Cerebral palsy negligence news


What is a neonatal brain injury and how do I claim?

What is a neonatal brain injury?

Neonatal literally means newborn. In medical terms, the neonatal period relates to the first few weeks of life. A neonate is a newborn baby. Neonatal care is the specialist care of babies – often born prematurely, unwell or who are small for their gestational age – within the first weeks of life. Neonatal care usually takes place in a neonatal unit (NNU) or special care baby unit (SCBU) or a neonatal intensive care unit (NICU), depending on the level of monitoring and treatment and breathing support that is needed.

Can I get Legal Aid for a neonatal brain injury medical negligence claim?

Legal Aid is available for birth injury and neonatal claims resulting in neurological injury where the injury was caused during the mother’s pregnancy, the baby’s birth or the first eight weeks of the baby’s life. Where our specialist brain injury lawyers believe the severely injured child has a viable claim and they are eligible for Legal Aid, Boyes Turner make a Legal Aid application on the child’s behalf.

Does my newborn baby’s admission to NICU, NNU or SCBU mean that they have a claim for negligence?

There are many reasons why a newborn baby might be admitted to a neonatal unit. Some of the more common reasons include:

  • They need help with breathing and maintaining their oxygen levels by ventilation or continuous positive airway pressure (CPAP)
  • They are at risk of hypoglycaemia and need close monitoring and help with feeding to maintain their blood sugar and nutrition
  • Their heart rate needs monitoring
  • They are at risk of kernicterus and need phototherapy for jaundice
  • They are recovering from or are receiving treatment for an infection
  • They are recovering from surgery or other treatment
  • They need therapeutic cooling after suffering HIE (hypoxic ischaemic encephalopathy - brain damage from lack of oxygen)

Premature babies (born before 37 weeks of pregnancy) or those with very low birth weights often need neonatal care as they need more support and are at greater risk of complications.

In full term babies (born after 37 weeks) who have been admitted to a neonatal unit, most admissions relate to problems with respiration, hypoglycaemia (low blood sugar), jaundice or asphyxia. NHS Improvement has identified poor treatment associated with these conditions as potential causes of greatest harm which, where causing serious neurological injury, can give rise to a claim.

In a patient safety alert in 2017, NHS Improvement said: “It is a priority for the NHS to reduce avoidable harm that can lead to full-term babies (babies born after 37 weeks of pregnancy) being admitted to neonatal units. The number of unexpected admissions to neonatal units is seen as a proxy indicator that preventable harm may have been caused at some point along the maternity or neonatal pathway.”

Perinatal asphyxia or HIE, respiratory problems from meconium aspiration during birth, kernicterus from untreated jaundice, delayed treatment of infection and neurological injury from untreated hypoglycaemia are the most common neonatal brain damage claims that we see at Boyes Turner. Our clients come to us at many stages of their child’s development - shortly after birth, in early childhood or in teenage years - depending on when the damage becomes evident. Negligent medical treatment of the newborn child can cause severe disability which lasts far beyond the baby’s first few weeks.

Neonatal brain injury can present with a wide range of features. Once the damage is done, the injured areas of the brain cannot recover and as the baby grows and develops, the full extent of the problems caused by the neonatal injury are gradually revealed. These impairments can range from near normal development to a diagnosis of cerebral palsy and can present as:

  • delayed development
  • missed early years milestones
  • behavioural problems
  • difficulties with feeding or speech
  • impaired fine motor control
  • damage to the senses
  • spasticity
  • athetosis
  • severe cognitive damage. 

If you are caring for a child who has suffered a brain injury from negligent care at birth or in the first few weeks of life, contact us by email mednegclaims@boyesturner.com.

Neonatal hypoglycaemia is a cause of brain damage - how do I know if my child has a claim?

What is neonatal hypoglycaemia?

Neonatal hypoglycaemia is a common metabolic condition in newborn babies which, if left untreated, can cause long-term brain damage and disability. Hypoglycaemia means low blood glucose or sugar. It becomes dangerous when the newborn’s blood sugar drops below safe levels, such as before the baby has established a regular feeding pattern enabling it to keep its blood glucose up in the first few days of life. 

What are the risk factors for neonatal hypoglycaemia?

