Peters v East Midlands Strategic Health Authority

Posted 31st July 2009

Posted on 01-07-09 Freeth Cartwright Website.

NEWS FLASH: House of Lords refuses Defence permission to appeal in landmark Peters case.

Permission for the Defendants to appeal to the House of Lords has been refused which means that the law is as stated by the Court of Appeal i.e.

A claimant is entitled as of right to damages from the tortfeasor in preference to dependence on the statutory obligations of a local authority and that it is reasonable for a claimant to opt for self-funding and damages rather than to seek provision of care and accommodation at public expense.

The appeal judges also ruled that where a court has awarded 100% of the care costs that are necessary to meet a claimant's needs there is no duty on the case manager or Deputy to seek full public funding as well. This would otherwise amount to double recovery.

In this case the Deputy (FC partner Sue Miles) offered an undertaking to the court that she would:

(i) notify the senior judge of the Court of Protection of the outcome of these proceedings and supply to him copies of the judgment of the Appeal court and that of Butterfield J; and

(ii) seek from the Court of Protection

(a) a limit on her authority so that no application for public funding of the Chantelle's care under section 21 of the NAA can be made without further order, direction or authority from the Court of Protection and

(b) provision for the defendants to be notified of any application for authority to apply for public funding of the claimant's care under section 21 of the NAA and to be given the opportunity to make representations against such authority being granted.

The court ruled that this was an effective way of dealing with the risk of double recovery in cases where the affairs of the claimant are being administered by the Court of Protection. It places the control over the Deputy's ability to make an application for the provision of a claimant's care and accommodation at public expense in the hands of a court.

If a Deputy wishes to apply for public provision where damages have been awarded on the basis that no public provision will be sought, the requirement that the defendant is to be notified of any such application will enable a defendant who wishes to do so to seek to persuade the Court of Protection that it should not allow the application because it is unnecessary and contrary to the intention behind the assessment of damages. The Court of Appeal accordingly accepted the undertaking that had been offered.

The court also dismissed an appeal by Nottingham City Council which had unsuccessfully claimed that it was entitled to recover its accommodation costs on the grounds that the bar against recovery of those costs from compensation for personal injury did not apply to the non general damages element of the award for the costs of care. The court ruled that the language of the regulations was clear and that all personal injury compensation was exempt from attack by the authority. The local authority had not sought to appeal this decision.

Paul Balen, partner - litigation

ends - 1 July 2009


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