When a seriously injured person is injured, there is often a need for larger accommodation. This may be required to accommodate carers, to create a therapy room or to house aids and equipment. Larger houses cost more money, writes Irwin Mitchell’s David Withers.
The issue that the Court has, when faced with a claim for damages, is ensuring that the severely injured person’s accommodation needs are met, but also ensuring that the injured person’s estate, when the injured person dies, does not receive a windfall. A property is a capital asset which, based on historical performance, generally appreciates in value over a period of time. If the injured person was awarded the total cost of the property that they now need because of their injury, they would receive damages to purchase the property and their estate would then be able to sell the higher value and larger property upon the injured person’s death, hence the windfall argument.
In an attempt to remedy the windfall argument, the House of Lords in the case of Roberts – v – Johnstone  Q.B. 878 attempted to devise a formula for the quantification of accommodation claims. The formula was [the additional property sum required] X 2.5% (the prevailing discount rate at the time) X [the life multiplier] = [the accommodation loss]
The injured person was said to be compensated for the loss of investment opportunity in respect of the additional capital that had to be invested in the property. They were assumed to be able to recover 2.5% in a low risk investment portfolio in respect of the additional capacity above inflation had the monies been invested in the market rather than in property. 2.5% was the prevailing discount rate.
The formula was not ideal. For example, if an injured person had a short life expectancy, the formula did not provide much of a solution. The injured person in nearly all scenarios had to use damages designed to compensate for other heads of loss to fund their accommodation needs. This could include, for example, having to use damages which were intended to fund a care package.
When the Lord Chancellor changed the discount rate initially to -0.75% and then to -0.25%, the formula stopped being functional. This is because it led to a nil award of damages for accommodation losses. It is fair to say that even before the discount rate changed, the legal teams who represented severely injured people wanted to challenge the formula, particularly in respect of the short life expectancy cases. The change in the discount rate accelerated the need for the formula to be challenged.
In Swift – v – Carpenter, the High Court considered such a challenge. The Court found that it was bound by Roberts – v – Johnstone. The Court awarded the Claimant in that case no damages for the additional sized accommodation that she required, having suffered from an amputation above the knee. The Claimant appealed. The Court of Appeal, after hearing evidence from surveyors, financial advisors, actuaries and economists, found that it was not bound by Roberts – v – Johnstone on the basis that the House of Lords (as it then was) had been laying down guidance rather than principles. This was a contentious point and one which may be appealed by the Defendant. The Court of Appeal found that the formula arising following the Roberts – v – Johnstone case was no longer fit for purpose. This was largely because the prevailing economic conditions had materially changed since 1989, when Roberts – v – Johnstone was heard.
The Court of Appeal provided an alternative formula to use based on the concept of reversionary interest. The Court of Appeal recognised that given the changing economic conditions, the formula in Roberts – v – Johnstone no longer provided injured people with accommodation claims fair compensation.
The Court of Appeal, recognising the windfall argument, has attempted to devise a way of valuing at the point of resolution of the claim the value of the Defendant’s reversionary interest in a property in the future. This is a notional valuation as the Defendant does not retain any interest in the actual property.
The Court considered that the best way of doing this was to apply a discount or investment rate. Having considered the various rates proposed by the parties, the Court took a cautious approach and adopted +5% as the appropriate rate to be applied to the Claimant’s life expectancy.
The new formula for establishing accommodation losses is therefore as follows:
[the additional property sum required] / [1.05] X ^ [-the injured person’s life expectancy] = [the reversionary interest]
[the additional property sum required] – [the reversionary interest] = [the accommodation loss]
The formula attempts to quantify what the Defendant’s notional reversionary interest in the property would be at the point of the injured person’s death. There is an assumption that they would have made 5% per annum above inflation on the property after the injured person has died.
In essence, the Court of Appeal devised a formula to put a monetary value on the Defendant’s interest in the property after the Claimant’s death at an assumed return of 5% per annum above inflation.
