Damaged
Date: 31 July 2009
Authors: Andrew Ritchie QC
Issue: Vol 159, Issue 7380
Categories: Features, Personal injury, Training & education
In the first part of this article, I examined the main principles and the law related to a claim for damages for additional educational needs (see NLJ, 24 July 2009, p 1055). In this follow up, I consider the arguments claimants can use to persuade a court to award damages for the additional costs of education where it is available on the state.
The first step in assessing the educational needs and costs in a brain damage case is to obtain a report from an educational psychologist on the child’s special educational needs.
If the child’s needs are being met by the state and there is no need for more in future then no claim will arise. However, if the expert advises that the state provision is inadequate or will soon become inadequate then a claim for damages for additional educational provision will arise.
Compulsory insurance
The claimant’s first argument is that the tortfeasor should pay not the state. That is one reason why there are statutory requirements to have insurance for employers’ liability and road traffic liability.
In Freeman v Lockett [2006] EWHC 102, [2006] All ER (D) 73 (Feb) the claimant was a 38-year-old woman who suffered a broken neck in a road traffic accident. She was tetraplegic. She claimed damages for personal injuries including the past and future care.
The care claim was at £133,421 pa. The defendant defended part of the care claim on the basis that the claimant was receiving and would continue to receive (partial) local authority (LA) paid for care in her home (at about of the level claimed). The LA had a policy at that time to charge for such care where the claimant had capital over £20,500. The defendant refused to offer an indemnity if the LA did decide to charge for the care.
Mr Justice Tomlinson awarded the claimant the full private cost of her care. He rejected the argument that the claimant should rely on LA care.
There were financial and political reasons why that LA funded care might decrease over the years and why the LA might charge for it: “Naturally I accept that the principle involved is compensation and that one should avoid, so far as possible, double recovery, but I would have expected that the purpose of an award of damages against a tortfeasor would in these circumstances be to relieve the victim of his negligence of the necessity to resort to state funding of his care, thereby incidentally relieving the state of the necessity to find the care of that victim and ensuring that the state is limited and hard pressed resources are available to fund care in the case of those whose injury…has not come about as the result of the actionable fault of another…”
In Crofton v NHSLA [2007] EWCA Civ 71, [2007] All ER (D) 106 (Feb) the Court of Appeal recognised the force of Tomlinson J’s argument but also restated the subsidiary principle that if there was no loss then there was not a claim.
Parental choice
If the parents make it clear to the court that they have not and will not require the local education authority (LEA) to pay for the education of the brain damaged child, this is a justification for making a full award for the costs. Comparing this argument with care claims: in Freeman the claimant undertook not to seek public funding for her care needs and received an award for funding the care privately.
It is the parents choice how to educate their child and by Education Act 1996 (EA 1996) s 324(5) the state is required to pay for the child’s education under a Statement of Special Educational Needs (SEN) “unless the child’s parent has made suitable arrangements”.
So if the parents choose an independent school and do not want the LEA to pay a claim for damages arises. The best argument in the claimant’s armoury is that the child’s need will best be met if the parents have financial control over the provision of the special educational services. LEAs are subject to politics, scandals, financial collapse, costs cutting, inadequacy and all sorts of other problems.
There can be no certainty that an LEA will provide adequate special assistance for a brain-damaged child.
Evidence of inadequacy in state provision
Often the best way to prove that the LEA service will be insufficient is to obtain the LEA Statement of SEN and compare it with the expert forensic educational psychologist’s report obtained within the claim.
If the latter recommends services far more extensive than the LEA the case is proven. So to achieve this the claimant’s lawyers should consider withholding the medico-legal educational psychologist report from the LEA while the LEA is carrying out the assessment.
Advice should also be given to the parents about their approach. This often occurs in care claims where the LA’s s 47 Assessment is an exercise in stingy cost cutting not provision of adequate services to an injured person.
Damages not awarded: arguments
The defendants’ arguments to defeat a claim for damages for the additional costs of providing special educational needs are as follows:
Free provision on the state
LEAs are required to provide special educational needs and must not charge. So there is no loss.
Control
Unlike with care claims, the parents have an express role in the assessment of SE needs and so can alter and construct the Statement of SEN. The LEA is required by the Act to take the parents’ requests into account. The court in a personal injury case can be certain that this will occur.
Additionally the parents can appeal the Statement of SEN to an independent tribunal and the recommendations in it can be tested and approved by an expert panel. Why should a personal injury judge substitute his view on the child’s needs for the views of experts on the SEN tribunal panel?
Making the right argument
A claimant can recover for the costs of non-educational ancillary services required under a SEN: occupational therapy and physio and transport and speech therapy and so on.
Damages for the costs of providing the claimant’s special educational needs are more tricky. It is not clear which line of argument will succeed. I favour the right of the claimant to recover from the Defendant tortfeasor with compulsory insurance and to choose how to control the brain damaged child’s education in future.
If the Court of Appeal’s views in Peters v East Midlands [2008] EWHC 778, [2008] All ER (D) 160 (May); and [2009] EWCA Civ 149; prevail then such awards will probably be made. Lord Justice Dyson said this in relation to a claim for damages for the cost of care and accommodation: “[53} Having reviewed these authorities, we can now express our conclusion on this issue.
We can see no reason in policy or principle which requires us to hold that a claimant who wishes to opt for self-funding and damages in preference to reliance on the statutory obligations of a public authority should not be entitled to do so as a matter of right.
The claimant has suffered loss which has been caused by the wrongdoing of the defendants. She is entitled to have that loss made good, so far as this is possible, by the provision of accommodation and care. There is no dispute as to what that should be and the Council currently arranges for its provision at The Spinnies.
The only issue is whether the defendant wrongdoers or the Council and the PCT should pay for it in the future.” And “[56] In our judgment, therefore, provided that there was no real risk of double recovery, the judge was right to hold that there was no reason in principle why the claimant should give up her right to damages to meet her wish to pay for her care needs herself rather than to become dependent on the State.
The judge was right to be concerned about the possibility of double recovery to which we now turn.”
However, until there is a definitive judgment or a statute passed governing the recovery of such damages we shall just have to make the arguments ourselves.
Andrew Ritchie QC, 9 Gough Square.
E-mail: aritchie@9goughsquare.co.uk. Website: www.9goughsquare.co.uk
Share this page
