Child brain injury news


Introducing Kim Smerdon, head of the Personal Injury team

Kim Smerdon leads Boyes Turner’s highly regarded personal injury team. A specialist in catastrophic injury cases, Kim acts for clients with acquired brain damage, spinal injuries and serious orthopaedic injuries. We pulled Kim away from her desk for 60 seconds to answer some questions…

What motivated you to specialise in personal injury law?

During my training contract, I spent a year in the litigation department working mostly on personal injury cases. I, alongside my training partner, acted for some very badly injured people. Seeing their struggles and determination motivated me to continue to help those who needed it.

Describe the most memorable case that you’ve won for a client.

I acted for a young man who was shaken by his father when he was 9 weeks old and sustained a severe brain injury, I worked with him for a number of years, settling his case when he was 19. He was awarded in excess of 3.5million by the Criminal Injuries Compensation Authority. He is now under the care of our Court of Protection team who help him manage his compensation.

What is the most rewarding part of what you do?

The most rewarding part of what I do is seeing the difference that our involvement makes. Where I can, I arrange early rehabilitation to ensure that they can maximise their recovery. We are partnered with charities and support organisations who can help people who have sustained a serious injury get back on their feet (either literally or metaphorically!) and it’s a great to see the improvement in people we work so closely with.

Outside of work I am a trustee for Headway Thames Valley. The majority of my day job is obtaining compensation for those who have suffered a head injury and I wanted to become more involved in this area on another level and help those who don’t necessarily have the benefit of a compensation claim. Headway Thames Valley is a local head injury charity, supporting not only those with a head injury but their families too – the majority of these people do not receive assistance as part of a legal claim so it is so rewarding to be able to help those people in my local community.

What is the hardest part of your job?

The hardest part of my job is having to deal with all the changes that limit access to justice eg by severely limiting or in some cases totally excluding the recovery of costs so that innocent victims lose some of their compensation – which is often needed for ongoing rehabilitation or to cover lost past or future earnings.

What one piece of advice would you give to someone who has suffered a personal injury?

If you have suffered a serious injury as a result of an accident that wasn’t your fault make sure that you find a good lawyer who has experience of dealing with claims like yours. It’s not all about the final sum received at the conclusion of the case – we help to obtain rehabilitation as soon as possible -  both emotionally and physically – to optimise your recovery and get you back to living a full a life as possible.

Describe your average day in three words:

There is no average day! But I do find each day interesting, rewarding – and busy!

To find out more about how the team can help you or to ask about making a claim contact them by email at

Why do children need to wear cycle helmets?

The health benefits of cycling are widely recognised for children who cycle for fun in parks and off-road environments, but also on the roads to get to school. Health and fitness, as well as environmental concerns, are great reasons to encourage kids to use their bikes for getting around, but as our brain injury lawyers know only too well, there are also risks to cycling on the road. 

How can parents encourage safer cycling?

Teaching children good road sense, the highway code and ‘bikeability’ or cycling proficiency can help them avoid being the cause of an accident, but serious injury from falls and collisions can still occur even when the child is riding carefully, from dangerous road and weather conditions or the carelessness of other road users.

To protect their child’s head from severe brain injury in the event of an accident, leading brain injury charity, Headway, and The Royal Society for the Prevention of Accidents (RoSPA) both advise parents to ensure that children always wear a cycle helmet.

Does wearing a cycle helmet reduce the risk of serious brain injury?

Absolutely! The purpose of a cycle helmet is to prevent or reduce the extent of injury to a cyclist’s head during a fall from the bike or a collision. The devastation caused by severe brain injury cannot be understated. Preventing skull fracture and severe brain injury is precisely what a cycle helmet is designed to do.

What does the brain injury charity, Headway, say about cycle helmets?

Headway believe that all cyclists should wear cycle helmet and that wearing helmets should be compulsory for children. They support their strong position by saying that it is based on research and expert opinion from leading neurosurgeons, together with common sense which dictates that wearing a cycle helmet will offer greater protection to a person’s fragile skull than not wearing one.

What does RoSPA, The Royal Society for the Prevention of Accidents, say about cycle helmets?

RoSPA strongly recommend that cyclists wear a cycle helmet, which reduces the risk of suffering a serious head or brain injury in an accident. However, they point out that cycle helmets alone do not prevent crashes from happening, nor guarantee survival. They are a secondary safety feature which provide a last line of defence for the cyclist’s head.  Therefore, preventing collisions from happening in the first place must be paramount. Unlike Headway, although RoSPA firmly believes cyclists should wear cycle helmets, it doesn’t call for compulsory cycle helmet laws. 

