Introduction and statutory machinery
13.1One might think that any rational system would require tortfeasors (which in practice almost always means their insurers) to reimburse to public authorities the health and social care costs of their victims. However, Parliament has not legislated to this effect and, in part as a result of that, the courts have decided that no such general duty exists.
1Islington LBC v University College Hospital Trust [2005] EWCA Civ 596, (2005) 8 CCLR 337.13.2One might also think that any rational system would entitle health and social care authorities to charge for the provision of health and social care to victims of torts who have recovered, as part of their damages, an award in respect of private health and social care, if the victim then seeks the same care from the public sector. The courts have not allowed this to be achieved in a direct and simple manner; but they have sanctioned victims of torts recovering the cost of private health and social care provision
2Peters v East Midlands Strategic Health Authority [2009] EWCA Civ 145, (2009) 12 CCLR 299.and have provided a variety of steps aimed at ensuring that the adult victim does not then recover from public authorities free care that corresponds to the care covered by the damages award. The process could, however, be a great deal clearer and easier for public authorities to enforce.
Personal injury trusts and other personal injury payments
13.4The capital and income from personal injury trusts must always be disregarded; other personal injury payments must sometimes be disregarded for a period of time. Inevitably, therefore, personal injury payments of any great size are usually structured so as to result in the creation of personal injury trusts.
13.5Paragraphs 15 and 16 of Schedule 2 to the Care and Support (Charging and Assessment of Resources) Regulations 2014 (capital to be disregarded) provide as follows:
15Any amount which would be disregarded under paragraph 12 of Schedule 10 to the Income Support Regulations (personal injury trusts).
16Any 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.
13.6Paragraphs 12 and 12A of Schedule 10 to the Income Support (General) Regulations 1987 provide for the following disregards:
12Where the funds of a trust are derived from a payment made in consequence of any personal injury to the claimant or the claimant’s partner, 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);
(c)ceases to apply to the payment or any part of the payment from the day on which the claimant no longer possesses it;
(d)does not apply to any payment from a trust where the funds of the trust are derived from a payment made in consequence of any personal injury to the claimant.
(3)For the purposes of sub-paragraph (2)(c), the circumstances in which a claimant no longer possesses a payment or a part of it include where the claimant has used a payment or part of it to purchase an asset.
(4)References in sub-paragraphs (2) and (3) to the claimant are to be construed as including references to his partner (where applicable).
Court administered/controlled funds
13.7Local authorities must always disregard personal injury awards that are administered by a relevant court or that can only be disposed of with the consent of a relevant court.
13.8Paragraph 25 of Schedule 2 to the Care and Support (Charging and Assessment of Resources) Regulations 2014, which excludes personal injury damages that are administered by the High Court, county court or Court of Protection, or that can only be disposed of by order or direction of such court:
25Any 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.
13.9Paragraphs 44 and 45 of the Income Support (General) Regulations 1987 provide as follows:
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 Rule 21.11(1) of the Civil Procedure Rules 1998 or by the Court of Protection;
(b)which can only be disposed of by order or direction of any such court; or
(c)where the person concerned is under the age of 18, which can only be disposed of by order or direction prior to that person attaining age 18.
(2)This sub-paragraph applies to a sum of capital which is derived from–
(a)an award of damages for a personal injury to that person; or
(b)compensation for the death of one or both parents where the person concerned is under the age of 18.
45.Any sum of capital administered on behalf of a person in accordance with an order made under section 13 of the Children (Scotland) Act 1995, or under Rule 36.14 of the Ordinary Cause Rules 1993 or under Rule 128 of the Ordinary Cause Rules, where such sum derives from–
(a)an award of damages for a personal injury to that person; or
(b)compensation for the death of one or both parents where the person concerned is under the age of 18.
Income
13.10The drafting of the Care and Support (Charging and Assessment of Resources) Regulations 2014 is unclear, however, on analysis, similar disregards apply to:
•income derived from court-administered/overseen funds, which are required to be treated as capital (and therefore disregarded by regulation 19(3) of the Care and Support (Charging and Assessment of Resources) Regulations 2014); and
•income derived from personal injury trusts/annuities (see paragraph 15 of Schedule 1 to the Care and Support (Charging and Assessment of Resources) Regulations 2014).
Protecting the local authority/health authority position
13.11It can be expected that any claimant in line for a very substantial personal injury award will:
•recover damages on the basis that they will pay for private health and social care;
•ensure that the award is structured so that it cannot be taken into account for the purposes of social care means-testing;
•be required to enter into a mechanism that should preclude recourse to state-provided health or social care to the extent covered by the award.
13.12In cases where local authorities have concerns, they should contact the parties and, if need be, applied to be joined to the proceedings, under CPR Part 20, as in
Peters v East Midlands Strategic Health Authority,
6[2009] EWCA Civ 145, [2009] 3 WLR 737, (2009) 12 CCLR 229.or under CPR 19.2, as occurred and was approved in
Nottinghamshire CC v Bottomley.
7[2010] EWCA Civ 756.