The benefits system has been a subject of hot debate over recent years with the terms “benefits cheats” and “scroungers” frequently used to describe those perceived to be abusing the benefits or over-using the services provided by the state. But there are many deserving individuals with very severe disabilities for whom the benefits system and the NHS often fail to provide a reasonable standard of living.
The standard of living experienced by those with disabilities can be polarised between those who rely on government provision to help them cope with their disabilities and those who have successfully pursued a claim for compensation for injuries or disabilities sustained due to negligence. Those who have the ability to claim for their injuries can access high-quality rehabilitation, accommodation, equipment and support to optimise their outcome while victims of a genuine “accident” have very little post-acute rehabilitation and support and often a poor quality of life.
Some argue that those pursuing a claim receive too much. How can one individual can possibly need £10m or more over their lifetime? But the reality is that, except for what is a relatively small amount of compensation for pain, suffering and loss of amenity, the damages received are the result of expert assessment of an individual’s specific requirements. The aim of a compensation claim is to maximise an individual’s recovery and independence and return them as far as possible to their pre injury position. While it will not provide for a “gold standard” level of support, it aims to provide whatever is reasonably needed to achieve that. Damages payments take into account a range of needs from active rehabilitation and care and support workers to vocational support, suitable accommodation and aids and equipment.
Contrast this with the approach taken by the benefits system. This is a broad brush approach without any thorough review of how much the individual actually needs to have a good quality of life and statutory care provision based on meeting basic needs. Benefits do not optimise rehabilitation or independence and some of them are means-tested. A brain injured adult with some capital who does not fall into a category of serious disability in terms of needing 24-hour care but has significant cognitive and behavioural limitations may receive only limited benefits and no support at all.
It is clear that the monies received from benefits barely touch the sides for people who do not qualify for a statutory funded care package but need support. Those who do qualify for statutory care are limited by provision. There can be a huge difference between care provided by local commissioning authorities (in terms of type, consistency and extent) and what an individual really needs to have a reasonable quality of life.
Research by Carers UK suggests that family carers save the economy £119bn per year and, while family members often provide exemplary care, this can take its toll on them, their family life and their own opportunity to pursue employment. Often a partner or parent has to give up work entirely to provide care, causing additional financial strain. Roles change completely and, without support, family relationships can become seriously damaged over time. Respite care is very limited in provision if not paid for privately.
Gaining an admission of liability is always a positive moment in a claim but none more so than in claims where the claimant is severely disabled. Plans can be put in place to get them (and their family) the help they need and provide the claimant with all the care, rehabilitation, support and specialist equipment needed to maximise their potential. Often part of what is achieved is support and education from the family to understand the nature of the disability and how to manage it. This is particularly so in brain injury claims where the claimant has suffered behavioural or personality changes as this support and assistance can make all the difference between a claimant being managed at home and having to reside in a unit.
Returning to the original question of the fairness of compensation, is it fair that only those who can identify that their disability arose as a result of another individual’s errors should have a good quality of life? Other countries operate “no fault” compensation schemes for clinical negligence where, as long as it can be shown that treatment caused their injury, it does not matter whether there was an error in their care or not. They will be compensated. There have been discussions in the UK about doing this for cerebral palsy children. Would some money (but not enough) for all be better than the current disparity? However, for those suffering traumatic brain or spinal injuries, there seems nothing on the horizon other than support from various charities to assist those who do not have a valid claim.
We see the difference that a claim can make to a person’s overall outcome, quality of life and, ultimately, life expectancy. The rewards from working with people with serious injury and making such a difference are why we do this work. But we cannot help but be aware of the difference in what claimants achieve with the right support compared to those with the same disabilities but no claim. While we see the real benefits of ‘compensation claims’ despite their bad press we also recognise that there is inherently a huge inequality in care as a result.
This article was published in New Law Journal in May 2015.