Anyone who suffers a brain injury in an accident should seek preliminary advice from a specialist personal injury solicitor about the possibility of compensation as soon as they can.
Compensation can be awarded for injuries received only if it can be demonstrated that another party was responsible for the accident, either wholly or partly. However, even if the injured party appears to be solely responsible, it is worth seeking advice in case limited negligence by the other party can be
identified. For example, an employer may have supplied a driver with a vehicle that had
defective brakes.
The initial interview is usually free of charge and will establish whether there is a case for claiming compensation. The solicitor will need to get a clear picture of the circumstances surrounding the accident and the nature of the injuries sustained. In the case of severe injury, the first assessment interview may take place in the hospital.
Selection of
the legal team
Bill Braithwaite QC is a specialist in
personal injury cases and author of Brain
and Spine Injuries – The Fight for
Justice. Here he outlines the process of
choosing legal representation where this
is deemed necessary.
The following information applies to the
legal systems in Scotland and England.
In the event of a claim arising, selection of the legal team is extremely important. The process of making a legal claim is difficult and it can be made more so by lawyers who are not suited to either the individual or the type of claim.
Catastrophic personal injury claims are now a specialised area of claim management and the legal team needs to be sufficiently experienced in this area of work.
The key element in the team is the solicitor. He or she is the person who has the daily conduct of the claim and who communicates everything that matters to the person with a brain injury and his or her family. It is important for the individual who has received a brain injury to select a solicitor and to make sure that it is someone who will be able to conduct the claim from start to finish.
It is beneficial for the team to be created at an early stage. It is almost universal that the solicitor would decide to use the services of a barrister as a consultant specialising in the preparation and presentation of legal claims. That would mean that the solicitor would select and instruct a barrister and that should be done before the claim is too far advanced so that the individual with a brain injury and their family can get to know the whole team early on and the team can get to know them.
The person with a brain injury and their family have the right to ask detailed questions about the solicitor and barrister before they commit themselves to instructing them. Appropriate questions might include those set out on the next page. Although it is important to meet the solicitor before deciding whether to instruct him or her, the questionnaire could be given or sent to more than one solicitor, so that some early impression can be gained of his or her
The response of the solicitor may give some indication of their character; if he or she is embarrassed or offended by this questionnaire, or considers it impertinent or rude to be asked, the reason may be based on lack of experience of this type of work.
The individual and their family may also want to ask the solicitor how he or she intends to
communicate with them during the course of the case. There is no right or wrong way as such, but there is likely to be a system that will suit the family in question. Some people like to have frequent letters describing progress, some fear and dislike such constant reminders. Some prefer the phone, but others don’t. Personal visits are an obvious possibility, but again not all people welcome the intrusion into their home.
Sample questions to ask
a solicitor
1 Are you a member of any specialist organisation related to the conduct of brain injury litigation?
If so, please give details.
2 Have you been approved, franchised or accredited by any specialist organisation related to the conduct of brain injury litigation?
If so, please give details.
3 Have you received any training or
education related to the conduct of brain injury litigation?
If so, please give details.
4 Have you ever conducted this type of claim before?
If so, please give a brief description of each case, including the nature of the injury, the stage proceedings reached and the value of the claim.
5 Do you have any system whereby the quality and efficiency of your work is audited by an independent body? If so, please give details.
6 Do you expect to be in charge of the case throughout its duration?
Contact Stuart Brazington
on freephone 08000 277 310
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What happens if the solicitor thinks you have a valid claim?
If happy with the initial advice received from a solicitor, one needs to instruct him/her to act. The solicitor will collect evidence from all concerned parties in order to establish liability (the legal term for blame). This may include interviewing and obtaining evidence from witnesses and, in the case of a road accident, getting a police report. The time that this takes depends on the complexity of the case. Alleged medical negligence claims are particularly complex.
If, after collecting the evidence, the solicitor thinks that liability can be
established, he/she may apply to the court for what is called a “Summary Judgment”. This enables part of the claim to be dealt with quickly before going to trial.
