Peters v East Midlands Strategic Health Authority & Ors

A claimant who has suffered a tortious loss may elect to recover damages for future care and accommodation from the tortfeasor rather than rely on a public authority’s statutory provision in kind. That election is not governed by mitigation, provided that effective arrangements prevent double recovery.

For means-testing residential care, the phrase “an award of damages for a personal injury” in Income Support (General) Regulations 1987, Schedule 10, paragraph 44(2)(a), covers all heads of damages flowing from the injury. It is not confined to general damages or stripped of care costs. A damages multiplier should not be discounted for hypothetical State funding where no State-funded care is envisaged.

The severely disabled claimant recovered damages for negligent failure to ensure that her mother received a rubella vaccination before pregnancy. The agreed award included the whole-life cost of accommodation and care at a specialist private home.

Butterfield J held that all of the claimant’s personal-injury damages were disregarded in the local authority means test. He also held that she could choose private self-funding and damages rather than depend on the local authority’s statutory provision. The defendants and the local authority appealed.

The Court of Appeal, in [2009] EWCA Civ 145, considered the construction of the statutory disregard, the claimant’s entitlement to elect damages, the prevention of double recovery, the reasonableness of self-funding, and whether the agreed multiplier should be reduced.

1. Both appeals were dismissed. The local authority’s appeal on the statutory disregard failed. The defendants’ appeal against the award of the full future cost of care and accommodation also failed.

2. The phrase “an award of damages for a personal injury” in Schedule 10, paragraph 44(2)(a) of the Income Support (General) Regulations 1987 is clear and unqualified. It encompasses every head of loss flowing from the injury, including care and accommodation costs. The court endorsed the reasoning in Firth v Geo Ackroyd Junior Ltd [2001] PIQR Q4. The express care-cost exception in a different disregard provision could not be read into paragraph 44(2)(a).

3. A claimant with a claim in damages against a tortfeasor and a statutory right to care in kind from an innocent public authority may choose damages and self-funding as of right. The choice concerns who bears an established loss. It does not require the claimant to mitigate loss by resorting to public provision. The reasoning in The Liverpool (No 2) [1963] P 64 applied by analogy.

4. Double recovery remained impermissible. A personal undertaking by the claimant’s Deputy was inadequate because it could not bind successors. The Deputy’s undertaking to seek a Court of Protection limitation on any application for public funding, with notice to the defendants of any later application, was an effective safeguard. It therefore removed any real risk of double recovery.

5. Alternatively, the judge was entitled to find self-funding reasonable. The local authority’s statutory duty did not guarantee continued care at the present home or an equivalent placement. Assessments of need allow room for judgment, and future financial and legislative uncertainty was relevant. Finally, the agreed whole-life multiplier could not be reduced: no State-funded care was envisaged unless the Court of Protection later authorised an application for it.

• Court of Appeal (Civil Division) — dismissed the appeals and upheld the award of the full future cost of accommodation and care.
• High Court of Justice, Queen’s Bench Division (Butterfield J) — awarded damages, held that the personal-injury award was disregarded for the relevant means test, and held that the claimant could choose self-funding. No citation for that judgment is stated.