Gratuitous care
If you have cared for the victim of accident or injury and the victim is entitled to recover compensation then a claim may be made for gratuitous care.
Gratuitous care means care and attention above and beyond what might usually be expected within your existing arrangement. Gratuitous care does not mean nursing, it means looking after someone, being there to fetch and carry, visiting at hospital, and driving or travelling with the accident victim to medical appointments. These are examples of things you might reasonably do for someone else. If that someone else has a claim for compensation then the gratuitous care you provided can be added to that claim. You cannot make a claim in your own right, so the care has to be compensated through the claim of the injured person. Any compensation recovered is held for you by the injured person after their claim for compensation is successful.
How is gratuitous care calculated?
The calculation of gratuitous care is based on the amount of time spent providing that care. Over a relatively short period the actual hours are calculated, but over a longer period by which I mean a month or more, it might be best to look at an average day or week to use as the basis for calculation.
The hourly rate used to calculate gratuitous care is the cost of professional care in your part of the country, less about one third. The idea is you are claiming the cost price of the care rather than the profit element which is charged by a professional carer or care agency. It is not possible to set out rates for the country as a whole, but do be aware that at the time of writing hourly care costs outside London are pushing £10 per hour. If £10 per hour is the rate for hiring a carer then your gratuitous care will be added to the compensation case at £6.50 per hour.
Should a claim be made for gratuitous care?
Injured clients and their friends and family members often feel awkward if they seek payment for the care and attention they have freely provided. That is perfectly natural and I understand the sentiment. However the law has done the thinking for you from a society conscious point of view. The law does not throw money at compensation victims, and is usually restrictive as to the extent of the loss which can be recovered, and if gratuitous care is allowed then it should be included it in a case. If you do not claim for gratuitous care who gets the benefit of the discount? The answer is not you, and not the victim of the accident or injury. The benefit is gained by the person or organisation which has caused the injury, or more likely the insurance company which sits behind them.
In my experience I find people do not readily tell me about the care they have provided, I have to ask, and often the answer is mixed with embarrassment. Solicitors must be aware of the ability to claim for gratuitous care, and as I often have to do, should drag the information from the injured client and friends and family members, even if the information is given reluctantly.
It might surprise you that a couple of hours care for a month or two can add up to a surprising amount. For example two hours per day x 30 days x £6.50 = £390.
Can I also claim for expenses caused by an accident or injury?
Expenses incurred by people other than the injured person are not strictly part of gratuitous care, but this is a convenient place to explain how expenses can be claimed as part of someone else’s compensation case. An injured person can recover the expenses they have incurred as a result of an accident or injury. The same goes for any expenses incurred by other people, and the test is reasonableness. Just like gratuitous care the person who incurs the expense cannot claim in their own right, the expense has to be included in the compensation case of the injured person. Any compensation gained in this way is payable to you by the injured person if the expense is recovered as part of the compensation.
Examples of expenses incurred by people other than the accident victim are:
- Collecting an accident victim from their workplace, doctor or hospital.
- Car parking.
- Lifts or bus and taxi fares to medical appointments.
- Purchase of medical equipment or medication.
- Purchase of clothing items – your plastered leg will not fit your skinny jeans.
For car travel make sure the full expense, and not just the fuel cost, is included. There are cost per mile tables available through the major motoring organisations. It might surprise you but there are not many cars with a cost per mile cost of less that £0.45 pence.
You might be happy to help a family member or friend after an accident, and you might be embarrassed to claim back the expense. The same answer applies as it does to claiming for gratuitous care. The law has carefully thought through the issue and concluded you have spent money and incurred expense because of the fault of a person or organisation. A compensation claim has been made by the person injured so your expense ought to be included too. If no claim is made for the expense you have incurred to help out someone injured in an accident then who makes the saving, who gets the benefit?
We have a very British attitude to compensation. Our law is based on fault. You spent money as a result of that fault. The person or organisation at fault has to pay compensation for the damage they have done and that includes your expense. You are not taking money from the injured person, as your expense is added to the value of their case.
You might be interested to know that our Government recovers its expenses incurred for the victims of accident and injury. It recovers the benefits paid to those who are injured, and it recovers the cost to the NHS. You can read about this in more detail by clicking here.
For some reason we are told that claiming compensation for injury after an accident is not something we should be doing. If there was a viable financial alternative to seeking compensation then fair enough. The reality is that accidents and injury have wide reaching consequences. In my experience nobody wants or asks to be injured. Wages and salary are lost, expenses are incurred, and many people are affected. The law tries to put this right so far as money is able. This can be seen as social engineering where the person causing injury or loss must pay, it is a system designed for the position you find you find yourself in. Do not be put off by the constant complaints of the insurance industry about claimants. The insurance companies charge premiums for the risk they are insuring, so why complain when the policy is called on.
Insurance does not want to pay for care for my mum and son looking after me after being hit on drivers side suffering whiplash sore wrist and back I needed the help as I am a carer for my son who is 7 and has hydrocephalus do you think it is unfair not to pay thanks
It is a question for medical evidence. If additional care is necessary because of the accident and injury, then the value o fthat care can be included in your claim. The seriousness of your injury and the reasonableness of the care should be supported by the medical expert your solicitors instruct.
Hello,
My dad was clinically neglected due to a bleed on the brain and has no capacity now.. My mum was acting as a litigation friend upto december last year when she left him therefore i am now his litigation friend. He has lacked capacity for 5 years now and is residing in a neurology care home untill his compensation claim comes through. Are me and my sibling entitled to gratuitous care pay? My mum is entitled to it and she is recieveing hers shortly
If you have provided such care you should make sure it is included within the claim being made.
