JXM v An NHS Trust

Where a catastrophically injured child requires substantial funds for suitable accommodation and care, the court may order a substantial interim payment where the evidence supports the purchase and adaptation of an appropriate property. The need for accommodation may be central to enabling the required care, equipment and therapies. The court may also take account of risks arising from the child’s possible death before adulthood, including the operation of intestacy rules and the prospect of parents benefiting from damages linked to their criminal conduct. Such risks may justify monitoring and protective applications without preventing the interim payment.

The claimant was a young child who suffered devastating brain injuries after non-accidental injuries inflicted by his father. The defendant NHS Trust admitted liability for failing to identify earlier injuries and arrange protective intervention. The claimant sought an interim payment to purchase and adapt suitable accommodation for himself and his family.

The Trust agreed to pay £600,000 but raised concerns about the consequences if the claimant died before reaching adulthood, since he would then die intestate and his parents might inherit. Applications had been made to the Court of Protection concerning a trust. The issue was whether the agreed interim payment should be ordered in those circumstances.

1. Interim payment. The court approved the consent order for an interim payment of £600,000. The medical and accommodation evidence established a substantial and immediate need for a suitable property to enable proper care, provide space for equipment and therapies, and support the claimant’s development. The order was appropriate on the basis of Eeles 1 and Eeles 2 (para [7]).
2. Risk arising from intestacy. The claimant would die intestate if he died before reaching 18. The court recognised the Trust’s concern that damages might thereby accrue to the parents, who were the claimant’s heirs and whose criminal conduct had caused the injuries. An application had been made to the Court of Protection for a trust to protect the claimant’s property (paras [8]–[10]).
3. Future protection and monitoring. The judge observed that, on an application following the claimant’s death, the court would be expected to have power to direct distribution otherwise than under the ordinary intestacy rules where the inheritance represented damages arising from the parents’ unlawful acts. The interim payment would otherwise be repayable subject to the damages claim, and the court could order that money be held pending appropriate directions (paras [9]–[10]).
4. The interim payment was ordered. The Trust’s responsible approach to protecting public funds was commended, but the identified risks did not justify withholding the payment (paras [11]–[12]).