, I therefore allow Ms Penny Smith’s costs in respect of both long haul and European flights, save that it should be for three business class seats rather than four.

[242]There is some merit, in my view, in the Defendant’s submissions as to the frequency of holidays and additional costs claimed, for long haul flights to the Caribbean and for flights and accommodation in Europe every two years. I accept Mr Seabrook’s submission that this frequency is not justified on the evidence and I shall allow for visits to Jamaica every four years and European flights and accommodation every three years, as costed by Ms Penny Smith.

(j) Future Travel

[243]For the reasons set out above I prefer Ms Penny Smith’s evidence as to the VW Caravelle vehicle recommended for this family in the long term. The Fiat Qubo recommended by Ms Palmer is in my view unsuitable because of its size and space limitations. The Qubo would not accommodate a powered wheelchair, to be used on trips out, unless Lamarieo travelled in the front of the car with a single carer, which I agree would be unsafe. It would mean that Lamarieo would have to travel separately from his family and it is reasonable for this close family to want to travel together, in visits to Scotland for example, and for Lamarieo to be part of the family in that sense. The family would have to purchase an additional vehicle adapted for Lamarieo’s needs if they ever wished to travel together with Lamarieo and a carer. In my judgment the Claimant is entitled to the VW Caravelle and to the replacement and running costs advised by Ms Penny Smith.

(k) Assistive Technology

[244]The various items of equipment claimed and the revised costs under this head advanced by the Claimant and the Defendant, following the joint statement of Steve Martin and Donna Cowan and with the adjusted multiplier, are set out in Appendix 3 to the written submissions. I do not repeat them here.

[245]There is no dispute as to the expertise and experience of both these experts in this field. Some of the technology relates to helping Lamarieo to optimise his educational potential and develop new skills. Other items are recommended to enable those caring for him to do so safely and effectively. There is some measure of agreement, as set out in the joint statement, as to IT equipment and environmental controls and as to the need for initial guidance and advice, training and support, albeit with some differences as to costs.

[246]Overall there is no dispute between the experts in this case that the costs of the various items suggested by Steve Martin are reasonable. Both experts deferred to the occupational therapists as to whether all the equipment suggested could be integrated practically into the Claimant’s home.

[247]In determining what the Claimant is entitled to recover under the heading of educational potential it follows, from my reasoning and findings in relation occupational therapy and equipment, that I regard the purpose of technological provision in this context as also being the enhancement of quality of life for someone with acquired brain injury. If, through a particular item of technology, Lamarieo will be able to achieve a level of independence within his capabilities and thereby improve his quality of life then, in my judgment, he is entitled to it and the Defendant should pay the costs of that item provided those costs are reasonable.

[248]The dispute as to communication devices and multisensory packages relates essentially to need and benefit. Mr Martin, having considered Lamarieo’s achievements at school over the years and more recently at Firwood School, and having been present in court when Dr Bendkowski gave evidence, maintained his opinion as to the benefits to be derived by Lamarieo from the technology he suggests. Donna Cowan’s view is that he does not and will not have the ability to use much of what is recommended.

[249]In my judgment Mr Martin’s opinion as to benefit and need is supported by the documentary evidence in this case, in particular the educational records and the Reviews from Firwood School. As early as June 2000, aged 4, Lamarieo was noted to be able to activate a Big Mac device using a single switch. Good progress with AT programmes involving the understanding of switch action was noted on 14 February 2003.

[250]In his first year at Firwood Lamarieo was said, in March 2009, to have produced some superb work sitting at the PC operating a mouse and to be confident with switch use. Similar observations were made in June 2011, when he was noted to be very capable at using switches, or to be very motivated in using the switch to activate specific ICT gadgets. His ability to operate an interactive whiteboard was noted in the most recent Review.

[251]Mr Martin’s suggestions were endorsed by Ms Penny Smith. She has used the multisensory pack and Soundbeam System successfully with adults who have Lamarieo’s cognitive impairments and they provide a safe and successful medium for such clients. She envisages their use in a quiet space, in more spacious accommodation, and considers that Lamarieo will benefit from them. I find on all the evidence that the Claimant is entitled to the items claimed, as costed.

[252]The recommended motorised entrance gates and the installation of CCTV are in dispute. Their provision was, however, supported by both Ms Penny Smith and Ms Sargent and I consider these items to be reasonable in this case. The gates will enable smooth entrance to/exit from the property without needing to get out of the car, and will also ensure Lamarieo’s safety and security once inside them.

[253]On the evidence, the installation of a CCTV system is becoming a more regular feature in such cases. Ms Penny Smith is now using it in the majority of her cases and Mr and Mrs Cocking would value it in this case. Mr Seabrook raised data protection concerns, but Maggie Sargent’s evidence is that legal advice has been sought and obtained by her company as to the lawfulness of such equipment within certain parameters. I accept that evidence. The application, on legal advice, of appropriate guidelines as to the obtaining of consent before installation seems to me to offer security and peace of mind both to anxious families and to those care workers who are supporting vulnerable individuals in areas of the home away from the rest of the family. The use of short clips from the film obtained also provides useful training material for carers.

