Upper Tribunal (Administrative Appeals Chamber)

 

DECISION OF THE UPPER TRIBUNAL ON JUDICIAL REVIEW

 

The application for judicial review of the decision of the First-tier Tribunal dated 17 February 2010 is refused.

 

 

REASONS

 

1. I gave the Criminal Injuries Compensation Authority (CICA) permission to apply for judicial review of the tribunal’s decision on 6 May 2010. Important questions of principle were raised about the proper interpretation of paragraph 35(d)(iii) of the Criminal Injuries Compensation Scheme 2001 allowing an award of compensation for the expense of care “necessary as a direct consequence of the injury” and about the relevance and effect of the concept of “core losses”. There was also a subsidiary issue, not expressly raised in any of the written submissions of the parties, about the proper approach to awards for future care which would greatly exceed the amount of the maximum award specified in paragraph 24 of the 2001 Scheme, before any reductions under paragraphs 13 to 15 (£500,000, reduced to £375,000 in the present case because of a 25% reduction due to previous convictions).

 

2. Following the written response on behalf of the interested party, the applicant for compensation (who from now on I shall call Mr M), an oral hearing was requested on behalf of CICA. That request was granted by Judge Rowland on 13 September 2010, who directed that it take place in Manchester, no doubt in view of the location of Mr M, his family and his solicitors, Pannone LLP. The hearing took place on 17 December 2010 at Manchester Civil Justice Centre. CICA was represented by Mr Jeremy Johnson of counsel. Mr M was present with some members of his family and was represented by Mr Ian Little of counsel. The respondent, the First-tier Tribunal did not appear, having taken no part in the proceedings. I am particularly grateful to both representatives for well-focused submissions in a difficult case.

 

The factual background

3. Mr M had the misfortune to be the victim of a very serious assault on 1 December 2004, in which he suffered severe brain injuries from which he nearly died. He made an application for criminal injuries compensation on 20 January 2005. Initially the application was refused entirely on the ground of Mr M’s character as revealed by his criminal convictions (paragraph 13(e) of the 2001 Scheme), but on a review on 13 March 2008 entitlement was awarded subject to a 25% reduction on that ground. Only the tariff amounts for his injuries (£33,390 in total after the 25% reduction) were awarded. Mr M accepted those elements of the award, but contended on appeal that the award should have provided for loss of earnings and the cost of care down to the date of the hearing and into the future.

 

4. The tribunal summarised the circumstances as follows in its findings of fact in paragraph 9 of its statement of reasons:

 

“1. The Appellant sustained a severe brain injury which has substantially affected all aspects of his life. His cognitive functioning has been greatly affected. He is experiencing a global reduction in his general intellectual functioning. He has difficulty learning and recalling new information. His executive functioning and verbal fluency have been severely impaired. He lacks insight (Report by Dr Andrew Clark, Clinical Neurophysiologist at C9). The Warrington NHS Primary Care Trust provided a report, which is at T139. The Appellant’s current care is provided by the Trust and costs £1,900 per week. According to the report from the Trust, the Appellant has a left sided weakness with tremors, mobility is restricted and, although he can walk, he can no longer run, and his vision is impaired. The appellant has global reductions and as a consequence struggles recalling information, executive function is impaired and he has lack of insight into his difficulties. As far as mobility is concerned the Appellant can get in and out of bed with difficulty, in and out of chairs with difficulty, can undress with a prompt and can use stairs with difficulty. He requires prompting to wash and requires assistance to prepare food. He requires assistance to do laundry, housework, shopping and managing money. He can only manage medication with a prompt, as he has short term memory problems. According to the report, his injuries have significantly affected his life, and overall health and wellbeing. Just prior to the incident, he had started a new job.

 

 2. The Appellant currently attends a Transitional Rehabilitation Unit. According to the statement of Kevin Macklin, social worker, at T4, it is difficult to anticipate what will happen when his rehabilitation ends. The social worker anticipates that the Appellant will not be able to work in paid employment and will require social care in the community. The extent of the support required by the Appellant exceeds what he can access through statutory funding.

 

 3. The appellant previously had worked in a local brewery and for Royal Mail. He had worked for the local council but had to leave the employment to accompany his mother to a Women’s Refuge.

 

 4. The Tribunal accepts the conclusion of Heather Lodge’s care report. She recommends initial support worker input. This support will try to encourage the Appellant to become more independent within his home environment. The support worker would be there to assist with personal care and any medical prompts required. The support worker’s role would be to encourage the Appellant to engage in other activities outside of the home environment, without his mother.

 

 5. The report by Heather Lodge makes it clear that the Appellant will need supervision for the rest of his life. The Tribunal accepts that the medical evidence indicates that also.

 

 6. Even taking into account the fact that social services will continue to support the Appellant, presumably throughout his life, the difference between what can be provided by social services and what the Tribunal considers is required in the form of support of a support worker is substantial and far exceeds that £500,000 statutory limit, in terms of the 2001 Scheme.

 

 7. Parties were agreed that the past care to be paid to the Appellant’s mother were £10,000. That was to the date of the hearing. The Tribunal’s view was that this was a very conservative estimate in respect of the past care provided by the Appellant’s mother.

 

 8. The Tribunal assessed the Appellant’s loss of earnings based on his earning the minimum wage. Past loss of earnings amounted to £23,927 and his future loss of earnings was assessed as £111,734.”

 

5. No challenge is brought to the assessments in paragraphs 9.7 and 9.8 of the tribunal’s statement, but I shall have to come back in much more detail to the evidence before the tribunal as to past and future care and to its reasons on that issue.