Until adequate feeding is established all newborn babies are at some risk of hypoglycaemia, which is why it is part of the post-natal midwives’ job to ensure that the baby is receiving enough milk. The baby’s blood sugar is measured by a heel-prick blood test and is carried out routinely in some hospitals but should always be carried out for babies who are known to be at risk.

Those at increased risk include:

  • Newborn babies with birthweights below 2.5kg - the standard threshold level below which the baby’s blood glucose must be monitored
  • Babies with diabetic mothers
  • Babies who are small for dates with intra-uterine growth retardation (IUGR)

Regardless of birthweight or their mother’s state of health, any baby who is not feeding properly could be at risk, for example by:

  • Not waking up for feeds
  • Not sucking properly
  • Demanding feeding very frequently because they are not getting enough food at each feed

Is neonatal hypoglycaemia a medical emergency?

If acted upon quickly, neonatal low blood sugar can be corrected quickly by feeding, either by breastfeeding if that provides enough milk, by expressed breastmilk or formula milk or, if necessary, intravenously by a glucose drip.

In a review of medical negligence claims relating to neonatal hypoglycaemia, NHSLA (the NHS Litigation Authority, now known as NHS Resolution, which represents the NHS in legal claims) found that abnormal feeding behaviour was very closely associated with the condition, both as a cause and as a potential consequence of hypoglycaemia. Maternal concerns about abnormal feeding behaviour were often ignored by health professionals, missing a vital opportunity to take action to prevent hypoglycaemia before permanent damage was done to the infant’s brain.

If neonatal hypoglycaemia is severe or is left untreated, the baby’s condition will deteriorate, demonstrating other signs of illness. Neonatal hypoglycaemia with abnormal clinical signs must be regarded as a medical emergency requiring immediate action to avoid permanent brain damage and severe neurodevelopmental disability. Abnormal signs which are commonly seen with hypoglycaemia include:

  • Hypothermia (low body temperature)
  • Floppiness
  • Fitting or jitteriness
  • Infection
  • Respiratory (breathing) difficulties

Hypoglycaemia can also occur alongside and in combination with other serious conditions.

My baby has brain damage from hypoglycaemia – do I have a claim?

In its review of 25 neonatal hypoglycaemia claims which succeeded against the NHS over a ten year period at a total cost of over £162 million, NHSLA identified the most common errors in clinical care as:

  • Delays in obtaining blood glucose test results
  • Delays in taking action on a low blood glucose result
  • Delays in referring babies to the paediatrician once concerns have been identified
  • Delays in admitting babies who have been diagnosed with clinically significant hypoglycaemia to the neonatal unit (NNU)
  • Delayed administration of intravenous glucose on the NNU
  • Insufficient glucose being administered to correct the hypoglycaemia
  • Delayed attendance by the paediatrician when called by the midwife to review
  • Failing to advise the mother properly when the baby is discharged home.

Unlike asphyxial (oxygen deprivation) causes of perinatal brain injury, neurodevelopmental disability from neonatal hypoglycaemia might not be obvious to the parents in the immediate aftermath of the traumatic birth or the infant’s early childhood. Neurodevelopmental disability from avoidable neonatal hypoglycaemia might be disregarded or downplayed until the child grows and the impact of their injury later becomes evident when they struggle to cope at school.

In its review, NHSLA said it was likely that whilst the cases they knew about were those where the parents had identified potential deficits in care, it is likely that others who were harmed have not been notified to NHSLA via the litigation process.

Boyes Turner’s specialist brain injury solicitors are experienced in obtaining compensation for children and teenagers with neurodevelopmental injury from avoidable neonatal hypoglycaemia. We work with experts to ensure that, where liability for the injury is established, the extent of the injury and the impact on the individual’s mobility, cognition, education, work and independence is properly assessed to ensure that our clients are properly compensated. In addition, our special educational needs (SEN) team can help families with children affected by neonatal brain injury secure the educational support that they need for their child within the school that is right for them.

If you are caring for a child who has suffered neurodevelopmental disability from negligent medical care, contact us by email mednegclaims@boyesturner.com.

How to apply for a Disabled Facilities Grant (DFG)

As I mentioned in the first of this series – What is a Disabled Facilities Grant (DFG)? – this piece looks at how to apply for a grant.

