Sleeping is not working

A recent agreement by EU member states to treat 'inactive on call time' as rest time rather than working time will afford care experts greater freedom when making recommendations to the court as to how the claimant's care needs should be met, and should lead to resident carer regimes resurfacing within the context of catastrophic injury litigation.

A carer on hand for 24 hours

Often the catastrophically injured claimant will require a carer to be on hand for

24-hours-a-day even though they do not directly require input throughout that period. By way of example a tetraplegic claimant may routinely sleep perfectly well throughout the night but they would be unable to get out of bed, should the need arise, without assistance. Such a claimant would need the facility to summon assistance from a carer quickly.

Other examples might be a brain-injured claimant who requires a carer to be present to provide an element of background supervision at all times but who usually sleeps well at night; or, a ventilated claimant who requires a second carer to be available but that second carer is rarely, if ever, called upon to assist. In such cases, where the carer needs to be present but can nevertheless be asleep, the issue arises as to how the carer should be paid '“ should the claimant have to pay such carers by the hour to sleep?

In the past, claims for round-the-clock care were often settled on the basis of provision for a resident/live-in carer regime. Unlike shift carers, resident carers stay with the claimant morning, noon and night for an agreed period of days rather than working on a roster with three different carers attending to the claimant in succession on each day. The resident carer's duties are intermittent although they are 'on call' throughout. In some regimes the resident carer is assisted by a second resident carer/other carers who call in to provide additional cover or a second pair of hands for certain periods of the day.

Such live-in packages bring benefits to the catastrophically injured person such as fewer changeovers resulting in less hassle/better continuity of care and less opportunity for problems to arise, and a more cost-effective package, with the claimant not having to pay for hours of care overlap when shift carers come in and go off duty, and not having to pay by the hour for their carers to sleep. The annual difference in cost between a resident care regime and a shift care regime is surprisingly high '“ it can be as much as £50,000 or more. In practice, resident carer regimes also often afford greater long-term stability for the catastrophically injured claimant.

Endangered species

Resident carers became an endangered species (only in litigation '“ they were still commonly being employed in practice) as a result of a line of ECJ decisions which held that when a carer is required to be on the premises on call, even if they are actually asleep for eight hours or more, this still constitutes 'working time' under the Working Time Regulations and thus required them to then have eight hours consecutive rest, free from being on call. This seemed counterintuitive and anomalous when certain categories of worker were specifically exempted from the regulations including 'domestic servants in a private household. . . family workers . . . carers in hospitals', and the string of ECJ decisions meant the single resident carer model was effectively dead '“ if only for the purposes of catastrophic injury litigation.

Member states found themselves in breach of the legislation as interpreted by the ECJ and concerns grew about the impact of this line of authorities on a model which had long worked well in practice. As a result of an agreement on 9 June 2008 reached by the EU, member states should now be allowed to treat as rest time any periods of 'inactive on-call time' in the workplace. This is a much more sensible approach, but before we can rely on this agreement in the UK the agreement will need to be ratified by the European Parliament and implemented in the UK via regulations.

Even when implemented, it will not automatically follow that resident carers will always be suitable in every case. There are other factors to consider, such as how demanding the particular claimant is, how many times per night do they typically require input.

But it is certainly to be welcomed that in cases where the resident carer model seems the most appropriate for any particular claimant, the regime will not be discounted purely on the basis of what seemed to be an inappropriate interpretation of the Working Time Regulations.

In future the courts should be able to determine catastrophic injury claims without being effectively blindfolded, such as having to ignore the reality of how care is very often, very satisfactorily provided in practice.