 

The relevant provisions of the 2001 Scheme

6. Paragraphs 35 and 36 of the 2001 Scheme, under the heading “Compensation for special expenses”, are as follows:

 

“35. Where the applicant has lost earnings or earning capacity for longer than 28 weeks as a direct consequence of the injury (other than injury leading to his death), or, if not normally employed, is incapacitated to a similar extent, additional compensation may be payable in respect of special expenses incurred by the applicant from the date of the injury for:

(a)   loss of or damage to property or equipment belonging to the applicant on which he relied as a physical aid, where the loss or damage was a direct consequence of the injury;

(b)  costs (other than by way of loss of earnings or earning capacity) associated with National Health Service treatment for the injury;

(c)   the cost of private health treatment for the injury, but only where a claims officer considers that, in all the circumstances, both the private treatment and its cost are reasonable;

(d)  the reasonable cost, to the extent that it falls to the applicant, of

(i)              special equipment, and/or

(ii)            adaptations to the applicant’s accommodation, and/or

(iii)          care, whether in a residential establishment or at home, which are not provided or available free of charge from the National Health Service, local authorities or any other agency, provided that a claims officer considers such expense to be necessary as a direct consequence of the injury; and

(iv)          the cost of the Court of Protection or of the curator bonis.

 

In the case of (d)(iii), the expense of unpaid care provided at home by a relative or friend of the victim will be compensated by having regard to the level of care required, the cost of a carer, assessing the carer’s loss of earnings or earning capacity and/or additional personal and living expenses, as calculated on such basis as a claims officer considers appropriate in all the circumstances. Where the foregoing method of assessment is considered by the claims officer not to be relevant in all the circumstances, the compensation payable will be such sum as he may determine having regard to the level of care provided.

 

 36. Where, at the time the claim is assessed, a claims officer is satisfied that the need for any of the special expenses mentioned in the preceding paragraph is likely to continue, he will determine the annual cost and select a multiplier in accordance with paragraph 32, taking account of any other factors and contingencies which appear to him to be relevant.”

 

7. It is convenient to set out here some statements made by Baroness Blatch, a Minister responsible for what was then the Criminal Injuries Compensation Bill, in a Committee stage debate in the House of Lords on 16 October 1995. The statements have been relied on in the present case, and I think in others, as relevant to the interpretation of paragraph 35(d)(iii) and its predecessor in the 1996 Scheme. The 1996 Scheme was the first to be made under the statutory power contained in the Criminal Injuries Compensation Act 1995. What Baroness Blatch said was in response to an amendment attempting to write the conditions for payment of special expenses apparently in a draft of the proposed scheme into the Bill itself and to add specific provision for “the reasonable cost of housework, childcare, maintenance of the applicant’s home, garden or means of transport to the extent that the applicant cannot perform such maintenance to the extent he did before the injury and as a consequence of it”. That was said to be a head of loss available as part of common law damages, but excluded from the draft scheme.

 

8. The Minister said this at column 627:

 

“With regard to the examples given by the noble and learned Lord, for example the reasonable cost of housework, or, possibly, child care, maintenance of the applicant’s home, garden or means of transport and detriment – other than financial – suffered by a relative caring for a victim, which appears in the new clause which it is proposed to insert after Clause 2, it is clear from the draft of the scheme what sorts of things will be covered by the term `special expenses’.

In general the new scheme will cover the `core’ losses which are covered under the present arrangements. However, the scheme is not intended to cover each and every item which might be allowable under common law damages either now or in the future. That is because the scheme is no longer based on common law damages, and it is not the function of a scheme funded by the taxpayer to make good each and every potential loss which a victim might conceivably suffer. That is why the more peripheral losses of the kind mentioned by the noble and learned Lord, Lord Archer, will be outside the scheme’s scope. Such losses are less susceptible to precise quantification and would provide endless scope for argument and, quite possibly, fraud. For example, how could one assess the extent to which an incapacitated victim had previously done his own gardening or housework or cared for someone else, and what that was worth? I am afraid that the term `other detriment’ is far too wide and vague to be included in the scheme. For those reasons I must ask the Committee to reject the amendments”

 

Shortly afterwards, at column 628, the Minister added:

 

“I simply rise to say that I hope that I have not been misunderstood when I used the word `peripheral’. I certainly did not use it in a derogatory sense. I meant that the provisions mentioned were peripheral to the core compensation which the Government have recognised; that is, the tariff for the injury, loss of earnings, care and aftercare for an injury. Those are the core considerations that have been accepted by the Government. It is in that sense only that these other expenses are considered peripheral. Although someone may have to pay for his garden to be done that is still no proof that it was a task that he necessarily did before his injury. It is difficult for the board to prove the validity of some of these other claims for compensation.”

 

The appeal to the First-tier Tribunal

9. Pannone provided an updated schedule of special expenses for care as at 14 January 2010. This broke down the claim for past care as at that date into a number of periods, using the dates as extracted from medical and other records by Heather Lodge in her report of 30 September 2008 (see below). The first period was from 1 December 2004 to 1 July 2005 when Mr M was an in-patient in hospitals. The claim was for the value of care from the family. The second period was from 1 July 2005 to 22 April 2007 after Mr M was discharged to his mother’s home and was looked after by her and her husband, plus the period from 23 April 2007 to 27 August 2007 when he was first admitted to the Transitional Rehabilitation Unit (TRU) on a residential basis, but quickly returned home and started to attend on a day basis. The third period was from 28 August 2007 onwards when Mr M was attending the TRU first for three days a week and then for five, but having to be looked after by his mother out of those hours. I do not need to go into the amounts claimed for that care, plus transport costs, and whether the calculation of the amounts of disability living allowance (DLA) to be deducted had been properly made and updated, because of the apparent agreement that the net amount to be awarded for past care right down to 14 January 2010 was £10,000. Even if, as the tribunal thought, that was on the low side, CICA has not challenged that part of the tribunal’s award on appeal. The lowness of the figure might well reflect the fact that all treatment and care at the TRU, including a support worker at home on Sundays from some date in 2009, was paid for by the NHS Primary Care Trust. Carers were also provided on Saturdays through the local authority’s social services department.

 

10. I can therefore concentrate on the evidence and arguments as to future care. The total claim on the less expensive of two options and assuming support from the Independent Living Fund (ILF) in addition to what could be provided through social services (but without making an allowance for future receipt of DLA) was for some £1,300,000. Once again the claim was broken down into periods, this time by reference to Heather Lodge’s predictions at to the immediate, medium-term and long-term future.