What does the law say about cycle helmets?

Despite the protection that a cycle helmet can offer, cyclists in the UK are not required by law to wear a helmet, however, the Highway Code states that cyclists ‘should wear a cycle helmet that conforms to current regulation, is the correct size and securely fastened’.

What do the statistics from research studies say about cycle helmets?

RoSPA refers to a number of studies which have shown how cycle helmets can help reduce and prevent serious brain injury. The statistics include:

  • a Cochrane Review of five case-control studies from different countries which suggested that helmets decreased the risk of injury to the head and brain by 65%-88%, and injury to the upper and mid-face by 65%;
  • a French study found that helmets contributed to a 24%-31% reduction in head injury and a 70% reduction in head injuries categorised above level 2 (moderate injury);
  • research into police data regarding cycling crashes over a five-year period from the Road Authority of Victoria  found that not wearing a helmet increased the risk of severe injury by 56%;
  • a study by McNally and Whitehead found that helmets effectively reduced the severity of head injuries over a full range of simulations. Where head impact occurred, the risk of serious injury (above level 3) was reduced by 40%;
  • cycle helmets have been found by many studies to make less of a difference at high energy impact with a vehicle but could prevent fatality in a third of high impact RTA cases;
  • the most recent and extensive review by Olivier and Creighton compared 64,000 casualties with and without helmets and estimates that wearing a cycle helmet reduces the risk of severe head injury by 69% and the risk of fatal head injury by 65%.

Headway refers to a 2018 study in the academic journal, Accident Analysis & Prevention, which gathered the findings of 55 studies from 1989 – 2017 and found that cycle helmets:

  • reduced head injury by 48%;
  • reduced serious head injury by 60%;
  • reduced traumatic brain injury by 53%;
  • reduced facial injury by 23%;
  • reduced the total number of killed or seriously injured cyclists by 34%.

Commenting on this study, Headway’s Chief Executive, Peter McCabe, said:

“There is an overwhelming body of evidence proving the effectiveness of helmets in reducing the risk of cyclists sustaining life-changing brain injuries. This latest piece of comprehensive research is yet another part of scientific evidence that reinforces this fact. It also highlights that although cyclists can take every care to avoid accidents, at times there are simply things that are outside of their control, such as icy road conditions or other road users. Cycling is a fabulous way to keep fit and active and at Headway we are passionate about promoting safe cycling, while supporting measures to make it safer for people of all ages to take to their bikes and get pedalling. Sadly however, we also know easy it can be to sustain a brain injury and the devastating effects that can result. Our message to all cyclists is please use your head – use a helmet”

Why do some people argue against making cycle helmets compulsory?

Reasons given by people who don’t want cycle helmets to be compulsory include:

  • it was suggested that some studies showed that cyclists or vehicle drivers take more risks, (such as riding faster or overtaking at closer distance) when the cyclist is wearing a helmet, however, further analysis of this research has disproved this idea, which is also known as ‘risk compensation’;
  • cyclists may be less aware of surroundings because of the fit of their helmet; 
  • some people are concerned that helmets may put people off cycling (losing the health benefits), either because they are perceived as not cool or uncomfortable or give the impression that cycling is a high risk activity.  However, as Headway points out, mandatory use of seatbelts and motorcycle helmets were initially argued against but in retrospect the benefits are now accepted.

What CAN’T a cycle helmet do?

The purpose of a cycle helmet is to reduce the extent and severity of the injury to the cyclist’s head and brain when a collision (or fall from the bike) occurs.

Clearly, wearing a cycle helmet alone cannot:

  • prevent a road traffic accident (RTA) or fall from the bike from occurring;
  • prevent all injuries – but it reduces the chances of devastating severe brain injury;
  • change the road infrastructure or make cycling safer in other ways on the roads – that must be dealt with by the government and the highway authorities. Headway and ROSPA both call for a range of additional measures to improve cycling safety, including safe cycling lanes and campaigning for education.

How does not wearing a cycling helmet in a road traffic accident (RTA) affect a cyclist’s brain injury claim? 

If a cyclist is head-injured in a road traffic collision that was caused by another driver’s negligence and their injury could have been prevented or reduced if they were wearing a cycle helmet, the driver’s insurers may argue that their failure to wear a helmet contributed to their own injury and their compensation award may be significantly reduced. 

Knowing the facts about cycle helmets and brain injury, what CAN a parent do?

