Gratuitous Care Payments/Family Care Payments
Gratuitous care (also sometimes referred to as family care) is care provided by non-professional carers, most often parents, family members or friends and not someone specifically employed and paid a salary as a carer. As always my focus is on parents of birth injured children.
Who provides Gratuitous Care?
In a birth litigation situation where someone has needs that require care, they often have family members providing the care. Where a child or adult lacks capacity and family members provide substantial care, a family care payment (often called a gratuitous care payment) may be appropriate. The Deputy must consider whether making the payment is in the person’s best interests and whether it is affordable from their funds. These payments are different to a salary paid to a carer who has been either directly employed or who works through an agency. Gratuitous care payments may gradually reduce over time if a professional care team is employed.
Source: Lexology.com
If the child reaches 18 and has mental capacity to make their own financial decisions, they can have a Trust Fund set up with Trustees who can agree on gratuitous care payments to family members. It is less prescriptive than a COP Deputy. They can in effect manage their money however they choose. I’ve concentrated more on how the system works with a Deputy in place.
What does the Court of Protection do?
In birth-injury cases, the child’s compensation may be managed by a Court of Protection Deputy. The Deputy is responsible for making decisions about family care payments in accordance with the child’s best interests and the Court of Protection’s authority. Professional Deputies can generally make appropriate family care payments without a separate court application, provided they follow the OPG guidance. Where a lay Deputy is also the person receiving payment for care, Court of Protection approval is required because of the potential conflict of interest.
How is Gratuitous Care Payment assessed?
During Interim a Care Expert from both sides will assess what care you give daily and pre-Settlement will agree on payments. If they cannot agree a Judge will decide on fair payment. There needs to be medical evidence on the claimant’s needs; assessments and records from local authorities and/or primary care trusts; witness evidence from the claimant and/or the family, possibly supplemented by diary or video evidence; and evidence from one or more care experts. See ‘Care Experts’ (Interim) for a full explanation of their role.
Prior to the Care Experts appointment, you are asked to make a ‘care diary,’ showing what you and family do for your child 24/7. Make this as detailed as possible. Every lift, every positioning, every medicine, every spoonful of food you give. Everything. The care diary is used with the assessment to decide on GC payments. The diary should be in two sections. What you do now and what you did in the past as ‘Past Care.’ This part will help form what payments you get for the Past Care you’ve given throughout the child’s life.
Previous Court of Protection cases have used commercial care rates, sometimes with a discount because family care payments are not normally taxable. ASHE (Annual Survey of Hours and Earnings) data may be used as a reference when considering appropriate rates. The amount is not simply a fixed percentage or formula and will depend on the individual circumstances. The amount is not taxed and no NI insurance is paid.
It is advisable you pay into a private pension for additional pension provision. If you receive Carer’s Allowance your NI is automatically paid.
Source includes Assets publishing service. Gov. UK
How is Gratuitous Care paid?
Gratuitous care payments are usually made monthly into the Carer’s bank account, much like a salary. If other family members provide a level of care, such as taking the child to school each day, they can be paid for their time, also at a reduced rate. During Interim when the amount of GC awarded isn’t known, the Deputy can make a discretionery monthly payment to the parent/s. This is usually less than the final award for GC which is agreed at settlement. This is because the Deputy doesn’t want to overpay as the money will need to come back from somewhere. A way around this if the parent needs to give up work but needs a similar income, an amount can come from the Past Care (see below) as a short term measure to top up the monthly allowance. This is repaid once the final GC figure is reached.
Paying a family member who is a qualified, DBS certified carer working in a care setting, is a bit of a grey area. It is absurd not to employ them on an employment basis as they are qualified as such and are trusted immediately (unlike a stranger) plus they need to be paid and taxed like any worker. Unfortunately their family connection can make it difficult particularly in Interim. After settlement If they don’t live with the family, they can usually be employed on a formal basis.
Do I declare my Gratuitous Care payments?
