Buying accommodation in injury claims
For any person involved in an accident, even those with relatively minor injuries, from which a recovery is made, just being involved in an accident is traumatic enough. For those who are left with catastrophic and life changing injuries, the trauma and adjustment to a new way of life is beyond that which most of us can imagine.
The litigation process adds to that trauma, as does the thought of purchasing and adapting or constructing a property designed to meet for their specific needs. For some, this may be the first property search they have ever undertaken and it can be daunting, confusing and overwhelming. Many do not know what to look for or where to look for guidance.
Further stress is added in these periodical payment times, where the courts are now reluctant to award vast lump sums in interim payments to allow for the purchase and adaptation of a property, if it is likely that to do so would limit a trial Judge’s ability to make a periodical payments order. In light of the decision in Cobham Hire Services Ltd v Eeles combined with the restrictive approach taken to calculating the recoverable element of the purchase cost as set out in Roberts v Johnstone, it can be difficult to raise sufficient funds through interim payments to buy and adapt a property and fund this and case management and care costs through to trial.
Consequently applications for interim payments to fund a property purchase have declined over recent years and of those that have been reported, the rule of thumb is that in general the Courts do not award more than 75% of a conservative valuation of the capitalised element of the claim. This often is insufficient, so what if a claimant wishes to buy and adapt a property in order to set up a care regime? There may sometimes be a real and immediate need, in which case the Court may allow money to be drawn from the future loss claim, as long as that need is made out. However, that is often not the case, so does that mean, claimants can no longer seek interim funding to buy and adapt a property?
It is not impossible, but the claimant has to take care and “cut his cloth” according to his means. It may be necessary to phase adaptation costs, with those essential to enable for the claimant to live in the property being done before other adaptations which are required in the longer term, but which are not immediately necessary. Alternative possibilities should be considered. Is renting an option? However, landlords willing to allow short term adaptations to their properties are limited.
It is essential to minimise the stress for those claimants who wish to purchase a home before settlement to not only manage their expectations at an early stage, but to also positively encourage them to invest the time and money into an experienced property finder. It is important that the right person is used. Many estate agents may hold themselves out as “property finders” but it is a specialist task to source a suitable property or plot of land for a catastrophically injured client. A knowledgeable and experienced property finder, whilst not eliminating the stress of a property finding, will help to reduce that stress and will increase the chances of finding a property which can be adapted to be habitable for the claimant immediately within the budgetary confines of a limited interim payment.
Case law has not rendered interim payments applications for accommodation claims a thing of the past, but such applications must be carefully prepared and managed; that entails a careful and structured approach to property finding with communication with the client central to the issue.