How are care costs calculated in a serious injury claim?
A serious injury can change the most ordinary parts of daily life. Getting dressed, preparing a meal, looking after children, driving or simply getting around the house may suddenly require help from somebody else.
Initially, that help often comes from partners, parents, children or friends. However, for someone with a catastrophic injury, care may be needed for years or even for the rest of their life – and the cost can form a significant part of a compensation claim.
So how do solicitors establish how much care someone needs, what it will cost, and what should be included in their claim?
How do we prove your care needs?
When calculating the value of a compensation claim, we establish the nature and level of care a claimant requires by gathering evidence from several sources.
Initial needs assessment (INA): A specialist case manager who has experience of managing care and rehabilitation packages makes various recommendations and estimates of the costs of the claimant’s initial care, therapy, and wider rehabilitation needs.
Regular reports: The case manager will often complete regular three- or six-monthly reports assessing the claimant’s care, therapy and wider rehabilitation needs.
Care diaries: We always invite our clients and their friends and families to keep records of the nature and amount of care and assistance provided to them by others.
Witness evidence: Friends and family can provide evidence, in their own words and from their own perspective, about a claimant’s care needs.
Expert evidence: We will often instruct a care expert to assess the injured person in their home, looking at their surroundings and evaluating what they will need to improve their day-to-day quality of life. They then provide a report for the court, making recommendations about the claimant’s past, present and future care needs.
The cost of care and assistance
Professional care provision is expensive and will often be the largest element of a claim. That means it is one of the costs most commonly challenged by defendants.
A claimant is entitled to recover the costs of care that reasonably meet their assessed needs. Naturally, defendants will argue a claimant’s needs can be met by cheaper care rates and we often have to push back on this.
Again, this is where evidence comes into play. The stronger and more compelling the documentary, witness, and expert evidence, the easier it will be to establish that the claimant’s needs are better met by specialist, more expensive care provision.
It’s also worth noting higher care rates will apply where the care is specialised or required at unsociable hours (nights and / or weekends).
Gratuitous care and assistance
Claimants are often heavily reliant on unpaid support provided by family members or friends, especially in the early days post-injury – whether that includes domestic chores, childcare, DIY, driving, and gardening.
Whilst such care is almost always provided out of love and affection, the law generally recognises its financial value in personal injury and/or clinical negligence claims. There are some caveats to this, namely that the claimant can only claim for such care and assistance that goes “over and beyond” the usual amount provided in ordinary circumstances.
It is essential that claims for what is known as “gratuitous care and assistance” have evidence to support them. Care diaries and witness evidence are invaluable in this regard.
Calculating gratuitous care and assistance
When calculating gratuitous care and assistance claims, claimants will often apply a discount to the claimed commercial rate of care – a so-called ‘Housecroft discount’ of anything up to 33%.
This is to reflect the fact that a gratuitous carer will not have to pay tax, national insurance, travel and other expenses that a commercial carer would. However, the level of discount will depend on the individual circumstances.
Courts may consider factors including the nature and intensity of the care provided, when it was provided, the impact on the carer’s own work and other commitments and the relationship between the carer and claimant. In some circumstances, no discount may be applied.
Claimants will also need to be aware that if relevant benefits have been received in connection with their care, this may need to be deducted from any past care and assistance awards.
Any compensation that is recovered for care provided on a gratuitous basis is to be held on trust by the claimant for the benefit of the carer in question.
Receiving the compensation you deserve
Catastrophic injury can result in claimants facing difficulty performing the daily tasks they once took for granted so it is important claimants are awarded sufficient funds to cover their care needs now and in the future.
Experienced solicitors will obtain all the necessary evidence to support a claim and calculate the loss appropriately.
Our team would be happy to talk to you in a no-obligation phone call. Contact us on 020 7288 4800.