[254]In conclusion, I find that the Claimant’s revised Assistive Technology costs as set out in Appendix 3 are reasonable, both as to need and cost, and that the Claimant is therefore entitled to the total costs claimed, in the sum of £76,810.00.

(l) Accommodation

[255]The Schedule sets out the claim for two suitable properties in this case: one, the principal home, where Lamarieo can live with his mother, stepfather and siblings; and one where he can stay with his natural father, and where his carers can also be accommodated.

[256]The claim is disputed in the Counter-Schedule as grossly overstated. The need for a new principal home is agreed, but not the costs claimed. The Defendant also deducts the full value of the current family home. The claim for a home for Mr Manna is disputed in its entirety. The Defendant does not, however, dispute the availability of such a claim in principle. It is said, rather, to be unjustified and unsupported by the evidence, given that Lamarieo’s last contact with his natural father was in September 2013 and that there has been little contact since then.

[257]There is in fact little dispute between the experts, David Reynolds and John Shaw, as to the range for the purchase price that will be required and the costs of adaptation, both for the principal home and the home where Lamarieo could stay with Mr Manna. I deal with the principal home claim first.

Principal Home

[258]The experts are agreed that the current property in which Lamarieo lives is unsuitable for his needs and that it cannot be reasonably adapted. They are also agreed that any future accommodation should be large enough to cater for Lamarieo and his family and that he requires access to a suitably sized bedroom, bathroom, carer’s accommodation, therapy space and a barrier free home. After inspection, Mr Reynolds reported in December 2014 that a suitable property in the area was likely to cost in the region of £500,000. Mr Shaw’s figure was £430,000.

[259]At the joint meeting on 27 May 2015 Mr Reynolds gave a likely range in purchase price of between £375,000 and £500,000. Similarly Mr Shaw identified a range of between £385,000 and 495,000. As at the time they prepared their joint statement, they agreed on the evidence that the appropriate price band for a suitable property is between £375,000 and £500,000.

[260]Both experts are agreed that additional moving costs will be incurred and each set out their respective assessments in schedule form. There is little dispute between them and the difference is accounted for principally by Mr Shaw’s inclusion of furnishings in building costs.

[261]They agree that internal and external modifications together with an extension are likely to be required to a new property. The costs of those modifications, including carer’s accommodation and therapy space, are likely to be between £250,000 and £300,000 inclusive of VAT and professional fees, and they agreed a mid-point of £275,000 in this respect, since no property has yet been purchased. Any property purchased which requires repairs would in Mr Reynolds’ view incur additional costs.

[262]They have agreed that there will be increased running costs in respect of the new property. The difference between them is small (just over £1000.00) and is due largely to council tax, dependent upon the price of the property purchased.

[263]Mr and Mrs Cocking have been looking for possible properties. In evidence it emerged that Mr Reynolds had previously been asked to assess the suitability of two properties and had prepared two feasibility reports, which were produced at the hearing. The first, prepared in October 2014, identified a property at 3 Green Drive, Lostock in Bolton with a purchase price of £500,000, which he considered reasonable and he believed that this property could be suitably adapted and extended. Negotiations for funds to be provided for the purchase of this property were however unsuccessful.

[264]The second feasibility report, prepared in May 2015, related to a possible property identified by Mr and Mrs Cocking shortly before trial at 2 Wade Bank, West Houghton in Bolton, which he reported that, suitably adapted and extended, could also be made suitable for the needs of Lamarieo and his family. Repairs would also be required to this property, which he estimated at £15,000 in addition to £300,000 for adaptations.

[265]The purchase price of this property, at £375,000, fell below the expected purchase price, and it was this property which led to him identifying the range he did at the joint meeting. Unsurprisingly, he reported that it was a reasonable price, representing the value of the property, its style, location and ability to be extended, but in evidence he emphasised that this was the only property he had seen at this price. All the other properties he had seen were at the upper end of his price range. Mr Shaw had not seen this property, but agreed that it was suitable and that it was a little cheaper than those he had seen on his search.

[266]Mr Reynolds strongly disagreed with an RICS HomeBuyer valuation for this property, which referred to the asking price of £375,000 as being too high and recommended renegotiation down to £325,000. This, in his view, was simply wrong and I accept that evidence for two reasons. First, the asking price is already below the bottom figure for the range identified by Mr Shaw. Secondly, Mr Reynolds had some detailed discussions with the vendor, as a result of which it was clear that he would not contemplate negotiating on the asking price to that level. Mr Reynolds stated that, if this property were not purchased, he would still maintain that a suitable property is likely to be nearer £500,000, which has always been his view, based on his research and the properties he had inspected.