 

11. Heather Lodge’s report, provided through a company called Total Case Management Limited, was commissioned by Pannone in connection with Mr M’s criminal injuries compensation claim. She did not describe her qualifications and experience in the report beyond giving the letters after her name “Dip COT, SROT”. Those appear to stand for Diploma of the College of Occupational Therapists and State Registered Occupational Therapist. It emerges from other evidence, in particular that of the social worker Kevin Macklin, that she had been involved with Mr M’s care and treatment as a member of staff of the Warrington Acquired Brain Injury Unit and had made recommendations for his admission to the TRU and for that to be funded by the NHS Primary Care Trust. She clearly therefore had not just a good deal of expertise and experience as well as personal knowledge of Mr M’s history, but also knowledge of the practical arrangements available in the area for care. At the hearing on 17 December 2010 Mr Johnson for CICA emphasised that her report was accepted.

 

12. The report, as at 30 September 2008, took the immediate future as about two years, during which Mr M would continue to attend the TRU, which would continue until he ceased to make any progress with his rehabilitation goals, including preparing for the transition to whatever would follow. Since Ms Lodge confirmed in a letter dated 8 January 2010 that the recommendations in her report remained unchanged and Mike Kirk, Contracts & Liaison Manager at TRU Ltd, stated on 14 January 2010 after consultation with the Deputy Director of Clinical Services that Mr M was still in active rehabilitation and likely to remain so for a further 18 months, it seems fair to have transposed the identification of the immediate future forward to about two years from January 2010.

 

13. The immediate future recommendation included the following (I have left in the obvious mistake in the second line):

 

“Without professional support, it has fallen on [Mr M’s] mother to fulfil several roles. Research evidence suggests In my experience, parents can quickly `burn out’ without such support. Ideally, his mother should regain her role as a parent but have support to carry out the more onerous tasks of rehabilitation. This should be co-ordinated by a case manager.

In my view a brain injury case manager would be required to carry out a more detailed and practical assessment of [Mr M] prior to planning any community rehabilitation programme but based on my experience of similar clients for the current situation I would recommend initial support worker input for around 23.5 hours per week. This would be to transport [Mr M] to and from TRU and stay with him until his mother returns home from work. The support worker would also try to encourage [Mr M] to become more independent within his own home environment. It would be to assist with personal care and any medication prompts required. Part of the support worker role would also be to encourage [Mr M] to engage in other activities outside of the home environment without his mother. I anticipate that this will be difficult to achieve as change following an acquired brain injury can be extremely distressing, he is very set in his ways and has created a dependency on his family.

As a starting point accessing the community for leisure activities with a buddy and not his mother will be a challenge for [Mr M].

As mentioned previously I have contacted the local authority for [Mr M’s] area and found that there is one appointed agency who provides the care for brain injury in that area. The company has just won the tender for this provision so have no track record for appropriate, quality provision. [Mr M’s] social worker assured me that Social Services were able to cover support worker costs of £320 per week. Any more than this and they would have to approach the Independent Living Fund for a top up. The whole package apparently can be for a maximum of £785 per week.”

 

The annual costing of that level of support work, including initial training, at the rates charges by the nominated company, was £19,241.89.

 

14. For the medium term, [Mr M] might still ideally attend the TRU, in view of the lack of local alternatives, even if NHS funding was no longer available (at an annual cost of some £96,000 in addition to the cost of support workers). Ms Lodge’s alternative costing was on the basis that Mr M would “be in the home environment with just his mother”, who would still need to relinquish some of her roles and to continue working.

 

“If TRU were to finish, based on [Mr M’s] current needs and [his mother’s] present job I would recommend support worker input of 58.5 hours per week. This would be to continue with any assistance required for personal and domestic care, access to the community for voluntary work, leisure of vocational activity.”

 

That support work was costed at the same rates at £47,057.44 per year.

 

15. For the long term, Ms Lodge was reluctant to estimate care and support costs because of the variables involved. Mr M might be able to live a more independent life, but on the other hand with age his mother might not be there and able to assist. Her opinion was that he would need supervision for the rest of his life and provided a cost at the same rates for a 16 hour waking day and an eight hour sleeping night of £89,795.30 per year.

 

16. There was an additional recommendation, because of the complexity of [Mr M’s] needs and the stresses on the family, for the appointment of a brain injury case manager to oversee and plan progress, at an annual cost of just over £13,000. The summary of recommendations concluded as follows:

 

“[Mr M] is very dependent on his mother and there is currently a symbiotic relationship in place. Any rehabilitation will have to be carefully planned, executed and to be very inclusive of [his mother].

He would benefit from a brain injury case manager in the future who would be able to put together a rehabilitation package, at the same time as providing a support worker to try to encourage [Mr M] to be more independent in his every day living. His mother is aware that she won’t be able to continue to support [Mr M] for ever and is cautiously, though in agreement, to work with a team to encourage him to be more independent from her and her family.”

 

17. Pannone’s schedule of 14 January 2010 adapted those costings to appropriate multipliers under the Scheme to give total figures for support workers of £39,523.78 for the short term, £245,678.20 for the medium term on the non-TRU scenario and £1,745,630.70 for the long term, plus £300,771 for case management. Then this note followed:

 

“Future benefit entitlement (and past benefit figures) are not known. In order to fund these high costs packages access to the ILF would be required. The availability now and in the future of ILF cannot be predicated with certainty. ILF has been referred to as a possible casualty in future spending cuts by government in the press.”

 

On the basis of the figures quoted by the social worker, if such funds were available in the future as at present, they would be sufficient to cover the short-term costs, but there would be a shortfall of £41,587 in the medium term (apparently not including case management) and of £1,270,821 in the long term (this time including case management, although I am not entirely sure of what multiplier basis was adopted). The total claim made for future care was put at between £1,312,408 and £1,646,530 after offsetting state benefits and ILF receipts. The costs of Deputyship and Court of Protection expenses were claimed at between £249,507 and £269,747.

