The outcome in Peters v East Midlands Strategic Health Authority [2009] was a disappointment to defendants (and arguably the majority of taxpayers). The court held that not only could a Claimant pursue a tortfeasor for the entirety of his care needs, despite being eligible for care and accommodation under the National Assistance Act 1948, but that a Local Authority was unable to consider any part of a personal injury award in determining liability to reimburse for care and accommodation, even if the award included those specific elements.
The decision in Peters was a step away from the logical decision in Crofton v NHSLA [2007] where the court rightly considered the importance of preventing double recovery, i.e. the Claimant recovering for care and accommodation both from the tortfeasor and the Local Authority. This is a concept enshrined within tort law that a victim should be returned to the position they were but for the negligence, not better, not worse but as far as is practicable to the same position.
Whilst arguably Crofton is still good law on claims where liability is not established in full against the tortfeasor, and accordingly the decision in Peters has not provided the hoped for clarity on the issue, the potential or perceived ability for a victim to be able to recover twice for the same injury is a worrying development.
The Department of Health opened up a consultation on this issue, specifically asking whether Local Authorities should be able to take into account the care element of personal injury compensation awards in the financial assessment of what a care home resident should pay for residential care. Worryingly the Department of Health seems to have reached its own conclusions on this issue prior to consulting with interested parties by the suggestion in the consultation document that any changes on this issue will not have a significant impact on Local Authority budgets.
The significance of the impact on budgets is presently hard to assess but given the state of the country’s economy, any savings such as may be afforded by considering the elements of both care and accommodation in damages awards when making assessments of a resident’s contribution to these services are likely to be welcomed by increasingly cash strapped Local Authorities. Arguably consideration of these elements by Local Authorities is wholly appropriate given they were awarded by the court for the specific purpose of Local Authorities assessing need.
If you have strong views on these issues I encourage you to express them to the Dignity and Standards Team at the Department of Health prior to the consultation closing on 23.04.10. Consultation responses can be advanced on the form found under the link below, or alternatively please send your responses to us for inclusion within our submissions.