The first step in making an application for a Disabled Facilities Grant (DFG) is to contact the local council. Some councils have designated people who deal with DFG applications. Others will advise you to contact the local Social Services department.

The council’s approach to DFG’s

Whatever the council’s approach, the matter is always referred for a Local Authority Occupational Therapist (OT) to undertake an assessment. Most councils will insist that the assessment can only be carried out by their own OT. They will usually not accept an assessment from any other OT, even if you have one.

The assessment process for DFG’s

Most often there is a delay in the DFG application whilst waiting for the OT assessment to be conducted. Most Local Authority OTs have waiting lists. This is the most frustrating part of the application process. Waiting lists can vary greatly. Some may only be a few weeks; others can be up to two years.

The OT will assess the needs of the disabled person and the proposed property to be adapted.  If the DFG works only form part of a larger adaptation project, the OT may well ask for a copy of the plans prepared by the architect.

Once the assessment has been carried out, the OT will prepare a report for the council. If the assessment is favourable, you are usually then asked to complete the formal DFG application booklet. The application should be completed in the name of the disabled person, even if it is a child.

When to expect the council’s decision

The legislation states that the council must give you a decision in writing within six months of having received a completed and valid application form. The decision in writing, which will confirm the items the council are prepared to fund, as well as their calculation of the worth, is the Approval Notice.

The Approval Notice will frequently confirm that the total amount of the works is more than the cap for the DFG. Even where the council has confirmed this, you will still only receive an amount up to the total amount allowed, e.g. £30,000 in England.

Unfortunately, the DFG application process can take a number of months. This can be difficult for families, especially if the council have stated that no work can begin until they have issued their decision.

Once the council have issued their Approval Notice confirming items to be covered by the Grant, the work or the relevant DFG work can commence.

What will a council ask for?

The council will confirm in writing whether they will pay the builders directly in respect of the grant works or provide a refund to whoever funded this work.

Most councils will only release the grant funds once the work has been completed.  Frequently, they will require the OT to reassess and confirm the works.

The council may also state that the DFG funds are to be paid out within 12 months of their Approval Notice. If there is a large adaptation project underway or due to commence, the work may take longer than 12 months. If this is the case, you may need to ensure that all of the DFG works have been completed and can be reassessed, even if other parts of the project are ongoing.

Paying back a DFG

If you are a homeowner who has received a DFG to adapt your property, the council who paid the grant will have a requirement for some, or all, of the grant to be repaid if the property is sold within a certain number of years.  For most council’s, this period is ten years. However, you should check this with the relevant council to ensure you are aware of their repayment policy.

Examples of successful Disabled Facilities Grant applications

At Boyes Turner, our court of protection team frequently get involved in DFG applications on behalf of their clients. Some examples of where we have successfully claimed a DFG for clients with awards of compensation are:

  • An 11 year old boy based in the Midlands who, as a result of brain injuries at birth, has quadriplegic cerebral palsy. He received an award of compensation in excess of £2,000,000 and was awarded a full DFG of £30,000.
  • A 7 year old girl based in Berkshire who, as a result of brain injury at birth, is now a permanent wheelchair user. She received an award of compensation in excess of £3,000,000 and was awarded a full DFG of £30,000.

National Cancer Survivors Day - A celebration of life

What is National Cancer Survivors Day?

It is an event for cancer patients (past and present), their families, carers, medical professionals and the general public to celebrate cancer survivorship.

The event aims to be an inspiration for recently diagnosed cancer patients, a collection of support for families, a celebration for survivors and an outreach to the community.

It is also an important event to bring awareness to the life-long challenges cancer survivors face every day, during and after cancer treatment.  These include physical and psychological side effects, social and employment challenges, as well as financial difficulties.National Cancer Survivors Day 2016 - Boyes Turner

When is National Cancer Survivors Day?  

National Cancer Survivors Day is an annual event which takes place on the first Sunday in June.  This year it takes place on Sunday 5 June 2016.

Are you a cancer survivor?

If you’ve had cancer and are living with the side effects of it, then you are.

The National Cancer Survivors Day Foundation defines a “survivor as “anyone living with a history of cancer – from the moment of diagnosis through the remainder of life.”