Alternatively, the issue of liability may need to go to trial before financial compensation is calculated. If worried about going to court, remember, the vast majority of cases are settled out of court.
The solicitor will also need to collect evidence to establish the effects of the brain injury on all spheres of life: short term, long term, and future health and work prospects. This is necessary to calculate financial compensation (called “Quantum”) and will involve arranging for specialist reports from a variety of
professionals. These sources will vary depending on the nature of the injury but could include reports from any one of the following:
• Doctor (GP)/specialist (who may have
been involved in early care), physician, surgeon (possibly a neurosurgeon), orthopaedic surgeon or plastic surgeon
• Neuropsychologist for an assessment of
cognitive skills, personality and
judgement regarding future prospects
• Consultant for an independent medical
report to provide a medical overview
• Case manager (if one is involved)
Reports may also be requested from an occupational therapist, psychiatrist, school or former employer and possibly an
employment rehabilitation consultant to advise on occupational potential and
earning capacity. In the case of severe brain injury, this part of the claim is likely to take a long time, not least because of the recovery time.
Is there a time limit on making a claim for compensation?
Yes. Where the injured person is an adult, the legal time limit for accident claims is normally three years. However, there are exceptions:
• There is no time limit for starting a case
in serious head (brain) injury cases where the person is so seriously disabled that they are incapable of managing their own affairs.
• In some cases, particularly medical
negligence cases, the injured person may not be aware that they have been injured as a result of someone else’s mistake until after three years have passed. The solicitor will examine the circumstances surrounding the injury
and then advise whether the injured person is still in time to bring a claim.
• If the victim is a child at the time of the
accident, the three-year time limit does not commence until the age of 18 years is reached.
How is the financial compensation calculated?
Calculating a personal injury claim (PIC) is a highly-specialised procedure. Both the person and their solicitor will need to ensure that every eventuality is accounted for and that records are kept so that claims can be made for every loss and expense. For example, PICs have two elements: special damages and general damages. Special damages are awarded to
compensate for all direct financial loss incurred as a result of the accident, e.g. cost of equipment, private medical fees, travelling expenses, damage to vehicle and clothing, loss of wages, etc.
General damages have three components:
1 Pain, suffering and loss of amenity
(amenity refers to loss of capacity due to physical or psychological problems)
2 Loss of earnings including future
earnings or promotion prospects
3 Care needs, e.g. cost of providing
specialist care, cost of specialist rehabilitation/therapies, cost of accommodation, special aids and adaptations, and transport
Do I have to wait until the case is settled
before I get any money?
One does not necessarily have to wait until the case is settled before receiving money. A solicitor can apply for an interim payment and should do so if at all
possible. This involves applying to the defendant for some of the damages immediately or well before the case is settled. As detailed earlier, rehabilitation can make a tremendous difference to the quality of recovery and eventual
independence. An interim payment will enable the injured person to obtain whatever is required to aid their recovery when it is needed, as opposed to waiting until the case is settled, which can take up
to four years. Applying for an interim payment involves the insurers of the defendant paying some of the damages before the case is finalised.
www.teeslaw.co.uk
Brain injury is a lifelong condition.
We’re here to see you get lifelong support!
We provide expert advice on the merits of a personal injury or medical negligence claim. To ensure you receive the lifelong compensation you need, we work to get the highest award, often achieving multi-million pound settlements.
Tees Solicitors is a trading name of Stanley Tee LLP regulated by the Solicitors Regulation Authority. Registered in England and Wales number OC327874. Registered office: High Street Bishop's Stortford Hertfordshire CM23 2LU. A list of members is available from this address.
Titan House Castle Park Castle Street Cambridge CB3 0AY
TEL 01223 311141 [email protected]
Offices also at: Bishop’s Stortford Great Dunmow Northampton Saffron Walden
Not every brain injury claim is the same. We will spend time getting to know you and your circumstances. We develop both a personal and professional relationship with you, your family and carers, and home or hospital visits can be arranged at a time convenient to you.