The Court of Appeal also emphasised that where there is a risk of overpayment of damages and underpayment of damages, those risks are not treated as equal. In other words, the Court is more content to award damages which overcompensate an injured person to avoid the risk of undercompensating an injured person. This opens the door for injured people to seek the full capital cost where the reversionary interest calculation means that the accommodation losses are not sufficient to enable the injured person to purchase a property that they need unless an alternative solution can be established.
The Judgment is welcome news for injured people in general. The revised formula will lead to higher accommodation awards for the majority of injured people who have additional accommodation needs. There is also legal certainty which is important as this has the effect of narrowing the issues between the parties in higher value cases, leading to swifter settlements
The Judgment will also lead to injured people securing more substantial interim payments given that the award for accommodation claims has increased.
Lastly, more injured people may seek annual payments (Periodical Payments) to fund their care as there will be less of a need, in the majority of cases, to seek more capital to fund the additional accommodation need.
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.
Brain Injury Group – providing practical answers for 10 years
For the past decade, Brain Injury Group has been supporting people with brain injuries to access the right support for them, working with an array of law firms – alongside other service providers and case managers – to give a comprehensive offering of connections, advice and signposting to clients across the country. NR Times learns more
Tell us about the Brain Injury Group and its aims
Brain Injury Group was set up as a membership organisation for law firms with specialist brain injury claims teams, to promote the importance of instructing a specialist lawyer following a brain injury.
Our core values – to ensure that those affected by brain injury have access to the specialist support they need to help them receive the right rehabilitation at the right time and to support them to rebuild their life– have remained throughout our ten-year history. Our members can advise not just on claims, but also education, employment, family matters, continuing healthcare funding and the Court of Protection.
In addition to our website, which contains a range of useful information for the individual, families, and carers, we also offer support via telephone, email, and live chat on our website; not just to those who have a claim, but to anyone who has suffered a brain injury – if we cannot help ourselves, our aim is to signpost to services who may be able to.
We’ve also created a large directory of goods and services online, who can assist not just those who have sustained a brain injury, but the businesses who support them – so a one stop shop for goods and services from accessible holidays to specialist medico legal report providers, and much more in between.
Finally, we are recognised as providers of high quality CPD training, primarily for catastrophic injury lawyers, but also for case managers and therapists. We also provide free access to our training for the NHS and are happy to deliver bespoke sessions for them, which proved popular with neuro navigator teams in London. Our training covers a range of medical, legal and rehabilitation topics and we aim to deliver it in a neutral, friendly way, making it relevant to both claimant and defendant teams.
Who are your members?
Membership of the Brain Injury Group consists of three different streams; firstly, our law firm members who, in order to be accepted as members of the Group, must satisfy our joining criteria to ensure they really are specialists in the field of brain injury claims. Secondly, we have associate
members who provide supporting services to our law firm members, so for example medico legal agencies, IFAs and mental capacity assessors.
Finally, in 2020, we introduced our case manager membership which is actually open to residential rehabilitation facilities and therapists as well as case management organisations throughout the UK – we also have one member who is based in the Republic of Ireland. This has been our fastest-growing membership stream and we’re really pleased to be working more closely with so many excellent case management companies who have a particular interest in brain injury.
As part of their membership they receive free or discounted access to our training, allowing them to enhance their knowledge of brain injury, for
the benefit of their clients.
What are the benefits for a client of contacting Brain Injury Group rather than a law firm direct?
Firstly, we’re not a claims management company, so if a client contacts us, we are simply providing them with contact information of law firms who they can be assured are specialists in the field of brain injury.
This is so important as brain injury claims can be very complicated, and depending on the nature of the injury, can take many years to settle, so its important someone is confident in the abilities of their lawyer, and that that lawyer is experienced in this type of claim and is able to arrange the rehabilitation, care and support that person needs – not just for the duration of their claim, but for their entire future.
We always recommend people speak to at least three different lawyers before deciding to proceed. By contacting Brain Injury Group, just one call or email will provide them with details of three specialists, reducing some of the burden of researching firms at a time when there may be massive changes and stresses in their lives as they adapt to life after brain injury.