Our cancer survivors

We recognise that the effects of cancer don’t always end when treatment does.

We have many clients who are brave cancer survivors and are continuing to live with the side effects of the disease and/or the treatment.

Read about our client Josie’s cervical cancer journey and the daily challenges she now faces.

Sadly our clients could have avoided the permanent, life changing side effects with appropriate medical care.  As part of a claim, we strive for our cancer survivors to get their lives back on track by combating the everyday challenges as far as possible.

We will be celebrating National Cancer Survivors Day this year, with our cancer survivors, to honour those who have survived cancer but also to raise awareness of the difficulties cancer survivors face after treatment.

For more information on the event, see the National Cancer Survivors Day Foundation website.

Property adaptations: building the home you deserve

Purchasing your very first home is a real achievement for many people. The stress involved in the negotiations and completion can be soon forgotten when you first walk through the front door, cook your first meal there, or wake up in your bed for the first time. An Englishman’s home is his castle. Or so they say. But for many of our Court of Protection clients, the majority of them children, they will never understand that they are a homeowner and they are unable to take those first steps through their front door.

Whether our clients are injured at birth, or suffer an injury later in life, their lives and the lives of their families are changed forever. They deserve to live in a home that they can use and is adapted to their individual needs, and they need it quickly. At Boyes Turner we have helped countless families purchase and adapt a home when their personal injury claims are ongoing and our specialist Court of Protection team is here to help.

Whether it is a matter of an annex for a care team, a through-floor lift, a tailor made bathroom, or all of the above and more, the independence and quality of life that our clients gain from the work that we do is invaluable. And although many of our brain-injured clients will never have the mental capacity to fully understand the work that we do on their behalf, knowing that they are comfortable and secure for the first time is so gratifying.

Ruth Meyer, who heads up the Court of Protection team at Boyes Turner, was appointed Deputy for property and affairs for T, who was brain-injured at birth as a result of negligent medical treatment. T was diagnosed with quadriplegic cerebral palsy and needed a home that was adapted to her individual needs. T needed hoists to get in and out of her wheelchair, a fully adapted bathroom, through-floor lift, widened doorways and level access throughout. She now has all of these.

Lead by Ruth, the Court of Protection team at Boyes Turner managed agents to search for a suitable property and negotiate the purchase. We liaised with occupational therapists and secured the maximum local authority grant to get her a home suitable for her needs. T and her family are now finally comfortable, secure and able to get on with their lives.

Assisting with property adaptations - Boyes Turner, Court of Protection specialists

What is a Disabled Facilities Grant (DFG)?

A Disabled Facilities Grant (known as a DFG) is an amount of money provided by a local council. It is potentially available to a person if they are required to change their home as a result of themselves, or a family member within the home, being disabled. The grants have been made available by the government under Part 1 of the Housing Grant, Construction and Regeneration Act 1996.

Some examples of items that could be funded by a local council DFG are:

  • Widening of doors for wheelchair access.
  • Installing a ramp to make accessing your home easier.
  • Stair lift.
  • Heating system changes to meet your needs.
  • Changes to heating or lighting controls to make them easier to use.
  • Creation of a downstairs bathroom or wet room, to include items of equipment.
  • Ceiling track hoists.

The above list is however not exhaustive and can change, depending upon an individual’s need following an assessment.

How much will I get if I apply for a Disabled Facilities Grant?

For a disabled adult, the amount received from a DFG will depend upon household income. Eligibility for a DFG for a disabled adult is means tested. As a result, the income and capital of the disabled person and their spouse or partner (collectively referred to as the relevant person) is considered.

Separate to the amount of income the relevant person has in the household; if the household has capital in excess of £6,000 then the means test will mean that you are not eligible. However, if you do not have a working spouse or partner in the household and are in receipt of benefits, you may well be eligible.

People who have received awards of compensation may still be eligible if the funds are held in Trust or are under the control of a Court of Protection appointed Deputy.

Depending on where you live in the UK, the maximum grant available can vary, as follows:

  • England – up to £30,000.
  • Wales – up to £36,000.
  • Northern Ireland – up to £25,000.
  • Disabled Facilities Grants are not available to those who live in Scotland.

You can apply for a DFG if you are a homeowner or a tenant.

