I claimed for care and services (gratuitous care) for my husband following his accident at work. The solicitors handling the case have applied a 25% reduction to the amount claimed. Why has this happened?

What usually happens, and indeed happened in this case, is that a serious workplace accident occurred leading to a long period of convalescence at home. The claimant could not look after himself so his wife had to do most of the work. The key is that this was “above and beyond the call of duty” which is the first essential component of being able to claim a financial sum for her services. Basically she was doing things she would not normally do such as returning from work to make lunch, changing dressings and helping with bathing.

For the work she performed an accurate record of what she did, when and for how long was kept. From this the solicitors handling the case could calculate the total time she spent on looking after her injured husband. They then applied a commercial rate – a rate that a commercial care agency would have charged to provide home care. They then applied a discount of 25% and the reason for this is as follows.

The law in this area has developed by way of case law where Judges, usually in the Court of Appeal make statements in cases that become law. There are many cases that have come before them and they have laid down principles as to how to deal with gratuitous care.

The cases which gave rise to this area of claim are Cunningham v Harrison 1973 and Donnelly v Joyce 1974 which allowed a claimant to recover damages in respect of the fair and reasonable value of their care and domestic assistance which has been provided gratuitously by a family member or friend.

The courts developed a “beyond the call of duty” threshold for the care provided so general emotional support or just attending hospital were not allowed but true “care” was.

As a way of calculating a sum of money that should be paid by the “at fault” insurer the courts allowed a commercial care rate as a starting point.

The courts recognised however that a commercial rate of care had an element of Tax, NI and other commercial costs such as travel within it. So it was fair to reduce the rate of care to take account of this. This was decided in the case of Housecroft v Burnett 1986 and became known as the Housecroft v Burnett discount.  Normally a court would be easily persuaded to discount the claim for care and services by 25% to reflect the “non-commercial” aspect.

This has now become almost a rule of thumb if not a rule of law. It can be challenged however where you can argue that the carer is a trained nurse or no care is available as the area is too remote or the care is needed at unsociable hours but very detailed study of the evidence and other case law in this area is needed for these special cases.

So if a loved one is injured and you are looking after them keep an accurate diary and expect to for them to claim around 75% of a commercial care rate as recompense within their claim.