Whether cycle helmets for children ever become mandatory in the UK remains to be seen, but the benefits of cycle helmets in reducing risk of serious brain injury are clear. It’s up to parents to do what we can to encourage our children to cycle safely and wear a correctly fitting helmet, so that they can enjoy being healthy and safe on their bikes.


  • ensure that the child’s bike is roadworthy and suitable in size for the child;
  • ensure the child wears a helmet;
  • ensure the helmet is made to correct safety standards – EN1080 in the case of children’s helmets and fits properly to maximise benefit, comfort and visibility;
  • ensure high visibility clothing is worn and there are lights on the bike – some helmets have built in rear lights;
  • ensure the child follows the highway code;
  • set a good example as an adult by using good road sense and wearing a helmet when cycling.

How can Boyes Turner help?

Boyes Turner’s personal injury team are recognised as national experts in the Legal 500 and Chambers directories for their expertise and experience in helping brain-injured cyclists and their families obtain rehabilitation, care, adapted accommodation, equipment, therapies and substantial compensation following road traffic accidents.

If you or a family member have suffered brain injury or serious disability in an accident caused by someone else’s negligence, and would like to find out more about making a claim, contact us by email at

Reading Half Marathon 2019 for Headway UK

On Sunday 17 March, Kim Smerdon, Claire Roantree and Martin Anderson from our Personal Injury team ran the Reading Half Marathon to help raise over £1,000.00 for Headway Thames Valley.

Headway Thames Valley is a great local charity, which provides help and support to help people to rebuild their lives after suffering a brain injury.  They also do important campaigning work to raise awareness of the causes and effects of brain injury. Their dedicated team provides help and rehabilitation therapies across the Thames Valley.

A brain injury does not only affect the victim, but also their family, friends and colleagues and Headway Thames Valley also provide information, support and services to families and carers.

Fortunately, the weather was relatively kind, which was a relief given the storms the night before. There was also huge crowd support all the way along, which helped us make it to the finish line in the Madejski Stadium.

Kim Smerdon, head of the Personal Injury team at Boyes Turner and a trustee for Headway Thames Valley said

“as someone who has dedicated much of my career to acting for clients with brain injuries, this is a cause which is particularly close to my heart.  Headway Thames Valley give vital support to brain injury victims and their families when it is most needed and I hope that the funds raised will help them to continue their great work”

If you or a family member has suffered a brain injury, we may be able to help. Get in touch with a member of our experienced personal injury claims team to discuss making a claim by emailing them at

Making a claim after a child suffers a brain injury as a result of an accident

When a child suffers a brain injury as a result of an accident, it shatters the lives of the whole family. We understand the long and difficult journey that families can face when a child is recovering from a brain injury following an accident.

Child brain injury claims

Making a claim on behalf of a child with a brain injury can be a daunting process for families. We aim to provide information that can support you and your family on this journey and get the best results following an accident to ensure your child’s future.

Frequently asked questions

Why should I make a claim?

A child may suffer long lasting and permanent effects after a brain injury, which could impact on their ability to lead an independent life, through no fault of their own. By making a claim for their injuries caused by an accident, plus any past or future financial losses and expenses, you will be ensuring that they are financially secure in the future and have the right support, care and treatment to maximise their recovery and independence.

At Boyes Turner, we strive not only to achieve the right amount of compensation to provide financial security for a child and their family but to ensure that every brain injured child and their family has access to rehabilitation to enhance their level of recovery at the earliest opportunity.

Who should I instruct to deal with my child’s brain injury claim?

We recommend that you instruct a firm of solicitors who have expertise and a proven track record of acting for children who suffer a brain injury. Check if the firm has accreditation with the Law Society and Association of Personal Injury Lawyers and/or is an approved solicitor for Headway.

How is a child brain injury claim funded?

In personal injury claims Legal Aid is not available for children’s claims. You may have existing legal expenses insurance under a Household and Contents insurance policy and we can help you to check the policy. Otherwise, we can offer a Conditional Fee Agreement (no win, no fee).

Your child will recover their full compensation. 

In clinical negligence claims involving cerebral palsy and other acquired brain injuries, Boyes Turner has a Legal Aid Franchise to fund cases that meet the Legal Aid criteria

What is the process for making a claim?

Once instructed we send a letter of claim to the third party’s insurer (the party responsible for the injury) who then has a period of time to investigate the claim. There are 3 main aspects to prove in a personal injury claim:

Liability (fault or negligence)

If your child has suffered a brain injury as a consequence of someone else’s actions or negligence, then you will be entitled to bring a claim against the other party (referred to as the defendant). Many of our cases involve children injured in road traffic accidents either as passengers in a vehicle or pedestrians and cyclists hit by cars. We also act for children who have suffered a birth injury as a result of hospital negligence or who suffer an injury in a public place. Sometimes a defendant might argue that a child was partly to blame (for example by running out into the road) and this is known as contributory negligence.

