The revolving door of Interim
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Interim/Quantum
Interim is the period between admission of liability for the birth injury and final settlement of the claim, when the child’s future needs and financial losses are assessed and the compensation and any appropriate payment structures are put in place.
Quantum is the quantification (working out the monetary value) of all the different ‘Heads of Claim’. These are the different categories of loss and expenditure that make up the overall compensation claim.
Interim can last several years, (average 2-3 years) depending on the complexity of the claim and the child’s age and development. Where a child is very young, the parties may agree or the Court may allow a period of delay (sometimes referred to as a ‘stay’) so that potential issues become clearer before the final assessment of the claim. In some cases, this may extend towards puberty, but there is no fixed age or period.
In birth injury claims, a professional Deputy is proposed following an admission of liability, particularly where interim payments are being made to meet the child’s needs. Parents will usually be involved in choosing a proposed Deputy and are invited to meet potential Deputies before an appointment is made. If the proposed Deputy is not suitable for the family, this can be raised with the legal team and an alternative may be considered.
Where a child lacks capacity to manage and control a compensation award and the fund is £100,000 or more, the Court will normally direct an application to the Court of Protection for the appointment of a Deputy.
Interim payments may be made to meet reasonable costs arising from the child’s injury while the claim is continuing. There can be several interim payments during a claim.
Interim payments are payments made on account of the eventual compensation. They are not additional compensation on top of the final settlement.
A voluntary interim payment relating to a child’s claim requires Court approval.
Interim Payments are made available to fund
- Case Manager,
- Deputy,
- Therapies and Equipment,
- Respite Care, and Carers
- Transport
- Accommodation
- Education
- Parental expenditure on necessary items
Expert witnesses provide evidence about the child’s current and future needs and the financial losses arising from the injury, including:
- Housing
- Care
- Therapies
- Equipment
- Education
- Life expectancy
- Future earnings
You will likely see (although it depends on the child’s level of disability) Experts in Care, Accommodation, Neurology, Orthopaedics, Assistive Technology, Educational Psychology, Neuropsychology, Physiotherapy, Speech and Language, and Occupational Therapy. As if that wasn’t bad enough, there may be experts instructed by both the Claimant and the Defendant, although in some areas the parties may rely on a joint expert or agree evidence. They will look to quantify the loss for each area of need.
A major part of Interim is gathering evidence about the child’s current and future needs so these can be properly valued as part of the final settlement.
The child’s needs may change during Interim as they grow and develop. Evidence may therefore be updated where necessary before the final settlement.
Some expert evidence may need to be updated during Interim, particularly where the child’s condition, development or needs are changing. This list is not exhaustive.
| Heads of Loss | Evidence | Current Position | Outstanding |
|---|---|---|---|
| Case Management | Case Manager | Actual costs | Future Needs |
| Accommodation | OT/Housing expert/Architect | Initial options/current housing | Final specification |
| Care | Care Expert | Current care given | Lifetime needs |
| Speech and Language (Therapy) | Speech and language therapist | Current/past therapy given | Future needs/AAC equipment |
| Therapy | Physiotherapist | Current therapy | Future projections |
| Equipment | Occupational therapist | Current equipment | Replacement schedule & future needs |
| Education | Education expert | Current placement | Long term needs |
| Transport | OT | Current vehicle | Future requirements |
| Earnings | Neuropsychologist | Parental education/employment & family circumstances | Assessment of likely education & future prospects |
| Life Expectancy | Medical evidence | Current health | Update if necessary/Predict |
Sources: Civil Procedure Rules, Parts 21 and 25; Court of Protection; Office of the Public Guardian; Mental Capacity Act 2005; NHS Resolution; Judicial College Guidelines
For more information read my ‘Surviving Interim Article‘.
The final settlement may involve different forms of compensation
The final settlement may involve a lump sum, periodical payments, or a combination of both, depending on the circumstances of the claim.
Settlement
Following the quantification of the claim in Interim, and an agreement on all sides on the various amounts allocated for different areas of the claim, Settlement is reached. A settlement agreement is drawn up and is legally binding on all sides. This agreement is then ratified by the High Court. The parents can be there when this happens. The settlement must then be approved by the Court. The judge will consider the proposed settlement and the supporting evidence before approving it. He will usually say a few words to the parents. These proceedings are held in private and there are strict reporting restrictions, so the settlement remains confidential unless you decide otherwise.
If the Defence and your team of experts reach vastly different sums for certain ‘heads of claim/loss’ (basically the different areas where payments need to be made to compensate for loss) and cannot reach agreement at a Joint Settlement Meeting, it may need to go to court for a judge to decide on fair recompense. It’s quite rare for this to happen as mediation is usually successful. Following settlement you will need to negotiate life with Carers, Case Managers and Deputies, in many circumstances.
