Compensation in cerebral palsy claims

Disability from cerebral palsy brain injury is devastating and permanent. A claim cannot undo the injury or remove the disability. While the total compensation will always be expressed as a sum of money which represents the financial costs and losses suffered by the injured child, its purpose is to restore health, mobility, independence and participation, in so far as money can reasonably achieve. Our specialist approach often enables our clients to receive vital, practical support, such as help with care, therapies, specialist equipment, adapted accommodation and special education, long before the claim reaches final settlement.

Cerebral palsy claims are complex and must be handled by experienced claimant-specialist solicitors to ensure that the child is properly compensated.  The amount of compensation that the injured child receives from a cerebral palsy claim depends on a full understanding of their disability and the way it affects their life.

Valuation for final settlement can take time and may involve waiting for a young, infant child to grow and develop, but, in the meantime, we can begin to meet the child’s immediate needs, with advances from their compensation, known as interim payments. Once the claim has been valued, the final settlement must be carefully structured to ensure that the compensation makes the best short and long-term provision for the child.  Throughout the claim, we work closely with the child’s family to prepare them for the change and responsibilities that come with cerebral palsy compensation, supported by our experienced Court of Protection deputyship team who will continue to work with the family to manage and protect the compensation fund in the best interests of the child after the claim has settled.

How much is the compensation in a cerebral palsy case?

The total, lifelong compensation in a cerebral palsy case can often exceed £20,000,000.  The amount of compensation is calculated for the injured person on the basis of their likely lifelong needs and the cost of meeting those needs. 

Cerebral palsy compensation is more detailed and complex than many other types of injury claims. This is because cerebral palsy disability can affect almost every area of the injured person’s life. Each child’s compensation claim is carefully calculated based on the specific needs, financial costs and losses that arise from their own condition. The claim usually includes compensation for the injury and disability, as well as losses and expenses from the past, present and future.

Cerebral palsy claims often include compensation for many or all of the following:

Pain, suffering and ‘loss of amenity’ (disability)

This payment acknowledges the injury. It is also known as PSLA or ‘general damages’.

Past and future costs of care

The additional care that the child needs as a result of their disability throughout their life is often the largest element of a cerebral palsy claim. Cerebral palsy cases usually include claims for professional help with care, as well as a time-based cost which recognises the additional care that is provided (without charge) by the child’s parents or wider family.

Family care is also known as gratuitous care and, as it is not subject to tax or national insurance, it is claimed at a lower rate than professional care.  All the compensation from the claim belongs to the child but, depending on the family’s circumstances and wishes and the needs of the child, at the end of the case we may ask the court for permission to ‘repay’ to the child’s parents a sum which acknowledges their care from the child’s compensation. 

Case management

A case manager supports the injured person and their family with the coordination, purchase and management of essential services, such as care, therapies or SEN, and liaises with others on their behalf to ensure that they receive the support they need.

Therapies

People with cerebral palsy often need a combination of therapies to maintain their health and manage their disability. Whilst, in theory, many therapies are available on the NHS, in practise children, teenagers and adults with cerebral palsy are rarely able to access regularly the recommended level of therapy via the NHS that they need for their health, safety and wellbeing. Therapies that are recommended for people with cerebral palsy disability often include:

• Physiotherapy or physical therapy;
• Occupational therapy or OT;
• Speech and language therapy (SALT);
• Hydrotherapy;
• Counselling;
• Neuropsychology;
• Educational psychology.

Assistive technology

Assistive technology can help children and adults with cerebral palsy with communication, education/learning and work.

Specialist equipment and vehicles

Specialist vehicles and equipment, such as wheelchairs, beds and other adapted household items can help people with cerebral palsy regain some mobility and independence with self-care and activities of daily living.

Accommodation

Cerebral palsy claims commonly include the additional costs of renting (temporarily) or buying a suitable home which is then adapted and made accessible for the injured child with space for carers and specialist equipment. As the child and family would have needed a home in any event, the law does not allow the injured person to claim the full costs of buying a new house for the family. In most cases, if a new house is needed to meet the child’s needs, the claim will provide the costs of any adaptations as well as a proportion of the costs of buying the house. The rest will be paid for using additional money from other parts of the claim, such as compensation recovered for loss of earnings.