 

18. The case made for CICA on the special expenses claim had been put in this way in the hearing summary (emphases in the original removed):

 

“The appellant is currently receiving input from the Transitional Rehabilitation Unit (TRU). Information from Warrington Adult Social Services is provided in regards to policy on charging for non-residential care services. The appellant’s representatives are reminded that as the Court of Protection is involved in this matter any award will require to be disregarded by social services. It is recorded that the appellant would not be able to reside in the community without extensive support, documents C9, T151. Under paragraph 35 of the Scheme, only the costs of care which is reasonable and which falls to the applicant and which is not provided or available free of charge by the NHS, Local Authority, or other agency, is payable by [CICA]. The appellant is also reminded that the scheme is very restrictive in what it can and cannot pay for in terms of care, the extract from House of Lords debate on the Criminal Injuries Compensation Bill (16 October 1995) T225-226 refers. [CICA] cannot compensate for care when the appellant was an in-patient. The Tribunal’s attention is also drawn to the statement of Gaynor Edwards; Continuing Care Manager of Warrington NHS Primary Care Trust, doc T194-196 refers. Specifically, at doc T195 point 9, Ms Edwards advises that long term health needs will be met by the Primary Care Trust and any social needs will be met by Social Services. Kevin Macklin, Social Worker at the Independent Living Team is actively involved in the appellant’s care and makes reference to the Independent Living Fund being accessed in the future to augment his benefit in care should the need arise, A158-160 refers. Given that the Independent Living Team is involved with the appellant [CICA] considers it highly unlikely that the Local Authority will fail to meet its statutory obligations in providing adequate care for the appellant. The Tribunal may wish to consider an award under this head of claim with a view to improving the appellant’s quality of life.”

 

19. CICA’s response to the schedule of costs that had been produced on behalf of Mr M as at 13 May 2009 was as follows in the document sent to Pannone on 23 December 2009 (pages T228 to T231), before final information on Mr M’s benefit entitlements had been received:

“The situation in regards to future care is speculative at the moment given that the applicant’s rehabilitation is on-going. It is hoped that with the extensive in-put that the TRU has with the applicant that he will be able to progress.

 

Short term:

TRU rehabilitation is being provided by Primary Care Trust. A support worker is contended at £19,761.89 per annum.

The Authority submits that Social Services should provide this role. Social Services are actively involved and the Authority respectfully submits that this body will not cease to provide the necessary assistance in line with their statutory obligations. Further, Social Services have recourse to the Independent Living Fund to augment the applicant’s care should he move to living with support in the community. The Authority therefore considers that there is no proven case for future care and again emphasis is placed on paragraph 35 of the Scheme wherein it states: only the costs of care which is reasonable and which falls to the applicant and which is not provided or available free of charge by the NHS, local Authority, or other agency, is payable by the Authority.

As to the proposals put forward by the representatives in regards to the short, medium and long term needs of the applicant, the Authority confirms that they are arithmetically accurate. It will be a matter for the Tribunal should they consider an award in respect of future care is appropriate having regards to the reasoning set out in the Hearings Summary and also to that put forward by the applicant’s representatives.

 

Case management: the Authority again submits that this is a role that should be provided by the Local Authority/Social Services.”

 

On the costs of Deputyship and the Court of Protection, some items were accepted as reasonable, but some queried as excessive.

 

The First-tier Tribunal’s decision

20. As already noted, the tribunal allowed Mr M’s appeal and concluded that it should make an award limited only by the maximum limit of £500,000, reduced to £375,000 because of the effect of his convictions. Paragraph 10 of the statement, under the heading of “Reasons”, was as follows:

 

“The real issue in this particular case related to future care costs. The Authority’s position was that the care costs for the Appellant would be provided by the local authority for the foreseeable future. The Tribunal had information in the papers before it to confirm that funding to a certain level would be provided, as required. The Appellant’s counsel [Mr Little] did not dispute that. The real question in this case was whether the Appellant required care over and above that which would be provided by the local authority and the cost of such care. The Tribunal looked closely at the report from Heather Lodge. The social worker, Kevin Macklin had referred the Appellant’s representatives to Heather Lodge as someone who could provide an indication as to what care the Appellant would require. The Tribunal accepted the recommendation in that report that the Appellant would require a support worker for the foreseeable future. Most of that support, taking into account the maximum benefits which would accrue to the Appellant, would be far in excess of the statutory [maximum] allowed by the 2001 Scheme as indicated by the Appellant’s schedule of loss. The Appellant’s representative submitted a revised schedule on the day of the hearing, complying with the terms of the Scheme. The Tribunal was satisfied that the care required in this particular case, was care which was allowed by the Scheme since it related to `core’ costs. Such care on a conservative calculation would amount to at least £1,000,000. The tariff element was assessed at £45,320 for serious brain damage and sub/extra dural haematoma.”

 

The tribunal noted that it therefore did not need to deal with the question of deputyship and other ancillary costs as the total allowed for future care already far exceeded the maximum allowed.

 

21. At the hearing on 17 December 2010 I was told that no payment of any amount of compensation had been made to Mr M following the tribunal’s decision. That seems far from satisfactory when there was no dispute about the amounts to be allowed under the tariff, for Mr M’s loss of earnings and, in particular, for the past cost of care incurred by Mr M’s mother. It is too late now for any useful investigation on my part of what, if anything, could have been done in the past in the way of arranging an interim payment. I trust that following the dismissal of CICA’s application for judicial review in this decision, arrangements for payment of all or part of the amount awarded by the tribunal can be made without delay, even if there was thought about whether to apply for permission to appeal to the Court of Appeal.

 

The application for judicial review

22. The application on behalf of CICA for permission to apply for judicial review, drafted by Mr Johnson and dated 12 April 2010, was said to be on the sole ground that the tribunal’s conclusion was erroneous in law or irrational in that it incorrectly awarded common law damages rather than the more restricted compensation available under paragraph 35 of the 2001 Scheme. The application continued:

 

“18. [CICA] does not take issue with the expert report of Heather Lodge. It is accepted that [Mr M] would `benefit’ from the regime she sets out. That is not, however, the test. The appropriate test is far more restrictive. It is necessary to identify the `core care’ (in the words of the Minister [the passages set out in paragraph 8 above were referred to earlier in the application]) that is required – ie that which is necessary as a direct result of the injury (in the words of the 2001 Scheme). The [tribunal] asserted that the care `related to `core’ costs’ (see paragraph 10 of the written reasons) but gave no reasoning why it came to this conclusion.

