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Looking beyond Covid-19 – private or statutory funding for those with a serious injury



Before Covid-19, it was well-known that our hard-working NHS and social care services were stretched due to increasing demand and competing priorities for more investment.

It seems like that there will be long-term health complications arising after a Covid-19 infection. There are some specialist rehabilitation programmes which have been set up.

This may further increase the additional demand currently being  put on the NHS.

Our NHS and social care teams will have to prioritise the services that they invest their finite resources in.

High on the priority list for the NHS will be acute medicine, such as the Accident and Emergency Departments.

Sitting alongside free healthcare provision from the NHS including medical and nursing care is the right of the injured person to seek damages in a compensation civil legal claim for the provision of health, nursing, and social  care on a private basis where there had been a breach of the legal duty of care.

There is no obligation to rely upon state healthcare provision even if it can be shown that such provision is readily available and meets the injured person’s needs. However, the injured person will need to prove that it is reasonable to award damages on that basis because he or she will in fact rely upon private provision.

This position has statutory authority under Section 2(4) of the Law Reform (Personal Injuries) Act 1948.

A concern for a claimant lawyer in serious injury cases is the status of provision which is relying upon statutory funding, including NHS treatment.

In the case of Peters – v – East Midlands Strategic Health Authority [2009] EWCA Civ 145, the Court of Appeal held that an injured person pursuing a personal injury claim who sought damages including future care and accommodation was entitled to claim the cost of that future care from the tortfeasor (i.e. the person or entity who had been negligent) and was entitled to opt for self-funding and damages in preference to reliance on the statutory obligations of a public authority to provide care and accommodation.

In essence, the Court of Appeal held that it was unreasonable for the injured person to carry a lifetime risk that statutory funding may change or be withdrawn in the future. There are clearly strong public policy reasons for reaching this legal position.

An argument often faced by injured people is that, even though an injured person is entitled to choose private funding instead of statutory funding, the injured person will not in fact spend the money on a private basis.

The injured person has the burden of proving that they will in fact spend money on a private basis. For injured people, the real risk of not being eligible for statutory funding in the future is four -fold:

  1. The eligibility criteria for statutory funding and resource budgets will change generally at some point in the future; and / or
  2. The eligibility criteria for statutory funding will change to be stricter about accessing statutory funding upon receipt of a personal injury award; and / or
  3. There is a risk that assessments under the Care Act 2014 will take into account some of the injured person’s award when assessing entitlement to statutory funding. Where the Court has specifically identified a payment or part of any payment to deal with the cost of providing any care, this could be taken into account for charging purposes. In addition, a Periodical Payment Order (PPO) for care is likely to be treated as income and taken into account pursuant to Regulation 16 (5) of the Care and Suppor (Charging  an Assessmen o Resources)  Regulations   2014. Although Schedule 1 contains an exception for PPO being taken into account, there is an exclusion for sums which are “intended and used for any item which was not specified in the personal budget but was specified in the care and support plan or support plan”. The result of this is likely to be that the full or a significant element of the PPO will be taken into account by the local authority and in almost all cases will result in the client being ineligible for local authority services.
  4. Discretionary decision making by statutory bodies can and often does result in some of the needs of the individual being left unmet. Competing priorities for limited public budgets can result in a refusal to meet certain healthcare, social care, mental health and other needs in individual cases. Certain NHS treatments are already refused on the grounds of limited budgets and the need to ration. 

Where private funding can be secured through a legal claim it is much safer to assume that statutory funding will not be available in the future and to ensure that the injured person’s reasonable needs are met through private funding.

This ensures that the injured person receives “full compensation” and is put back in the position they would have been in prior to their injury as far as is possible.

It may be appropriate to obtain evidence from NHS and local authorities in many serious injury legal cases to ensure the legal and factual positions are clear.

There are now even more acute public policy and moral issues.

Why should an injured person, who can access private funding, put unnecessary pressure on public services which are likely to be very stretched?

It would be more advantageous for the public services to be made available to those who do not have access to private funds obtained to meet their individual needs.

If an individual who is insured has caused serious injury, the insurers can, having spread the cost across all policyholders, make an award to ensure that the injured person’s reasonable needs are met.

Limited public resources, after Covid-19, means that funding priorities within public services will come back into sharp focus.

Seriously injured people, who have the ability to secure private funds to meet their needs through their legitimate legal claims, play their part in ensuring already stretched public budgets are available to reach more people.

In doing so those who have been seriously injured are not only exercising their own individual human rights, they are relieving the burden of meeting everyone’s needs.

Yogi Amin is a partner at Irwin Mitchell LLP and is the National Head of the Public Law Team. He has a particular interest in community care law and has led many cases which have changed or clarified the law in this area.

David Withers is a partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in neuro-trauma and other serious injuries such as amputations or significant poly-trauma. 

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