At the same time, we can connect them with organisations who can provide a free welfare benefits check-up or advise them on any employment issues that may arise, talk to them about continuing healthcare funding, or introduce them to a charity who can offer emotional support and may also be able to offer a small grant to assist with travel, accommodation, therapies, or the purchase of specialist equipment.
This service is provided free by Brain Injury Group and all our members will offer free initial advice to the general public who approach them via Brain Injury Group.
What does the future hold for Brain Injury Group?
During the pandemic we moved all our training online which has proven very popular, and whilst our webinars will continue, we really hope people will be happy to return to meeting in-person at events – we have held a couple of events recently which were very well received and attended, so we are hopeful.
We’re keen to continue to develop our membership further and introduce a training programme specifically aimed at case managers, which will run alongside our main training for catastrophic injury lawyers.
By forging closer links with case managers, rehabilitation providers, barristers, and lawyers, we hope we can extend our reach to help even more people who have sustained a brain injury, including those who do not have a personal injury claim.
For further information on how Brain Injury Group can help or to find details of membership and our training, visit our website www.braininjurygroup.co.uk
DoLS cases rise, as completion rate improves
The yearly number of applications to legally deprive a person of their liberty (DoLS), where they lack the mental capacity to consent to their care or treatment, has risen slightly in England, new figures show.
In 2020/21, there were 256,610 Deprivation of Liberty Safeguards (DoLS) applications – up three per cent on the previous year, versus an average growth rate of 14 per cent between 2014/15 and 2019/20.
DoLS is a legal procedure when an adult who lacks mental capacity to consent to their care or treatment is deprived of their liberty in a care home or hospital, in order to keep them safe from harm.
In England, all deprivations of liberty that take place in a care home or hospital must be independently assessed and authorised by a local authority to ensure they are in the person’s best interests.
The reported number of cases that were not completed as at year end in April 2021 was an estimated 119,740, around 10,000 fewer than the end of the previous year.
More than half (57 per cent) of completed applications in 2020-21 were not granted was 57 per cent. The main reason was given as ‘change in circumstances’, at 60 per cent of all not granted cases.
The proportion of standard applications completed within the statutory timeframe of 21 days was 24% in 2020-21, the same as the previous year. The average length of time for all completed applications was 148 days.
During the coronavirus (COVID 19) pandemic period, some aspects of the DoLS process have changed due to new Government guidance.
This includes greater use of remote assessments and shortened forms.
Read the full report here.
‘This is an exciting time in the future of clinical rehab’
For seriously injured military personnel, the options around rehabilitation are increasing further with plans for a new National Rehabilitation Centre. Matthew Tomlinson and Rachel Seddon, from the military team at Slater & Gordon, discuss the importance of access to specialist support
For the majority of readers, initial treatment for their serious injury or illness will likely come from our exceptional NHS’ regional acute hospitals. When clinical rehabilitation, to assist those seriously injured is required, it is widely recognised that timely and tailored support is necessary to maximise the potential to return to a quality of life, and minimise further problems down the line. This is significant in relation to an individuals’ physical and mental health.
Getting people back to a meaningful life and capability following serious injury is a major policy area in Government. Return to work rates for people experiencing serious injury and trauma in England are below rates achieved in other European countries as well as rates achieved in the Armed Forces.
For seriously injured military personnel, the Defence and National Rehabilitation Centre (or DNRC) in Loughborough will already be a familiar part of Defence Medical Services, which comprises, in addition to the national Defence Centre, Regional Rehabilitation Units (RRUs), Units embedded within NHS Trusts, the Royal Centre for Defence Medicine and mental health services such as the DCMH (Departments of Community Mental Health) network.
The Defence Centre, or DMRC/Stanford Hall as it is known, is the state of art successor to the Ministry of Defence’s former Headley Court facility in Surrey. The facility, which is run by a Commanding Officer alongside uniformed staff and civilians employed by MoD, opened in 2018 and continues to treat and rehabilitate seriously injured members of the armed forces including those with serious neurological and spinal cord injuries.
