Peters v East Midlands Strategic Health Authority and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson |
| Judgment Date | 03 March 2009 |
| Neutral Citation | [2009] EWCA Civ 145 |
| Docket Number | Case No: B3/2008/1440 & B3/2008/1281 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 March 2009 |
[2009] EWCA Civ 145
Butterfield J.
Before : Master Of The Rolls
President Of The Queen's Bench Division
and
Lord Justice Dyson
Case No: B3/2008/1440 & B3/2008/1281
90P02879
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
Mr Nigel Godsmark QC (instructed by Messrs Hempsons) for the Claimant/Respondent
Mr Edward Faulks QC and Paul Stagg (instructed by Messrs Freeth Cartwright LLP) for the Defendants/Appellants
Ms Olivia Chaffin-Laird (instructed by Nottingham City Council) for the Defendant/Appellant
Hearing dates: Tuesday 10 and Wednesday 11 February 2009
Lord Justice Dyson: this is the judgment of the court.
Introduction
The claimant is a patient who sues by her litigation friend. She was born on 11 April 1988. She claims damages for personal injuries, loss and damage suffered by her as a result of the negligent failure of the defendants to ensure that her mother received a rubella vaccination before she became pregnant with the claimant. As a result, the claimant was born with congenital rubella syndrome. She has had a difficult family background and when she was 12 years of age, she was placed in a local authority care home for children with learning difficulties. Under the terms of an order of the Court of Protection made on 3 June 2003, Mrs Susan Miles was appointed as Receiver (now Deputy) to manage the claimant's property and affairs. In February 2007, the claimant was placed at The Spinnies, a private care home run by Creative Care Limited where she remains pursuant to a contract between that company and Nottingham City Council (“the Council”). The cost of her accommodation and care is borne 50:50 by the Council and the Primary Care Trust (“PCT”).
The claimant is severely disabled with a low IQ and significant behavioural problems. She has a vocabulary of no more than a few words and is able to sign a few more. She is effectively blind. She has made some progress since moving into The Spinnies, particularly in relation to her aggressive and destructive behaviour. But as Butterfield J from whom this appeal is brought put it at [51], “she will continue to remain someone who requires intensive, compassionate and carefully structured care for the rest of her life”. Her life expectancy is to the age of 68.5 years.
Proceedings were issued in 1990. On 7 February 2000, an order was made by consent with the approval of the court that there be judgment for the claimant against both defendants. Damages were assessed by the judge after a 3 day hearing. Many of the heads of loss were agreed (subject to the approval of the judge). It is a measure of the seriousness of the claimant's injuries that the approved agreed sum for pain, suffering and loss of amenity was £180,000. Applying the agreed whole life multiplier of 28.94, the judge awarded the total sum of £3,893,766 in respect of the cost of the claimant's future accommodation and care. This was based on the current annual cost of providing accommodation and care for her at The Spinnies, which, it was agreed, was the accommodation and care that reasonably met her needs. It is this element of the award that has given rise to the appeal.
This case raises once again the question of whether a claimant's care and accommodation costs should be borne by the tortfeasor or by the local authority that is charged with the statutory duty of making arrangements for providing care and accommodation for the claimant.
The judge himself gave permission to appeal. He held that there should be no reduction in the claimant's damages to reflect the Council's duty. The defendants appeal against that decision. He also accepted the defendants' submission that, on a proper construction of the relevant statutory material, all of the damages awarded to the claimant for personal injury fell to be disregarded by the Council when determining whether it had a duty to provide accommodation and care for the claimant. The Council maintained before the judge that the cost of providing accommodation and care did not fall to be disregarded. It appeals against the judge's rejection of its argument on this point.
The relevant statutory provisions
Section 21(1) of the National Assistance Act 1948 (“NAA”) provides that 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 available to them.” Section 21(4) provides that accommodation can be provided in premises managed by the responsible or another local authority. That provision is, however, subject to section 26, which permits arrangements to be made with voluntary organisations or profit-making organisations for the provision of the accommodation. Board and other services such as personal care may be provided in conjunction with the accommodation: see sections 21 (5) and 26(4A).
In determining for the purposes of section 21(1) whether care and attention are “otherwise available” to a person, sections (2A) and (2B) require a local authority to 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.
The relevant regulations are the National Assistance (Residential Accommodation) (Disregarding of Resources) (England) Regulations 2001 (“NARADRER”). Regulation 2(1) of NARADRER provides that capital shall be disregarded if it does not exceed the capital limit for the purposes of section 22 of the NAA. The capital limit is currently £22,250. Regulation 2(2) provides that a person's capital is to be calculated in accordance with the National Assistance (Assessment of Resources) Regulations 1992 (as amended) (“NAARR”).
