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

Covid-19 has led to a sharp economic downturn that may take many years to recover from. This may mean that even more difficult choices will have to be made about where our finite resources should be invested. 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.

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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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QEF’s accessible technology wins international awards

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The new Care and Rehabilitation Centre in Surrey, developed by Queen Elizabeth’s Foundation for Disabled People (QEF), has won 2 international CEDIA awards for its innovative use of accessible technology, which was supplied by technology solutions partner Imperium Building Systems Ltd.

These awards recognise the improvement technology can make to the lives of disabled people, which is reflected at a UN event that forms part of this year’s International Day for People with Disabilities. The global UN awareness day today (December 3) highlights the challenges and discrimination disabled people face around the world, and pushes for positive change towards greater inclusion, accessibility and equality for disabled people.

This year on December 3, the UN is co-hosting an event specifically looking at ‘Reducing Inequalities through Technologies’ noting that: ‘persons with physical, sensory, cognitive/learning or invisible disabilities represent nearly 15 per cent of the world population’ 1 and that ‘for some kinds of disabilities, assistive devices/technologies are key “equalizers” that promote inclusion and full participation in all industries and dimensions of life’. 1

The event also highlights that ‘One billion persons with some form of disability can benefit from assistive technologies that can facilitate their social, economic and political engagement, including their participation in decision-making processes that affect their lives and ambitions’ 1

QEF’s Care and Rehabilitation Centre provides neuro rehabilitation for people after an acquired brain injury, stroke, incomplete spinal injury or other neurological condition and clients are supported by expert staff to relearn core skills, so they can rebuild their lives and be as independent as possible.

QEF’s vision for the new Care and Rehabilitation Centre was to use technology to give each person greater control over their personal space, no matter what a person’s impairment may be. It’s easy to take for granted being able to close the blinds when the sun is in your eyes or turn the lights off when you want to go to sleep – until you can’t do it for yourself. QEF wanted a system that empowered clients to have a greater sense of self-determination and influence over everyday activities during their rehabilitation.

Imperium developed the project with QEF, producing a cost-effective ‘smart home’ solution, using easily available technology that is adaptable to each persons’ specific requirements. Five connected smart devices have been installed in each bedroom which can be controlled in different ways; either with standard voice commands, pre-programmed accessible switches or programmable text to talk commands.

Ann, a client at QEF’s Care and Rehabilitation Centre, says: “I wasn’t sure about it at first – it was odd to sit in my room on my own and talk to something, but now I use it all the time. You can have the blinds down, lights on or off or the TV on or off. It’s another step on the journey of independence, so I don’t have to ask someone to do it for me.”

Chris Thorne, director of Imperium, says: “The technology we have installed for QEF will allow service users to have control over the lights in their room, temperature, day light via shading blinds, and audio-visual equipment. So, someone could stay in one position and manage their entire room, either with switches or voice controls. It also needed to be technology that service users could easily access after they left the service; creating independence that could continue beyond QEF’s walls.”

The international CEDIA awards recognise technical excellence and product innovation in the home technology industry. Imperium’s project with QEF was announced in November 2021 as winners in the ‘Multi Dwelling Unit Design’ category and also went on to win the overall award for ‘Life Lived Best at Home’ which reflects the project that gives the best experience for a client.

Judges for the Life Lived Better at Home award said: “This entry is outstanding for its sensitive and pragmatic response to the brief and for the way the technology meets the changing needs of the users. And all this achieved on an extraordinarily tight budget. I hope there will be many more projects like this in the future!”

Karen Deacon, QEF’s chief executive, says: “Our new Care and Rehabilitation Centre gave us an opportunity to use technology in an innovative way that would directly benefit clients as they relearn core skills. Adapting to life after an acquired brain injury is challenging for anyone and if technology can help give someone back their sense of control over everyday activities then we wanted to be able to offer that as part of our neuro rehabilitation programme.”

  1. Reducing Inequalities Through Technologies: A Perspective on Disability Inclusive Development https://www.un.org/development/desa/disabilities/wp-content/uploads/sites/15/2021/11/IDPD2021ConceptNote.pdf

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Webinar to explore the future of brain injury rehab

Join our panel of expert guests as we discuss the challenges and opportunities in improving patients’ lives

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The future of brain injury rehabilitation and how patients can be supported in new ways is to be examined by leading experts from across the sector at an event held next week. 

Brain injury rehab has made huge strides over the years, innovating and developing to better meet the needs of people living with life-changing injuries. 