[267]Mr Seabrook submits that the Claimant should have purchased this property and he is critical of the failure of the Deputy to advise the Claimant to do so. After Mr Reynolds and Mr Shaw had given evidence he informed the court on 19 June, during the trial and while evidence was continuing, that the Defendant had made an offer of the purchase price of £375,000 by way of payment on account. He submits that the decision to purchase should have been made speedily and acted upon.

[268]I do not accept this submission. In my judgment there is no question of failure to mitigate here. While the Defendant offered the purchase price of this property during the course of the trial, it is accepted that no offer was made in respect of the necessary adaptations. As it stands now, in its present condition and without repairs and adaptations, the property is not suitable for Lamarieo’s needs

[269]The criticism of Mr Guy is in my view misplaced. In considering that the purchase was not in the Claimant’s best interests he was entitled to have regard to wider considerations, as set out in his statement of 19 June 2015. A groundwork survey would be needed and planning permission sought. The delays may not be accepted by the vendor, who would appear to want a quick sale, and the purchase process normally takes some 6 to 9 months. Reasonably, in my judgment, the Deputy wishes to ensure that the Claimant has been awarded sufficient by way of damages to cover the purchase price and associated costs and that there is sufficient money to complete the necessary repairs and adaptations. In this context too the liability compromise between the parties is relevant to the decision as to purchase of this property.

[270]Mr Sweeting’s primary submission is therefore that the starting point for the Roberts v Johnstone calculation in respect of accommodation should be the figure of £500,000 evidenced by Mr Reynolds. I accept that submission. Although the Wade Bank property has been identified as suitable, there is no guarantee that it will be secured, or that it will be possible to adapt it with the funds available to the Claimant. On the evidence before the court most of the properties identified to date, save for the one at Wade Bank, which I accept stands alone in terms of purchase price, would be outside this Claimant’s reach if a pragmatic approach with a figure simply splitting the range were to be adopted. The weight of the evidence is in my judgment in favour of a calculation based on £500,000.

[271]As I have stated, the adaptation costs are agreed at £275,000 and enhancement is also agreed by the experts at £16,000. The award for additional running costs should be £6225.00. The total award in respect of the principal home is therefore £842,801.75. (The figure stated at paragraph 11.8.6 of the closing submissions is slightly lower, but I have taken the figure in Appendix 6. No doubt the parties can clarify and agree this figure.)

[272]The Defendant submits that I should deduct the full value of the present family home but, as Mr Seabrook fairly acknowledged, the decision in Whiten is against him in this respect. For the reasons set out by Swift J, in particular at paragraphs 465 – 469, she considered it wrong in principle for the value of a property that would have been owned by the Claimant’s parents to be deducted from the value of the new property to be owned by him. I entirely agree. Such a deduction would be unfair to the Claimant and would inevitably result in him being inadequately compensated for the loss of investment income on the capital value of the new property. In effect it transfers the parents’ borrowing to the Claimant, as Mr Sweeting submits. It removes the asset which would otherwise be available to the family and the Claimant’s siblings and prevents the parents disposing of their property as they wish. It precludes the parents from choosing to live elsewhere in retirement or in the event of any matrimonial breakdown. It also assumes that there is no mortgage on the property. I therefore reject the Defendant’s submission as to deduction of the value of the family home.

Mr Manna’s Home

[273]The Claimant seeks to recover in addition the Roberts v Johnstone claim advanced on behalf of his natural father. I have considered this claim with care, mindful both of the costs involved in making such an additional award and the Claimant’s right to a family life and therefore to regular contact with his natural father, as Mr Sweeting emphasises.

[274]Mr Reynolds has visited Mr Manna’s council property and his opinion that it is unsuitable for Lamarieo’s needs, and cannot be reasonably adapted to make it suitable, is agreed by Mr Shaw. Mr Reynolds’ opinion as to the likely cost of a suitable property is £250,000, which is for a three bedroom ground floor apartment in a modern block or a three bedroom house capable of extension on the ground floor. He visited the area and carried out research on properties in that area.

[275]Mr Shaw identified a potentially suitable bungalow near Moss Side for £265,000. Alternatively, he thought that a suitable house with a ground floor extension would be within the range of £160,000 to £200,000, although Mr Shaw accepted that he did not know the area and Mr Reynolds was unable to find any property at this price in the area when he did his research.

[276]Depending on the property purchased the experts agree adaptation costs of between £20,000 and £70,000, the lower figure being more likely for a more expensive property. There is little between them as to moving costs (£4050 - £4500, the difference being in respect of stamp duty), or as to increased running costs (£9,500 to £10,000).

