Swift v Carpenter – the judgement and the duties of a Professional Deputy

The claimant in this case, Charlotte Swift (CS), was involved in a car accident resulting in serious injuries and later leading to amputation of her left leg and subsequent surgery. The case was brought to court in mid-2018 and the defendant admitted liability. CS received a substantial award to reflect her ongoing need for support including equipment to assist her.

Why was the case later brought to the Court of Appeal?

Whilst CS received a substantial award to assist with ongoing treatment and support, the sum did not account for an adapted property. It was argued that CS required £900,000 in addition to that already awarded to provide her with sufficient accommodation.

Why was an extra £900,000 not awarded in 2018?

The reason that CS did not receive monies to compensate for the need to purchase an adapted property and/or purchase a property and adapt it accordingly was because of the case Roberts v Johnstone (1989) which set out the following formula:

• The calculation of any award must consider the difference in the price of the claimants current property and the price of a new property that would be required as a result of injuries sustained.
• Where the claimant has to invest in a new property then they have to use part of their capital towards the purchase price. As a result, a 2% discount, increased to 2.5% in 2001 in line with the Discount Rate through the Ogden Tables, is applied to represent the annual loss of investment. This figure is then multiplied by the life expectancy of the claimant.
• The cost of adaptations to property are recoverable however if the property has increased in value due to the adaptations then this must be taken into consideration.

Then the Discount Rate was reduced to -0.75% in 2017 which resulted in a negative housing calculation and housing costs being rejected in full.

The Court of Appeal judgement

The Court of Appeal has found that the Roberts v Johnstone approach ‘is no longer capable in modern conditions of delivering fair or reasonable compensation for an injured claimant.’This was as a result of the negative discount rate.

The discount has now been raised to 5% instead of 2.5%.

As it now stands, the claim for housing can be made based on the difference between the Claimant’s current property and the required property.This is then reduced by 5% to take account of the discount rate.

It was found that any final award should be reduced where there is a reversionary interest in the property and so the claimant owns the property but a family member or friend has the right to live in it for life. Accordingly, the interest will be high where life expectancy of the claimant is short however LJ Irwin did not provide much guidance in how a case like this might be assessed.

An award of £801,913.00 was awarded to provide CS with monies to purchase a suitable property.

How might the judgement affect a Deputy?

There are a number of Deputyship clients who have sadly lost capacity to manage their own financial affairs due to negligence.

It is often the case that a Professional Deputy is appointed amidst a claim against the defendant. The Deputy will then find that it is difficult to meet all their clients complex needs where there is a shortfall in finances. The judgement is positive in that it will provide claimants with a larger settlement and in turn, allow the Deputy to make decisions about property with the knowledge that a final settlement will be reached fairly and will reflect the client’s accommodation needs.

If you are becoming concerned about your ability, or a loved one’s ability to effectively manage your (or their) affairs, we can assist and support you. At Ramsdens Solicitors, we have experts who have been approved and appointed by the Court of Protection to help manage the affairs of our clients.

Our Partner Veronica Mullins is one of only 71 Court approved Panel Deputies in the UK, meaning we are well placed to offer this type of legal advice.

To discuss your current circumstances with a knowledgeable and friendly solicitor, get in touch with our Court of Protection team today. Contact us by calling 01484 821 500 or fill out an online enquiry form and we will be in touch at a convenient time for you.