This morning's decision in Kristopher Loughlin (By his mother and litigation friend Barbara Anne Kennedy, formerly Loughlin) v (1) Kenneth Dal Singh (2) Pama & Co Ltd (3) Churchill Insurance Company, could have important ramifications for the way in which care / case management regimes are set up prior to the trial of any action.
It is often the case that all consuming care / case management regimes are set up in the early years after an accident with an intention to gradually row back from that regime as an individual claimant's abilities become better known.
Whether that intention ever materialises is another matter: there are clearly some very positive stories but, occasionally, one is sometimes left with the impression that the promotion of independence is not necessarily at the forefront of the regime: it is all too easy to introduce a 24/7 regime and then argue at trial two years later that the regime is clearly working and is required in perpetuity.
Past Care & Case Management
Beverley Wild, a case manager employed by Carol Collins' company Northern Case Management Limited, was appointed to act on behalf of the Claimant in 2008. Whilst she was relatively inexperienced at the time of her appointment the evidence at trial was that Ms Wild was subject to ongoing peer review and indeed became an advanced member of BABICM during the years leading up to the trial of this action.
Very soon after her appointment and certainly as early as 31December 2008 Mrs Wild was aware that the Claimant had a poor sleep pattern which was having a negative effect on his ability to function.
The Claimant initially moved into a rented flat with 24/7 support. The evidence supported the Defendants' contention that whilst various haphazard attempts were made to reduce the amount of night time support, the failure to get to grips with the Claimant's poor sleep pattern contributed to the ensuing deterioration in the Claimant's lifestyle.
The Claimant's care expert, Maggie Sargent, argued that notwithstanding huge expenditure on both case management and support workers, that the costs incurred were reasonable, saying it was incredibly difficult to get to grips with young adults:
"The only thing I will say, as a practising case manager, 18-year olds are very difficult to get to engage. ...I have huge experience of this group. I have a lot of people we still case manage now, they're young adults, we've worked with them since children, over a 20 year span. And they can be a nightmare at 18. They're sort of trying to push boundaries. They don't want to accept. It can take us years." (para. 59)
Parker J was not, however, convinced, stating that the care and case management regime (at least in this respect) fell significantly below the standard that could reasonably have been expected [of a competent case manager]. This was, after all, a young man who, when motivated, could organise and independently travel to Brighton and back in order to see his then girlfriend and who, when a sleep hygiene regime was belatedly introduced in 2012, made rapid progress.
The neuropsychologists instructed by both parties were critical of the way in which the care / case management regime had been set up:
'... in their joint statement dated 16 September 2011 Drs Warburg and Moss were critical of the case management of the care regime, expressing concern that "...the goals of the support package are not as clearly specified or challenging as they need to be and that there is evidence that support sometimes takes the form of provision of services such as transport or carrying out domestic tasks without Mr Loughlin's participation. We agree that to the extent to which this occurs, this is not an appropriate use of support and will tend to foster dependence rather than independence"' (para. 54(ix))
Having regard to all the circumstances and notwithstanding Mrs Sargent's support, Parker J felt that it was only fair and proportionate that there should be a 20% deduction in the past care / case management costs:
"However, in this case the contemporary documentary evidence did not show, first, that the care team recognised, until the problem had become chronic and practically overwhelming, the fundamental importance of addressing the need for a specific and effective sleep hygiene regime, and secondly, that the team took determined steps to implement such a regime, a task that I readily acknowledge would have encountered resistance and would have required skilful and tactful management..."(para. 60)
"Given such a finding of fact on this issue, the Defendant's primary submission is that I should disallow the costs of past care and management, on the basis that the standard of such care and management fell significantly below that which could reasonably be expected to meet the exigencies of the Claimant's condition and circumstances. Mr Heaton QC relied on O'Brien v Harris (22 February 2001 unreported). However, I agree with Mr David Allan QC, on behalf of the Claimant, that such a result would operate with undue harshness on a successful Claimant, who had had to receive, and pay for, as a result of the Defendant's wrongdoing, care and case management services, and who had had in fact very substantial benefit from such services. To deprive a Claimant of all compensation for incurring such costs, whatever the shortcoming in their delivery and whatever the benefit received, would be wholly disproportionate and unjust. However, it does seem to me that principle requires that I should take due account of the fact, that I have found, that the standard of the care and case management services did, in an important respect, fall significantly below the standard that could reasonably have been expected. In other words, the objective value of what the Claimant received was less than the amount of the charges made for the relevant services. There is no precise means of quantifying the appropriate reduction: the exercise requires the court to take a broad view of what the Claimant did receive, and the nature and extent of the putative shortcoming, bearing in mind the particular difficulties in the case, to which I have already referred. It appears to me, balancing these factors, that a reduction of 20 per cent in the charges actually claimed would be fair and proportionate." (para. 62)
Future Care & Case Management
Mrs Sargent's assessment was that the Claimant currently needs and was likely to continue to need ad infinitum, eight hours' care a day and a sleep in support worker. Nevertheless the joint expert evidence of Drs Warburg and Moss was that the Claimant's care needs should reduce, and the contemporaneous records demonstrated that the Claimant was making rapid progress with the sleep hygiene programme which had belatedly been introduced.
Taking all this evidence into account Parker J was not persuaded by Mrs Sargent's proposed regime:
"There is a very serious risk also that such a package would leave the case workers largely unoccupied for substantial periods and the Claimant, as has happened in the past, could come to see them as useful service providers in a broader and wholly inappropriate manner."(para. 73)
After an initial phasing down period Parker J concluded that a reasonable long term support regime would be four hours a day with an emergency back up facility overnight. This was much closer to the Defendants' position of two hours' support a day.
The decision is fact specific and each case will turn on its own circumstances but, nevertheless, it establishes an important principle.
Simply because past care / case management costs have been (and are continuing to be) incurred does not mean that they will automatically become payable. Claimant's advisors will need to think carefully about the structure of a regime and the way in which it is critically appraised.
Defendants who have concerns about a regime will need to monitor, pursue disclosure and obtain expert evidence upon the effectiveness of the regime.
It will be a matter for the Claimant's financial deputy who has continued to pay the care / case management charges whether to seek to recover the 20% shortfall of the costs incurred from the providers whose actions have been the subject of criticism.
Link to full facts and judgment - Loughlin v Singh & Ors  EWHC 1641 (QB) (19 June 2013)
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