Journal Detail back to listing
Property Adaptations
- Sep 11, 2023
- Latest Journal
After grappling with all the arguments that can arise out of how to compensate a claimant for the need for a new property (how to deal with short life expectancy, what credit to give for properties which would have been purchased in any event and so on), property adaptation claims do not always get the attention they deserve. However, they can involve very large sums (sometimes more than any Swift v Carpenter award) and also generate significant legal argument. It is crucial that practitioners acting for claimants or defendants marshal their evidence as thoroughly as possible to put them in the best position to make those arguments.
This article looks at some basic principles, what can be claimed, what evidence is needed, and considers the specific issue of claims for more than one set of adaptations.
Principles
When considering any claimed adaptation, practitioners should ask themselves the following questions:
• Is there a need for the adaptation? There is no standard set of disability adaptations and it is important to consider the particular needs of the claimant. See for example Robshaw v United Lincolnshire Hospitals NHS Trust [2015] EWHC 923 (QB) at paragraph 234, where it was held that the nature of that claimant’s disability meant it was reasonable for him to be able to access the whole property in his powered wheelchair, while noting that it is “possible to envisage some disabled claimants for whom this would not be a factor of any significance, if at all.”
• Is the need caused by the defendant’s breach of duty? For example, the claimant may have had an unmet pre-existing need for an adaptation but the cost of meeting this need in any new/newly adapted property should not be borne by the defendant. The claimant may have had some need for adaptations as they aged in any event in which case credit for these should be given.
• Is the proposed adaptation reasonable? For example in Whiten v St George’s Healthcare NHS Trust [2011] EWHC 2066 (QB), while landscaping costs were allowed in so far as they provided a safe and stimulating area for the child claimant to play in, the cost of a timber cube (£2,750 plus VAT) and of garden lighting (£3,525 plus VAT) were not.
• Is the claimed/proposed adaptation consistent with the claimant’s duty to mitigate their loss? Is there a more reasonable means of meeting the claimant’s reasonable need? For example, where a claimant has purchased or is proposing to purchase a property which will need extensive adaptation, an argument might be made that at least some of those adaptation costs could have been avoided by the purchase of a more suitable property.
The Calculations
In addition to the obvious initial building costs of adapting the property, adaptation claims can include the following:
• Increased running costs/insurance. Particularly where properties are extended, there are likely to be increased utility bills, increased insurance costs and increased regular property maintenance costs. It is important to distinguish such increased maintenance costs from any other claim for home maintenance which the claimant would have carried out themselves but will now have to pay for.
• Additional furniture, carpets and curtains. Again, these will all be necessary where extensions such as a carer’s suite are proposed.
• Restoration. Some disability related adaptations will lower the value of the property and there will be a cost associated with removing them before the property can be sold.
• Credit for betterment. Other adaptations, such as those which increase the footprint of the property, will increase the value of the property. Credit should be given for such betterment. Both parties should ensure they ask their experts to address restoration and betterment so that they are equipped to meet the other side’s arguments in this respect.
• Professional fees. In addition to architect’s fees, there may be the cost of an occupational therapy report to advise on the suitability of adaptations or there may be legal fees associated with some larger projects.
• Maintenance and replacement of specialist equipment. As well as costing for the initial installation of specialist equipment (for example wash and dry toilets, body dryers, video intercoms etc.), experts should be asked to provide costs for the regular maintenance of such equipment, as well as an opinion on its likely lifespan. These issues may be addressed by either accommodation or occupational therapy experts as appropriate.
• Contingencies for building projects. There will often be a claim for a contingency recognising that initial estimates of the cost of building projects can be affected by changes in the cost of materials, issues of availability of materials, unforeseen issues when work starts etc.
Evidence
All practitioners need to ensure that their evidence (lay and expert) both addresses all of the above points, and creates a consistent narrative. There is nothing wrong with having evidence that addresses a number of possible options/scenarios, indeed this will often be desirable, but each party will ultimately want to ensure that their reports enable them to draft a schedule or counter schedule which puts forward a logical, consistent position.