Our support does not end when the case finishes. As a specialist head injury solicitor we see our role as much more than helping you with the legal process and obtaining maximum compensation.
Post settlement we will assist you with your financial matters, ensuring your future is safeguarded. We focus on providing specialist rehabilitation to assist with your recovery and strive to ensure the family is supported every step of the way with the aid of a dedicated case manager.
We also specialise in Court of Protection, looking after the financial affairs of those who do not have the capacity to manage their own affairs.
Leo Abse & Cohen Solicitors has working for accident victims. We have a team of solicitors who specialise in acting for those who have suffered a brain injury to make a positive difference.
WE WORK ON A 'NO WIN, NO FEE' BASIS.
Leo Abse & Cohen has offices in Cardiff, Newport, Swansea, Exeter, Taunton, Swindon and Bristol.
Freephone Mark Church on 08459 006 007
www.leoabse.com email: [email protected]
We’ll support you...
over 50 years' experience of
Each year, more than 43,000 people access Rehab’s health and social care, training and education, rehabilitation, employment and commercial services, in the Group’s network of almost 250 centres across England, Scotland, Wales, Ireland, The Netherlands and Poland. In the UK, Rehab’s activities are principally
operated by Momentum, TBG Learning and The Chaseley Trust, which together support people from Shetland to Eastbourne in moving forward with their lives.
Momentum
Momentum is a leading provider of
rehabilitation, training and care services, for people with disabilities and others who face economic and social exclusion. Momentum Care offers a variety of social care services for people with a wide range of needs. An
experienced team of professional social care staff provides flexible services that support people in their communities, enabling them to live independently in their own homes and to take part in community-based activities. Momentum Care also operates day centres in Coventry and Blyth which provide registered day care and outreach facilities.
Momentum Skills provides vocational
rehabilitation and training services, empowering people with a disability and those who are excluded to gain the skills that they need to live independently and to gain access to
employment. Momentum Skills supports people around employability and community
rehabilitation across a range of service areas, including brain injury, mental health, physical and learning disabilities,
Haven, Momentum’s social enterprise arm, operates as a commercially-viable business, providing employment opportunities for people with a disability, who make up around 80 per cent of employees. Haven works with some of Scotland’s largest blue-chip companies, offering services and solutions from contract packing to component assembly to print-finishing.
TBG Learning
TBG Learning is one of the UK’s leading youth and adult learning organisations. Its services are accessed by thousands of people each year – the majority from socially-disadvantaged groups, such as people who are long-term unemployed or who have basic skills training needs. TBG Learning also works with employers and people who need to up-skill to improve their employability or career prospects through a range of programmes, including the Work Programme. The organisation offers a wide variety of learning opportunities, ranging from basic literacy, numeracy and employability skills through to Advanced Apprenticeships from its network of learning centres across England and Wales.
Rehab Group in the
UK and Ireland
The Rehab Group is a leading
non-governmental
organisation that works
towards a world where every
person has the opportunity to
achieve their potential.
The Chaseley Trust
The Chaseley Trust operates a residential nursing home in Eastbourne for up to 55 people with significant physical disabilities, along with a separate, fully-supported independent living community nearby. The main facility also offers respite and holiday care and rehabilitation programmes in addition to day care and outpatient therapy services for non-residents.
Ireland
In Ireland, Rehab’s services are provided through National Learning Network, RehabCare and Rehab Enterprises.
National Learning Network, Rehab’s training and employment division in Ireland, operates from 50 locations nationwide and caters for over 5,000 learners each year, offering in excess of 40 different nationally- and
internationally-accredited vocational programmes.
RehabCare offers a variety of health and social care services, including community-based resource centres, supported accommodation and respite and home care services to more than 2,800 people of all ages and from all walks of life.
Rehab Enterprises, Rehab’s commercial division, is Ireland’s largest single non-governmental employer of people with
disabilities and, through its various companies, manages leading businesses centred on the delivery of recycling, logistics, packaging and retail services across the EU.
