The benefits of securing suitable accommodation for a brain-injured child

Posted: 13/03/2023

When a child suffers a severe brain injury, one of the biggest changes for their family is the type of home that they need to live in. Where the injury happened because of a failing in the child’s medical care, a claim for some of the additional costs of this accommodation can be pursued.

Why would an accommodation claim need to be brought?

Suffering a severe brain injury may mean that the child grows up with physical and mental disabilities. This can affect the type of home that they can live in. For example, they may now need:

• an extra room or rooms for live-in carers, if they require round the clock professional care;
• a one-storey property or the installation of lifts, if they cannot use stairs;
• other adaptations for accessibility in and out of the home, such as ramps;
• wider doorways and corridors, especially if they use an electric wheelchair;
• additional security to ensure they are safe;
• environmental controls, such as windows that open via a remote;
• a sensory or therapy room, if they require therapies at home; or
• adaptations to the bathroom and kitchen to allow them to use these rooms.

They may also incur higher running costs such as heating, electricity and water, and more space may be required for disability-related equipment.

This list in not exhaustive and every claim will differ depending on the child and family’s circumstances.

How is the claim made?

Firstly, a clinical negligence claim will always need to establish if the child’s brain injury was caused by a failing in their care. If so, and if they require changes to their adaptation because of their injuries, then a claim can be put forward. The aim of a claim is to try to meet the reasonable needs of the child that arise as a result of their injuries.

The full costs of a new house cannot be claimed. The courts will only allow a claim for a proportion of the capital costs of a property. This is because, firstly, the child would always have had some costs related to renting or purchasing a home, even if they had not been injured. The cost of the property that the child would have needed, had they not been injured, is therefore deducted from any claim made.

The courts have also determined that the defendant should not have to pay the entire difference in cost between the home that is needed now, and the home that would have been needed if the child had not been injured. This is because the value of the home will appreciate over time, and this is seen as providing a ‘windfall’ or benefit to the person making the claim. A sum equivalent to lifetime interest is therefore deducted from the accommodation claim to reflect this.

The courts do allow the full costs of adaptations to the house and additional running costs to be claimed.

Why is accommodation so important?

The families of children who are injured at birth often report that securing suitable accommodation is the most important part of the claim for them.

One reason behind this is that it is common for the family’s current home to be too small or not suitable for any live-in professional carers, so the child’s parents have to take on the task of providing round the clock care for the disabled child, often with no support. This may include waking up several times in the night, and therefore has a huge impact on the parents’ health and wellbeing, as well as often limiting their ability to work. Once a larger home is secured and professional carers start coming in to help, the parents can resume a more parental role, rather than having to be full time carers.

Another reason that families prioritise accommodation is for the comfort of the child. In a recent case, Penningtons Manches Cooper acted for a young man in his twenties who suffered an injury at birth and was left with very severe disabilities. In the home he lived in before the claim, he did not have an accessible bathroom and his mother was no longer physically able to transfer him by herself as he grew up. He therefore had to be washed in his bedroom and had not had a bath or shower since he was a child.

As part of the clinical negligence claim, damages were sought for a larger home with an adapted bathroom, and he is now able to have a bath or shower as often as he wishes, with the help of his care team. His mother reports that this has made a huge difference to his quality of life as he loves being in the water.

In another recent case, a young woman in her teens who was severely injured at birth was unable to move around her home using her electric wheelchair, as the doorways and corridors were not wide enough. She had to rely on her family to wheel her in a manual chair, and consequently had no level of independence. Since pursuing a claim, her family have moved to a more suitable home and she can now use her electric chair, providing her with the independence to move around her own home as she wishes.

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