The compensation awarded for such care is held on trust by the compensated person for the carer.
If your father lacks mental capacity the settlement of the case must be approved by a Court. The Court will make a specific order as to the amount of care and to whom it should be paid.
Dear Mark
I wanted to know if there is a cap on how much you can claim for gratuitous care? my mum had looked after me for 8 weeks in 2015 and took time off work and looked after me full time. I believe I can claim £7.19 an hour but don’t know whether this will be capped for example how many hours a day I can claim. Thank for your time. Nassar.
There is no cap on the time which can be claimed for gratuitous care. The test is one of reasonableness, rather than a specific limit on hours. The number of hours required will probably be supported by evidence from yourself and your mother, together with the medical evidence your solicitor will obtain.
The argument is you would have to employ someone had a family member or friend not been able to provide the care. The rate at which you claim is the local hourly rate for care less the profit margin.
Do please note the care must be distinctly beyond that which is part of the ordinary regime of family life. So if your mother did not have to be there at all times to provide the equivalent of medical care it may be better to claim her loss of earnings on the grounds it was reasonable to have someone with you.
we will be soon receiving a gratuitous past care payment for my son, who has cerebral palsy which was caused by his birth, are solicitors who are dealing with the case have told me that our gratuitous past care payment will be subject to income tax is this true and if so why? my son is 8 years old.
Thanks.
The answer is that the part of the compensation due to you, called gratuitous care, will not be subject to income tax.
There is a useful article at http://www.taxationweb.co.uk/tax-articles/general/where-does-it-hurt.html and you should look under the heading “Damages as capital sums.”
If the claimant is going to need ‘care’ assistance for the rest of his/her life or at least for the foreseeable future, how is this calculated and if a carer is needed for life, how is the lifetime of the claimant estimated and will the claimant be able to claim and receive payment for all future care up until the end of his life?
Care means everything from a 24/7 nursing regime to a few hours of supervision or assistance. Together with wage loss care is often the highest value element of a personal injury claim.
The need for care depends on the opinions of the experts giving evidence in a case, and that care has to be very carefully assessed particularly with the future in mind. It is vital to avoid the position where the injured person cannot have a decent standard of living because of a constant fear the money will run out.
One pit fall is over-reliance on family members to provide care. People become unwell, they age, and circumstances change. All this has to be carefully weighed up with the help of the most experienced personal injury solicitors.
In very basic terms the calculation takes into account the annual cost of care at today’s price. That amount is multiplied by a figure based on the life expectancy of the injured person. Build into that calculation is a factor which takes account of the decrease in the value of money, the assumption being that personal injury compensation will be very cautiously invested.
The law is determined not to make you wealthy, and the calculation is little more than a glorified expenses claim. You see newspaper reports of judgments and settlements of several millions of pounds. All of that money is carefully calculated, and is intended to be spent over the course of the injured persons life to provide what they need. It is also the intention that by the time the injured person dies the money will be spent.
There are options available like periodical payments where the insurer, and often the NHS, pays out for care on an annual basis. The advantage is that this arrangement can take account of increasing care needs. Injured people do not like a permanent tie to the organisation which put them in their sorry situation, but it is an option.
There are also ways of investing which save on tax paid by those relying on compensation.
The work of the personal injury solicitor is not done when the compensation cheque is received. We must understand the needs of the client and their family, and make sure the right long term advice is in place.
More information is available at https://www.markthompsonlaw.com/beyond-compensation/
Thanks for the question Mike, and let me know if you want more specific help.
If the claim is made by the carer for 2yrs care for example, but in the meantime the couple are splitting up. Does the money still go to the person who is to get the compensation payment. The injured person who recieves their compensation payment will not hand the money over to the person who cared for them, what happens then? does the carers compensation still go to the person injured? or will it be payed direct to the carer?
Dear Margaret,
The care provided was unpaid. The care was above and beyond the usual family regime and is given a financial value within the personal injury compensation of the injured person. The claim for gratuitous care exists within the injured persons claim only.
As the carer cannot bring their own separate claim any payment for care is included with the compensation of the injured person, and paid to the injured person.
The injured person holds the payment for gratuitous care on trust for the person who provided the care. It has been awarded on the basis it will be paid over to the carer.
If a couple are separating and one has provided care which is included within a compensation case I would hope the money recovered would be paid to the carer. If difficulty is likely the most practical thing to do is for the carer to write to the solicitor acting for the injured person, explaining the separation, and ask for payment direct from the solicitor once compensation is received. The solicitor may not be able to do this as compensation cheques are often made out in the client’s name. Also you cannot oblige the solicitor to make payment to the carer, as the solicitor is bound by their client’s instructions. However solicitor will advise the client of their obligation as trustee and hopefully a payment will be made.
Technically a request and legal action could be brought against the trustee, the injured person in this case, but the practicality of this depends on the amount involved balanced against the likely legal costs.
If there is to be a divorce you will need specialist advice. There was a time when the compensation from a personal injury case was not part of the capital to be shared within a divorce, except for the amount of compensation which related to earnings loss. I believe this has changed, and all money is in the “pot.” I am not a divorce lawyer so do not take my word for it and get specialist advice. If I am right the money recovered for gratuitous care might just find its way into that general pot, even though it belongs to the carer.
Let me know how you get on.