Social Care, Compensation, and the Archon of Athens

In Peters v East Midlands Strategic Health Authority & Ors [2008] EWHC 778 (QB) (12 May 2008), the question was whether the party paying compensation should be entitled to have regard to the statutory community care scheme, so as to reduce the compensation payable by the state's contribution.

This is an argument that has been rehearsed before, with complicated reasoning about whether a failure to take advantage of the state is a failure to mitigate loss, and about the consequences of the statutory rules on the treatment of a personal injury award.

This particular case took a different turn. The Court held, in effect, that the injured party was under no obligation to rely on the vagaries of state funding (which, as we know, can include bureaucratic obstacles and financial constraints at the outset, the ever present risk that an authority will re-assess its eligibility bandings, and the risks that the demographic timebomb will lead to a complete revision of the state system).

Instead, the injured party is entitled to seek compensation on the basis that their future care needs will be met on a private self-funded basis. Bad news for insurers, doubtless, but good news for statutory social services authorities. They can now adopt a positive role with such service users, facilitating and co-ordinating care for which they will not have to pay.

Less positive for local authorities is the development in AK v Central & North West London Mental Health NHS Trust & Anor [2008] EWHC 1217 (QB) (30 May 2008). This is one of a series of cases that has looked at whether compensation for negligence is payable by a statutory social services authority that has breached its statutory duties.

Here, the local authority's arguments have been that common law duties (in negligence) may not be owed alongside statutory duties. Ed Mitchell's July Legal Update on this site dealt with developing caselaw in the Hounslow case; this is another development. Unlike the Hounslow case, the possible exemption from liability in negligence was argued at length in this case, with the authority seeking to avoid liability. The statutory duty in this case was that owed under section 117 of the Mental Health Act 1983. The court found it arguable that a duty did exist in negligence alongside the statutory duty, and the claim for compensation was allowed to continue.

The wheels set in motion by Solon, Archon of Athens two-and-a-half millenia ago continue to grind inexorably. In the present cases, that's two up for the injured parties, two down for the compensator's insurers, and one each way for the local authorities.

Oh, and I expect the lawyers on both sides of both cases got paid.

Allan Norman is Principal Social Worker & Solicitor at Celtic Knot (www.celticknot.org.uk), an independent law firm and social work practice.