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Friday, 11 October 2013

Bereavement Damages - is there a greater injustice?

There are many injustices in our system. 

But there is one which has been a consistent presence throughout my life as a lawyer; damages for the bereaved.

There can be little that comes near the suffering of those who lose a loved one in an accident or due to medical negligence. And yet the way the law treats these victims has never been far short of scandalous. Admittedly it was once far worse. I remember a time when there was no entitlement at all to bereavement damages. The right was created by statute in 1982 so that from 1st January 1983 it was possible to recover the nominal sum of £2500.00.

The figure has crept up over the last 30 years or so and is now at £12,980.00. Many would say that this bears no relation to the actual level of suffering. To set this in context you would expect damages at that level if you suffered moderate post traumatic stress disorder which was largely recovered with any lingering effects not grossly disabling. Most people never recover from the effects of a tragic or sudden bereavement. 

The Association of Personal Injury Lawyers (APIL) has recently published results of a survey which suggests that a majority would support a huge increase in the amount recoverable – even as high as £100k –

Surely the time has now come for a root and branch re-assessment of the damages to be paid to victims.

But the injustice does not stop there. What is worse is the very restricted group of people who can be ‘bereaved’. The entitlement to this compensation was created by an Act of Parliament under which only the surviving spouse (or civil partner) or the parent of a child under 18 can recover.

I once advised the parents of a student who had been killed in a car accident just days after his 18th birthday. How do you tell them that their bereavement does not count? What made their bereavement any less painful? Children who lose a parent get nothing at all.

I anticipate that the insurance industry would be less than enthusiastic about any change. But this has been a running sore for too long.

It is about time that politicians grasped the nettle and brought about a fair and realistuic change – once and for all.

Monday, 7 October 2013

News of the death of Law Firms - greatly exaggerated

For most law firms, September is not an easy month. This is because of the annual renewal of Professional Indemnity Insurance.

Any firm of Solicitors wanting to practice in the UK has to have insurance against negligence claims. There is a compulsory layer of cover at £2m per case (£3m in the case of Limited Liability Partnerships). This means that obtaining insurance is one of the highest overheads alongside salaries and premises. September is stressful because until this year, all renewals had to be done by 1st October.Thankfully that has now changed.

So if you saw stressed lawyer in the last few weeks this could be one of a number of reasons!

This year has been a bumpy renewal for many. Two unrated insurers were forced to pull out of the market quite late on; which added to the stampede. In addition insurers were said to be nervous because of the record number of firms who were in ‘financial difficulties’. A few weeks ago it was being predicted that hundreds of firms could end up without insurance by the dreaded cut off date. The effects of that are dire. A firm is allowed a further 30 days to find insurance. If they don’t succeed then they cannot take on further work and have a further 60 days to close the door.
As it happens, the apocalypse did not materialise. According to the Law society’s Gazette just 69 firms failed to get insured by the deadline. That is just 0.65% of the 10500 firms around. Hardly a meltdown.

This has been a very challenging year for law firms with drastic cuts in fees, abolition of legal aid for most areas of work and the arrival of competition from new business structures. But it appears that firms are more robust than experts think. 

There have been unfortunate closures and some familiar names have sadly disappeared. But we haven’t seen small to medium practices being wiped out. Firms have had to re-evaluate how they work and embrace new systems and technology. Many have seen the advantage of joining up with others. Some firms who cannot accept change will sadly fall by the way.

But the news of the death of law firms has, to date, been greatly exaggerated.

Thursday, 3 October 2013

Law Centre success for Bedroom Tax victims

Congratulations to Govan Law Centre in Glasgow who have successfully argued before a Tribunal in Scotland that the decision to reduce the housing Benefit of a severely disabled woman, breached her Human Rights.

The unnamed woman and her husband had their rent assistance reduced by 14% because they had too many rooms under the new rules that were introduced earlier this year. She needed a separate bedroom because of her disability. She needs a tracking hoist and the use of a hospital bed which makes it effectively impossible to share the room with her husband.

As result of the penalties that were imposed they went into rent arrears for 3 months.

The judge took the logical view that –

"As a result of her severe disability and the aids and adaptations she requires, the appellant cannot share a bedroom with her husband,"

This breached her human rights and also amounted to discrimination.

Hopefully this argument will now be used to assist other disabled people affected by this tax. Under Article 8 of the European Convention on Human Rights everyone has the right to respect for his private and family life, his home and his correspondence. The intention of the bedroom tax is to force tenants to move into smaller accommodation which might be entirely inappropriate.

It is also quite clearly discriminatory as the only reason she needs the extra space is that she is disabled.

It remains to be seen whether the DWP will appeal.

A disabled person, and their carers, have enough on their plates without having to worry about losing their home. By any logic this is a tax on disability. It is only First Tier Tribunal Decision so does not create a precedent that others must follow. But it is a step in the right direction.

Of course what we really need is the abolition of this tax with is oppressive and does not acually work -


The case also highlights the importance of the work of Law Centres. I have mentioned recently that many are under threat following recent legal aid cuts –

The work that they do is essential in protecting the rights of ordinary people. They should be thanked and supported by anybody who is concerned about access to justice.