What is a trial of independent living and why are they so important?

For those involved in serious traumatic brain injury work, the term independent living trial (commonly known as an ILT) will be familiar.  They are however becoming an increasingly contentious issue, with the insurance industry and those representing them either taking the view they are unnecessary or that they are driven by the litigation.

This article looks at the long-term impact of traumatic brain injury on an individual and explores the role a trial of independent living can have in maximising a  person’s independence and in turn how that impacts legal proceedings.

What is a trial of independent living?

In simple form, a trial of independent living provides the injured individual with the opportunity to live away from the environment they returned to following the accident in a structured and supported way.   The underlying ethos is to enable the injured party to develop independence in their own living environment as much as is possible in their circumstances. Within the context of litigation, a good trial will provide evidence to assist the Court in evaluating the needs of the injured party in the longer term to enable them to continue to live independently.

What can independent living with a traumatic brain injury look like?

The primary purpose of an Independent Living Trial (ILT)  is to enable the injured party to take the next step towards their own version of independence. For some people, that is never possible.  Some individuals will always require 24-hour care within either a residential setting or a family environment.  For others,  however, simply because they have suffered a traumatic brain injury, it does not mean they need to remain within a residential setting or within the family home in the longer term.

We believe that our clients are entitled to lead as normal a life as possible and an independent living opportunity provides them with that chance. Many of my clients were very young when they sustained their brain injury so naturally, they have continued to live with their family as they have steered their way through adolescence and into young adulthood.   Other clients were adults when they sustained the injury and were either on the cusp of moving away from the family home or were living an independent adult life.  and find they have had to return to the parental home for ongoing care following the accident.  For those without a supportive family, many have had to stay within the confines of a residential setting.

What are some challenges that may be faced during a trial of independent living?

When arranging an independent living trial opportunity, it is vital to ensure the timing is right, and that it’s something that the injured party really wants. The litigation may have to wait for closure and that is often the crux of the issue for an insurer who wants that closure as soon as possible.  However, a correctly progressed independent living opportunity is in the best interests of all parties and not just the injured party even if that means delay in resolving the litigation.

For some clients, the term “independent living” can cause feelings of anxiety, but careful explanation and management are the paths to success.  This is not simply a case of moving someone out of the caring environment of a family home or a residential setting.  Moving someone into a trial of independent living will take at least six months of meticulous planning and support; for some with more complex issues, it will take considerably longer.

An experienced case manager will lead a full team of people, whose goal is to support the injured party. This team will include therapists, neuropsychologists, occupational therapists and speech and language therapists, as well as bringing in a rotational team of rehabilitation support workers . This is often in a combination of direct employment of those providing day support and agency for night support, with the injured party having, wherever possible, direct involvement with recruitment.  After all, they will be providing the day-to-day support and need to have the skills, patience, understanding, and empathy to upskill the injured party to develop their own form of independence.

A rental property will be sourced for the client and a carefully managed transition into that property with the client at the centre will be undertaken.  Initially support will be provided on a 24-hour basis but with clear monitoring undertaken to identify whether 24-hour care is likely to be required in the longer term.   SMART goals are key, and the team need to all work together and communicate regularly with each other to avoid creating a dependency environment.

What are some possible outcomes from a trial of independent living?

I have had several clients for whom independent living trials have been the making of them.  I acted for a young lady who sustained a traumatic brain injury aged 7. She came to me shortly after her 21st birthday, from a firm inexperienced in such work.  For those without an understanding and knowledge of traumatic brain injury, she seemed reasonably independent. She lived with her mother and seemed on the face of it independent.  Her mother went out to work each day, leaving my client at home.  But my client in fact did very little.

She worked one day per week in a local shop and exercised.  She waited until her mother came home each day for dinner.   She was unable to plan or initiate. I could see, from the first day I met her, that she was dependent on her mother.   On takeover, I broached with my client and her mother the concept of a trial of independent living.  There was apprehension, but also excitement at the thought of moving forward with her life.    A battle ensued for interim funding as the defendant insurer was perhaps misguided by their instructing solicitor as to the need and benefits of an ILT.

Case Study: Completing a Trial of Independent Living

It took some 10-months of evidence gathering and litigation and after a contested hearing, where my client succeeded, she was able to commence her journey. My client successfully transitioned away from her mother’s home.  She reduced her night support and her days have structure. She will always require support, but she is now able to live her life more constructively and with greater purpose.  She has control of her own environment.  Fortunately, within that claim the insurers changed their instructing solicitor to one who also saw the importance to my client in having an ILT,  and it made for an eventual much smoother path to resolution, resulting in a multi-million-pound settlement with Court approval.

The stance of insurers and their legal teams can be frustrating. Some insurers are driven by want to resolve a claim as soon as possible and I have had  contested hearings where an insurer has  advanced a case that my client neither wants, nor requires a trial of independent living, based upon their own care expert evidence. This contrasts with the position of my clients’ experts, and more importantly, their wish to move out of the family home.  Notwithstanding the fact the insurers often provide interim payments and can reserve their position on the recoverability of the costs incurred, they can still seek to try to persuade the court that my client ought not be afforded the opportunity to move away from the family home into their own own path of independence before resolution of the claim.

Some insurers simply want resolution of the claim, arguing that providing an injured party with more time will  lead to excessive delay and leave the litigation without focus. Some insurers cannot  see that to take such a step is not only not in the best interests of the clients, but also that it will assist the court in allowing for appropriate evaluation of the evidence. Without the evidence coming from a trial of independent living, it would be impossible for the court to determine whether the stance taking by the defendant’s care expert was correct or not.

Fortunately, more often the Court is with us and my clients are given the time they need before resolution of their claims to move forward  into a trial of independent living.  In my view, trials/opportunities of independent living are not only important but essential in some cases, not only for appropriate evaluation of longer-term needs, but for the health and wellbeing of the injured party. Whilst recognising an ILT is not “one size fits all”, insurers would do well to take a more pragmatic view if an experienced team advance the benefits of a trial of independent living for a particular individual.

If you, or a loved one, have suffered a traumatic brain injury and would like to make a claim in order to improve their quality of life, you can contact our Injury and Medical claims team by requesting a call back via our website. A member of our legal team, with experience and expertise in the topic of brain injuries, will be in touch shortly to discuss the details of your case.

If you have further questions about living with traumatic brain injuries, or making a claim, you may like to read some of our other articles on this topic.  Visit our expert-written articles on brain injuries and their long-term effects, or how to recognise and claim compensation for mild traumatic brain injuries.