Surviving Interim
Interim is not a waiting room!
For the nuts and bolts of Interim and Quantum, first read my Interim section under the ‘Legal’ heading.
When the euphoria of being successful at the end of your birth injury litigation claim and securing your child’s future begins to wear off, you enter another difficult phase. This one is generally more focused than the litigation leading up to an admission of liability, but many parents find it intrusive, exhausting and frustrating.
Interim is not a waiting room. It’s the period when the evidence is gathered, the costs are calculated and the financial arrangements for your child’s future are worked out. It’s a time when therapies can be increased privately, equipment trialled and purchased, holidays arranged, adaptations arranged and even housing secured.
Your home may feel like a revolving door. Experts, therapists, case managers and other professionals will come and go, and you may sometimes feel that your entire life revolves around proving what your child needs.
Here are some things I learned along the way.
Be prepared for the process of proving everything
During Interim, your legal team and the Defence will be quantifying the claim. In other words, they will be putting a financial value on your child’s injuries, care requirements, equipment, accommodation and other present and future needs. They will also be working out your ‘Past care’.
They use expert evidence to work out these figures. Generally speaking, the Defence will scrutinise the figures and challenge costs it considers too high, while your legal team will present the evidence supporting the compensation your child needs.
There can be considerable disagreement. The aim is to reach a settlement that properly reflects the evidence, but getting there can take time and is usually somewhere in the middle.
When your legal team quotes an eye-watering figure for something like past care, remember that this is the amount being claimed, not necessarily the amount that will ultimately be agreed or awarded.
Being prepared for negotiation helps you keep realistic expectations without losing sight of what your child needs.
There is no standard value for a birth injury claim. The final figure depends on the individual child’s injuries, needs, prognosis, life expectancy and the evidence supporting each head of loss.
It really is a case of proving what is needed.
Experts: pace yourselves
To establish your child’s needs caused by the birth injury, you will need expert assessments. Depending on your child’s injuries and circumstances, these may cover care, accommodation, neurology, orthopaedics, assistive technology, educational psychology, neuropsychology, physiotherapy, speech and language therapy, and occupational therapy.
You may have experts instructed by both your legal team and the Defence, although some evidence may be provided by joint experts or agreed between the parties.
That’s a lot of appointments, reports and people asking questions about your child.
Pace yourselves, and don’t be afraid to manage the process.
- Arrange appointments at times that fit with your family’s life wherever possible.
- If you are asked to travel an unreasonable distance, explain that it isn’t practical and ask whether the expert can visit you instead.
- If you need a break from appointments, tell your case manager and legal team.
- Read the expert reports when they arrive.
- If something is factually wrong, or you disagree with an important part of the report, raise it with your legal team and explain why.
We once had an expert report that said Dad was present when he was actually in Spain with the younger child! It didn’t exactly inspire confidence.
Experts are human and can make mistakes. If you spot one, don’t assume it is too late to correct it. Raise it promptly so your legal team can decide what needs to happen.
You are entitled to ask questions and point out factual errors. You don’t have to accept something simply because it appears in an expert report.
Your Case Manager can be invaluable
During Interim, you will usually be involved in choosing a case manager to coordinate your child’s care, therapies, equipment and wider support due to the birth injury.
If you haven’t already done so, read my separate Case Managers article, which explains more about the role and finding the right person.
A good case manager can make an enormous difference.
They coordinate the professionals involved in your child’s care, help identify what is needed and gather evidence to support those needs. They can also help you navigate situations that would otherwise leave you feeling that you are fighting yet another battle.
For example, many disabled children benefit from regular hydrotherapy. Having a small hydrotherapy pool that can be used throughout the year, with suitable hoisting and access, may be an important consideration. However, it is not simply a matter of saying that you want one. The case manager and relevant experts may need to explain why it is appropriate for your child and provide evidence to support the proposal.
This is a recurring theme throughout Interim: it isn’t enough to say what your child needs; the need and the associated costs must be supported by evidence.
Your case manager can help you build that evidence.
They may also investigate suitable holidays and respite options, where appropriate. And if you are unhappy with a care provider or establishment, your case manager may be able to help you address the problem, including managing a change of provider if necessary.
We had a situation where we were unhappy with an establishment’s care of the child. Having someone else help manage that difficult conversation was a relief.
If, like us, you aren’t naturally confrontational, this can be a particularly welcome part of the role.
You will probably need to appoint a Deputy
Following admission of liability, you may be introduced to the process of appointing a Court of Protection Deputy to manage your child’s financial affairs. Read my Deputies article for more in depth information. The relationship may continue for many years, so it is worth understanding the role and the costs involved.
Where a professional Deputy is proposed, parents are invited to meet potential candidates and discuss who would be the best fit. If you have concerns about a proposed Deputy, raise them with your legal team and ask whether an alternative can be considered.
Remember that the Deputy’s authority comes from the Court of Protection order. Their role is to manage the child’s finances within that authority, rather than simply to take over every decision about the child’s life. The rules on Deputies are different depending on whether the child has or lacks mental capacity and once they reach 18.
Interim payments and past care
During Interim, you may receive interim payments to meet reasonable costs arising from your child’s injury while the claim is ongoing. There can be several payments, depending on the circumstances and what is needed.
These payments are made on account of the eventual compensation; they are not extra money on top of the final award.
They may help fund things such as:
- Case management.
- Therapies and equipment.
- Care and respite.
- Transport.
- Accommodation.
- Education and other necessary support.
Your legal team will advise on what can be requested, what evidence is needed and the appropriate process.
Don’t forget past care
You may also be able to claim for care you have provided yourself over the years. This is often referred to as gratuitous care or past care.
The principle is that, where the legal requirements are met, the claim may include the reasonable value of care that would otherwise have needed to be provided by paid carers.