Through changes in technology, developments in medicine and the advances in neurorehabilitation, brain injury patients should face an outlook which is better than ever before. 

However, the lack of resource within health services, exacerbated by the ongoing impact of COVID-19 and mounting pressures on the NHS, mean that progress and change is not being seen at the rate many would hope for.  

In 2020, the British Society of Rehabilitation Medicine (BSRM) identified the increased pressure on neurorehabilitation, highlighting the “unquantifiable additional case-load of patients with post-Covid disability presenting with a wide range of problems due to cardio-pulmonary, musculoskeletal, neurological and psychological/ psychiatric complications of the disease.”

In an upcoming webinar – What does the future of brain injury rehabilitation look like? – to be held on Wednesday next week (December 8th) and organised by NRC Medical Experts in association with NR Times, this matter will be examined to assess the scale of the challenge, the opportunities that exist, and what more can be done to better support patients. 

The panel will comprise:

The live hour-long event, from 4.30pm to 5.30pm, will include a panel debate, with questions welcomed from the audience. 

“Health and social care services have been under increasing pressure from an ageing population for decades and this has now been exacerbated by the disruption created by COVID-19,” says Edmund. 

“Brain injury rehabilitation services have always been poorly resourced in the UK, and are now under increased strain while professionals are diverted into the acute management and rehabilitation of COVID-19 patients. 

“It is essential therefore that we consider how to improve service delivery models so that people with brain injury do not fall further behind in the queue. 

“Technological innovation in its many forms offers much potential here, but realising this will be a substantial undertaking for which we are as yet ill-prepared. 

“During this webinar we will explore some of the major opportunities and problems.”

To attend the webinar, registration is required in advance. To sign up, visit here 

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Thousands supported by communication training

In its first year, the Communication Access project has engaged over 4,500 organisations and individuals

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Thousands of organisations and individuals across the UK have benefitted from an initiative to support people with communication difficulties since its launch a year ago. 

The Communication Access UK scheme, a free e-learning tool, delivers training on accessible face-to-face, telephone and online conversation and customer service, in support of the millions of people in the UK who live with some form of speech, language or communication disability. 

Organisations that complete the training will be able to display the Communication Access Symbol in their workplace, demonstrating their commitment to supporting customers and staff who experience difficulties in communication. 

More than 4,500 businesses, organisations and individuals have already taken part in the initiative, which launched last November and was developed by the Royal College of Speech and Language Therapists (RCSLT), in partnership with the Stroke Association, Headway, MND Association, Business Disability Forum, Communication Matters, The Makaton Charity, and the National Network of Parent Carer Forums.

And on the first anniversary of its launch, two organisations have achieved landmark ‘firsts’ in support of Communication Access. 

Barnsley FC has become the first football club in the UK to undertake Communication Access training and commit to supporting people with speech, language and communication barrier. Its charity arm, Reds in the Community, has also signed up to the initiative.

Northern Devon Healthcare NHS Trust (NDHT) has also become the first NHS Trust in England to gain accreditation to the standard, offering the package to its entire workforce. 

The success of the scheme to date comes as the campaign to secure better access to speech and language therapy continues, with thousands supporting a petition to the Government and 20 APPGs calling on Prime Minister Boris Johnson for action.

“Communication disability in the UK affects millions of people, so I’ve been thrilled to see so many organisations and individuals register for the free multi-award winning Communication Access training in the last year,” says Royal College of Speech and Language Therapists’ chief executive, Kamini Gadhok.

“Barnsley Football Club has just become the first football club to be CAUK accredited, while North Devon Healthcare NHS Trust is the first NHS Trust to commit to training its entire workforce to enable them to provide communication accessible services and it’s been fabulous to see organisations setting the bar for others in this way.

“Of course, we’d like to see many more businesses and people register for the training, so please visit the website and register for the training today.”

Barnsley FC’s CEO, Khaled El-Ahmad, said: “Our club has a number of touchpoints, both of digital and physical nature, and it is integral that we provide the best service possible to supporters. 

“Knowing that we are making strides to communicate in an inclusive manner is positive, as we look to improve our offering and overall experience for individuals living with disabilities at Oakwell.”

Andrea Bell, deputy chief nurse at NDHT, added: “At NDHT, we encounter a huge variety of patients with extra communication needs, from those who may have had a stroke to people with visual or hearing impairments. It’s vital that we are able to communicate with them to give them the best possible care.

“We’re extremely proud to be the first Trust in England to become part of Communication Access, and we hope other Trusts will follow our lead in facilitating the best possible communication with patients.”

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