 

19. On analysis, the care set out by Ms Lodge does not amount to `core care’. Although [Mr M] would benefit from the package suggested, it is not care that is necessary as a direct result of the injury. It is not care that is directed towards the injuries themselves but towards improving [Mr M’s] lifestyle so as to permit him to be more independent. Such care would be recoverable at common law but, harsh though it may be, it is not recoverable under the 2001 Scheme. It is akin to the costs of a home help or transportation costs which, although indirectly flowing from the injury, are not necessary as a direct consequence of the injury and were specifically excluded from the ambit of the Scheme.

 

20. Moreover, the [tribunal] failed to make any finding as to whether the care regime suggested by Ms Lodge would in fact be implemented [there had earlier been a reference to R(DB) v Criminal Injuries Appeal Panel [2002] EWHC 698 (Admin) where Stanley Burnton J held that where an applicant was currently being cared for by a parent it had to be determined whether that care would in fact be replaced by commercial care and when].

 

21. It is accepted that care is necessary as a direct result of [Mr M’s] injuries. However, this is largely being provided free of charge by the NHS and is not therefore recoverable. There is room for a claim in respect of the care provided by [Mr M’s] mother, and for these purposes the claim should be remitted to [the First-tier Tribunal] for a fresh assessment.”

 

23. Mr Johnson refined those submissions at the hearing of 17 December 2010, adding new points in support of CICA’s basic view that the tribunal had not applied the true test under the terms of paragraph 35(d)(iii) of the 2001 Scheme and resiling from others.

 

`Core costs’ and the Minister’s statement of 16 October 1995

24. Mr Johnson did not seek to argue that what was said by the Minister in the debate took away anything from the obligation of CICA and tribunals to apply the words of the Scheme in paragraph 35(d)(iii). He submitted merely that her statement demonstrated that the Scheme was deliberately more restrictive that the common law and excluded peripheral costs. After discussion, he agreed with Mr Little’s submission for Mr M, set out fully in the written response of 25 June 2010, that all that the Minister was doing was indicating that what was regarded by the Government as “core losses” should not be extended to items like those in the proposed new clause. She was not indicating that any distinction was intended within the categories accepted in the draft scheme, including care, between “core losses” and other losses that were not intended to count. The line was drawn by the conditions expressly laid down in paragraph 35. The “core losses” were the categories that formed part of paragraph 35 of the 1996 and 2001 Schemes.

 

25. I agree. Indeed, it seems to me, accepting for this purpose that the word “care” is capable of variety of narrower and wider meanings and that it would be legitimate to look at Parliamentary statements by a sponsor of the framework Act to assist in resolving ambiguities, that what the Minister said in the debate of 16 October 2005 is of very little assistance. In my judgment the proposed additional category of compensation rejected by the Minister fell outside the meaning of “care” as determined on the plain words of paragraph 35. It covered cases where a third party carried out some domestic or household service, not connected to the injured applicant’s personal needs, instead of it being done by the injured applicant. There is  a clear distinction between, say, doing an applicant’s garden or decorating a room, with the applicant taking no part, and assisting an applicant to do gardening or decorating him or herself. The latter is capable of constituting care; the former in my view is not. I do not have to consider here tasks such as cooking or washing clothes or bedding in relation to which it will be for the good sense of tribunals to decide whether they constitute care in any particular case. What is absolutely clear is that there is no warrant in the Minister’s words for applying some test of “core costs” (a phrase that she did not use) or “core losses” or “core compensation” over and above the express conditions in paragraph 35 itself. For my part, I think that it would be better if such terms were not used at all and if all concerned concentrated on the tests laid down by the words of the Scheme.

 

26. On that basis, Mr Johnson then ingeniously submitted that the reference to “core costs” in paragraph 10 of the tribunal’s statement of reasons served only to obscure its approach rather than illuminate it and went towards the inadequacy of reasons that I shall discuss in more detail below. That submission cannot be allowed to bolster CICA’s case. It may be that what the tribunal meant was, as Mr Little suggested, that all the conditions of paragraph 35(d)(iii) were met or that the activities whose costs it included in the award (which seems not to have covered the brain injury case manager) came within the ordinary meaning of care. The fact that one cannot be sure about that illustrates why use of the phrase should be abandoned. However, even if the tribunal left it unclear whether it thought that Mr M had to satisfy a more stringent test than that provided by the words of paragraph 35(d)(iii), since it concluded that Mr M satisfied that test any inadequacy of reasons in that respect cannot be regarded as connected with anything material to the tribunal’s decision.

 

“Whether in a residential establishment or at home”

27. Mr Johnson submitted that this phrase restricted the scope of paragraph 35(d)(iii) to care provided in a domestic setting, directed mainly to the ordinary activities of day-to-day living, such as assistance with washing , dressing and undressing, cooking, getting in and out of bed, moving around within the home etc.. He said that in so far as the assistance recommended by Ms Lodge and accepted by the tribunal was directed to helping Mr M to go out of his mother’s house, for instance to access leisure, social and community activities with the help of a buddy, it fell outside the scope of the provision. Mr Little pointed out that this was not a restriction that had previously been suggested and had not formed part of CICA’s submission to the First-tier Tribunal. He submitted that it would be an extraordinary definition of compensatable care that required the injured person just to sit at home and excluded any activities outside the home. He suggested that the phrase was inclusive rather than restrictive and was intended to provide that it did not matter where the applicant lived, whether in a domestic home or in some other kind of establishment.