Causation (that the brain injury was caused by someone’s negligence)

Once a defendant admits fault or responsibility for an accident, the next stage is to gather medical evidence which proves that the brain injury has been caused by the negligence of the defendant. 

We work alongside the very best medico legal experts to prove the nature and extent of the individual child’s brain injury, and how this has and will continue to impact on a child in their future. To ascertain this we may instruct a number of experts including neurologists, educational psychologist, neuro-psychiatrists, physiotherapists, speech and language therapists and occupational therapists. The type of experts that we instruct will depend on the type of symptoms a child suffers from as a result of their brain injury and this varies for each child.

Quantum (the value of the claim)

Once expert evidence has been obtained and we understand the nature and extent of the child’s brain injury, we will then start to gather evidence that allows us to value the claim. The value of the claim depends on the individual needs of the child, both now and in their future. A brain injured child may require a care and case management expert to ensure the appropriate care package is provided or they may have difficulties with communication or mobility and require an occupational therapist and specialist equipment. If a child cannot communicate they may need assistive technology and communication aids.

What is rehabilitation?

Rehabilitation is the process by which an injured person makes the best and quickest possible medical, social and psychological recovery.

Sadly not every child will make a full recovery after a brain injury, but we believe that every child should have an opportunity to reach their maximum potential recovery, with the right access to rehabilitation. We aim to ensure that a child and their family have access to the ongoing treatment, care and support they need by securing early funding as part of brain injury claim. 

Who organises rehabilitation?

At an early stage in brain injury claim, we will appoint a child brain injury case manager; this is usually a healthcare professional such as a nurse, occupational therapist or physiotherapist. The role of the case manager is to support a child and their family in accessing care and rehabilitation to help the child grow up confidently and live a fulfilled life.

What is case management?

Case management is the holistic rehabilitation support that an individual child may need following a brain injury. It is a collaborative process which involves understanding the needs of the child and family, planning and implementing rehabilitation with a multi-disciplinary team of healthcare professionals, and providing the child and family with access to any services and support that they need to meet their individual health, social care, educational and employment needs.

A case manager may appoint and work with a number of different healthcare professionals to support the child and their family with their rehabilitation goals. 

It is extremely important that the child and their family are always at the heart of every decision made regarding the child’s rehabilitation, care and support.

What happens if my child has additional education needs as a result of their brain injury?

If your child has learning disabilities as a result of their brain injury then our dedicated Special Educational Needs team can help your child to secure the extra help and support they need, in the school they choose.

What happens when my child’s brain injury claim is settled?

Once a settlement has been agreed the Court must approve the financial settlement and how it is to be managed.

As a child does not have capacity to handle their financial affairs either because they are under 18 or as a result of their brain injury (after the age of 18), a professional Deputy is usually appointed to help the family manage the child’s financial affairs. The settlement is paid into the Court of Protection and the professional Deputy works with the family and/or case manager to ensure that the funds are spent appropriately (in the best interests of the child).

At Boyes Turner we have a Court of Protection team who advise families on how to manage their financial affairs once a settlement has been agreed.

What should I do next?

We know that for many families, the thought of a bringing a claim may seem daunting. However it is vitally important to secure the future of your child.

We aim to make the process as straightforward as possible from the first meeting to negotiating an out of court settlement, or going to court if required. Each step is always explained, along with why it’s needed and how the family will be involved.

Every brain injury claim is supported by independent medical experts to give you the best prospects of success and we have a range of claim funding options which we can discuss with you so that you don’t have to worry about funding your claim. Get in touch with a member of our experienced personal injury claims team to discuss making a claim by emailing them at

Interim payments - what they are and how they work

Serious injury compensation claims are complex and can take time to reach settlement even when liability – the issue of who is at fault – has been resolved. Some cases, such as cerebral palsy or other brain injury claims can only be valued over time.

The child may be too young for their long-term needs to be assessed straight away or there might be uncertainties about the severity of their future disability which can only be determined when the child is older. In the case of a seriously injured adult, rehabilitation may be required before the claim can be finally settled. Meanwhile, the injured person and their family’s hardship is often increased by the financial worries caused by the additional costs of caring for a severely disabled child or losing the former breadwinner’s income. 