Professional Deputy
Joint Deputy
Paralegal
A deputy is appointed by the court of protection to oversee the use of your child’s funds. A professional Deputy is often a solicitor or other suitably qualified professional with expertise in Deputyship. A Deputy manages the child’s money within the authority granted by the Court of Protection. A Deputy usually has an assistant (a paralegal) who can deal with day to day finances and who is less expensive to contact than the Deputy. Some parents opt to be a Joint Deputy and work with the Deputy to make the process work more smoothly and efficiently. It is cost effective, but can sometimes be difficult to set up. It is hard after years of managing your child’s affairs to hand over control to a stranger, and being a joint deputy can work well in this situation. If serious concerns arise about a Deputy or Case Manager, there are routes for asking for a change, although replacing a Deputy involves an application to the Court of Protection. The Court does not make changing deputies an easy or cheap process, but it can be done. Ultimately you must have a good working relationship with people who play such a prominent role in you and your child’s life.
(Source Gov.UK Deputies)
Case Managers
Case management is not currently a profession regulated by law, and “Case Manager” is not a protected title. However, the Institute of Registered Case Managers (IRCM) has now established a Register of Case Managers to improve standards and public protection.
IRCM maintains a public register of case managers who have met its registration requirements and agreed to practise in accordance with its Standards of Proficiency. It also has a process for investigating concerns about Registered Case Managers and those on its Pre-Registrant Pathway.
IRCM is currently a voluntary regulator rather than a statutory regulator. It is seeking accreditation from the Professional Standards Authority (PSA), which would provide additional independent quality assurance of its register.
For parents choosing a Case Manager, checking whether they are registered with IRCM can therefore provide an additional level of reassurance. However, registration does not replace the need to consider the individual’s experience, qualifications, specialist knowledge and whether they are a good fit for your child.
The Case Manager’s role is to work in the client’s interests. The funding and contractual arrangements will depend on the individual case, but families are normally closely involved in choosing the Case Manager and working with them.
IRCM (Institute of Registered Case Managers) is an organisation who describe a case management as “a collaborative process which assesses, plans, implements, coordinates, monitors, and evaluates the options and services required to meet an individual’s health,
well-being, social care, education and/or occupational needs, using communication and available resources to promote quality, cost-effective and safe outcomes”.
Case Managers assess, plan, and review the needs of each individual client. They work for the client, but are expected to communicate and cooperate with the family as a team. Case managers are not employed by the family, but the family has the final say on who is employed. They are paid by the Deputy who is managing funds. They are paid for from the child’s award and money will be allocated for a case manager for life, if it is proved necessary during quantum. This is why it is especially important during quantum to utilise the skills of a case manager.
Relationships with case managers and other professionals dealing with the child’s needs, can sometimes be difficult, therefore it is important to choose someone you feel comfortable with and feel is competent in their field. I would recommend looking at BABICM or CMSUK types of organisations with registered members, simply because it takes out some uncertainty in a difficult situation. However, the choice is yours, as there are several ways people find good case managers. Personal recommendations are often successful.
Parents can begin to feel they have no control over the child they have cared for alone for many years, so it is important you have a ‘good fit’ with your case manager and trust their judgement. Case Managers must put the ‘client’ at the heart of their practice. This is your child not you or your family. Case Managers should be open, honest and transparent with the client and family. As the parents you are the most relevant people, not the Deputy, or any other person involved with your child’s care. Always remember that and remind others if necessary.
It is not essential to have a case manager, especially once the case is settled, but if the child has high physical care needs, coordinating carers to give round the clock care, organising therapy sessions, organising equipment, housing and adaptation needs etc, can be exhausting. Just understanding employment law is a major hurdle. Having someone who works with you to coordinate care can take an enormous strain off the parent child relationship and release parents to do the fun stuff with their child.
(Source BABICM and CMSUK)
Some of the services a Case Manager provides
- Source therapists: Occupational therapy, Physio, Speech and Language, music and hydrotherapy. Can even help source therapies such as yoga if it benefits the child
- Source care providers and deal with staff issues, rota issues and holidays
- Deal with invoices from care agencies
- Source any equipment needed
- Deal with the Personal Health Budget
- Check in with the family weekly
- Regularly update the Deputy and request funds as needed.
- Can become a trusted member of the team and someone to talk to
- Help organise travel and holidays
There are other Case Manager organisations but these three will give a good idea of the work a case manager does and what security can be offered.
I do not recommend any organisation over another, but suggest you research carefully to find your best fit.
Sources: Civil Procedure Rules, Court of Protection, GOV.UK, NHS Resolution, IRCM