 

28. I prefer Mr Little’s submissions on this point to Mr Johnson’s, which in my judgment put a great deal more weight on the phrase than it can properly bear. The drafting of the 2001 Scheme, including it seems to me paragraph 35 itself, is something of a mixture of precise specification and broad indications of what is intended. If the phrase had been intended to have a precise and highly restrictive effect there would need to have been a much more precise specification of what was meant than “at home” and “residential establishment”. It is much more likely that the phrase was a broad indication that the reasonable costs of necessary care could be claimed by a person who was in a residential establishment to the extent that the costs fell to him or her, as well as someone living in a domestic home. It would in addition require the clearest possible words to lead to any other conclusion than that any necessary care received in the course of trying to live a reasonably normal life comes within the scope of paragraph 35(d)(iii). And reasonably normal life includes not only the narrowly physical benefits of fresh air and exercise outside the home but the mental and emotional benefits of mixing with others, taking part in the life of the community and undertaking recreational and cultural activities (see the speech of Lord Slynn in Secretary of State for Social Services v Fairey [1997] 1 WLR 799, at 815B).

 

29. I also take this fairly simple test. No-one could dispute (even if the restrictions argued for on behalf of CICA in the following section were right) that a good deal of what went on within the TRU would constitute care within paragraph 35(d)(iii). The only reason that the cost could not then count was that it did it did not fall to Mr M to meet, being funded by the NHS Primary Care Trust, no doubt under the National Framework for NHS Continuing Healthcare and NHS Funded Nursing Care (2007). Yet the TRU was neither Mr M’s home nor, since after the first few weeks he attended by day visits only, was it a residential establishment for him. Care there could not possibly have been intended to be excluded. Mr Johnson’s submission therefore cannot be correct.

 

“Necessary as a direct consequence of the injury”

30. This part of Mr Johnson’s submission overlapped to some extent with the other parts discussed both above and below. He submitted that this part of the paragraph 35(d)(iii) test clearly demonstrated the difference from the common law. He said that at common law damages could be awarded for the cost of all care reasonably required as a result of the injury. Paragraph 19 of the application of 12 April 2010 (paragraph 22 above) suggested a very severe restriction in the present case, excluding care that was not directed towards the injuries themselves, but towards enabling Mr M to improve his lifestyle to permit him to be more independent. That was said either not to be necessary or not to be a direct result of the injury itself. Mr Little had submitted in the response of 25 June 2010 that the distinction drawn with the common law position was without substance because in context “necessary” had to be qualified by considerations of reasonableness, since it could not have been intended to apply some standard of absolute necessity or, as he put it at the hearing, that only the cost of care essential to pure physical survival could attract compensation.

 

31. I do not consider the test of direct consequence of any assistance in the context of the present case. That test seems to me to be directed primarily to situations in which there is some other substantial cause of the need for care in addition to the injury directly attributable to the particular crime of violence concerned. For instance, the person might suffer from some constitutional or degenerative condition that might have led to a need for care even if the person had not suffered the criminal injury or might have been injured in some other accident or incident. There could then no doubt be difficult questions of fact to be answered, as possibly in other circumstances. However, in the present case, it is absolutely plain that all of Mr M’s needs for care and assistance stemmed from the dreadful injury he suffered in the assault in December 2004. In so far as care as properly understood is necessary here as a result of that injury it must also be regarded as a direct consequence of that injury. In other words, in the context of this case, the test of direct consequence adds nothing to the test of necessity.

 

32. I cannot accept Mr Johnson’s suggested restriction to care directed to the injury itself. The mere reference to a direct consequence is quite insufficient to support such a radical result. And it would in my judgment involve drawing distinctions that would be quite impossible to identify in reality. Especially in case like the present, where a brain injury has resulted in all sorts of difficulties in coping not just with personal care needs but with many other activities and transactions necessary to an independent life, in which Mr M had been able to engage before the attack on him, I cannot see how it is possible to distinguish between treatment and care directed towards the injury (and therefore directed to restoring Mr M as far as possible to where he would have been but for the injury) and care etc directed to assisting him towards a more independent life (even when given the somewhat demeaning label of “lifestyle”) or assisting in the general process of rehabilitation. An attempt to do so would involve a completely artificial dissection of the actual lives of applicants. The criterion is, as already concluded at the end of paragraph 28 above, what care is necessary to enable the injured person, as far as practicable in the particular circumstances, to live a reasonably normal life.

 

33. In relation to the test of necessity, I agree with Mr Little that it cannot have been intended to include only the barest minimum for physical survival, but must have been intended to cover whatever is reasonably necessary. However, that does not by any means convert the test into one of mere reasonableness or enable the same approach to be taken as in common law actions for negligence. The test is still what care is necessary, on a reasonable basis, in which case the reasonable costs of such care must be awarded.

 

34. It is relevant to consider the unhesitating approach of the House of Lords to similar, but not identical, language in the disability living allowance (DLA) and attendance allowance (AA) legislation. Many of the conditions of entitlement for different rates of the care component of DLA and for AA are in terms that the claimant “is so severely disabled physically or mentally that he requires from another person”, say, frequent attention throughout the day in connection with bodily functions or continual supervision throughout the day to avoid substantial danger to himself or others. In Mallinson v Secretary of State for Social Security [1994] 1 WLR 630, also reported as R(A) 3/94, Lord Woolf said at 642A that the frequent attention test usually involved asking four simple questions:

 

“(1) Has the claimant a serious disability? (2) If so, what bodily functions does it impair? (3) Does he reasonably require attention in connection with those functions? (4) Is that attention frequent?”

 

Similarly, in Fairey Lord Slynn said that it had not been questioned since the decision of the Court of Appeal in R v Secretary of State for Social Services, ex parte Connolly [1986] 1 WLR 421 that the attention required must be “reasonably” required and, at [1997] 1 WLR 814H, that he rejected:

 

“the contention that the relevant attention must be essential or necessary for life and that attention must not be taken into account if it is merely desirable. The test, in my view, is whether the attention is reasonably required to enable the severely disabled person as far as reasonably possible to live a normal life.”

 

That long-standing approach, explained by a Social Security Commissioner in decision R(A) 3/86 as resting on the basis that if Parliament had intended something more restricted, such as “medically required”, it needed to have said so, is in my view equally applicable to paragraph 35(d)(iii) of the 2001 Scheme. I would, though, put a question mark over Lord Slynn’s use of the word “desirable” except as covering everything which is not essential or necessary for life.