In cases where liability is admitted but settlement is still a long way off, we can often help relieve our clients’ hardship by applying to the court for what is known as an interim payment.

What is an Interim Payment?

An interim payment is a part-payment of compensation that is paid by the defendant during litigation to the claimant. The sum can vary significantly and is often used for rehabilitation, putting in place treatment or even to ease financial hardship. The amount of the interim payment should be comfortably less than the expected total value of the claim as it will be deducted from the total settlement awarded at the conclusion of the case.

When can an interim payment be requested and how?

An interim payment can be requested once liability has been admitted or proven against the defendant. This may take place early in the claim, sometimes even before proceedings have been issued or following a successful trial in respect of liability. 

Where an interim payment is needed, before applying to the court the claimant’s solicitors usually ask the defendant to make a voluntary interim payment, explaining how much is required and what it is intended for. If the defendant does not agree to make an interim payment or is unwilling to pay an amount sufficient to meet the claimant’s needs then the claimant’s solicitors will need to make an application to the Court, justifying the sum requested in the context of the overall value of the claim and the reason that the interim payment is needed.  Documentary evidence such as a witness statement and medical reports are usually provided in support.

Do you need to go to court?

If the claim relates to child or protected party (someone who is represented by a ‘litigation friend’ in the proceedings), the permission of the court must be obtained before an interim payment is made, even if the defendant agrees to make the payment voluntarily.  The claimant rarely needs to attend court for this hearing.

At this stage, a Court of Protection deputy may be appointed to oversee the management of the money for the claimant. At Boyes Turner, our clinical negligence and personal injury teams work closely with own Court of Protection specialists to ensure that our clients’ money is managed in accordance with the court’s requirements but easily accessible to meet their needs.

What are the benefits of an interim payment?

An interim payment allows you see what works for you and your family before settlement and helps demonstrate what you will need long term. This allows us to claim the most suitable provision for you for the future.

Each individual and family’s circumstances are unique, but our clients commonly use interim payments:

  • to buy and adapt a property, so that the family home is suitable for their disabled child’s needs;
  • to pay for a rental property whilst their existing property is adapted;
  • to purchase specialist treatment, aids or equipment which is not readily available on the NHS;
  • to purchase a wheelchair and regular seating assessments;
  • to put a care plan in place;
  • to put in place therapies, such as physiotherapy, speech and language therapy, pain management etc;
  • to assist with the additional costs of caring and providing for a family member with a disability.

At Boyes Turner we have helped hundreds of disabled clients and their families rebuild their lives after medical negligence and serious personal injury. The support we give our clients in obtaining and using interim payments ensures that they can focus on rebuilding and participating in family life, whilst we work to achieve settlement of their claim.

If you or your child have been severely disabled as a result of negligence, contact us by email at

What is kernicterus?

Kernicterus is a rare but dangerous complication of neonatal jaundice in which the baby’s brain is damaged from excessive levels of bilirubin.

Bilirubin is a yellow pigment that everybody has in their blood. It is released into the bloodstream during the body’s normal process of breaking down old red blood cells.  It is processed in the liver and stored in the bile duct and gallbladder. Its function is to help the body digest fats in the small intestine, where it is known as bile, and it is then excreted along with the rest of the body’s waste. 

What is the difference between kernicterus and jaundice?

When there are excessive amounts of bilirubin in the blood and the liver is unable to process it, the first signs that the baby has excess bilirubin may include:

  • yellow discolouration of the baby’s skin
  • yellow discolouration of the whites of their eyes
  • dark staining of the urine (visible on their nappy)
  • pale chalky stools

This condition is known as jaundice and affects 60% of full term babies and 80% of premature babies during the first few days of life. Breast fed babies are at greater risk of neonatal jaundice and may suffer the effects of the condition for as long as a month.

Neonatal jaundice usually lasts up to two weeks and is usually harmless but it must be diagnosed, monitored and treated if it doesn’t resolve early to avoid the development of more serious conditions.

In addition to its own risks, jaundice can be a sign of other conditions which may need treatment, such as:

  • Infection
  • Sepsis
  • Liver disease
  • Incompatibility between the mother’s and the baby’s blood groups
  • Bruising and metabolic disorders
  • Sickle cell anaemia
  • Enzyme deficiencies

How does untreated jaundice develop into kernicterus?

When the liver is unable to process the excess bilirubin in the blood, the baby will have hyperbilirubinaemia (too much bilirubin in their blood).