At its core, Rehab Enterprises provides employment opportunities for people with a disability and offers disability management consultancy to employers.
Rehab’s role goes beyond simply providing services that enable people to make the most of their skills and talents in the workplace and in the wider community. Rehab is also a leading campaigner for reforms to remove the barriers preventing equal opportunities, and participates actively in a number of international and
European organisations, including the Economic and Social Council of the United Nations, where Rehab has consultative status as a
non-governmental organisation.
Sensitivity and Determination
Brain Injury advice from Irwin Mitchell
Brain injuries have a dramatic and life changing impact not only for the person injured but also for those who are close to them. We passionately believe that our clients and their families deserve the best possible medical care, rehabilitation and specialised support as well as receiving the maximum compensation after a brain injury.
We can assure you that:
• You will receive 100% of the compensation you are awarded.*
• You will not have to pay us anything for the work that we do.**
• A dedicated, experienced team of specialists with extensive understanding of brain injuries will handle your claim.
• Wherever possible we will seek interim payments to help fund care, medical treatment and rehabilitation as the claim progresses.
• We’ll see you at a place convenient for you.
08000 23 22 33 Text ‘CLAIM’ to 61993 and someone will call you back
Talk to a specialist advisor today
*does not apply to group actions or claims for accidents and illness outside England and Wales. ** Subject to entering a ‘No Win, No Fee’ agreement with us and complying with its terms.
Irwin Mitchell LLP is regulated by the Solicitors Regulation Authority and its associated firm Irwin Mitchell Scotland LLP is regulated by the Law Society of Scotland. Visit www.irwinmitchell.com
Brain injury and
community care
law
Simon Garlick of Ben Hoare Bell LLP
Solicitors outlines how community care
law affects people with brain injuries and
their carers.
The following information applies to the
legal system in England.
Introduction
Individuals who have sustained brain injuries, their families and carers must usually look to the State’s statutory services in the form of the NHS or their local authority for the provision of appropriate care. In most cases, statutory services will be the only source of professional care and support in the long-term. For a minority of people, they may be used in the short-term only, until a private care package, funded from existing savings, insurance, or by a compensation payment, can be put in place. The NHS and local authorities are subject to many legal duties that oblige them to assess the needs of both the injured person and their carer(s). They are empowered, and often under a legal duty, to provide a range of services, which may include residential or nursing home care, nursing or social care at home, provision or adaptation of
accommodation, short breaks (respite care), disability-related equipment, day centre services, assistance with travel, breaks and holidays, as well as counselling and befriending schemes. These services may be provided by the NHS or local government using their own or agency staff or, if certain conditions are met, may be funded by statutory services handing over a budget to the individual, leaving them or their carer(s) to choose and to buy the necessary service – this is called Direct Payments.
In many cases, statutory service provision is of a high standard, but sometimes assessments and services are not provided when they should be, whether because of a shortage of resources or staff, or due to a lack of understanding on the part of statutory services about what their powers and obligations are. In such cases, it is important that individuals with brain injuries and their families or carers have access to an advisor who knows about community care law and who can ensure that statutory services fulfil their obligations.
Assessment
Under Section 47 of the National Health Services and Community Care Act 1990, where it appears to a local authority that any person (including children) “may be in need… of community care services” the authority must assess their needs and make a decision about what services are to be provided to meet those needs.
This provision relates to the provision of “social care” for which local authorities are generally responsible, rather than nursing or medical care for which the NHS is responsible. Assessments must be carried out within a reasonable time, cannot be delayed or refused because of shortage of local authority funds, and will result in a person’s needs being banded according to the level of risk to their independence that will result if services are not provided. Psychological, emotional and social needs are as relevant as physical needs. The four bands are “critical”, “substantial”,
“moderate” and “low”. Most local authorities fund services to meet all critical and substantial risks, and a few meet some moderate band risks. Once a local authority has decided that a person’s needs are serious enough to be funded, it must provide a service and is not entitled at that point to refuse or defer services on the grounds of shortage of resources. If there are alternative ways of meeting assessed needs, a local authority is entitled to take into account the relative costs in choosing which service to provide. Once a service has been assessed as necessary, the local authority is not entitled to withdraw or reduce the service without first carrying out a reassessment.