Most councils will require you to have employed an architect or a surveyor to plan and oversee the work to the property.

Using a Disabled Facilities Grant to adapt your home

Many councils require you to apply for a grant before any work on the property has begun. The way the council deals with when the work can start varies greatly. Some councils will allow adaptations to commence while the DFG application is being considered, although the work or equipment relevant to the DFG application cannot be started. However, some councils will state that no work whatsoever can be commenced until the outcome of the DFG application has been determined. This would be irrespective of whether the work impacts upon items to be claimed as part of a DFG.

The council will confirm their position in writing. You must always ensure you know the council’s stance on the work commencing before it starts. A DFG application cannot be made retrospectively. A council can also reject an application if the work has started before they have given permission for it to start.

Many councils will require at least two quotes from different contractors. If the DFG appropriate works form part of a much larger property adaptation project, the council may require sight of the tenders. You should ensure that the council has confirmed their requirements in this regard.

If the DFG works form part of a larger adaptation project, the council will usually allow you to choose which contractor you prefer. You will however be required to advise the council which contractor has been chosen.

Examples of successful Disabled Facilities Grant applications

At Boyes Turner, our court of protection team frequently get involved in DFG applications on behalf of their clients. Some examples of where we have successfully claimed a DFG for clients with awards of compensation are:

  • An 11 year old boy based in the Midlands who, as a result of brain injuries at birth, has quadriplegic cerebral palsy. He received an award of compensation in excess of £2,000,000 and was awarded a full DFG of £30,000.
  • A 7 year old girl based in Berkshire who, as a result of brain injury at birth, is now a permanent wheelchair user. She received an award of compensation in excess of £3,000,000 and was awarded a full DFG of £30,000.

Reflections - My London Paralympics 2012 pilgrimage by Alexander Christmas

We would like to introduce our guest writer, Alexander Christmas, who has kindly agreed to provide three short articles for our website. Alexander has been a client of the firm for many years. We manage his Personal Injury Trust which was set up due to injuries at birth which meant that Alexander has quadriplegic cerebral palsy.

Despite these disabilities Alexander is living life to the full and is currently studying for his Masters at The University of St Marks and St John in Plymouth. This series of short articles is on topics that Alexander has personally experienced as a person with disabilities and this article on the London Paralympics is the first of three:

I cannot believe it has been over three years since I was lucky enough to attend a number of events at the London 2012 Paralympic Games. Like the rest of the country, I was thrilled when London was selected to host the greatest show on earth. Although I greatly enjoyed watching the Olympics on television, it simply is incomparable to witnessing the sports first hand. 

The journey from Devon to London was an unforgettable adventure in itself.  Travelling with a handful of likeminded disabled teenagers, the five hour coach trip was filled with laughs (most of them inappropriate!) and very much set the mood for the rest of the week. Our accommodation was… interesting to say the least. Renting out miniscule student digs for disabled teenagers with large powerchairs and other bulky equipment was an unusual choice but somehow we all survived with ourselves and our gear relatively intact.

Navigating the city and Olympic park was definitely a new experience. Not being a fan of crowds, I was hugely nervous and apprehensive about the thought of navigating through potentially thousands of people. Luckily, the positive atmosphere and can-do attitudes of the people I was with carried me through and helped me overcome my worries. I’m very proud to say that I did not hit a single person with my chair for the whole of the trip.

The park itself was an amazing sight to behold in person. Despite the volume of people who were present at all times, there were enough sign posts to ensure that everyone knew exactly where they were going with little chance of getting lost. It was an amazing sight to see so many euphorically happy and enthusiastic people. From the first moment I entered the park, I knew I was in for something special.

During the four day visit, I was lucky enough to see three events. First of all was the Swimming. The atmosphere inside the Aquatic Centre was what made this so special. There was nothing but positivity with the entirety of the crowd cheering until the finial swimmer finished. Although it was only the heats, it felt like I was watching the final.

Next up was Archery. Whereas I was sat at the back in the Aquatic Centre, I had a front row seat for the Archery. I was so close I was able to high-five the British competitor as he wheeled along less than a metre in front of me. I have never been a fan of Archery, but once again the excitement of seeing an international competition in the flesh was nothing short of thrilling.