Medical Evidence
Medical experts need to be asked to give relevant opinions on need and suitability of adaptations. In particular if it is asserted by a claimant that there is a medical/therapeutic need for an adaptation, rather than it simply being something it would be nice for them to have (a classic example being swimming or hydrotherapy pools), the experts on both sides need to address this argument. A defendant who wishes to challenge a proposed adaptation on the grounds that it is unsuitable, maybe even dangerous, again needs to check that this is covered by the relevant medical experts.
Witness Statements
The claimant’s injury needs will generally be assessed by the relevant experts, but witness statements should cover any needs specific to the claimant’s situation which might not be covered by such assessment. For example, the claimant might have a reasonable need arising from their pre-accident lifestyle which should be accommodated in any new/newly adapted property. If it is proposed that the claimant will continue to live with family members, it may be reasonable for the court to consider the specific needs of those family members (see for example Whiten at 441), but these will have to be evidenced in the witness statements.
Accommodation experts
Unless practitioners supply their experts with the right documents and ask the right questions, there is a danger that accommodation reports can become generic, one size fits all documents that do not properly address the needs of the specific claimant. Practitioners must be sure to ask accommodation experts to review all relevant documents in the case (including witness statements, other expert reports, pleadings etc.) and then to check the reports for inconsistency with those other documents. For example, if a party is proposing that a claimant will have 24/7 care including the provision of all meals, their accommodation report should not generally be proposing extensive adaptations to the kitchen, unless either in support of an alternative position or perhaps because there is an argument that some ability to use the kitchen would promote the claimant’s independence. Similarly, if the medical and occupational therapy evidence is to the effect that wheeled mobility aids will only be used outside the house, accommodation reports should not include the costs of widening doorways to allow the passage of wheeled mobility aids.
More than one set of Adaptations
Successive adaptations
Sometimes claims might me made for adaptations to successive properties. In Whiten, the parents of an injured child had made extensive adaptations to a property before trial, despite being advised that the property would not meet the claimant’s long term needs even after adaptation. The defendant contended that it should not be expected to pay for both these adaptations, and the adaptations which would be needed to the more suitable property to be purchased in the future. The court held that in the circumstances of that case, it was reasonable for the parents to have carried out the adaptations and that they were therefore recoverable in principle. The court took into account the fact that the family were living in wholly unsuitable accommodation with a second child due imminently; the family’s close ties to the area, including proximity to the claimant’s school and therapies; the evidence at the time that the claimant only had a very short life expectancy; and the fact that the cost of the capital expenditure on a new property would have to be borrowed from other heads of loss[1], some of which were likely to be paid by way of periodical payments, such that it was unlikely that the defendant or court would have agreed to an interim payment large enough to facilitate a move to a property within the area. In those circumstances the court allowed recovery of two sets of adaptations while recognising that “in most cases, the incurring of duplicate adaptation costs will not be reasonable and should not be borne by a defendant.” The case demonstrates the fact specific nature of the assessment of reasonableness and the importance of detailed evidence in support of any claim for successive adaptations.
Adapting properties of friends and family
In Manna v Central Manchester University Hospitals NHS Foundation Trust [2012] EWCA Civ 12 the Court of Appeal upheld an award for the purchase of a second adapted home for the father of a disabled claimant to enable the child to spend time with both of his divorced parents. In doing so, the court noted that the award should be regarded as generous and intensely fact-dependent. More commonly claims will be made for more modest adaptations to the homes of other family members.
Where the claimant is only likely to visit the other property infrequently, more limited adaptations will usually be allowed. In Whiten, a claim was made for adaptations to the claimant’s grandparents’ home in Barbados. While the court allowed a claim for such adaptations, nothing was allowed for the replacement of equipment as this was likely to be used infrequently, and only for the next five years or so after which it would become impractical for the claimant to travel to Barbados[2]. In Robshaw a claim was made to adapt the houses of the claimant’s father and grandfather at a cost of £5,500 per property. The court preferred the defendant’s suggestion that portable ramps at a cost of £500 each could be installed.
Conclusion
While many of the same issues arise often in adaptation claims, these claims are intensely fact specific, and it is important that parties therefore obtain detailed and coherent evidence in support of their respective positions.
References
[1] The case was decided at a time when Roberts v Johnstone applied, although similar issues could arise since Swift v Carpenter.
[2] See also Biesheuvel v Birrell [199] PIQR Q40
Author
Ella Davis
www.dekachambers.com