 

35. However, just as the DLA/AA test remains what is reasonably required, not what is ideally desirable or what is actually provided (which could fall short of what is reasonably required, eg for lack of current resources, or exceed it, eg from over-protectiveness), so the paragraph 35(d)(iii) test remains what is necessary on a reasonable basis. Those questions inevitably involve matters of judgment, on a proper foundation of fact, and on appeal to the First-tier Tribunal are pre-eminently matters for the expertise and experience of the members of that tribunal. So is the identification of what falls within the concept of “care”, which must be given its ordinary meaning free of any artificial or technical restrictions.

 

Did the tribunal of 14 January 2010 apply the right test in law and give adequate reasons?

36. Mr Johnson submitted that the tribunal did not apply the right test of necessity, but had instead applied the common law test. He criticised the use of language particularly in paragraph 10 of the statement of reasons. There was reference there to accepting Ms Lodge’s “recommendation” that Mr M “would require” a support worker for the foreseeable future. He said that the tribunal failed to adopt the language of the Scheme and that use of a test in terms of “require”, as also seen in paragraph 9.6, could have been wider than allowed under paragraph 35(d)(iii). At the least, the tribunal’s reasons were inadequate in failing to make plain that the right test had been applied. Mr Little naturally disagreed.

 

37. The force of Mr Johnson’s submission is diminished by the rejection above of submissions that the forms of care accepted by the tribunal showed that it had adopted a legally wrong test. Here, his submission rests entirely on how the tribunal expressed itself. I agree that it would have been better if the tribunal had used the exact words of paragraph 35(d)(iii), but in my view “required” is close enough to a synonym for “necessary” that the use of the former word does not indicate that the tribunal was asking itself the wrong question. That is especially so given the conclusion in paragraphs 33 to 35 above. There cannot be any criticism of citing the evidence of Ms Lodge in the language she used. Nor can there be any criticism of accepting that evidence, even where couched in terms of recommendation or “benefit” or “should”, in support of a reasoned conclusion about what care was necessary/required. In the circumstances I conclude that there was no inadequacy of reasons as to the test to be applied. Although this might be dismissed as a trivial debating point, I note that in paragraph 18 of the application of 12 April 2010 Mr Johnson himself slipped into saying that it was necessary to identify the core care that was “required”.

 

38. It must also be asked, though, whether the tribunal gave adequate reasons for rejecting the argument for CICA that anything in the way of care that was necessary (taking that now as meaning reasonably necessary) would be provided by the local authority under its social services responsibilities, with health needs met by the NHS (see paragraphs 18 and 19 above). The argument was that any care over and above that would represent something that might be ideal or desirable if the applicant’s needs were to be met to the fullest extent, but was not reasonably necessary in accordance with the terms of paragraph 35(d)(iii) of the Scheme. In my judgment, the tribunal did plainly pose the question raised by that argument in paragraph 10 of its statement of reasons and had the force of it in mind. It answered it by pointing to the particularly strong position of Ms Lodge in giving an opinion as to Mr M’s future needs for care and by accepting her opinion about what he required, the equivalent of being reasonably necessary. The reasoning was economical but adequate. CICA could have been in no real doubt about why its argument had been unsuccessful.

 

Should the tribunal have made a finding of fact that the future care would be provided?

39. Mr Johnson’s submission on this point did not turn at all on the fact that the £500,000 (£375,000 in the circumstances) cap was being applied. I come back to that element of the case in paragraphs 45 to 47 below.

 

40. In R (on the application of DB) v Criminal Injuries Compensation Panel [2002] EWHC 698 (Admin) Stanley Burnton J was concerned with a case where the applicant, then aged 21, was quadriplegic and required a lot of lifting and carrying. That was carried out at the time of the decision by his adoptive mother, who was keen to look after him at home as long as at all possible. An expert report on care needs gave the opinion that as the mother was already suffering with back and neck problems she would not be able to go on looking after the applicant in the long term without a team of helpers to give her and her partner respite. At the CICAP hearing the mother, in answer to a direct question, said that she would employ the carers envisaged in the report and wanted to hand over the physical care of the applicant to others while retaining care for his emotional needs. The CICAP decision was to award only the cost of the mother’s care for the next seven years as it considered that no professional care would be obtained for some considerable time. It did not think that she would be able to relinquish her care. On judicial review, Burnton J decided that that was a conclusion that CICAP had been entitled to reach and that it had given adequate reasons. It had been argued that at common law an award would have been made for the value of the care package set out in the expert report regardless of whether it was implemented or not. The judge doubted that on the authorities and concluded that there had been no error of law by CICAP, saying in paragraph 33:

 

“It is perhaps odd that the quantification of DB’s loss should depend on the willingness of his mother to care for him. However, it is not surprising that the award of damages to cover the cost of future care, which in cases such as this is the largest component of damages, should depend on whether, when and for how long that cost will in fact be incurred. It was necessary for the Panel to determine whether and when Mrs B would cease to care for DB. It follows that the Panel did not make an error of law in doing so, and in making their award on the basis of their findings.”

 

41. Mr Johnson accepted that under paragraph 36 of the 2001 Scheme an existing need for care that would change in nature and extent in the future could be contemplated, so that the multiplicand could change. He also accepted that if it was clear that on any basis an award would easily exceed the cap a tribunal would not have to make precise findings in terms of dates and amounts of future changes. However, he did submit that where, as here, the current level of care being provided produced only a claim for a relatively modest amount of gratuitous care by Mr M’s mother and the short-term claim for future care was wiped out by the likely availability of NHS, local authority and (as far as anyone could know for sure on 14 January 2010) ILF funding, the principle behind the decision in DB required the tribunal to make a clear finding about the likelihood of one or other of the medium-term scenarios set out in Ms Lodge’s report actually being implemented. He said that in a case involving such potentially large amounts of compensation for future care costs, it had not been enough for the tribunal to accept her recommendation that a support worker would be required for the foreseeable future. It needed to be more specific and make a finding as to the likelihood of actual implementation.