The Department of Health’s Guidance on the Provision of Adult Care (referred to as the “Prioritising Need Guidance” of 2010), which is binding on local authorities, sets out precisely how
For example, needs for services will be banded as critical if, in the absence of services, the following (among other issues) would occur, or have already occurred:
• Significant health problems
• Inability to carry out vital personal care/domestic routines
• Unsustainability of vital social support systems
and relationships
• Unsustainability of vital involvement in work,
education or learning
• Little choice/control over vital aspects of immediate environment
Local authorities, like the NHS, must also take into account the rights of every individual under the European Convention of Human Rights (ECHR), which was incorporated into English law through the Human Rights Act 1998. Included are the right not to be subjected to inhuman or degrading treatment (Article 3) and the right to respect for private and family life (Article 8), which embraces many aspects of personal autonomy and
independence. This last right is “qualified”, which means that it can be infringed if there is a lawful and proportionate justification, such as the genuine prioritising of limited resources.
There are several other assessment provisions that are relevant to particular groups of people or types of services, including specific obligations on the NHS and local authority social services to carry out thorough assessments and put in place necessary services before the point of discharge from hospital.
Carers
There are thought to be over five million carers in the UK, of whom over one million provide more than 50 hours’ care a week. The value of unpaid
Carers, defined as those who provide a substantial amount of care on a regular basis, have important statutory rights. Carers must normally be consulted by the local authority social services’ staff when they carry out an assessment. The assessor is under a duty to consider the ability of the carer to
continue to provide care.
However, carers’ rights are not confined to
participating in the assessments of those for whom they are providing care. Carers and those intending to be carers have a right to request that a “Carer’s Assessment” be carried out, either simultaneously with the assessment of the individual concerned or independently.
Services to be provided to carers may include physical help – for example, with housework, shopping or collection of prescriptions – or other forms of support such as training, counselling, a mobile telephone, travel assistance, driving lessons or provision of equipment. Services might include the provision of holidays or special trips and, often of great importance, the arrangement
of respite or temporary care to give the carer a break.
Carers, like the person being cared for, have their needs assessed according to the level of risk applying in the event that services are not
provided. The risk being measured is the risk to the sustainability of the carer’s role. Local authorities not only have an obligation to inform carers of their rights to an assessment but, when assessing carers, must specifically take into account the effect of their caring role on their ability or wish to work or undertake education, their family and social responsibilities, their autonomy and their health.
NHS or social services?
Department of Health guidance states that when a person needs a certain intensity or level of nursing
care, as opposed to social care, they should be assessed as being eligible for NHS Continuing Healthcare, the effect of which is that all care – whether social or nursing and, in certain cases, accommodation – is provided free under the NHS. This contrasts with the position of those who remain the responsibility of local authorities, which are entitled to means test and charge people for the provision of community care services, including accommodation.
The borderline between social care and NHS care is a controversial area and is described in the
Department of Health’s National Framework for Continuing Healthcare (amended July 2009). In the past, the Health Commisisoner (Ombudsman) has criticised Primary Care Trusts – the NHS bodies responsible for assessing eligibility for NHS
Continuing Healthcare – for excluding many people who ought to have been assessed as eligible. When a person who has suffered a brain injury may need substantial nursing or medical care, it is important that advice about possible eligibility for NHS Continuing Healthcare is sought.
On the other side of the coin, it is important to note that the NHS is not subject to the same individually-enforceable duties as local authorities, as the legislation governing the NHS allows far more discretion to it about how and when services are provided to patients. For example, once a local authority has assessed a person as needing a community care service, it must provide that service; by contrast, even if a patient needs an operation, the NHS is quite entitled (subject only to European Court of Human Rights considerations) to put an individual on what may be a long waiting list. There is now limited scope for the provision of Direct Payments to those who are Continuing Healthcare patients under the pilot schemes set up to test NHS Direct Payments.
