In Court of Protection cases and Personal Injury Trust cases payment can be made to family members for the care they provide to the person who suffered injury and this care is paid from the compensation award. This payment must be approved by the Court of Protection if payment is made to the deputy and by the trustees in respect to Personal Injury Trusts.
It can be difficult to decide how much to pay for care as no amount really covers the additional work that family members provide but we have to have a starting point. I usually look at the care report in compensation cases as this may refer to a gratuitous amount recommended for family care and I then look at the final settlement and what was recovered.
Family members can be paid a sum free of tax and national insurance and approval to this is sought from HMRC in the form of a Carer’s Certificate. HMRC have issued guidelines on this in ESM 4016.
In the recent case of HC [2015] EWCOP29 (SJ Lush) payments for care were specifically discussed. In this case S J Lush allowed a commercial rate for care discounted by 20% because payment was not taxable, although usually in PI claims the deduction is 25%. He also provided for annual increases in line with the Annual Survey of Hours and Earnings (ASHE) 6145 which relates to carers and home carers.
The amount approved in this case was £1,500 per month for the deputy and £100 per month for his sister, although S J Lush noted that the payments were significantly less than any alternative care package that might be available.
This case provides useful guidance on payments to family members for care which is a selfless and all encompassing job that is often overlooked.
