[2024] UKUT 84 (AAC)

The Tribunal found that eligibility for an award of a lump sum in respect of loss of parental services (paragraph 42(a)) ends once the qualifying claimant reaches 18. However financial dependency which leads to an award of additional compensation (paragraph 40) may extend beyond that age. The second edition of Begley (page 342) suggests that paragraph 42(b) could be used in respect of a very disabled child who required extensive care from a deceased parent which is now provided by another, to make an award reflecting the extra level of care as compared with an able-bodied child. Begley also refers to an unreported case (Mathurin v CICA 2014) where an award was made reimbursing legal costs of an application for parental responsibility as well as the value of care provided by extended family. This case was not available to the Tribunal, being unreported.

We accepted the Appellant’s argument that paragraph 41 of the Scheme sets out how the amount of compensation payable in respect of dependency should be calculated (i.e., on a basis similar to loss of earnings and cost of care) and that paragraph 41 was not intended to be read such that loss of earnings and cost of care were the only heads of additional compensation that could be paid.

Paragraph 42 provides that additional compensation may be payable pursuant to paragraphs 42(a) and 42(b) where the qualifying claimant was dependent on the deceased for parental services. Paragraph 42(a) provides for a tariff award for loss of parental services and 42(b) provides for “such other payments as a claims officer considers reasonable to meet other resultant losses”.

The Tribunal found that on a plain reading of the text, “other resultant losses” must mean other resultant losses resulting from the loss of parental services. This would include the examples in the guide of childcare, loss of earnings if someone else had to give up their job to provide childcare previously provided by the deceased and the cost of someone else obtaining parental responsibility.

The Tribunal did not accept that the costs of accommodation/adaptation or Court of Protection/trust costs were losses intended to fall within the remit of paragraph 42(b).

We found that the cost of an extension (or indeed adaptation) to Mrs Treacey’s house was not a resultant loss because it did not arise due to loss of parental services. The recovery of the cost of an extension would be significantly widening the remit of the Scheme. Paragraph 35 lists special expenses which may be compensable where the appellant has a loss of earnings claim. Paragraph 35 is not directly relevant as Dominic’s claim falls to be determined under paragraphs 37-44 of the Scheme. However, it is of note that whilst paragraph 35 allows the reasonable cost of adaptations to the applicant’s accommodation it does not include the costs of an extension. In any event the cost of the adaptation claimed in this instance was the provision of a downstairs toilet and the Tribunal did not find that cost (or the cost of an extension) to be a loss resulting from the loss of parental services.

Trust costs are not stated as a head of recoverable loss anywhere in the scheme. There is no provision anywhere in the 2001 scheme for trust costs to be recoverable (even in paragraph 35). The Tribunal therefore finds that it was not intended that they would be recoverable under paragraph 42(b).

The costs of appointing a deputy have already been paid, albeit in error, by the Respondent and were not in issue in the appeal. In any event we find the costs of Court of Protection applications arise as a direct result of Dominic’s pre-existing disability and not as a result of loss of parental services and therefore any future such costs are not a resultant loss within the meaning of paragraph 42(b).

For these reasons, the appeal was refused. The issue of care costs remains outstanding and therefore directions are given in that respect.”