 

42. Mr Little noted first that this point had not been raised before the First-tier Tribunal. He drew attention to the daring nature of the proposition for the applicant that Stanley Burnton J actually rejected in DB and submitted that as there was no statutory maximum applicable in that case (as must have been the case because the CICAP award challenged as too low was of over £1,000,000) precise findings about whether and when professional care costs would be incurred were necessary. It was different in a case where the cap would clearly be exceeded. In this case, if the full claim for future Deputyship and Court of Protection costs of about £250,000 were added to the agreed amounts for the tariff, loss of earnings and past care costs, the total would have been close to £450,000 before the application of the 25% reduction So, Mr Little submitted, it would only have taken a small amount of future care costs to exceed the cap.

 

43. I agree that too much of general significance must not be read into paragraph 33 of the judgment in DB, given just what was in issue there. It must though be the case, whether it needs any support from the decision in DB or not, that a tribunal must make sufficient findings of fact to form a proper basis for the predictions it has to make about what care will be necessary in the future and what costs will fall to be met by the applicant. I see nothing wrong with the point being taken by CICA on that basis on judicial review when it had not been specifically raised before the First-tier Tribunal, because it is a point that would only arise if its primary submissions about future care costs were not accepted and it is then fundamental to the award that the tribunal made after rejecting those primary submissions. Obviously, in many cases there cannot be a high degree of certainty about those matters beyond a few years into the future, but the issues will be ones of judgment for the members of the tribunal, within the context of the general onus on the applicant to make out his or her case (paragraph 19 of the 2001 Scheme). And the findings and predictions need only be precise enough to determine the particular case.

 

44. The question in the present case is whether the tribunal of 14 January 2010 did enough by way of findings and explanation to form a basis for its conclusions. In my judgment it did, mainly through its plain acceptance of Ms Lodge’s report (the general validity of which was not in dispute) and that it entailed a need/requirement for a support worker for the rest of Mr M’s life at a cost beyond what could be met from other sources. Ms Lodge’s report had also included the opinion, in effect, that Mr M’s mother was prepared, in his long-term interests, to see him become more and more independent of her, although the transition would be difficult for all concerned (hence, I think, the reference to caution on her part). The circumstances were not like those in DB, where the care provided for the applicant and its effect on him would not change if professional carers took over the physical work from the mother, merely who was doing it. Here, all the evidence pointed towards Mr M’s progress towards independence and as normal a life as possible being dependent on the provision of a support worker at the levels suggested by Ms Lodge if attendance at the TRU funded by the NHS could not continue beyond the short term. There has never been any suggestion that Mr M’s mother had anything but his best interests at heart and was prepared to do whatever she could, with professional advice and assistance, to further those interests. It was also the case that on the basis adopted by the tribunal, and even I think if there was simply a continuation of compensation for the mother’s gratuitous care without any support workers at all, the award for future care would have taken the total award, before the 25% deduction, well over the £500,000 cap. In those circumstances, I conclude that the tribunal did do enough to provide a basis of findings of fact about the likelihood of the regime of future care being implemented.

 

The interaction of the £500,000 cap with findings about implementation of the care regime

45. There is a difficult related point. If the costs of a regime of future care would take the applicant a long way over the £500,000 cap, is it possible to find that that regime will probably be implemented when the applicant will not have the money to pay for it? The point was not raised by CICA at any stage and Mr Johnson specifically disclaimed any reliance on it in the present case, while reserving CICA’s position so far as any other cases are concerned. I therefore do not need to reach any final conclusion about it. But I think, in deference to the short discussion at the oral hearing, that I should say enough to explain why I consider Mr Johnson’s concession in the present case to have been correct.

 

46. First, if the application of the argument were to lead to the exclusion of an award for future care costs that would have been made if the cap did not exist, that would be a deeply unattractive result. The £500,000 cap is in itself a very rough and ready provision. It has stood at the same amount since its introduction in the 1996 Scheme, despite the effects of inflation, especially in relation to medical and care costs. It must now catch a much higher proportion of applicants than in 1996. And it operates in a way that some would call arbitrary, in that the worse a person’s injuries are, the higher the proportion of the compensation that is denied to them. It would add an extra layer of cruelty to tell applicants and their families that not only could they not receive all the compensation to which the Scheme prima facie entitled them, but that the effect of applying the cap might be to leave the amount of compensation below that level, because of the knocking out of the head of claim for future care costs altogether or in large part. It will no doubt eventually have to be decided in some other case whether the argument has any validity as a matter of general principle. Mr Little told me at the hearing (although I have not investigated the position) that no such arguments are raised in common law cases even where there are large reductions in the proportion of damages awarded because of contributory negligence.

 

47. Second, it seems to me that, even if the argument above were not to be rejected on general principle, there would still have to be some special feature of a particular case to bring it potentially into play. Thus, in the present case, even if Mr M only received a small proportion of the total claim for future care costs (say, £50,000) after all the other heads of claim were satisfied and even if that would only pay for a year or two of the support worker costs claimed (after taking account of other sources of finance) for the medium term, there would still be a realistic and practical point in his receiving that care for that period. That could take him a worthwhile way down the right road. It would also be legitimate to think of spreading the care at a lower level than recommended for a longer period while trying to find another source of funds, quite apart from the fact that there would be nothing to stop the use of compensation awarded under other heads (eg the tariff and loss of earnings) to pay for care. It is not as if instituting the care regime would require some initial outlay of capital that simply would not be available. For that reason, it would seem to me to stray much too far into the realms of speculation to suggest that any of the future care the costs of which took Mr M well beyond the maximum amount of compensation would not in fact be undertaken simply because of the restrictive effect of the £500,000 cap.

 

Conclusion

48. For the reasons set out above I find that none of the grounds of challenge of the tribunal’s decision put forward on behalf of CICA are made out. The application for judicial review must therefore be dismissed.

 

 

 

 

(Signed) J Mesher

Judge of the Upper Tribunal

 

(Dated) 14 February 2011