Can you be paid to look after a relative who lacks capacity?

If the person who has been injured is mentally capable, they and their trustees can negotiate a support payment with a family member.

Background

Our clients rely on the care they receive not only for basic physical needs like dressing and meals, but also for the things that make life enjoyable - socialising, hobbies, and activities. It's not just about survival, it's about thriving and finding purpose. So, don't underestimate the significance of helping someone pursue their passions and live a fulfilling life. Our clients' care is essential to their well-being in every sense of the word.

At times, our clients' needs require both professional care and assistance from family members. However, we understand that it can be overwhelming for family members to balance their own lives while also caring for their loved ones. Many individuals have shared their stories of having to reduce their work hours or quit altogether due to the demands of caregiving. It's not always easy to predict when a family member may require your help, and plans may need to change last-minute due to health issues. A simple outing can turn into a massive logistical exercise for some families. Even if paid caregivers handle most of the day-to-day affairs, family members still find themselves dealing with appointments, paperwork, and managing unexpected events. While money is not typically a driving factor, we suggest support payments to alleviate financial stress and provide flexibility for families. Our goal is to make caregiving as manageable as possible and support those who are caring for their loved ones during challenging times.

While, payment to a family member can be negotiated, I recommend using the Office of the Public Guardian's Practice Note as a guide, even if they have the capacity to make decisions.

If the injured person is unable to make decisions, the Office of the Public Guardian has provided a useful Practice Note on support payments to family caregivers.

Is a support payment appropriate?

The care provided must be necessary and of good quality as stated in the Practice Note. If there's been a litigation claim, a care report usually outlines the level of care recommended by the experts. Payments must be affordable, and evidence must show the calculation of the payments and the amount of care provided. It's difficult to predict the exact timing of care needed, and carers must be available at any time someone needs assistance.

Short-term interruptions like hospital stays don't require a stop in payment, but long-term changes do. Many clients face added responsibilities when their injured person is in the hospital, as the hospital can't manage all their other needs.

Deputies must consider the level of professional care in place, and payments should be a cost-saving alternative. Other contributions the injured person makes towards the property should be taken into account. Agreeing on payment should be done in consultation with the injured person and other concerned parties.

How to Calculate Support Payments for Family Carers

When it comes to determining payments for care in personal injury cases, Senior Judge Lush's approach (as seen in the HC [2015] EWCOP 29 case) is often the most effective. This involves calculating the commercial cost of care in the injured person's home area and then reducing it by 20% to factor in the tax and national insurance-free nature of these payments. This approach aligns with the method used by the King's Bench Division.

Alternatively, you could ask the family how much they would need to keep their finances in order, provided that the amount is affordable, reasonable, and sustainable in relation to the care provided. If P's estate is limited, then the payment can only reflect what is reasonable and affordable for P.

In cases where a family member has left their job to care for the injured individual, the support payment is not meant to fully replace their salary unless under truly exceptional circumstances.

It's important to note that the payment amount can vary greatly depending on the injured person's financial situation. Therefore, it's crucial to carefully consider their unique circumstances rather than adopting a one-size-fits-all formulaic approach.

If you're a deputy or attorney considering making a support payment for yourself or a family member, it's wise to seek professional advice first. If the payment is going to yourself, typically, the Court would need to authorise it.

Tax implications of a support payment

These payments are exempt from income tax and national insurance contributions.  There is a specific exemption in HMRC’s Employment Status Manual 4016.