The purpose of compensation is to put a successful claimant back in the position they would have been in, but for the negligence. Of course, it’s not possible to reverse the injury that caused cerebral palsy, but financial compensation can go some way to improving the quality of life for those who have the condition, ensuring all their needs as a result of the injury are met.
In a claim for an adult or a child with cerebral palsy, the court can award compensation in two categories:
- General damages – Compensation for suffering and for the loss of an ability to do things that you/ your child might otherwise have done. For cases involving cerebral palsy, general damages will usually range between £200,000 and £325,000, depending on the severity and impact of the injuries suffered (such as physical disability, communication abilities, dependency on others etc.)
- Special Damages – Compensation for direct financial losses that you/your child might suffer, or have already suffered, as a result of the injury. The amount will vary depending on individual needs (see below) and will be separated into past and future losses at the point the compensation is calculated.
Here we look at what compensation for cerebral palsy helps to pay for, how it can be managed, and what happens if the person receiving the compensation is not able – or is too young – to manage their own financial affairs.
What does compensation for cerebral palsy help to pay for?
Compensation for financial loss will vary depending on the individual circumstances arising from the injury, but the following is usually claimed for people with cerebral palsy.
The cost of care
Someone with cerebral palsy will usually need care and support for the rest of their life so this will represent a large part of your compensation. Care costs for adults and children with cerebral palsy will typically include the equivalent cost of care that family members provide, together with the costs of ‘paid-for’ care required for the rest of their lives. All of the incidental expenses associated with employing a carer can be claimed, including the costs of recruitment, replacement of carers, training and expenses.
You may require a case manager to co-ordinate rehabilitation, care and support over a lifetime, and these costs can be claimed.
Aids and equipment
Compensation can be claimed for the costs of the aids and equipment you may need to help you or your child be as independent as possible. This includes wheelchairs, specialist furniture and bathing equipment. It also includes assistive technology designed to help with housework, such as aids to help you reach for, turn and move items, and mounted switches to help you use electronic devices. The compensation includes replacement, maintenance and other associated costs.
Accommodation and household expenses
You may need a larger home adapted for wheelchair access and room for carers. Compensation may be claimed for the additional costs of such accommodation and specific adaptations, including the additional running costs of a larger property (heating, council tax, maintenance).
Augmentative and alternative communication (AAC)
This includes a range of communication methods that aid speech, from simple signing to highly complex technology including computer equipment and specialist software.
Treatment and therapies
The costs of any medical treatment required as a result of the injury can be claimed on a private basis rather than relying on the NHS, such as orthopaedic surgery. In addition the costs of various therapies can be claimed so that these can be obtained privately, co-ordinated by the case manager. Therapies may include physiotherapy and hydrotherapy, occupational therapy, psychological therapy, speech and language therapy, and any associated costs including the therapists travel time and expenses.
Travel and transport
You can claim the costs of specialist vehicles to accommodate wheelchairs and other equipment, including replacement costs and additional insurance and running costs.
Additional holiday costs
You can claim additional holiday costs, including the cost of travelling with carers, larger holiday accommodation and additional travelling expenses.
Loss of earnings and pension
You may claim for loss of earnings or reduced earnings as a result of the injury if you are unable to work as you would have done. Because cerebral palsy is a birth injury, it’s difficult to know what career path would otherwise have been taken. The amount is therefore usually determined by looking at the careers of parents, siblings and other family members.
The cost of any additional support required at school can be claimed. If the local authority will not fund the cost of your child attending the school that best meets their needs (e.g. it’s a private school), you may claim the costs of appealing the local authority’s decision or claim the costs of attending the school.
If you / your child is unable to manage your financial affairs on reaching the age of 18, then you may need the help of a professional ‘deputy’ to manage these funds over a lifetime. The annual cost of the deputy can be claimed.
What is the Court of Protection?
Some adults with cerebral palsy may be unable to manage their own financial affairs due to mental incapacity. In addition, medical experts may confirm that some children will also lack capacity to manage their own affairs on reaching the age of majority (18 years of age) due to their brain injury.