Capacity and consent
Individuals who have sustained serious brain injuries, with enduring effects, often have impaired abilities to take certain decisions. These decisions may relate to the most important choices in life: where to live, whether or not to undergo serious medical treatment, how to spend income and savings, which people to have contact with, etc. If the injured person is an adult (or in most cases aged 16 or over), it is not lawful for another adult, however closely tied to the injured person, simply to take these decisions on their behalf. Indeed, sometimes it may be difficult to decide whether a person does or does not have capacity to take decisions themselves.
These issues are governed by the Mental Capacity Act, which reaffirms existing law that capacity is “issue-specific” (a person may have capacity to take certain decisions, but not others) as well as “time-specific” (capacity to take a particular decision may vary at different periods). There is a presumption that a person has capacity. The Act sets out how capacity should be assessed. It goes on to provide mechanisms for decisions to be taken for those who are assessed as not having capacity, including the appointment of “Deputies”, who may be empowered to take certain decisions on behalf of patients, and independent mental capacity advocates, who assist in particularly vital decisions about where a person should be cared for and whether he/she should undergo serious medical treatment.
If a person is assessed, in relation to a particular issue, as lacking capacity, any decision taken must be in their best interests. Best interests must always include consideration of the wishes of the person concerned (although if he/she lacks capacity, their wishes will not be decisive) and should always include consultation with “anyone engaged in
Conclusion
Community care law is a fragmented and
technical area. As a glance at the Department of Health website (www.doh.gov.uk) will reveal, it is also an area that develops and changes with great speed. Many victims of accident or assault who suffer brain injuries with significant effects do not receive the statutory services to which they may be entitled. Often they, or those who care for them, are too worn down to question whether they are entitled to more than is offered. Many people are not aware that there are detailed laws that spell out the powers and duties of local authorities and the NHS towards those with disabilities. Lack of appropriate services can have serious consequences for a person with a brain injury and their carers and family. In contrast, provision of appropriate services can bring about substantial improvement in the quality of life for all concerned.
Neuro Specialists,
Realising Potential,
Changing Lives
Krysalis specialises in Occupational Therapy rehabilitation of adults and children with acquired brain injury.
We have extensive experience and expertise allowing us to offer a specialist approach. Krysalis has coverage throughout the entire UK.
For further information about how Krysalis’ unique offering can help you and your client please contact the team at:
01373 826252 or email [email protected] Krysalis’ unique offering is based around:
Establish
ed network of highly skilled neurological Occupational Therapists offering a variety of skills from rehabilitation of clients with high levels of dependency to those wishing to return to work. Use of standardised assessment tools throughout t
he occupational
therapy process to provide a baseline for treatment and monitor progress.
A commitment to the management, impleme
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and delivery of a rehabilitation service of the highest quality. An advisory service for organisations
who provide specialist
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We recognise that it is important to plan for a lifetime of care. At Investec Wealth & Investment, we have a team of Investment Managers who specialise in helping clients make the most of their Personal Injury or Clinical Negligence awards, particularly where the settlement involves the Court of Protection. We will help you formulate a sound investment strategy and offer opinions and advice backed by a proven track record and the highest levels of one-to-one service. We believe that great, long-term relationships start with aconversation, so why not give us acall?
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Social service
provision and case
managers in
Scotland
Robert Swanney, senior partner at Digby
Brown Solicitors, outlines the financial
issues that may arise in the case of
litigation.
The value of compensation
When someone suffers a brain injury due to the fault of another party, it is reasonable for that person to seek fair and prompt compensation. While compensation cannot turn the clock back, it can pay for rehabilitation and proper care, which are often not available through NHS or social work services.
In order to establish just what is needed, and to show the court that it will work well, it is good to set up a care regime as early as possible, so that the court can see that it is appropriate and effective.
