Fighting for statutory entitlements for care

Compensation for injury will rarely, if ever, provide certainty that a claimant’s needs will be met for life. With the ever-tightening purse strings of Local Authorities, if a claimant is to receive the statutory funding to which they are truly entitled they will need to play a diligent game that amounts to little more than ‘cat and mouse’ to obtain a suitable care package that reflects their need.

There are many reasons that an award of damages for personal injury may prove insufficient to meet a claimants needs throughout their lifetime:

• Inflation and tax may be higher than expected;
• Investment returns may fall short of those assumed within the claim;
• Advancing medical science may enable claimants to outlive their life expectancy at the point of settlement;
• Needs may escalate at a rate far greater than predicted throughout the litigation;
• The implications of Roberts -v- Johnstone calculations in respect of the need to provide suitable accommodation; and
• Any deduction for contributory negligence reduces the sum awarded.

These are to name but a few.

Claimants that hold their awards either within a Personal Injury Trust or under the Order of the Court of Protection will ring-fence the award from means-tested assessment for support.

One option a claimant may consider, providing they are not precluded from doing so, is to pursue statutory funding for care services via their Local Authority. When it comes to the process to be implemented things could not be clearer. A Local Authority must, in the following order:

• Assess the care need in full (regardless of how the need is currently met);
• Agree a care plan that will meet the identified need (regardless of who currently provides support);
• Consider the cost of meeting that care package (at which time any gratuitous care can be factored in); and
• Financially assess the claimant’s ability to contribute to that care.

All too often, this process is not conducted in the order set out above. It may seem that this is of irrelevance. Surely, providing each of the stages are undertaken the outcome will be unaffected? Not so. Firstly, if the financial assessment takes priority over the other requirements Local Authorities may simply recognise that they are not required to fund any care and never assess the claimant’s needs in full.

Similarly, if the care assessment takes into account external care provided by the family and only seeks to assess the additional care required over and above that which is already met by friends or family, again the true care need will not be identified. This will often place an over-reliance on families who are already overstretched in meeting the family’s needs.

Even when the correct process is implemented this alone will not ensure an appropriate outcome, only that the starting place is correct. Care costs continue to rise above average earnings, Brexit doing little to promote European workers to fill the vacant position at a more cost effective rate than the domestic labour force will accept. This continuing increase in cost is to be met from a seemingly ever decreasing care budget in real, if not nominal, terms. Add into the ‘pot’ our ageing population and all of the ingredients for a reliable 'care crisis' recipe are baking away at 200 deg centigrade (180 for fan assisted ovens).

Whilst the solution to the above will elude politicians for years to come, and claimants and their advisers will have little power to rectify the backdrop illustrated above, they are not powerless. Taking the time to understand the care assessment and provide specific information during the assessment meeting (including timescales for the activities of daily living a claimant must undertake to meet their need) will all help to measure the proposed care plan against the needs identified and empower claimants to challenge on solid grounds when a care plan falls identifiably short.

By way of example in respect of one of our clients, having conducted a care review with his Local Authority and seeing his assessed need fall significantly despite a recognisable decline in his condition, I was appointed as advocate. The care plan, at initial glance, seems to cover all of the key areas that need to be assessed and whilst, in my view, the care plan is written to over rely on the availability of gratuitous care, it did identify each of the areas of need. These include all areas of life from dawn to dusk and on into the night as assistance is required every night.

The proposed outcome was to reduce the previous care package to approximately three and a half hours a day by way of Direct Payments, despite the care plan identifying that, due to the complex nature of the claimant’s needs, the morning routine takes three hours per day to complete. Therefore the additional half hour of support was suggested to meet all other needs throughout the day. It is clear that this is not adequate to meet the identified need and the assessment is being appealed. There regularly seems to be little, if any, correlation between the identified care needs and the number of hours support awarded by a Local Authority and no breakdown offered.

What can we take from the above? Preparing prior to a care assessment and taking the time to set out the time needed to complete each element of the individual’s care is almost always time well spent. In addition, if claimants feel that their needs have not been suitably identified, but rather an arbitrary reduction of their support has been applied as a cost cutting exercise, the Local Authority should be challenged and a breakdown of how time is allocated to each care need requested. This in turn will empower claimants to effectively challenge their care assessment where necessary. After all, the assessment of need is something to be agreed with the Authority, not prescribed by it.