Crofton v National Health Service Litigation Authority

This is the judgment of the Court, written by Lord Justice Dyson.

The appellant was born on 10 July 1979. A few days later, it was suspected that he had a condition known as coarctation of the aorta. He was referred to the Royal Brompton Hospital (the institution now represented by the defendant) for cardiological advice and, if necessary, treatment. Staff at the hospital failed to deal with his condition speedily with the result that he suffered serious brain injury. In brief, he suffered diffuse brain damage with the result that he now has the mental age of a young child. He has very limited mobility and speech, and his vision is poor. He can do very little for himself and requires the attendance of a carer throughout the day and a second carer for certain purposes. Attendance by carers is required throughout the night. His life expectancy is to about the age of 66.

The claimant started proceedings alleging negligence. Liability was compromised on the basis that the claimant would be paid 67.5% of damages assessed on the basis of full liability. At the date of the trial of the issues of damages, he was 26 years of age. Accordingly, the questions relating to future funding of his care needs had to be considered against the background that he was likely to live for about another 40 years.

The issues of damages were decided by His Honour Judge Reid QC in a reserved judgment on 19 January 2006. They were in many respects typical of those that arise in large personal injury cases. Many of them were compromised by the parties. These agreements were referred to in the judgment and were approved by the judge.

One important issue that the judge had to determine concerned the accommodation in which the claimant should live. At the date of trial, the claimant was living in supervised accommodation in Meadowbank, Eastleigh where carers were being provided by SeeAbility (the Royal School for the Blind) and paid for by Hampshire County Council (“the Council”). The judge accepted the claimant's case that damages for future care should be assessed on the basis that it was reasonable for him to purchase his own accommodation and employ carers.

A major issue (and the only one that has given rise to this appeal) was the extent to which, if at all, the damages should be reduced to reflect payments (known as “direct payments”) that the Council would or might make to the claimant towards his care costs. The judge assessed the claimant's total yearly care costs at £122,602. He then decided that the Council would make yearly direct payments of £68,018 which should be offset against the total care costs so as to produce an annual figure of £54,584. To this figure he applied the agreed whole-life multiplier of 25.42 to arrive at an award for future care of £1,387,525 on the basis of full liability.

Whether the judge was entitled to take direct payments into account depends, at least in part, on whether he interpreted the relevant legislation and ministerial guidance correctly. Mr Simon Taylor QC submits that the Council will not be obliged to, and will not, make direct payments to the claimant in respect of his care costs. This is because the damages awarded in this case will allow a private care package to be established for the claimant, so that it will not be necessary for the Council to make arrangements and pay for his care. In order to resolve the questions that arise on this appeal, it is necessary to start with the statutory framework.

The statutory framework

The duty to provide accommodation and domiciliary care

Section 21(1) of the National Assistance Act 1948 (“NAA”) deals with the provision by local authorities of accommodation. It provides:

“(1) Subject to and in accordance with the provisions of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing –

a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise in available to them;….”

Section 21(2A) provides that in determining for the purposes of section 21(1)(a) whether care and attention are otherwise available to a person, a local authority shall disregard so much of the person's resources as may be specified in, or determined in accordance with, regulations made by the Secretary of State for the purpose.

Section 22 gives power to make charges for accommodation provided by a local authority. Subsection (5) provides that, in assessing a person's ability to pay, a local authority shall give effect to regulations made by the Secretary of State. The National Assistance (Assessment of Resources) Regulations 1992 (as amended) (“the Assessment of Resources Regulations”) provide that capital and income deriving from compensation for personal injuries administered by the court shall be disregarded in assessing resources.

Sections 21 and 22 are of no direct relevance to the present case, since there is no appeal against the decision of the judge that damages should be assessed on the basis that it is reasonable for the claimant to live in private accommodation. In these circumstances, it is necessary to examine the statutory provisions applicable to the provision of home care.

Welfare arrangements

Section 29 of NAA provides so far as material:

“(1) A local authority may, with the approval of the Secretary of State and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall make arrangements for promoting the welfare of persons to whom this section applies…”

Directions were given by the Secretary of State on 17 March 1993 in Appendix 2 to LAC (93) 10. Paragraph 2 provides:

“The Secretary of State hereby approves the making by local authorities of arrangements under section 29(1) of the Act for all persons to whom that subsection applies and directs local authorities to make arrangements under section 29(1) of the Act in relation to persons who are ordinarily resident in their area for all or any of the following purposes – (a) to provide a social work service and such advice and support as may be needed for people in their own homes or elsewhere;….”

Section 2 of the Chronically Sick and Disabled Person Act 1970 (“CSDPA”) provides:

“(1) Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely –

(a) the provision of practical assistance for that person in his home……

then, subject to the provisions of section 7(1) of the Local Authority Social Services Act 1970 (which requires local authorities in the exercise of certain functions, including functions under the said section 29, to act under the general guidance of the Secretary of State)…. it shall be the duty of the authority to make those arrangements in exercise for their functions under the said section 29…”

The duty to assess needs

Local authorities have a duty to assess a disabled person's needs under section 47 of the National Health Service and Community Care Act 1990 (“NHSCCA”), which provides:

“47 Assessment of needs for community care services

(1) Subject to subsection (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority –

(a) shall carry out an assessment of his needs for those services; and

(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.”

They also have a duty to assess a disabled person's needs under section 4 of the Disabled Persons (Services and Consultation and Representation) Act 1986, which provides:

“When requested to do so by—

(a) a disabled person

(b) his authorised representative, or

(c) any person who provides care for him in the circumstances mentioned in section 8,

a local authority shall decide whether the needs of the disabled person call for the provision by the authority of any services in accordance with section 2(1) of the 1970 Act (provision of welfare services).”

Relevant guidance as to the provision of services

When local authorities are making such assessments and providing such services, they have to act under the directions of and the general guidance issued by the Secretary of State. Section 7(1) of the Local Authority Social Services Act 1970 (“LASSA”) provides:

“Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State.”

A local authority circular entitled “Fair Access to Care Services Guidance on Eligibility...