In the matter of Re: A  EWCOP 46 Senior Judge Lush once again considered the difficult issue of making a gift to family members from an injured persons compensation award.
This case involved an application by a professional property and affairs Deputy for authority to withdraw £17,000 per annum from P’s damages award towards the payment of her 14 year old brother’s school fees.
The application was opposed by the official solicitor who was appointed to act for P in the proceedings. The official solicitor felt that the Deputy (having made payments on account of the school fees historically) and wanted to continue such payments had made an error in agreeing to fund the school fees and should be personally liability to P’s fund and reimburse all historic payments made. In addition, the official solicitor opposed the further application of P’s fund towards to the cost of her brother’s school fees.
Senior Judge Lush was ultimately supportive of the request to release funds from P’s compensation award to pay for her brother’s school fees. This might be somewhat surprising given the Court’s decisions in the cases of Re JDS and Re: AK.
In this case, Senior Judge Lush stated that “most families are as dependent upon a damages award for personal injury or clinical negligence as the recipient of the award is dependent upon their family…and it is both insensitive and demeaning to stigmatise them for deciding to sacrifice their own career and earning potential by staying at home and caring for their profoundly disabled child on a full-time basis”.
He went on to say that the concept of mutual dependence arises in almost all personal injury and clinical negligence cases and it is an important factor that one must consider in these situations – “mutual dependence is inevitable and, if she were not mentally incapacitated, P would acknowledge that her interests, needs and well-being are inseparably linked with those of her father, mother sister and brother”. The official solicitor was notably criticised by Senior Judge Lush for having adopted an unnecessarily intrusive and hostile approach to the application before the Court having completely disregarded the concept of mutual dependency that exists within the usual family context.
The decision to permit payments from P’s fund for her brother’s private school fees did however turn on the very specific facts of this case:-
- The proposed expenditure was affordable having regard to the level of compensation awarded to P and the sustainability of P’s fund in the long-term;
- Mutual dependency is inevitable and by paying for her brother’s education the objective of the application was really to aim to break the cycle of dependence on P’s fund (as far as her brother was concerned) by educating her brother so that he could strive towards independence;
- Requiring P’s parents to take paid employment and substitute parental care of P for a paid care team (so that they could pay for the brother’s education directly) would cost more than double the family’s outgoings at the time of the application;
- There was a distinction made between Re: JDS and Re: AK with this application being cited as being for more meritorious purposes (education);
- The Official Solicitor’s approach was “unnecessarily cautious, paternalistic…risk averse and would have the effect of stifling P’s family’s hopes and aspirations”.
Despite the positive and pragmatic outcome produced by this Judgment, Senior Judge Lush cautioned against this case being construed as judicial precedent for the payment of siblings’ school fees from damages awards in other cases. It is clear that each patient and case is different and must be decided on its own facts. However, there is clearly scope within the Court of Protection and the MCA 2005 for Judges to take a very practical and case sensitive approach to the often emotionally difficult cases before the Court.