Posted by Yolande Wase, Associate
Clinical Negligence: Protecting your Entitlement to Benefits
Your solicitor’s duty in clinical negligence does not end at the point they obtain compensation for you. They also have a duty to ensure your compensation does not jeopardise your entitlement to benefits.
Once a solicitor has successfully negotiated, or obtained at Trial, an appropriate compensation award for their client in clinical negligence it is important that, prior to sending out the damages cheque, they provide appropriate advice to ensure that compensation does not place any benefits entitlement their client has in jeopardy.
A solicitor has many professional duties to their client and one which may not be so widely appreciated by the client is the duty to provide adequate benefits related advice prior to dispatch of the damages. It is possible to ensure that compensation obtained as a result of a person suffering a personal injury is not taken into account in any means assessment to which their client will be subject. This is possible by the establishment of what is known as a ‘Compensation Protection Trust’ or a ‘Special Needs Trust’. This is a particular kind of Trust available only to those who have received compensation as a result of an injury and ring-fences injury compensation to ensure this money is treated separately from the rest of that person’s assets. Trusts of this nature are recognised by the Department of Work and Pensions.
Why have a trust?
The rationale behind these trusts it is to ensure that monies obtained to meet a need arising out of a negligently caused injury is protected so that it can be applied to meet that need. It would be unjust for those monies to be regarded as financial assets and thereby deprive the injured of benefits to which they would otherwise be entitled, since that money is (largely) earmarked to meet negligently caused surplus need. If the money had to be applied to meet the requirements which state benefits normally meets for that individual then of course they would not have the necessary resources available to meet the negligently imposed additional need.
It is the duty of the solicitor to provide appropriate advice and to ensure that the recipient of compensation understands the need for such a Trust. Whilst there are certain situations in which compensation can be held for a limited amount of time by the Claimant without it resulting in them losing their entitlement to means tested benefits, the general position is that the solicitor should provide such advice before sending out the compensation and thereby ensure that they are not putting their client a position where their entitlement to benefits is lost.
Failure to provide appropriate advice would constitute negligence on the part of the solicitor and as such a claimant losing their entitlement to benefits would be well advised to seek professional advice on bringing a claim for the loss of that entitlement.
The experience of our specialist clinical negligence solicitors allows us to bring extensive expertise to all aspects of professional negligence matters arising from claims in clinical negligence. If you believe you have lost your entitlement to benefits as a result of poor advice in a clinical negligence claim, or believe that any other aspect of your claim in clinical negligence was mishandled, please contact us now for specialist advice.