Claims for Commercial Care and Case Management in a Recruitment ‘Perfect Storm’

In serious personal injury cases, the claim for future commercial care and case management is typically the most valuable and hotly-contested head of loss.

In this blog I offer practical guidance to those involved in such claims as to how to deal with what has been recognised as a “perfect storm” of difficulties in recruiting and retaining skilled support workers and carers.

In February 2022, BABICM (the British Association of Brain injury and Complex Case Management) published the results of a survey designed to obtain objective statistics and subjective narratives of these difficulties. The results can be found here (if that’s in your TL;DR box, the précis is “ongoing multifactorial crisis in recruitment and retention of support workers for brain injured”!)

Before commenting on how to address this issue in ongoing litigation it is worthwhile to consider why the situation might be described as a perfect storm right now. For many years prior to 2020, there were well-established difficulties in recruiting which probably had their roots in the fact that pay for this type of work was relatively low, the work was regarded by many as having low status and working conditions were poor often including unsociable hours. Since 2020 it appears that these long-term factors have been added to by the seismic effects of Brexit and Covid. Whilst by no means declaring expertise in labour market behaviour it is pretty obvious that Brexit has reduced the pool of available workers; that the requirement for compulsory vaccination has had the same effect; and that changes elsewhere to the labour market (including the multiple home delivery networks) may have resulted in workers being attracted away from this sector.

Although the “Perfect Storm” survey specifically relates to a brain injury cohort there is no reason to think that similar issues are not being encountered in respect of commercial care and support for those with other forms of serious injury.

My suggestion is that consideration needs to be given to three main effects of the perfect storm.

Hourly Rate

In the past, many care experts have simply applied hourly rates using their general experience of costs in a specific region, or applying the rate being actually paid within an existing package at the time of their assessment. This will probably no longer be adequate and certainly those advising claimants will wish to dig deeper to produce a more focused, specific and up-to-date assessment of an appropriate hourly rate for future care.

Sometimes this work can be left to the care expert but in most cases, they will need assistance from the instructing solicitor, the existing Case Manager, or both. Questions to be considered by the care expert might include these:

• In an existing regime the starting-point will be what team members are actually costing as one approaches a JSM or trial. However, careful consideration will have to be given to whether any increases may be on the horizon.
• If an agency is involved, speak to them about any planned increases. In a direct employment scenario, consideration needs to be given as to whether any employees are unsettled or have plans to leave or the timing of any planned pay increases and what has happened in any recent recruitment efforts: check with the Case Manager and include this in any witness statement or serve an updated statement.
• In cases where there may be no regime in place, it will be necessary to obtain quotes from agencies and/or research pay rates in the particular locality thoroughly through recruitment websites and the like.

Recruitment Costs & Case Manager Hours

The costs of commercial care always include an allowance for recruitment costs which usually receives little or no attention. The care experts need to consider whether the sorts of allowances that have previously been claimed are adequate in the current climate given the difficulty in recruiting and high turnover of staff that is part of the “perfect storm”.
If there is going to be more time needed to recruit staff and then a higher turnover of staff in the future, the care expert needs to ensure that this has been factored into the annual costing for case management.

Form of Award

For many years in cases of maximum severity with substantial claims for commercial care and case management it has been typical for these heads of loss to be awarded in the form of a periodical payments order, unless the liability position or some particular feature of the case renders that impractical. Amongst the advantages of some awards was indexation to ASHE 6115 so that once set at trial/settlement, annual sums increase (or decrease) in accordance with actual costs in the sector.

Although every case must be considered on an individual basis, my view is that the “perfect storm” is likely to increase the number of cases where a PPO will now be appropriate and perhaps to move the bar downwards in terms of the amount of annual award necessary to justify a PPO.

Such an issue should be considered with an expert on “form of award” well in advance of any negotiations.

The reasoning for this conclusion is that one of the few arguments available to defendants in respect of a case where the claimant has properly marshalled evidence to support how their claim is affected is to argue that the storm will surely pass in time and things will normalise. Answering such questions must be guesswork and certainly the timing of any “return to normal” is unknown as is the level of what will pass for normal in the future. In such a context, claimants can be protected by proper indexation of a PPO and defendants will know that future payments will only increase as much as they need to.

In summary, to take cover from the perfect storm, more attention will be needed to ensuring that disclosure, witness evidence and your care expert have properly considered the issue of hourly rate and recruitment/case management costs and the protection against future wage inflation offered by a PPO.