Funding the care regime
Like the “Claimant” in England, the “Pursuer” in Scotland is able to seek interim damages and to use these to set up and manage a care regime. The law in Scotland does require that the Pursuer is certain of success and a full valuation of the case has to be placed before the court. If satisfied that interim damages should be awarded, then a reasonable
proportion (perhaps up to 60 per cent) can be given. It is, therefore, necessary for a written defence to be lodged, which inevitably means that the case will have had to proceed to an advanced stage.
If the insurers accept liability at an early stage then – as in England – voluntary interim payments are often made.
Alternatively, social work departments can provide support, possibly through Direct Payments. A recent Opinion of Lord Carloway in Fletcher v Lunan did indicate that judicial thinking was moving in the same direction as England with the court simply asking whether the claims in respect of care are reasonable
and awarding damages to pay for it if so found. Many insurers, however, continue to argue that if the local authority will pay for a care regime, then the Pursuer has suffered no loss and the insurer should not be required to pay damages in respect of care.
Will the State provide funding?
The position in Scotland is similar to that in England since the National Health Service and Community Care Act 1990 came into being. The statutory authorities (through social work departments) are required to carry out an assessment of need, and to try to meet that need from their resources. Certain sections of the Act do not apply in Scotland and the different legislative framework set out in the Social Work (Scotland) Act 1968 and the Community Care and Health (Scotland) Act 2002 leads to a different and less certain position in relation to financial assessment by the local authority for the provision of non-residential care. In other words, when it comes to providing care in a person’s own home, rather than nursing home care, there is a good deal of variation between one local authority and another.
Financial assessment by local
authorities in Scotland
As in England, these arguments have
necessitated a review of the law on financial assessment provisions for both residential and non-residential care. It is generally accepted in Scotland that for residential care these
provisions are the same, with Charging for Residential Accommodation Guidance (CRAG) applying. Money derived from a personal injury held in a Personal Injury Trust or to the order of the court is excluded from the means-testing process in relation to capital and income. The position in relation to charging for
non-residential care is entirely different with local authorities maintaining that they have
discretion on whether to charge and the level of the charge. This is important since after a brain injury most people are living at home, rather than in a nursing home, and it means that in these cases the local authorities have discretion – each can decide for itself and can change policy from time to time.
In Scotland, the UK’s Fairer Charging
Guidelines issued under Section 7 of the Local Authority Social Services Act 1970 do not apply. The Convention of Scottish Local Authorities issued a voluntary guideline in January 2006, which makes no mention of money derived from a personal injury and specifies those items of income and capital which can be excluded.
This guidance is not binding on the local
authorities and, as a consequence, the financial assessment approach differs from area to area. However, the prevailing practical approach by many local authorities is to include capital and income derived from a personal injury – this means that if a person has received an award of damages, they will have to pay the maximum charge for any care received.
While this may seem beneficial to those having to counter the insurer’s place that the local authority will pay for the care regime, it does leave the Pursuer in a difficult position if the settlement is a compromise one in relation to care. This will frequently happen in cases where the Claimant is partly responsible for the
accident, e.g. for not wearing a seatbelt. The result for the Claimant is that damages
awarded for pain and suffering are used to pay for care.
The solution
It is clear that all Pursuers with brain injury should seek to set up and manage their care regime privately and that the appointment of a case manager will invariably be necessary. For that reason, expert legal advice will give access to the needed rehabilitation services in the form of an experienced rehabilitation provider with case managers who are members of BABICM or CMSUK and who have proven experience in managing non-residential care regimes for those with a brain injury. It is important that the Pursuer get advice from experienced personal injury lawyers.
Call us free on Bolt Burdon Kemp Solicitors
Providence House Providence Place London N1 0NT [email protected]
0800 389 0385
www.boltburdonkemp.co.uk Email us on [email protected]Regulated by the Solicitors Regulation Authority
Bolt Burdon Kemp are specialist brain injury solicitors
s 7E ARE SERIOUS ABOUT COMPENSATION s 7E OFFER PROFESSIONAL PRACTICAL ADVICE
AND A PERSONAL SERVICE
The Court of Protection and the Office of the Public Guardian were created under the Mental Capacity Act (the Act), which came into effect in England and Wales (separate arrangements exist for Scotland and
Northern Ireland) on 1 October 2007.
