Gratuitous Care Payments/Family Care Payments
Gratuitous care is the care provided by non professional carers. It is care most often provided by parents, family members or even 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 this applies, they should receive a gratuitous payment in respect of the hours of care they are providing. Where funds are available from either a deputyship or a Trust, the person/people providing care should be entitled to receive gratuitous care payments. 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
What does the Court of Protection do?
In Birth Injury cases, usually the child’s funds are managed by the Court of Protection (COP) appointed Deputy and Gratuitous Care Payments to family members must be approved by COP. Alternatively, where the child has a Trust Fund in place, gratuitous care payments can be made from the fund with the agreement of the Trustees.
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.
The amount of Gratuitous Care is assessed using the ASHE scales which look at pay scales for care workers, and is minus 20-25% as tax and national insurance is not 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
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 it is because of a specific reason, namely a birth injury. But for the birth injury you may have had a calm settled baby as so many parents realise if they go on to have a typical baby.
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.
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. My understanding is that parents can only be compensated for career loss when no other person can care for their child, but I’ve only heard of one person who received this. To challenge this situation for everyone (according to a respected barrister) it would need a change in the law to compensate every parent, husband, wife or partner of any person injured by any negligence. This would amount to thousands of claimants and unsustainable to the taxpayer. Alternatively, £1 million to take the matter through the courts, and even then, unlikely to succeed under the ‘floodgates’ principle. No one should waste time and mental energy on this dead horse. Unfortunately, we are just collateral damage.
Source includes Judiciary UK
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 my next blog.