Family care payments made under a Court of Protection order, or from an appropriate trust, are generally not treated as employment income and do not normally have Income Tax or National Insurance consequences for the family member receiving them. However, benefits and tax rules can be complicated, so anyone receiving family care payments should tell their solicitor, Deputy and, where appropriate, the DWP or HMRC, and obtain advice about their individual circumstances.
Can separated parents share Gratuitous Payments?
The COP Deputy can answer this definitively, but from reading gov. paperwork, it seems there is no reason parents sharing care of a disabled child when separated cannot both receive a payment. Gratuitous care is not based on a contract between the client (represented by the Deputy) and the family member, therefore there are no hard and fast contractural rules. GC is primarily an informal arrangement and is therefore flexible. If both parents provide care (perhaps with 50/50 division) the GC will be divided according to the care division. They will both be paid for the care each one gives for the times they have care of the child.
“Payments should take into account the overall family situation, for example, whether anyone is in gainful employment. If two parents are providing care, what is their respective contribution? If P needs two people at any time to manage his or her needs, payments may need to increase to reflect this”. and
“It needs to be borne in mind that, when applying the different factors in this guidance, and particularly taking into account affordability, payments can vary widely. It is possible, for example, that two carers providing the same amount of care may get different family care payments. While on the face of it this appears unfair, it reflects the fact that carers’ situations must be considered in the round rather than applying a simple formulaic approach”
Although those quotes don’t specifically mentioned separated parents, they do show it is possible to have two family carers and payments should reflect this. It also shows the flexibility within the system.
This approach differs from welfare benefits, which as a rule, say that only one person (the parent with the main caring responsibilities), can claim the benefits such as Carer’s allowance. In divorce cases a judge will usually look at the situation as a whole and rule on what is in the best interests of the child and what is fair and reasonable.
S3.1 Shared care
The social security system offers some support to most families towards the costs of raising a child. However, when parents separate, the current system generally presumes that there is only one main carer and one non-resident parent, despite the range of shared care arrangements in place amongst separated families. This means that only one parent can be entitled to receive child-related benefits, while the other parent can only receive single adult benefits.
Sources as per the link below
What is Past Care?
For many children with a BI (Birth Injury) additional care begins at birth. It is ridiculous to say you would give the same level of care to any newborn. Most newborns don’t cry for months on end and are unsettled and distressed much of the time. Most don’t need constant carrying and soothing. Most newborns will feed well once established whereas BI babies often have issues with vomiting and reflux. The baby may be uncomfortable with dystonia, have an NG or feeding tube, be on supplemental oxygen, have seizures, have multiple hospital appointments and so on. Many new babies are unsettled and hard work, but if your baby was like this because of a specific reason, namely a birth injury it may be claimable from the case. Many parents experience a calm and settled subsequent baby as even the most difficult baby will eventually settle.
You may be lucky and have a super easy baby despite the brain injury, so (apart from appointments) you couldn’t claim much for this period. This aspect of past care entirely depends on the actual care and is not a one size fits all.
Past care is an important part of many birth-injury claims. The compensation is generally awarded to the child, rather than being compensation to the parent for everything they have personally lost. However, the additional care provided by family members can form part of the child’s claim and may be valued as gratuitous care. Claims for a parent’s own financial losses, such as loss of earnings, are subject to different legal rules and can be complicated. Your solicitor will advise you about what can and cannot be claimed in your particular circumstances.
Your ‘Past Care’ lump sum payment is pretty much the only compensation you as the parent will receive. It is extremely rare for us to receive anything for lost careers, lost income and sometimes lost relationships. Unfortunately, we are just collateral damage.
If you receive gratuitous care payments from your child’s deputy or trust fund it is not counted as income for tax and NI purposes. It also won’t affect most benefits if you are receiving them. There will be brief run down of welfare benefits in an upcoming blog.
Sources: Judicial College Guidelines, case law, GOV.UK. Reviewed September 2026