The role of the Court of Protection is to determine, on the basis of medical expert opinion, whether someone has or will have the capacity to manage their own affairs when they reach the age of majority. If not, they become a ‘protected person’ and the court will appoint a ‘deputy’. The deputy will manage their financial affairs and make the best decisions for them in terms of managing their compensation funds and other finances.
The role of the Court of Protection is to provide a safeguard for someone who cannot make particular decisions for themselves, to ensure that financial decisions made on their behalf are appropriate and in their best interests.
What is the role of a deputy?
A deputy for a protected person might make decisions on property and financial affairs as well as matters concerning health and welfare. The Court of Protection appoints the deputy with a formal order that sets out their remit.
The court will usually permit the deputy to manage the compensation on a day-to-day basis for the claimant. This means that all the lump sum damages and periodical payments are paid into the deputy’s bank account, and do not need to be held by the Court of Protection. The deputy will have a delegated duty on behalf of the court to manage the money.
The deputy will produce annual accounts for the court to audit and review, and this ensures that the money is properly managed. He/she will also manage all of the protected person’s financial affairs, including their compensation, in respect of payments and purchases (accommodation, equipment, banking etc.). In doing so, they must:
- Make sure the decisions they take are in the protected person’s best interests
- Apply a high standard of care
- Involve significant relatives or relevant professionals in decisions
- Endeavour to explain the decision to the protected person so that they can understand why the decision was taken
- Keep careful accounts and report annually to the Court of Protection.
For claimants with cerebral palsy, deputies are usually appointed to make decisions in relation to property and financial affairs only. Because the sums are generally very large, the deputy appointed would be a professional person, usually a specialist solicitor or accountant. The claimant would not incur any extra costs as the deputy’s fees are included in the claim.
How will periodical payments help you to manage compensation?
The vast majority of claims are now settled using a lump sum for parts of the claim and periodical payments for future losses throughout life, such as the cost of care and case management. These periodical payments are usually paid annually and are guaranteed for life.
Periodical payments ensure that however long you or your child lives for, annual care needs will be met. Payments are also linked to an inflation index, recalculated every year to reflect inflation and the changing costs of care. This means that you’re never out of pocket.
In addition to care and case management costs, compensation for loss of earnings, annual therapy costs and deputy costs may also be considered for periodical payments. For many, this arrangement is preferable to managing a lump sum over a lifetime for the reasons listed above.
The lump sum compensation is still necessary to pay for large purchases, such as new accommodation. It’s therefore not possible for the whole of the future losses claim to form annual periodical payments. You will be advised on the most appropriate form of compensation for you, taking into account individual circumstances.
What do case managers do for people with cerebral palsy?
You may employ a case manager to coordinate you or your child’s rehabilitation, care and support. Their role will vary according to individual circumstances and the cost is usually recovered in a successful claim.
Case managers generally have a nursing or therapy background, with experience of working with adults and children with cerebral palsy. They can act as an advocate for you/ your child, and liaise on your behalf with medical teams, local authorities and therapists to ensure your best interests are promoted.
What is a personal injury trust fund?
A personal injury trust fund is a specific type of trust deed that allows an injured party to place their compensation sum within a trust structure, under the management of at least two trustees. The injured party (if an adult) can be a trustee themselves, along with another person (usually a close family member or friend). The compensation sum will be paid into your trust, rather than into your bank account.
The purpose of a personal injury trust is to legitimately protect your compensation funds from being taken into account if you’re claiming, or wish to claim, a means-tested welfare benefit or state funded care and assistance. It means that the sum you receive will not affect any benefit you may be entitled to and preserves your compensation.
Personal injury trust funds are appropriate if you are capable of managing your own financial affairs and not in need of a deputy (see above). But if you’re not entirely confident of your ability, or you’ve received a very large compensation, you may also appoint a professional trustee to manage the trust.