Where a baby has hyperbilirubinaemia  (jaundice), their bilirubin levels must be monitored and, if rising rapidly or exceeding the threshold bilirubin levels, the baby must be treated with phototherapy. They will sometimes also need an exchange blood transfusion.

If left untreated, the toxic, unconjugated (not metabolised by the liver) bilirubin can penetrate the blood-brain barrier where it damages the brain and spinal cord, causing neurological dysfunction. This is known as bilirubin encephalopathy and its features - the pattern of damage to the brain – are known as kernicterus.

The baby may show the initial signs of kernicterus brain damage by:

  • Poor feeding
  • Failing to respond to stimulus, such as clapping hands in front of them
  • Decreased muscle tone (floppiness)
  • Seizures or fits
  • Arching of the spine

Long term disabling effects of kernicterus brain damage vary in severity but include:

  • Cerebral palsy
  • Hearing loss
  • Learning disability
  • Impaired eye movements

My baby was brain damaged by delayed treatment for jaundice – how can I find out if I can claim?

At Boyes Turner we are experts in helping children affected by severe brain damage in the birth and neonatal period. If your child has suffered brain damage from kernicterus, our specialists will be happy to advise you about whether your child has a claim arising from negligent care after your baby’s birth, or the treatment they received for jaundice either in hospital or from the community midwives in charge of their care after they were discharged home.

Legal Aid may be available if the child suffered severe neurological injury owing to negligence before or during birth or during the first eight weeks of life.

If you are caring for a child with severe neurological disability which was caused by negligent medical care of jaundice contact the team by email at

"No" to Meningitis vaccine for all children

On Monday, Parliament debated the petition signed by more than 800,000 people calling for the Meningitis Vaccine programme to be extended to all children. Currently it is limited to newborn babies, and was commenced in September 2015.

Parliament has resisted the call to roll out the vaccine to all children, saying: “We are leading the world in offering children protection from this devastating disease….our priority is to protect those children most at risk of MenB…..

The statement goes on to confirm that, “By May 2017, all children under the age of two years will have been offered the vaccine.”

You can read the full statement here.

It is disappointing that such a public campaign, which raised such a high level of public awareness and support, has not resulted in a change in policy. The government has said that to roll the vaccinations out to older children would not be cost effective.

However, the brave decision of parents like Neil and Jenny Burdett, to share the pictures of their daughter at the height of her struggle against the disease, has certainly raised the public’s awareness of it.

Faye’s parents and organisations like Meningitis Now have vowed to keep campaigning on the issue. They have spoken out to remind parents to be alert for the symptoms of meningococcal disease which include a fever, blotchy skin, refusal to feed, irritability, cold hands and feet, rash, muscle pain, and a stiff body with jerky movements or else floppy and lifeless.

Disability and Festivals - Rocking at Reading by Alexander Christmas

We would like to introduce, again, our guest writer, Alexander Christmas, who has kindly agreed to provide three short articles for our website. In his first article Alexander talked about his personal experiences as a person with disabilities at the London Paralympics.

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.

In the second of his three articles Alexander writes about the Reading Festival and his experiences there as a person with disabilities:

2013’s big After8* event, following the 2012 Paralympics adventure, was attending the annual Reading music festival.

Hailed as one of the biggest and best pop/rock festivals in the UK, I was full of the same heady mix of excitement and trepidation that I had a year previously. 

The first day was tinged with déjà vu as I boarded the After8 minibus and was surrounded by many of the same people who had also gone to the Paralympics. Although it didn’t disappear completely, seeing so many familiar faces severely decreased my trepidation and I felt ready to face what was sure to be an extremely fun-filled and tiring weekend! And yes, that does include camping… 

I had camped before for my Duke of Edinburgh award expedition, but I knew this would be very different. Boy was I right! The campsite was so tightly packed that my friends and I barely had enough room to drive our chairs around the outside of our tents! Being the most disabled member of our group, I was placed in the biggest tent. Well, I say tent… Measuring 16ft by 10ft and being 8ft tall, it looked and felt more like a marquee! Throughout the weekend, it housed another After8er and myself, along with the groups entire entourage of equipment and food. Considering the disabled campsite also had proper portaloos, showers and electricity, you could definitely argue that we were glamping! 

