PI Brief Update

The Prospect of State Funded Care and Double Recovery: WNA v NDP [2023] EWHC 2970 (KB) - Amy Lanham Coles, Temple Garden Chambers

13/12/23. The Claimant had become tetraplegic as the result of a road traffic accident and liability had already been determined her favour. Quantum had been largely agreed – with the Claimant to receive a provisional lump sum of £6.25m and a Periodical Payments Order (PPO) providing for annual Periodical Payments (PPs) of £325,000 per annum in respect of care and case management (adjusted to account for inflation).

THE ISSUE

There remained an outstanding issue as to double recovery in respect of damages for the cost of future care. The Claimant had agreed that in any given year she would only apply for State funded care as a “top up” once the annual PP had been used up. However, she proposed that if she retained any surplus from the PP in any given year – this was for her to use as she pleased. She argued she should not be expected to retain any surplus to make up for any potential future shortfall. The Defendant disagreed, maintaining she should use any surplus from previous PPs before applying for any top up funding from the State in later years.

JUDGMENT

HHJ Robinson concluded that he could not rule out the possibility that the Claimant might, at some point in future, apply for State funded care (paragraph 8). He noted that were the Claimant to rely on State funding this would either come from the local authority or the NHS but in either case the payments would be reviewed annually and both statutory schemes made provision for repayment in instances of overpayment (paragraphs 19-23).

Considering the case law and acknowledging the courts’ role to “actively intervene” to prevent double recovery (paragraph 38), HHJ Robinson noted there were three common mechanisms available to the court (at paragraph 31):

(1) Reducing the once and for all lump sum.

(2) Providing a mechanism for repayment to the provider of State funding.

(3) Providing a mechanism designed to inhibit a claim for statutory funding, at least without some court oversight. 

He noted the usual practice for PPs for future care would be to calculate these on an annual basis and pay them annually, in advance (paragraph 37). He rejected the Defendant’s position that the Claimant should ring fence any surplus from the PPs for future shortfall, noting this approach was fraught with practical problems, including the lifelong administrative burden upon the Claimant of recording any surplus and outstanding questions such as including how to factor in interest and whether there needed to be a minimum amount to qualify as a surplus (paragraph 44). Whilst precision was “impossible” (paragraph 46), he concluded that greater accuracy would be achieved by treating PPs on a yearly basis (paragraph 47) and this was also “in keeping with the ethos of a PPO” (paragraph 49).

He therefore determined that the annual payment of money under a PPO should be treated as a payment only for the year in which it was paid with no obligation on the Claimant to retain any surplus for future use (paragraphs 47-49). He did, however, query whether any surplus ought to be paid retrospectively to the State (paragraph 45) – a matter which was left unresolved (paragraph 51).

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