In personal injury cases, there is often a need for the injured person to receive care as a result of their injuries and ongoing difficulties. This care can be provided gratuitously (free of charge) by family members, by the National Health Service and/or by the Local Authority, or it can be funded privately through the claim if liability (fault) has been established. In most cases, there will be at least an element of gratuitous care provided by family members.
Compensation for care provided by a family member
Where care has been provided by a family member, the injured person is still entitled to recover compensation for that care, even though he/she has not had to pay for it.
There can be many different aspects to “care”. The care provided might be practical in nature, such as:-
- physical assistance with getting washed and dressed;
- support with cooking meals;
- help with toileting;
- transfers from a wheelchair.
Sometimes the care and support required is not physical but more emotional or cognitively driven, such as:-
- prompts and reminders in the case of those with memory difficulties;
- help with digesting and dealing with post;
- emotional support and reassurance to help with regulating the injured person’s emotional state.
Can you directly claim compensation for care provided to a family member?
In a personal injury claim, only the injured person is entitled to recover compensation for his or her losses which arise out of an accident. It is not possible for a family member to claim directly for their losses as part of the case. Take the example of a husband who has to give up work to look after his injured wife following a road traffic accident in which she suffers serious injuries. Say he was earning £20,000 a year, and suffers a loss of income as a result of having to leave his job to stay at home and care for his wife each day. He cannot claim his lost earnings as part of his wife’s claim because he was not the injured party. In this scenario, it can be seen that it would be extremely unjust if there were not some other way by which to try and ensure his losses were accounted for.
Compensation for care provided to a family member through a gratuitous care claim
This sort of situation is dealt with via the gratuitous care claim. Where a family member has provided care, an assessment of the value of that care is carried out. In most cases, compensation recovered for gratuitous care is then paid over to the person or persons who have provided the care. This mechanism of dealing with gratuitous care helps to ensure that family members who have to give up their time and often their jobs to look after an injured family member do not suffer financially as a consequence.
How much compensation can you receive through a gratuitous care claim?
The basic principle a Court will follow when assessing the value of gratuitous care is to look at what that care would have cost had the injured person had to pay for it. An assessment will be carried out as to the number of hours of care which have been provided as a result of the accident. In some cases, this is a straightforward exercise. For example, where a relatively low amount of care is needed over a defined period of time, a record can be kept and the total number of hours simply added up. In other cases, the care might be more complex or difficult to define and/or may fluctuate over time. In claims where there is a higher and more complex need for care, an expert in care may be instructed to value the care provided gratuitously.
It is sometimes the case that an injured person would have needed some care in any event, notwithstanding the injuries they have suffered in an accident. For example, an uninjured 9 year old child would have required a certain baseline of care anyway by virtue of their young age, or an elderly person may have already needed some assistance even before their injuries. Where there was an existing need for care before the accident, it is necessary to separate out that element of care post-injury which has been provided over and above the original baseline need, and it will be only that extra element of care which will form part of the award of compensation.
The cost of professional care
Once the time spent on care by a family member has been identified, a calculation is then made as to what the cost of that care would have been if provided by a paid professional. Usually, this is done with reference to the prevailing hourly rate for a professional carer. The rates used are normally taken from local government National Joint Council figures for carer wages, but can be taken from commercial rates of care providers local to the injured person. Where routine care is needed during the day only, the rate will be a lower basic rate. Where care is more complex and is needed during both night and day, an enhanced hourly rate is normally applied.
The basic premise is that the value of the gratuitous care is the number of hours of care provided multiplied by the relevant hourly rate. A deduction of 25% is normally then made to reflect the fact that the care was provided by a family member who was not in fact paid, and therefore did not have to pay tax or National Insurance.
An example of a gratuitous care claim
Expanding on the above scenario of the injured wife, if we assume she needed 6 hours of care each day from her husband, the weekly care hours would be 42, giving an annual care input of 2,184 hours. This is then multiplied by a basic rate of care of, say, £13 per hour, to give an annual figure of £28,392. Deducting 25% results in a gratuitous care claim of £21,294 per annum.
Taking the pre-injury annual salary of the husband of £20,000, it can be seen that the assessment of his gratuitous care and the part of the award to which he would be entitled is not far off what his loss of earnings would have been.
Obviously, for family carers who were on a high salary before the accident, it is unlikely the gratuitous care claim will compensate entirely for their lost wages. Conversely, where carers were previously on a very low wage and have to leave work, the gratuitous care claim may in fact be more than they would have earned.
Do I have to give up work to make a gratuitous care claim?
A family carer does not have to give up work to be entitled to a gratuitous care claim. Often, a caregiver remains at work and provides support around their work commitments. This care would be assessed in exactly the same way and the family member would be entitled to a sum reflecting the value of the care they provided, even if they have not lost any earnings themselves.
There is an exception to this general rule where the caregiver is also the person who caused the injury. For example, if a child was a passenger in a car being driven by his mother and the car was involved in a collision because of negligent driving on the part of his mother, then it follows that the child would not be entitled to claim for the cost of any additional care provided by his mother as a result. This is to ensure that the person who caused the injury does not then benefit financially from his or her own wrong-doing.
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This article was produced by Kate Venn
Kate is an associate in Irwin Mitchell’s Sheffield Serious Injury team. She has 18 years’ experience representing clients who have suffered life-changing injuries. Kate’s particular expertise is bringing claims on behalf of seriously injured children.
About Irwin Mitchell
Irwin Mitchell are a national law firm whose solicitors work hard to make things easier for their clients and their family. Over the past 2 years they have helped clients recover more than £1 billion in compensation, but this is only part of the story, their solicitors also help clients access the rehabilitation, medical care and support needed to achieve the best recovery possible.