Family vs professional care - part 2: calculating costs and compensation
Once a decision has been made on the care that is required, it is easy to instruct an expert who will visit the home and assess the requirement for care and the cost. It is essential to find one who really knows the subject and does not undervalue the need. If the judge decides that the assessment is sensible and reasonable, he will award the full cost of such care; that is to say, he will award precisely what it will cost the family to purchase the level of care decided by him as appropriate.
If the circumstances are such that the family decide that they will take on the long-term burden (I know that they would say that it is not a burden, and that is what families are for, but nevertheless, objectively, it does remain a burden), then the care expert will still be needed, to assess how much family care is necessary, and what the cost of similar professional care would be. If the judge decides that the assessment is reasonable, he will award the cost assessed by the expert for professional care, but will deduct, generally, 25% from that figure. The reasoning is said to be that family members do not have to pay tax or National Insurance, and therefore should not receive the same pay as professionals. This method of valuation of family care is named after one of the major cases in which it was debated: Housecroft v Burnett 1986 1 All E. R. 332.
I am very unhappy with this approach. My first concern is that the lives of many family members will have been ruined or damaged by the injury, and it seems to me to be rubbing salt into the wound to tell them that the love and affection which they lavish on the patient is not worth as much as an outsiders' professional services. Secondly, I often feel that, if we were to give family members a clear explanation of the price they would receive for giving up their jobs or their lives, and gave them the option of good professional care, many of them would prefer the chance to rebuild their lives. Of course, the system currently relies on them heavily, and psychologically many people take years to work through the grieving process, coupled with a feeling of guilt which is almost never justified. Thirdly, I would have thought that, if you offered many people a free choice whether they wanted to take on an exceptionally difficult job for the hourly rates which are paid, most would refuse. Fourthly, I am not convinced by the tax and national insurance explanation.
In fact, I see a strong argument in favour of family carers being paid more than professional carers. The former sacrifice their lives (my words, not theirs), whereas the latter are merely doing a job, and can move on any time they like. In a very few cases, judges have awarded family carers more than professionals, but at present the law would insist on it being demonstrated that the care given by the family was over and above the normal services of a professional.
There have been cases where family care has been assessed above the value of a single professional carer, but that is not because family care is worth more (as I think), but because it was demonstrated that the amount of care given was equivalent to more than one person. A good example is Hogg v Doyle: Kemp & Kemp A2-006/1. The tetraplegic claimant's mother gave up her job as nurse to look after him, and the judge decided that she had probably done the work of two full-time nurses; he awarded one and a half times the value of one nurse (why not twice the value, I wonder?). The Court of Appeal said in a later case (Fitzgerald v Ford  P.I.Q.R. Q72) that Hogg v Doyle did not establish a principle.
The deduction of a percentage of the damages in accordance with Housecroft v Burnett is not a rule of law, and is not universal. In a case in which I appeared for the claimant, Lamey v Wirral Health Authority: Kemp & Kemp A4-120, the judge considered the reasoning in Housecroft and said that nevertheless he considered that parents' care of their disabled child should be assessed "not only quantitatively, but also qualitatively. It is not only the number of hours ....but also the standard of that care...." Far from deducting a percentage, he awarded more than the experts' valuation of parental care.
The difficulty which often arises is in assessing the true nature of the family care. If you consider the case of a young person who sustains a severe brain injury, his parents may tell you that one of them stays with him all day, and they never leave him on his own at night. However, if you used the Barthel Index you would find that the injured person is independent, and some experts would tell you that therefore no care is needed. If you take the alternative view, which I think tends to produce a more reliable result; you would ask what care would be needed if the parents were completely unavailable. In the example above, if the parents were not looking after their child, they would say that 24 hour, 7 day care would be necessary, not to help their son clean his teeth or wash his face, but to get him out of bed, remind him to do his teeth and wash, prompt him to make and eat breakfast, and then provide him with the motivation which he has lost, but which he needs so that he can have quality of life. The Court of Appeal in Fitzgerald v Ford tended, I think, to minimise this problem, by suggesting that family carers who are available 24 hours a day would have been there in any event, and will be doing jobs that they would have been doing in any event.
Unfortunately, that may place pressure on families to return to work, rather than spend 24 hours a day caring, only to have a judge tell them that they will be paid a fraction of what a professional carer would receive. My advice is that claimants and families should do what is appropriate for them, and should never arrange their affairs with a view to increasing the claim.
One point to note is that if the person providing care is the person who caused the injury (for example, husband driving carelessly at the time of the injury to the wife or the other way round), the Courts do not allow any payment for the value of care he provides. The idea is that the negligent party ("tortfeasor" in legal terminology) should not profit from his wrongdoing and, as damages for family care are meant to be used to compensate the family member for his or her work, that rule would be breached. Silly really, because it increases the incentive for the family to arrange professional carers, thus increasing the cost to the insurance company.