Finally, it was Wheelchair Basketball in the O2 arena. As with the Archery, I did not have a huge interest in Basketball, but the setting and the crowds really made it for me. Knowing a few people who play Wheelchair Basketball, It was thrilling to be able to see it being played at such a high level.

The London Paralympics truly was a once in a lifetime event. Even though it was three years ago, the memories of it are still fresh in my mind. I doubt I will experience another sporting event so utterly magical and unforgettable.

Success for our solicitor in the Older Client Care in Practice (OCCP) Award

Partner Ruth Meyer is a member of Solicitors for the Elderly (SFE), which is the leading training and best practice organisation for solicitors who specialise in older and vulnerable clients.

SFE provides practical advice, knowhow and best practice information for working lawyers and signposts members of the public who are seeking solicitors specialising in working for the elderly and vulnerable.

Ruth has recently completed the Older Client Care in Practice (OCCP) Award, an externally accredited award, focusing on specialist client care skills that enable them to advise and support older and vulnerable clients.

The majority of our clients are vulnerable due to either a brain injury acquired at birth or in infancy, or following an accident, or caused by the onset of a disease, such as dementia. We are particularly conscious of our disabled clients. Our office has parking for the disabled immediately outside, a ramp to the main door and lift access to our offices on the 4th floor. Some of our clients are particularly sensitive to light or heat and we adjust our meeting rooms accordingly to suit their needs.

In order to act for our vulnerable clients in the most effective way, we seek to assist them not just with legal knowledge but by being aware of their additional needs, for example considering where the most appropriate location for a meeting might be, explaining legal matters to them in a clear way or keeping in mind what issues are particularly important to them when assisting them with their financial affairs.

The OCCP Award is not about legal training; its focus is on demonstrating and building good client service and communications for older and vulnerable client by being able to communicate and translate legal expertise into clear explanations and guiding them through the process sensitively. Ruth will continue to use her skills to assist our most vulnerable clients with the variety of issues which they have to deal with every day.

Congratulations to Ruth for completing the OCCP Award!

VAT exemptions available for disabled people

Many of our clients qualify as disabled under the Equality Act 2010 and are therefore entitled to an exemption of Value Added Tax (VAT) on products adapted to their use and the installation, maintenance of and parts for those products. There is also an exemption available on building works to adapt properties for disabled people and vehicles for wheelchair users. This article looks at some of the items which qualify for VAT exemption.

For VAT purposes a person qualifies for VAT exemption if they:

  • have a physical or mental impairment that affects the ability to carry out everyday activities, e.g. blindness or
  • have a condition that’s treated as chronic sickness, e.g. diabetes or
  • are terminally ill.

There are a wide range of products for the home to which the exemption applies such as:

  • adjustable beds
  • stair lifts
  • smaller items such as alarms
  • braille paper
  • wheelchairs, mobility scooters and aids to assist with getting in and out of vehicles.

VAT is currently charged at 20%, so this is a valuable exemption. For example, a wheelchair can cost £5,000 so the VAT would be an additional £1,000.

We have a number of clients who have cerebral palsy, often caused by negligence at birth. Many of our clients require a property which is significantly adapted to their daily needs. These adaptations include building extensions for therapy rooms and hydrotherapy pools, the installation of adapted bathrooms or wet rooms, fitted hoists and tracks to assist with lifting and moving between rooms in the property and widened doors and ramps to allow for the use of a wheelchair.

Care must be taken to ensure that the VAT exemption is applied correctly to all work carried out which is designed or adapted for a disability. Adaptations which qualify for a complete exemption are ‘zero-rated’ which means that no VAT is charged by the builders carrying out the works or the supplier of the goods. Some adaptations may qualify for a reduced rate of VAT at 5% if they are for people who are over the age of 60 but not disabled or suffering from a chronic illness. This reduced rate can apply to items such as ramps, stair lifts, walk-in showers and adapted baths. It is the responsibility of the builder or supplier to ensure that the work or products are charged at the correct rate and that they are for the domestic or personal use of the disabled person. Usually it will be necessary for the disabled person, or their representative, to sign a declaration that they are eligible for the VAT exemption.