Special Educational Needs (SEN)

Children with cerebral palsy have a range of educational needs. The costs of meeting these needs can be included in their claim. Their specific needs depend on the extent of any physical, behavioural or cognitive disability. SEN support can include educational psychology assessments, legal advice and assistance with EHCPs, one-to-one educational support, special needs school placements or support with living independently whilst studying in further education.  

Loss of earnings and pension

Many children with severe disability from cerebral palsy will be unable to earn an income from paid employment.  Cerebral palsy claims usually include a substantial claim for the child’s net loss of earnings throughout their life and loss of pension.

Court of Protection deputyship or personal injury trust fees

A Court of Protection deputy must be appointed to make decisions on behalf of any individual who does not or will not have mental capacity to manage their own financial matters at the age of 18. Many children, teenagers and young adults with cerebral palsy need the support of a Court of Protection deputy as soon as they receive compensation from an interim payment or final settlement. If the child, teenager or young adult with cerebral palsy is expected to have capacity at the age of 18, or if their capacity cannot yet be assessed, their compensation can be protected via a personal injury trust. The costs associated with managing the injured person’s compensation via deputyship or a personal injury trust are usually included in their cerebral palsy claim. 

What is an interim payment?

As soon as we have secured an admission of liability from NHS Resolution which accepts responsibility for causing the child’s injury, we obtain substantial interim payments to begin making a difference to the child and their family.

An interim payment is an advance payment of compensation which is paid early for the benefit of the injured person whilst the case is still ongoing. Interim payments usually help meet the child’s immediate or urgent needs, such as for help with care and therapies or a move to more suitable housing. Depending on the child’s needs and the timescale for valuation and settlement of the claim, multiple interim payments may be obtained during a cerebral palsy claim.

What is a lump sum settlement?

Traditionally, compensation settlements in most types of injury claims are paid as a lump sum. This means that the injured person receives their final compensation settlement in one payment at the conclusion of the claim.

Lump sum settlements provide flexibility, allowing the injured person to use their compensation money when they need to, and in whatever way is needed, such as to meet their immediate needs for larger items, such as a house, adapted vehicle or equipment.

The difficulty with lump sum settlements in cerebral palsy claims is knowing how much it is safe to spend, if the injured child will depend on their compensation fund to pay for their care, therapies, assistive technology and specialist equipment for the rest of their life. This uncertainty can cause families to hold off spending money on the care that the child needs because they are worried that in the future the money will run out. 

What is a periodical payment order or PPO?

Since the 1990s, we have sought periodical payment orders or PPOs in compensation settlements for children with cerebral palsy who will benefit from having the certainty of guaranteed care provision for the rest of their life.  This involves structuring the child’s settlement from their cerebral palsy claim so that at least part of their compensation is paid as annual payments.

In this type of settlement, the defendant (usually NHS Resolution backed by the Department of Health and Social Care/government) pays a proportion of the injured child’s compensation to them as an agreed, annual income, for the rest of the child’s life. PPOs are usually based on our experts’ assessment of the child’s needs for care and case management, with increases scheduled at future dates to cover predicted increases in their care needs.

PPO payments are tax free and index-linked to the Annual Survey of Hours and Earnings (ASHE) to ensure that they keep up with inflation. They continue for as long as the child lives, even if they outlive all the experts’ estimates of their life expectation. PPO payments stop on the day the injured person dies.

Is a lump sum or PPO better for my child with cerebral palsy?

We work with our client families, our experts and financial advisors to structure each child’s, teenager’s or adult’s compensation  in the way that will best meet their needs and priorities.  

For many of our children with cerebral palsy, their best settlement option combines the flexibility of a lump sum payment with the certainty of a PPO which provides guaranteed, lifelong, annual sums to pay for care.

In some cases a PPO may not be appropriate, such as where a child’s injuries are so severe that their lifespan is significantly reduced but the quality of their shortened life can be greatly improved with an urgent move to more suitable accommodation and extensive help with specialist equipment, assistive technology and care. In these circumstances a lump sum which provides the child with their full compensation now is of greater benefit to the child than a PPO.