Anyway, onto the festival itself! The first thing that struck me was the crazy amount of people. If the Paralympics was where I began to vaguely tolerate crowds, Reading was where I truly overcame my dislike of driving through faceless masses of people. Aside from one overwhelming experience at an indoor stage, I managed to stay relatively calm and positive, much to the delight of the head of After8 who had been supporting me through my crowd issues for 2 years at this point. Reading Festival - Disability and Festivals - Boyes Turner Personal Injury Trust Lawyers

A little confession – I wasn’t overly thrilled or excited by the line-up. In terms of music, I am very main stream, whereas the majority of the acts were a bit too…‘rock-y’ for my tastes. However, I did enjoy the 2 headline acts, Green Day and Biffy Clyro, both of whose music I had enjoyed in the past. Seeing them live definitely made me appreciate them a lot more. 

Most of the time though, I could be found in the comedy tent. I was very impressed by the talent on offer, ranging from Josh Widdicombe (best known for The Last Leg) to a whole host of Mock the Week regulars, none of whom disappointed! 

So – another year, another big After8 event, another unforgettable experience. Living with a disability can be challenging sometimes, but it is experiences like these that make it all worthwhile. Given the right circumstances and attitudes, nothing is impossible. 

*After8 is a social group for 16-25’s which meets once a month somewhere in Cornwall, click here for more info. 

There are also some adventurous activities like Tall Ships voyages and camping at a music festival, and disabled young people who want to do the Duke of Edinburgh’s Award can find help to plan and achieve the expedition and other sections’.

Fifty Shades of Capacity'

A person’s legal capacity to make decisions is rarely clear cut and can often be extremely difficult to assess. This is because they may have the ability to understand one particular issue but not others. To confuse things further, also, just because a person has capacity on one day it doesn’t necessarily follow that they will have it on the next or indeed even at a later time on that same day.

Where a person lacks capacity to manage their assets and make their own decisions a deputy is appointed by the Court of Protection. I have been a professional deputy for well over a decade and much of my time is spent working directly for clients managing their affairs and finances. I also provide help and assistance to parents who are deputies for their own children and many of the questions I get asked concern welfare issues.

One of these recently came my way from the parents of one of my clients, a young lady called Sarah. She was severely injured at birth resulting in cerebral palsy and severe learning difficulties. Her general level of understanding is similar to that of a young child and up until she was thirty, Sarah lived with her parents who were also her full time carers. For the last five years she has been in assisted living accommodation, is well looked after and makes lots friends.

The issue that occurred at first sight may seem trivial, a planned trip to the cinema organised by Sarah’s assisted living accommodation carers. Normally, this wouldn’t have been a problem – if the film had been appropriate for their daughter.

However, when Sarah’s parents heard that the movie was Fifty Shades of Grey they were very concerned. The film has an 18 certificate and contains explicit sex and violence as well as very strong language. According to the British Board of Film Classification, films rated 18 are for adults only and not suitable for children. No-one under 18 is allowed to see an 18 film at the cinema or buy or rent an 18 rated video.

For many parents with a child that has reduced capacity, seeing this type of film would be a major worry. This is the view that Sarah’s parents had and they believed that their daughter would have found Fifty Shades of Grey both extremely confusing and distressing. When they asked the home about the film’s suitability, they were told that as Sarah was over 18 that she could make this decision herself.

Sarah’s parents came to us wanting to know where they stood legally in terms of their own views as to what their adult daughter could watch.

The general rule in this type of situation is that if a person is over 18, and has capacity then they are able to make the decision themselves. However, under the Mental Capacity Act 2005 “if at the material time the person is unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance of the functioning of the mind or brain” – they lack the required capacity to make the decision.

Given Sarah’s situation and severe learning difficulties it was obvious that she didn’t have the required capacity and that any welfare decision should be made in her “best interests”. The question that the home should have considered is whether or not Sarah had sufficient capacity to make the decision to see Fifty Shades of Grey.

Under Section 4 of the Mental Capacity Act 2005 the residents’ home should consult and take the views of:

  • Anyone named by the person as someone to be consulted on the matter in question or on matters of that kind.
  • Anyone engaged in caring for the person or interested in his welfare.
  • Any done of a Lasting Power of Attorney granted by the person.
  • Any deputy appointed for the person by the Court.

I explained to Sarah’s parents that, as she was over 18, if she had capacity then she could make the decision as to whether to see the film herself. However, from what they said it became quite clear that she did not have capacity to make this decision and would be confused by what she would see and may even be upset.

I confirmed to the parents that if Sarah did not have capacity then any welfare decision would need to be made in what would be in her “best interests”.  Under section 4 of the Mental Capacity Act the residents’ home should consult and take the views of:

  1. Anyone named by the person as someone to be consulted on the matter in question or on matters of that kind;
  2. Anyone engaged in caring for the person or interested in his welfare;
  3. Any done of a Lasting Power of Attorney granted by the person; and
  4. Any deputy appointed for the person by the Court.