Vehicles can also be exempt from VAT, if they qualify. There are specific rules regarding zero-rated adapted vehicles for wheelchair users. There rules are very detailed but in summary, a vehicle can be supplied at zero-rate of VAT if the following conditions are met:

  • the vehicle is being supplied to a disabled person who usually uses a wheelchair to be mobile – someone who uses the wheelchair occasionally or temporarily will not qualify
  • the vehicle is permanently and substantially adapted to transport a wheelchair user or to allow a wheelchair to be carried
  • the vehicle is for the domestic and personal use of the disabled wheelchair user
  • the user has given the necessary VAT declaration.

The repair and maintenance of an adapted vehicle can also be zero-rated if the work relates to a vehicle that was zero-rated when it was originally supplied and if the necessary VAT declaration is given by the customer.

It should also be remembered that disabled people who receive the higher rate mobility component of Disability Living Allowance or the enhanced rate mobility component of Personal Independence Payment are exempt from paying vehicle tax.

If you are a Deputy or a solicitor for someone who is disabled or has a long-term illness, claiming a VAT exemption on goods or services should not be overlooked and, particularly with regards to large-scale property adaptations, the VAT rating for all work and products must be checked to ensure that the correct rate has been applied.

Direct payments and the Community Care Act 2014

I act for a young lady called Jane who was injured at birth. She is now 23 years of age and suffers from cerebral palsy and severe learning difficulties. Her needs are considerable and her mother and a team of carers work tirelessly to assist her. She will never lead a normal life and needs assistance with the most basic things. 

Fortunately Jane received an award for compensation for negligence when she was ten years old and this is used to pay for her carers and other expenses such as equipment. The costs add up quickly though and there is no annual periodical payment! Jane’s lump sum award, although carefully invested, has not been able to keep up with the demands of her increased care fees.

The care costs were averaging around £70,000 per year and various forecasts and calculations showed that the Trust would run out of money once Jane was in her late 30’s and then she would be fully reliant on State support.

Jane was assessed by her Local Authority for direct payments. Her actual income from the Trust was insufficient to meet her care needs and direct payments were granted to cover the majority of her care.

However, what are the rules on entitlement to direct payments? What is the impact of having a Personal Injury Trust or an award of compensation managed by a deputy of the Court of Protection.

Presently this is a very grey area. As the law stands, Local Authorities have a discretionary power to make reasonable charges for non-residential services for adults such as carers at home and service users, such as Jane, can be allocated a personal budget to fund their care by way of direct payment.

The Department of Health issued mandatory guidance to Local Authorities in the “fairer charging policies for home and care and other non-residential social services”. This was last updated in June 2013 and should be read in conjunction with “The Fairer Contributions Guidance 2010” which sets out how Local Authorities calculate the contribution a service user should make.

My client, Jane, was allocated a personal budget to fund her care by way of direct payments and her mother helped organise and pay for the carers from this. However, the amount payable (subject to financial assessment) is at the discretion of the Local Authority and whether you receive direct payments or not depends on which Local Authority you are in and their own resources.

Before a payment can be made the Local Authority undertakes a means test of the service users resources and the majority of service users income is required to be paid towards the cost of the care.

However, charging disregards for personal injury awards are not specifically mentioned in the “Fairer Charging Guidance” for adults who need care at home.

In the case of Crofton vs NHS Litigation Authority [2007] EWCA Civ the Judge held that the treatment of income was a matter for the discretion of the Local Authority. The consequence of this is that some Local Authorities will take it into account and others will not for means testing purposes. In addition Crofton did not specifically focus on the capital disregards of a Personal Injury Trust and it has remained a grey area.

This has led to arguments with the Local Authorities as to whether the capital and income of a Personal Injury trust should be taken into account.

The good news is that the Community Care Act 2014 comes into force as of 1 April 2015 which creates a single framework for the charging of the care and support and clarifies matters. From this the mandatory guidance makes clear that income from a Personal Injury Trust, including those administered by the Court such as Deputyships must be disregarded. This has now removed any doubt and provides clear guidance. This is a great relief for Jane and her family who have constantly worried that the Local Authority would remove support and this would have ultimately meant the depletion of her funds and full reliance on State support in the future.

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The service was personal, professional and considered. I was treated so kindly and in the end I knew that not only had I found the right organisation but also the right person.

Boyes Turner client

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