What Professional Deputies need to know about Gratuitous Care Claims

Warren Maxwell, Partner, Stewarts

Gratuitous care and assistance claims arise frequently in personal injury and clinical negligence cases, yet how they are valued and what they mean for professional deputies is not always well understood.

Personal injury and medical negligence
The purpose of a personal injury (PI) or medical negligence (MN) claim is to compensate an individual for the injuries suffered as a result of negligence and to put them back, so far as is reasonably practicable, in the position they would have been had the injury never happened (the principle of full compensation).

This is not always possible medically, so the law allows claimants to seek recovery of reasonably foreseeable losses arising from the injuries they sustained as a result of the defendant’s negligence. These losses should be reasonable in nature and amount. Losses should be of benefit to the claimant, although a non-beneficial loss can be recovered if it was reasonable for the claimant to test the loss, for example, a type of therapy that they decide is not something they wish to pursue.

The burden of proof is on the claimant, and the standard of proof required is on the balance of probabilities.

Compensation
There are two types of damages that make up a PI or MN claim: general damages and special damages.

General damages compensate a claimant for the physical pain and damage they have suffered and the consequential reduction in or loss of ability to do the activities they would have otherwise done and continued to do had the negligence not occurred. They are assessed by reference to case law and the Judicial College Guidelines (the starting point in negotiating levels of payment for general damages in personal injury cases).

Special damages compensate a claimant for the financial loss experienced by or anticipated to be experienced by them, their family or others as a result of their injuries. Each case is different, but the types of expenses that can form part of a special damages claim are:

Loss of earnings and pension where the claimant is unable to return to work
Medical treatment and therapies required as a result of the claimant’s injuries
Home adaptation costs or the purchase of single-story accommodation
Aids and equipment costs, for example, a wheelchair, an exoskeleton and/or therapy exercise equipment
Transport costs, including public transport and/or the cost of an adapted vehicle
Private nursing care costs
Professional deputyship and Court of Protection fees.

Gratuitous care and assistance
What is it and who can claim it?
A seriously injured claimant commonly receives care and assistance. This care, at least at the start, is often provided on a voluntary (unpaid) basis by family or friends and is known as gratuitous care and assistance.

As part of a claimant’s special damages claim, compensation can be claimed for the fair and reasonable value of the time and care their loved ones have gratuitously provided to them due to their injury, except where the carer themselves caused the claimant’s injury(1). Gratuitous care claims are recognised in law as a way to recompense a voluntary carer for their services to the claimant(2). Damages received for the gratuitous care provided is paid to the claimant, who holds it on trust to reimburse the provider of the care(3).

What type of ‘care’ can be recovered?
Under English law, there is no set threshold to meet in terms of the severity of injury or level of care before a claim for gratuitous care can be made4. This principle recognises that the type and extent of gratuitous care provided can vary significantly depending on a claimant’s needs and circumstances. However, for a claim to be successful, the claimant must be able to prove, on balance, that actual care was provided to them.

It has been found that practical assistance, even when the claimant is still in hospital, such as help with washing and dressing, domestic services, chauffeuring the claimant, purchasing food and cooking, can amount to care for the purposes of damages(5). Further activities amounting to ‘care’ include:

Making sure the claimant does not injure themselves
Cutting hair and providing manicure and pedicure services
Fetching and carrying items for the claimant in hospital and at home
Prompting, encouraging and motivating the claimant
Providing emotional support and ensuring the claimant’s general wellbeing
Time spent looking after children that the claimant would otherwise have done.

Gratuitous care does not include ordinary family or social support that the claimant receives, for example, time spent ‘chatting’ at hospital as opposed to time spent providing direct support.(6)

How is gratuitous care valued?
To value gratuitous care, the extent of the gratuitous services provided by a voluntary carer to the claimant must be determined. This often includes speaking to the claimant and their family members or friends and considering contemporaneous records such as medical records and diary entries to gain a better understanding of the services provided. It is important to establish, where possible, the severity of the injury, the type of services provided, the time spent and the relative proportion of the care at anti-social hours.

Litigators should ensure that they advise caregivers to keep diaries, recording the nature and duration of care provided. While there has to be a balance, and carers are not expected to record every care provided every day, it is recommended that the carer’s activities should be recorded in detail periodically, perhaps once a week or month, depending on the circumstances, to reflect the changing needs and how they are being met. These diaries can then be exhibited to a witness statement provided by the carer in support of the gratuitous care claim.

The overarching aim is to establish what constitutes reasonable value/ proper recompense in all the circumstances of the case(7). A claimant’s legal team will, therefore, commonly instruct an independent care expert under Civil Procedure Rule Part 35(8) to opine on the nature and duration of care provided and then value the gratuitous care, including any likely future care. The defendant’s legal team will carry out similar investigations based on the evidence disclosed to them and obtain their own expert opinion. These two opinions will be reflected in the parties’ final schedule and counter schedule of loss and will be the subject of negotiation at a joint settlement meeting (JSM).

The experts will most likely consider the commercial valuation of the care provided, in other words, what it would cost per hour to provide the same services on the commercial open market. The resource most widely used to identify the correct hourly rate to apply to the determined number of hours of gratuitous service is the National Joint Council Payscales(9).

