Sowden v Lodge and Drury v Crookdake, (Court of Appeal - 22 October 2004)
Local authorities are under a statutory duty to provide accommodation, including associated care, for persons over 18 who are in need of care as a result of a disability.
In these cases, the Court of Appeal considered whether this provision means that a person who is claiming compensation for such disability cannot recover the cost of accommodation where this will be provided by the local authority free of charge (as will be the case, for example, where the disabled person is a patient under the Court of Protection).
The court held that if the claimant's reasonable needs will be met by the local authority, then there is no loss and so damages will not be recoverable. However, if there is a significant difference between the reasonable needs as identified by the court and that which the local authority will provide, a loss will be established. In such circumstances, it would be possible for the local authority provision to be 'topped up' so damages would be limited to the amount of the top-up but the onus of proof will be on the defendant to establish that this arrangement will meet the claimant's reasonable needs.
Comment: This decision is welcome in confirming that if a disabled claimant's reasonable needs will be fully met by the local authority free of charge, damages for accommodation costs are not recoverable. However, it appears that the courts will be sympathetic to arguments that the local authority provision does not meet all of the claimant's needs, and the burden on defendants to disprove this is likely to be heavy. Michael Hardman, BLM Liverpool.
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