[277]Mr Seabrook submits that there would have to be exceptional and compelling reasons to award a claimant the costs of a second home for a natural father, and that in this case it would amount to a wholly unjustified extravagance. He points out that there has been only limited contact since overnight contact was stopped in September 2013. Mr Manna lives only 16 miles away and there is no reason why the Claimant cannot be taken to see him in the car, or why Mr Manna cannot come to Bolton and take Lamarieo out nearby, with his carer to assist.

[278]Mr Sweeting submits that on the evidence before the court Mr Manna provided a great deal of dedicated care for Lamarieo for the first seven years of his life and continued to share that care with Mrs Cocking until September 2013. He also made some adaptations to his own home, including an additional stair rail, the purchase of softer fitted carpets and settee and the fencing and securing of his garden. He has continued to act as Litigation Friend in this case and his evidence that he genuinely wishes regular contact with his son to be restored was not challenged. He is not therefore an absent or passive parent, as the Defendant suggests. Since his relationship with Mrs Cocking has broken down, he would find it difficult to visit the Claimant at the home of his mother and stepfather and he wishes to have Lamarieo come and spend some time with him as he used to. Inadequate provision for accommodation where Lamarieo can stay, assisted by his carers, is likely to widen the gap between father and son. It is in Lamarieo’s best interests that he continues to have regular contact with his natural father and that the estrangement is not extended.

[279]I accept Mr Sweeting’s submission that there is no reason in principle why a second Roberts v Johnstone claim cannot be made, and the Defendant is not raising an objection in principle. Mr Sweeting draws my attention to the fact that claims for adaptation to an existing family home or a replacement holiday home, or for adaptation of a grandparents’ home have all been held to be recoverable and there is no dispute about that. Further, in Whiten the costs of adaptations to the grandparents’ home in Barbados were allowed (see paragraph 500 onwards) so that the claimant could visit them. The claim for the costs of buying and adapting a holiday home in France was rejected not on principle, but on the basis that the claimant would achieve the same benefit, in the few weeks each year that he would use this property, by renting appropriately adapted accommodation or staying in an adapted hotel.

[280]The point is also made that if divorced parents, living apart and sharing the care of a child, then had to cope with a serious and negligently inflicted injury to that child, necessitating adaptation of their properties or the purchase of properties to be adapted, it seems inconceivable that the child would not be able to claim for the necessary adaptations or purchase of a new home for each parent.

[281]I accept therefore that if this Claimant is regularly going to spend time staying with his natural father and have restored to him the relationship he undisputedly had with his father from the time of his birth to 2013, when he was 16, then the costs of purchasing and adapting a property for Mr Manna should not be barred in principle. If he had not been injured, Lamarieo would have been able to visit and stay with his father in his home regularly.

[282]On the evidence in this case and in the particular circumstances that have arisen, I am satisfied that Mr Manna’s stated wish to resume contact with Lamarieo is entirely genuine. Indeed the Defendant did not suggest otherwise to him in cross-examination, and it was part of the Defendant’s case that Lamarieo’s behaviour had deteriorated, at least in part, because of the enforced separation from his father in September 2013. I am also satisfied that Mrs Cocking accepts that their relationship should resume and has no objection to it resuming, to include overnight stay, if there is a suitable property where Lamarieo will be safe and secure and if he has proper support from carers to assist him while he is there.

[283]Given these factors, the long history of shared care in this case, Mr Manna’s extensive involvement in his son’s life over many years, the relatively modest costs involved and my conclusion that it is very much in Lamarieo’s best interests for his relationship with his natural father to be restored, I am persuaded that this Claimant is entitled to the costs of a second property. I emphasise that this decision has been reached on the particular evidence before the court in this case and is not to be regarded as establishing any wider precedent in respect of such recovery.

[284]I accept Mr Sweeting’s submission that, on the evidence, there was no real challenge to the figures put forward by Mr Reynolds, which I find to be well researched and reliable, and I therefore accept the calculation set out in Appendix 6 to the closing submissions as the basis for the award under this head of the claim. The Defendant raised no issue at trial as to the application of the multiplier for this calculation.

[285]I anticipate that the parties will now be able to agree the final sums to be awarded under the various heads of claim, on the basis of the findings set out in this judgment, and that they will agree the terms of an appropriate order, having regard to the further consideration that is to be given as to the final form of that order.

order

a) Remaining item of past loss: the claim for a Land Rover Discovery vehicle b) Credit for Interim Payment against Interest Future issues c) Appropriate Multipliers d) Loss of Earnings and Pension e) Future Care and Case Management f) Future Physiotherapy, Hydrotherapy (pool hire for Lamarieo only) and Speech and Language Therapy (Joint Reports) g) Occupational Therapy and Equipment h) Miscellaneous Expenses i) Holidays j) Future Travel k) Assistive Technology l) Accommodation (a). The Land Rover Discovery