The Court of Protection
The Court of Protection makes decisions in relation to the property, affairs, healthcare and personal welfare of adults, and children in a few cases, who lack capacity. The court also has the power to make declarations about whether someone has the capacity to make a particular decision.
The Office of the Public Guardian
The Office of the Public Guardian (OPG) is an agency of the Ministry of Justice. The OPG supports and promotes decision-making for those who lack capacity or who would like to plan for their future within the framework of the Act. The head of the OPG is the Public
Guardian.
The Public Guardian is responsible for:
• Supervising Deputies appointed by the
court
• Keeping registers of Deputies, Lasting
Power of Attorneys (LPAs) and Enduring Power of Attorneys (EPAs)
• Investigating representations, including
complaints about Deputies and Attorneys acting under registered LPAs or EPAs
The Mental Capacity Act
The Act provides a basis to empower people to make decisions for themselves as far as is
possible and to protect vulnerable people who are not able to make their own decisions
The Court of
Protection and the
Office of the Public
Guardian
The Court of Protection and
the Office of the Public
Guardian make decisions
about property and welfare
for those who lack capacity to
do so.
because of the way their brain is affected: for instance, from illness, injury, disability or substance misuse.
It sets out options for people who want to plan ahead, enabling them to appoint
someone they trust to make decisions if they should lack capacity at some time in the future and it clearly sets out the law on advance decisions to refuse treatment.
The Act also gives further protection to
vulnerable people by making a criminal offence the ill-treatment or wilful neglect of someone who lacks capacity. In addition, it provides protection for carers and professionals working with people who lack capacity, who comply with its provisions.
The Code of Practice
The Code of Practice (the Code) provides guidance on how the Act works on a day-to-day basis. It has case studies and explains in more detail the key features of the law. Certain categories of people have a legal duty to have regard to the Code. They include:
• Professionals and anyone who is paid for
the work that they do in relation to people who lack capacity, e.g. doctors, nurses, social workers, case managers, solicitors, police officers, paramedics, carers and attorneys appointed under an LPA or EPA
• Deputies appointed by the Court of
Protection. Family, friends and unpaid carers do not have a duty to “have regard” to the Code but will still find the guidance helpful
Deputies
Some people may feel that an LPA is not for them. If this is the case, and that person then loses the capacity to make important decisions in the future because of the way their brain is affected, then a relative, friend or a
professional may need to apply to the court to be given authority to make decisions on behalf of this person.
The court can appoint someone to make a single decision, or it may appoint someone, known as a Deputy, to make a series of decisions. In this instance, whoever the court appoints might not be someone who the person would have chosen themselves.
What is an LPA?
An LPA is a legal document that allows a person (the Donor) to choose someone now (the Attorney) that they trust to make
decisions about things such as property and affairs, or personal welfare, for them at a time in the future when they lack the capacity to make those decisions. An LPA must be registered with the Office of the Public Guardian (OPG) before it can be used.
LPAs replace the previous system of Enduring Power of Attorneys (EPAs). An EPA made before October 2007 is still valid, and must also be registered with the OPG should the Donor lose capacity in the future. However, an EPA allows a chosen Attorney only to make decisions regarding financial affairs. If a Donor would like to appoint someone to make decisions about their personal welfare should they lose capacity, they would need to make a
Where do you go for more
information?
For more information about the court or the OPG, including the type of applications that may be made and the forms required, please:
• Visit the OPG section of the following
websites:
www.justice.gov.uk/www.direct.gov.org
• Call the OPG on 0300 456 0300
(Monday to Friday, 9am–5pm)
• Email:
[email protected] Please note that OPG staff cannot provide legal advice and it is recommended that individuals consider seeking their own independent legal advice.
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