Freeman v Lockett

Damages for future care should not be reduced to reflect uncertain discretionary funding from a local authority for domiciliary care. The defendant must establish a principled and reliable basis for estimating that funding. Where the statutory framework, local authority policies and future circumstances are liable to change, the court should not speculate over a claimant’s lifetime.

A claimant who reasonably chooses to fund care from damages, rather than rely on state assistance, is not failing to mitigate loss. The court should not require an undertaking restricting future access to state funding or dictate whether damages are held in a personal injury trust. The decision distinguishes cases concerning residential care and benefits payable as of right.

The claimant suffered catastrophic spinal injuries in a road accident for which the defendant admitted liability. The parties agreed most elements of the damages claim, including a lump-sum award of £5,546,245, but disputed whether the award for future care should be reduced because the claimant was receiving direct payments from Hertfordshire County Council.

The defendant argued that the payments should be treated as receipts reducing the claimant’s net loss, or that refusal to seek them in future would be an unreasonable failure to mitigate. The central issue was whether the court could reliably assess the future availability and amount of discretionary local-authority funding for domiciliary care.

1. No deduction for future state funding. The court rejected the proposed reduction. The defendant had not proved a principled and reliable basis on which the future level or availability of Hertfordshire’s payments could be assessed. Local-authority duties, eligibility criteria, charging policies, ministerial guidance and available resources could all change over the claimant’s expected lifetime.
2. Compensation and mitigation. The compensatory principle and the avoidance of double recovery did not require the deduction. It was reasonable for the claimant to obtain control of the fund needed for her care and to avoid dependence on reassessment and changing local-authority policies. Declining future direct payments was not an unreasonable failure to mitigate loss.
3. Statutory framework. The court examined the different regimes for residential care under section 21 of the National Assistance Act 1948 and domiciliary assistance under section 29 of that Act, as supplemented by section 2 of the Chronically Sick and Disabled Persons Act 1970. The latter regime involved discretionary charging and guidance, unlike the clearer statutory protection applicable to residential-care recoupment.
4. Authorities. Hodgson v Trapp was confined to benefits payable as of right and did not establish a general rule for discretionary payments. Sowden v Lodge concerned residential care and did not provide a principle applicable to uncertain direct payments for domiciliary care. The cases concerning residential-care charging were therefore distinguishable.
5. Ancillary matters. The court declined to order periodical payments or require the claimant to dismantle her personal injury trust. It also declined to determine the arguments under Article 8 of the Convention and section 6(1) of the Human Rights Act 1998, having decided the issue on ordinary principles of damages.
6. Order. Judgment was entered for the claimant in the sum of £5,546,245.