From this it is clear that Sarah’s parents should have been contacted by the home before considering the film as they had an interest in Sarah’s welfare. On reflection, the residents home subsequently decided that it no longer wished to take residents to see the film.

To prevent this type of situation from occurring again, Sarah’s parents were advised to write to the residents home to inform them that if a difficult decision needed to be made that they should be consulted as they were interested in their daughter’s welfare and that their views needed to be taken into account (according to the Mental Capacity Act).

When determining a person’s capacity to make a decision there are a large number of issues that need to be taken into consideration. It is rarely ever clear cut, and therefore often worthwhile appointing a professional deputy.

Can a family member be paid for care?

At Boyes Turner I act as deputy or trustee for many families whose child has received compensation for a catastrophic injury. 

I advise families that they are entitled to be paid a discretionary amount from a personal injury award for the care that they provide to their injured child. This can be a delicate issue. How much can be paid? Families provide huge amounts of care but this payment is not a ‘salary’ as such.

Recently I had a family who felt that they should be paid for all the care that they provide during the day and night and also said that they wanted to do this in lieu of professional carers.

After reviewing the care report within the claim I agreed to pay the family a discretionary amount for the additional care that they provided because their child has been disabled through a negligence act. I explained that this was not a contractual amount but simply given in recognition of their hard work.

Furthermore, I explained that this was not a salary and may be altered as time went on – perhaps when the child got older and more professional care needed to be provided.  The family should not see this money as a reliable source of income and become dependent on it as this was not the purpose of the money.  The aim of the money was to provide for the child but at the same time sensitively recognise the additional responsibility on a parent. It was also not being paid to replace professional care.

Generally the Court of Protection do allow payments to family members for care when funds are managed though a deputyship and likewise we instruct trustees to do the same.  However over-dependence on this payment has to be avoided.  Family members are not professional carers and few have the significant training undertaken by such carers.  Family members are not being paid to provide professional care. It is appropriate to ensure professional care is also in place which also ensures the family get a break.  The compensation award would have been calculated taking into account the care needs of the child and the cost of professional care.

Sometimes family members believe that by providing care at reduced amounts and not paying so much for professional care, they are effectively saving money for the child for the future.  This is not what the money is for and it potentially denies the compensated person valuable interaction with a highly skilled professional.

The needs of the compensated person should always provide the lead as to who should provide the care and this is where a conflict can arise with a parent who becomes dependent on a payment for care.  Parents need to remember that the majority of an award will be for professional care and not for parental care and this now gives them the opportunity of being parents again, concentrating on having quality family time rather than being paid for care for their child.

I explained to this family that on the plus side, as this payment is non-contractual and discretionary it can be made free of tax and national insurance under HMRC guidelines issued in ESM4016.

This states that payments towards the cost of maintenance for a husband, wife or other close relative or dependent out of the income of a severely incapacitated person, who receives funds under an Order of the Court of Protection are regarded as voluntary payments and not as income of the recipient.  Therefore, there will be no tax or national insurance contribution consequences on such payments made for caring duties and similarly this will be the same for payments under a Trust set up for the same purpose i.e. to administer the funds of a compensated person.

An important point to note is that the payment is made free of national insurance contributions so it is really important that the carer retains their state benefit carer’s allowance as this effectively pays the “stamp” for national insurance purposes.  Alternatively, the carer could make voluntary national insurance contributions to secure their full state pension entitlement in the future.

So, for parents to receive a discretionary amount for care they must bear in mind:

  1. There is no contract of employment even if care is provided and paid for. A contract has not secured the care but instead it is given because of “natural love and affection”.
  2. Another reason why this is not a contract is because the care will continue even if payment is stopped.
  3. The deputy or trustee making the payment is simply recognising the need to support a pre-existing non-contractual situation. The parents are neither employed nor employees.
  4. For a payment to be taxable as income a parent must “profit from employment”. As these are discretionary token amounts then no profit can be made.
  5. The payment should not be seen as a replacement salary and if the care report advises on professional carers then the deputy or trustee must take this into account..

In most cases a family carer neither seeks nor expects to be rewarded for their services.  What they do, they do voluntarily and out of love and therefore no income tax or national insurance needs to be paid on these payments whether it be through a deputyship or through a compensation Trust.

I really appreciated the friendly, efficient and supportive nature of the solicitor. 

I would also like to express my thanks to you for your dedication in chasing the defendant's insurance company especially where COVID-19 made an impact. 

Boyes Turner Client

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