In addition, plans to develop a ‘National Rehabilitation Centre’ (NRC) on the Stanford Estate (next to the Defence Centre) are gaining momentum and will be a very welcome initiative bringing world-class clinical rehabilitation for civilian NHS patients, as well as providing a national hub for training, research and development.
Recent reports suggest that, all being well, the green-light should be given later this year for construction of this new facility, with a target for treating patients by 2024. This is an exciting time in the future of clinical rehabilitation and the NRC will extend the success of acute services and established major trauma centres by providing a national centre of excellence in both patient care and innovation.
The recent and ongoing lessons of COVID-19 are showing the real value of excellent clinical rehabilitation in making a meaningful difference to an individual’s recovery and capability. For example, a specialist three-step rehabilitation programme developed at DMRC has been credited with saving the careers of military personnel with “long- Covid” (shortness of breath, fatigue, low mood and “brain fog”). The BBC recently reported that nearly all of the 150 patients that took part in the programme were able to return to work within three months.
The plans for the NRC appear to offer a unique opportunity to drive new rehabilitation products and technologies and improve accessible state of the art rehabilitation. The NRC would provide patient care focused primarily on treating patients within the NHS East Midlands region with the potential to treat patients referred from elsewhere in the country similar to the Defence Rehabilitation Model.
Already, the Defence establishment is acquiring new knowledge through, for example, Computer Aided Rehabilitation Environment and the cohort of patients treated at both the NRC and the Defence facilities must widen the opportunities for clinical research. The NRC facility itself aims to be transformative, leading in the testing and development of future treatments and techniques and the positives that can be derived from the Defence Rehabilitation Model and its collaboration with Defence Medical Services looks likely to bring about meaningful changes to injured individuals’ pathways.
Good rehab after serious injury is often described as ‘like a relay race’. Taking for example, the experience of our client, Soldier X. X was paralysed from the mid-chest down and would be graded T4 complete ASIA A paraplegic. He suffers from residual neuropathic pain, increased tone, spasms, impaired sensation and loss of power below the mid-chest and loss of visceral function. He has to self-catheterise and manually evacuate the bowels, and within a few years of injury, developed a syrinx, which is, along with syringomyelia, likely to further progress.
In the immediate aftermath of the injury, he went through numerous intensive and emotionally difficult stages of rehabilitation, including treatment at Stoke Mandeville NSIC.
During X’s Naval Service Recovery Pathway with Hasler Company, and numerous inpatient stays at DMRC Stanford Hall, he has been able to access tailored rehabilitation which has included hydrotherapy, 1:1 specialist physiotherapy and psychotherapy, and he has had the opportunity to complete successful trials of the ReWalk exoskeleton.
DMRC Stanford Hall has the feel of a military establishment in one sense and of somewhere very conductive to rehabilitation in a relaxed and personal manner. It has buildings and spaces specially designed to aid the recovery process including gyms, a range of swimming and hydrotherapy pools, a gait lab and “all the elements essential for its clinical purpose”, that is, to rehabilitate the most seriously injured members of the Armed Forces and also, importantly, return those who have been injured in the course of training back to work.
He is making good progress with his physical rehabilitation but acknowledges his ongoing challenges in terms of bowel and bladder care, sexual health and fertility, pressure sores, syrinx management, and mental health and so continuity and quality of care remains vital both now and beyond his medical discharge. In due course, Soldier X will likely engage with the Recovery Career Services which was launched as part of the Defence Recovery Capability back in 2013 with the mission of getting injured and sick personnel competing in the civilian employment market.
What the current Defence Rehabilitation Model seems to do very well is integrate all aspects of recovery including medical care, welfare, housing, education, reskilling, work placements, employment issues and opportunities. Whilst this remains an ideal care model and one that is decades ahead due to the combined efforts of the Services and the Service charities responding to carefully tailored individual recovery plans setting out a recovery pathway, if the NRC development plans can keep momentum, it presents a very exciting, and similarly patient-led opportunity to build the right environment for successful rehabilitation.
- For more information about Slater & Gordon’s specialist work with the military, visit here
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