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Maria Louise Freeman v Christopher Hallas Lockett, High Court, 7 February 2006

23 February 2006
The issues

Sowden v Lodge – National Assistance Act 1948 Section 29 – double recovery – whether claimant’s damages should be reduced to take account of likelihood of direct financial assistance form Local Authority.

The facts

The claimant was injured in February 2002 in a road traffic accident on the M1. Liability has been admitted by the defendant. She had been left a C5 tetraplegic and wheelchair dependant. An issue arose as to state funding. It was argued for the Defendant that the award should be reduced to take account of the fact that she currently received financial assistance from the Local Authority and that she would continue to do so. The Local Authority had provided material suggesting that the claimant would have to contribute towards her care when she receive the award of damages and that the Local Authority would seek to recover the payments it had made towards the cost of the care provision. Shortly before trial Local Authority altered its position concerning the recovery of the financial payments.

The decision

Sowden v Lodge was a case under the National Assistance Act Section 21 relating to the provision of residential care. This case concerned Section 29 ie the provision of financial assistance towards the private provision of domiciliary care. Different considerations were relevant to the two different regimes. It was not true that Sowden v Lodge intended to set any new principle. In any event there was a crucial distinction between the Section 21 and Section 29 regimes which was, that in the former case it had been enacted by secondary legislation that a local authority could not look to any award of damages for the purpose of recouping the cost of care provided. As to Section 29 the position as to recoupment was that it was a matter discretion informed only by ministerial guidance which was inconclusive as to the threshold of income and capital at which contribution might be sought and silent as to the maximum level of contribution. Sowden did not assist in this case and nothing in Sowden was intended to be of guidance in a case such as this.

It is difficult to predict the future of such provision. The possibility of a reduction in the level of publicly funded services was obvious to any moderately informed person and it was equally obvious that the future availability and level of such services was dependant in part upon consideration that the Court was entirely unable to evaluate. The longer the time scale over which the Court was asked to form a view, the more hopeless was the request. No local authority could ever give any guarantee or undertaking as to what its policy for future care funding would be.

In Sowden, the continued availability of the type of assistance there to be provided by the local authority (residential care) was taken as read. That assumption was understandable. It did not argue that the Court should not be prepared to assume the existing statutory regime pursuant to which the local authority had a duty to provide care and accommodation would remain in place. Similarly, it had not been argued that there was any doubt as to whether the Claimant would continue to be relieved of the need to pay for or contribute towards the costs of provision of such care and accommodation by the local authority behind the decision in Sowden was the fact that the claimant had not established that in all the circumstances, private funding of care in a private home was the reasonable choice.

In addition the residential care under discussion in Sowden was for a person who had suffered catastrophic head injury. Continued availability of state funded residential care for such people was obviously more secure than the current regime of direct payments for domiciliary care. There was scope for argument in such cases whether a claimant’s needs were met in a reasonable manner by the provision of residential care, possibly by supplemented by top up payments (see the Crookdale case heard at the same time as Sowden). These considerations were not relevant in this case which concerned a claimant whose cognitive and intellectual powers had survived her injury and where it was axiomatic that she had to be assisted in obtaining as normal a family life in her own home as was reasonably possible.

No deduction from the award of damages to the claimant reflect the possible continued availability to her of direct payment from the local authority would be made.

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