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Acting for disabled children whose parents are separated – how is accommodation approached?

Posted: 31/07/2017

When dealing with claims for serious injuries involving children, the realities of life mean that by the time a case gets to the stage of quantification, often the child’s parents are separated. Whilst it is not the role of a clinical negligence or personal injury solicitor to get involved in issues of custody or residence, it is incumbent on them to look at the practicalities of the disabled child’s parents living in two different homes. Solicitors must consider what issues could arise for the child given his or her physical disabilities.

Accommodation claims are somewhat in turmoil at the moment, following the negative discount rate implemented earlier this year. This effectively wiped out the Roberts v Johnstone type claim broadly based on the loss of investment return on the amount of additional capital required for an alternative property. The topic is frequently considered and commented on, so the purpose of this article is not to explore the presentation of accommodation claims per se, but to highlight a successful case involving separated parents who both wished to spend time with their disabled child. Based on the facts of this specific case, the ability to claim for costs relating to accommodation needs in both parents’ homes, not just the child’s main residence, was granted.

In Lamarieo Manna (A Child and Protected Party by his Father and Litigation Friend Samuel Manna) v Central Manchester University Hospitals NHS Foundation Trust [2017] EWCA Civ 12, the Court of Appeal was asked to overturn an award made at first instance which allowed the claimant to recover an accommodation claim for his principle home, where he lived with his mother, and an additional claim for accommodation to allow him to spend time with his father. This was the first time that the court had made such an award and in the end the Court of Appeal upheld it – although it stressed that the finding in this respect was very fact specific. 

By way of background, the claimant suffered a severe brain injury at birth resulting in bilateral tetraplegic cerebral palsy. He was left severely disabled and heavily dependent on others for care. Although his parents stayed together for some time after his birth and his father was very involved in his care for many years, by the time the case came before the court, the claimant was 18 years old and his parents had separated. He had been living with his mother and carers for some years by this time, some distance away from his father. Care provided by his father had become problematic and it was the claimant’s case, based on his mother’s evidence, that for him to be able to spend time safely with his father, he needed a property that could properly accommodate him and his carers, given his disabilities. The claim therefore included costs for acquiring and adapting two separate properties – one as his main residence with his mother and the other as his father’s home.

At first instance the judge allowed the claim for both properties. The main argument from the defendant was not that the costs of a second property should not be allowed, but that the claimant’s father had had little involvement in his care in recent years, and therefore the claimant would not be spending time with him, meaning that such an award was not justified. The judge accepted that while his father’s involvement had been limited in the period before trial, historically he had been very involved in the claimant’s care and she felt there was a genuine desire on the part of both of the parents for shared care to resume. The judge made clear that she had considered the very specific family circumstances and what was in the best interests of the claimant in making this decision. It should not be seen as establishing a general principle of claims for two houses being upheld in all cases where parents are separated and sharing care.

The case went to appeal on several grounds, including whether the award for the costs of both properties should have been made.

Tomlinson J gave the main reasoning for the Court of Appeal and recognised that there was no reported case in which such an award had been made, although “the situation must be very common not least because the strain of caring for a seriously disabled child can typically have an effect upon the relationship of mother and father”. He regarded the award in respect of a second home as “generous”, that it should be “intensely fact-dependent” and that the case should not be regarded as setting a precedent. Spending time with his natural father, at the father’s home, was a reasonable expectation to which the “law should strive to give effect”. Accepting that it was in the claimant’s interest that the contact and care at the father’s home should be restored, the Court of Appeal would not be justified in setting aside the award. It fell within the generous ambit of decision making entrusted to the judge, and so the defendant accepted that in principle such an award was possible, meaning that the appeal on this ground was dismissed.

As outlined in the case of Lamarieo Manna, the reality is that caring for a seriously disabled child can often be a factor in relationship breakdowns. In many cases both parents wish to stay involved with the child but the physical disabilities they have can generate some very specific property requirements. Both courts made clear in this case that any award for a second property will only be made if the facts support it, and it is likely that in many cases the nature of an existing property, proximity of the separated parents, scope for adaptations or simply lack of time spent caring for the child, may mean no award is made. However, in cases where both parents genuinely wish to be active in caring for the child, do not live close to each other, and do not have accommodation that is suitable for the child’s needs or could be made so, this case will be good authority for the potential for an award to cover the purchase and alteration of two properties.

Philippa Luscombe, partner in the clinical negligence and personal injury team at Penningtons Manches LLP, comments: “It is important that solicitors acting for seriously injured claimants, who spend time with both their parents and are likely to continue to do so, look very carefully at the setup, should those parents separate. If the parents do intend to seek an award of this type, solicitors must collate clear evidence about how the shared care works / will work, the benefit to the claimant, and reasons for the need. Pending any further review of the discount rate, the reality may be that such claims are not pressed in the absence of any meaningful Roberts v Johnstone claim. If the rate is reviewed, then such claims may well become more common.”

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