As regards charging, the general rule is that a person must pay the full cost to the authority of the accommodation provided for him (section 22(1) and (2)). Where accommodation is provided under section 26, the obligation is ordinarily to refund the payments made by the local authority to the provider instead of having to pay for the accommodation (section 26(3)). Arrangements may, however, be made for payments to be made by the service user direct to the provider if everyone agrees (section 26(3A)).
A person does not have to pay the full cost of the services, however, if he satisfies the local authority that he is unable to pay or refund (as the case may be) at the “standard” or “full” rate (sections 22(3) and 26(3)). In determining whether the service user is able to pay, the local authority is required to carry out a means-test under the NAARR (section 22(5) and 26(3))
The NAARR divides resources, for the purpose of the means-test, into income and capital. Generally the whole of a resident's capital is taken into account, including income generated by capital (regulation 21(1)). However, capital falling into one of the categories in Schedule 4 is to be disregarded (regulation 21(2)). The following categories are material for present purposes:
“ 10. Any amount which would be disregarded under paragraph 12 of Schedule 10 to the Income Support Regulations (personal injury trusts).
10A. Any amount which would be disregarded under paragraph 12A of Schedule 10 to the Income Support Regulations (personal injury payments) with the exception of any payment or any part of any payment that has been specifically identified by a court to deal with the cost of providing care.
19. Any amount which would be disregarded under paragraph 44(a) or 45(a) of Schedule 10 to the Income Support Regulations (compensation for personal injuries which is administered by the Court).”
Since the hearing before the judge, the wording of paragraph 19 of Schedule 4 to the NAARR has been amended with effect from April 2008. It now reads as follows:
“19. Any amount which-
(a) falls within paragraph 44(2)(a), and would be disregarded under paragraph 44(1)(a) or (b), of Schedule 10 to the Income Support Regulations; or
(b) would be disregarded under paragraph 45(a) of that Schedule.”
The reference to “Income Support Regulations” in the NAARR is a reference to the Income Support (General) Regulations 1987 (“ISR”). The paragraphs of Schedule 10 to the ISR referred to in the provisions from the NAARR quoted above read as follows:
“ 12. Where the funds of a trust are derived from a payment made in consequence of any personal injury to the claimant, the value of the trust fund and the value of the right to receive any payment under that trust.
12A. (1) Any payment made to the claimant or the claimant's partner in consequence of any personal injury to the claimant or, as the case may be, the claimant's partner.
(2) But sub-paragraph (1)-
(a) applies only for the period of 52 weeks beginning with the day on which the claimant first receives any payment in consequence of that personal injury;
(b) does not apply to any subsequent payment made to him in consequence of that injury (whether it is made by the same person or another):
44. (1) Any sum of capital to which sub-paragraph (2) applies and-
(a) which is administered on behalf of a person by the High Court or the County Court under...
To continue reading
Request your trial
-
Marlborough District Council v Altimarloch Joint Venture Ltd
...on Damages (18th ed, Sweet & Maxwell, London, 2009) at [7–085]. 215 Pilkington v Wood [1953] 1 Ch 770 at 772–773. 216 Peters v East Midlands Strategic Health Authority [2009] 3 WLR 737 (CA) at 750 per Dyson 217 At [7–083]. 218 As in Walker v Medlicott & Son (A Firm) [1999] 1 WLR 727 (CA) ......
-
Haugesund Kommune v Depfa ACS Bank
...v Stone [1983] 1 WLR 1242, Standard Chartered Bank v Pakistan National Shipping Corp & Others [2001] CLC 825, and Peters v East Midlands Strategic Health Authority and another [2009] 3 WLR 737. Authorities such as these are summarised in the textbooks as giving rise to a principle. In Halsb......
-
Natixis S.A. v Marex Financial
...v Stone [1983] 1 WLR 1242, Standard Chartered Bank v Pakistan National Shipping Corporation [2001] CLC 825, and Peters v East Midlands Strategic Health Authority [2009] 3 WLR 737. Authorities such as these are summarised in the textbooks as giving rise to a principle. In Halsbury's Laws o......
-
Damien Tinsley (by His Litigation Friend and Property and Affairs Deputy Hugh Jones) v Manchester City Council South Manchester Clinical Commissioning Group (Interested party) Local Government Association (Intervener)
...decided cases in the personal injury field, most notably by the Court of Appeal in Crofton v NHSLA [2007] 1 WLR 923 and Peters v East Midlands Strategic Health Authority [2010] QB 48. Construction of s.117 of the 1983 Act 11 Manchester submits that the mere fact that an obligation is impose......