Once the appropriate commercial value has been identified, it is often discounted to reflect that damages in PI or MN cases are awarded net of tax and National Insurance contributions. Historically, the appropriate discount to apply to the value of gratuitous care ranged between 20% and 33%, with 25% being most used by the courts.

However, in a more recent case, the court found it appropriate to move away from the conventional 25%, applying a reduction of 20% to reflect the lower marginal tax rate applicable to the lower hourly rates allowed in that case (10).

There are, however, cases where the court has decided not to apply a discount to the value of gratuitous care, such as in the case of CCC v Sheffield Teaching Hospitals (11). This decision was deemed to constitute reasonable value/proper recompense, even after the highest hourly rate had been applied, due to the significant care the wife had provided to her husband. Other such cases include those in which the carer was a professional nurse and the standard of care was high(12), or those in which ad hoc and spontaneous night care for a claimant with challenging traits was required(13).

Alternatively, if a family member or friend has reasonably given up work to care for the claimant, a “proper and reasonable” figure can be assessed as their lost net earnings up to a ceiling of the commercial value of the care provided(14).

How to determine the most appropriate hourly rate?
Depending on the intensity, number of hours and period over which the gratuitous care was provided, the following rates may apply:

The basic rate, which is appropriate when gratuitous care is provided or mainly provided on a weekday during ordinary working hours(15).
The evening rate applies to care provided in the evening and overnight.
The day aggregate rate applies to care provided in the daytime (post-9am and pre-8pm) and on weekends.
The enhanced aggregate rate is most appropriate when intensive care is provided and/or care is provided during the day, night and at weekends(16).

Different rates can be applied to care provided over a period of time, depending on the circumstances(17). For example, the full aggregate rate will likely provide reasonable value/ proper recompense during periods of long-term intensive care, both day and night, often following discharge from hospital, for a catastrophically injured claimant(18).

Whereas reduced periods of care thereafter, either during the day or before/after work, are likely to attract the day aggregate rate or basic rate.

Gratuitous care claims in practice
In practice, the legal parties on either side rarely agree on the value of gratuitous care provided or the reasonableness of gratuitous payments made. Therefore, it is important to have sufficient evidence from the claimant, their gratuitous ‘carers’ and professional deputies to evidence and justify the gratuitous care/payments provided and the rates applied.

Before making payments in advance to those providing gratuitous services to a claimant, it is helpful for professional deputies to understand how gratuitous claims work in practice and whether they will be recovered during the litigation process.

If payments provided to a gratuitous carer cannot be justified as being reasonable recompense, these payments may not be recoverable from the defendant, leaving the claimant out of pocket.

It is, therefore, helpful to confer with the claimant’s litigation team to consider whether such a payment is likely to be recoverable as gratuitous care, as what is reasonable in one case may not be so in another. By considering all the relevant factors, the appropriate commercial rate and discount (the authors suggest that 25% is a sensible position to take), professional deputies will best be able to act in line with the approach likely to be taken by the parties at a JSM or by the assessing court and adopted by the Court of Protection(19). This will prioritise the claimant’s best interests by making payments that are reasonable and reflect the proper value of the gratuitous services, thereby increasing the likelihood of recovery in the litigation process.

On settlement, it is usual for the court to receive a written ‘Advice on Settlement’ from the claimant’s counsel, which will suggest an appropriate sum to be paid from the claimant’s damages to those who have provided them with care. That sum, if adopted, will be included in the settlement order, and either the claimant’s solicitor or professional deputy will have the responsibility of sending the funds to the carer(s).

References:
1 Hunt v Severs [1994] 2 AC 350
2 Housecroft v Burnett [1986] 1 All ER 332
3 Ibid 1
4 Giambrone & Ors v Sunworld Holidays Ltd [2004] EWCA Civ 2158
5 Tagg v Countess of Chester Hospital Foundation NHS Trust [2007] EWHC 509 (QB)
6 Havenhand v Jeffrey Unreported February 24, 1997
7 Hunt v Severs [1994] 2 AC 350
8 PART 35 – EXPERTS AND ASSESSORS – Civil Procedure Rules – Justice UK
9 National Joint Council Payscales – Spinal Point 8.
10 Fitzpatrick v Ministry of Defence & Home Office [2024] EWHC 3609 (KB)
11 CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] EWHC 1770 (KB) [146]–[147]
12 Hogg v Doyle [1991] 3 WLUK 71
13 Newman v Folkes [2002] EWCA Civ 591
14 Housecroft v Burnett [1986] 1 All ER 332
15 Scarcliffe v Brampton Valley Group Ltd [2023] EWHC 1565 (KB), Mr Justice Cotter said at [234]
16 Massey v Tameside & Glossop Acute Services NHS Trust [2007] EWHC 317 (QB)
17 Fitzpatrick v Ministry of Defence & Home Office [2024] EWHC 3609 (KB))
18 Whiten v St George’s Healthcare NHS Trust [2011] EWHC 2066 (QB), Mr Justice Swift [141] and [144] and AB v Royal Devon & Exeter NHS Foundation Trust [2016] EWHC 1024 (QB)
19 HC, Re [2015] EWCOP 29