The calculation isn’t necessarily the full commercial cost of employing a carer. The appropriate rate and deductions will depend on the circumstances and legal assessment. For basic care 20-25% is deducted as this reflects the fact income tax and national insurance are excluded. If you provide high level nursing care, such as ventilator care you may be paid a much higher rate.
It is worth asking your solicitor whether any past-care amount can be assessed and paid before final settlement, rather than assuming you must wait until the very end.
Also, think about the additional costs you have incurred because of your child’s injury. Start a list and include receipts where possible.
These might include equipment, specialist therapies, blenders or other items you have paid for over the years. You may not recover every pound spent, but don’t assume that an expense is irrelevant simply because you paid it yourself.
Discuss these costs with your legal team. They can advise which are potentially recoverable and what evidence you need.
Housing: think carefully before making big decisions
Many family homes are not suitable for a child with significant disabilities. There may be insufficient space, poor accessibility, inadequate bathroom facilities or no room for the equipment and carers the child needs.
During Interim, your family may be asked to consider moving into rented accommodation if your current home cannot meet your child’s needs.
The additional costs associated with renting may form part of the claim, depending on the circumstances. Your solicitor should explain the options and their financial implications before you commit to anything.
The quantum process will also consider your child’s future accommodation needs. For example, there may need to be sufficient space for carers to work and, where appropriate, sleep.
Finding your child’s long-term home
At some point, you may start looking for a suitable long-term home.
The claim may include an allowance towards appropriate accommodation and adaptations, depending on the child’s needs and the applicable legal principles.
A second move can be difficult and expensive, so it is worth taking time to get the decision right in the first place wherever possible.
Your case manager can help coordinate the process, working with you and the relevant experts on the practical requirements, adaptations and arrangements.
However, it is important to understand that the legal and financial arrangements for a property purchased for your child may be complex. If your child lacks capacity to manage their property and financial affairs, the appointed Deputy will need to act within their authority and any necessary Court approvals.
If you already own your home, you may want to consider whether renting it out could provide income or help with your mortgage once you move into your forever home. Don’t make assumptions about what is financially sensible: the implications will depend on your circumstances, the proposed housing arrangements and how the compensation is structured.
Discuss the housing options fully with your solicitor before committing to a purchase or sale.
Buying a property during Interim
Buying a property before final settlement can be a balancing act.
If a suitable property is identified, your legal team will need to consider the evidence supporting its suitability and the proposed funding arrangements. Occupational therapy and housing evidence will usually be important, alongside advice from your solicitor and Deputy.
The timing can be difficult. Obtaining the necessary funding and approvals may take time, and a seller may not be willing to wait.
A property can therefore be lost while the arrangements are being finalised.
There is no universal rule that buying during Interim is better or worse than waiting until settlement. Each case is different, and the decision needs careful consideration of the child’s needs, the property, the funding available and the relevant approvals.
Life expectancy: a difficult but important subject
Life expectancy may be a significant factor in calculating compensation where a child has sustained a serious birth injury.
Medical experts may be asked to assess life expectancy, taking account of the child’s individual circumstances and health. This evidence can affect the calculation of future care and other lifelong needs.
It is a difficult subject to discuss, particularly when you are already dealing with so much. We found it helpful to know that these conversations might arise, rather than being caught completely off guard.
You can ask your legal team to explain why the evidence is needed, what it means for the claim and how it affects the calculations.
And if you need to step out of a meeting or ask for a break during a discussion, you can say so.
You don’t have to sit through every difficult conversation without support.
Where periodical payments are agreed or ordered for future care, they can be structured to continue for the claimant’s lifetime. Your legal team will explain the implications of life expectancy for the overall settlement and how future care may be funded.
The final settlement
Once the relevant expert reports and other evidence are available, the legal teams can work towards resolving the outstanding figures. If you settle at a percentage agreed at the admissions stage, your award will reflect this.
A Joint Settlement Meeting (JSM) is one way of doing this. The parties discuss the evidence and attempt to agree a settlement. Your legal team will explain whether you need to attend in person or whether remote attendance is possible.
The negotiations can be intense. The Defence may challenge particular costs or assumptions, while your team will explain why the proposed figures are justified by the evidence.
The aim is to reach an agreement that properly reflects your child’s needs and losses.
If the parties agree on the settlement, the next steps depend on the circumstances of the claim. A settlement on behalf of a child must be approved by the Court. The Judge considers the proposed settlement and supporting evidence before deciding whether it is in the child’s best interests to approve it.
If important issues remain unresolved, the legal teams will advise you about the options. These may include further negotiation, mediation or a court hearing to determine the disputed issues.
Not every disagreement means the case must go to a full trial, and not every Joint Settlement Meeting results in a complete agreement.
Your legal team should explain what has been agreed, what remains outstanding and what happens next.
Finally: look after yourselves
Interim can be an exhausting period. You may have spent years getting to the admission of liability, only to find that there is another long process ahead of you.
There will be appointments, assessments, reports, discussions about money, difficult conversations about the future and days when you feel that everything is being scrutinised.
Try to remember that the process is intended to establish what your child needs and what compensation is appropriate to meet those needs. The evidence-gathering can feel intrusive, but you can ask questions, correct mistakes, request breaks and explain when arrangements aren’t workable for your family.
Use your case manager and legal team. Ask them to explain things you don’t understand. If something feels wrong, raise it rather than letting it worry you in silence.
And keep some room for ordinary family life. You are still parents, not just the people who attend appointments and answer expert questions.
Interim is difficult, but you don’t have to get every decision right immediately, and you don’t have to navigate it alone.
Keep a sense of humour, a sense of purpose and the knowledge that you have already come a very long way.
You will get through it. ❤️
