Accommodation Claims - September 2019

In some circumstances where a Claimant has become severely injured as a result of a Defendant’s negligence, they are likely to require alternative accommodation as their current home is no longer suitable for their specific needs.

Their new accommodation may require larger bedrooms and specialist bathrooms to accommodate wheelchair use, or they may require the support of a 24 hour care package, which then requires the availability of carers accommodation.

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The Claimant may also have a need for specialist therapy at home or the availability of sensory areas. Such specialist accommodation requirements are in addition to the everyday living needs of both the Claimant and their family, which was in place prior to injury.

A Claimant will require an accommodation report to outline their accommodation needs, outlining the likely cost of purchase, adaptation and relocation. A home may later be purchased and adapted for the Claimant, on the basis of the accommodation report and agreement with the Defendant.

The award of accommodation in a case such as the scenario noted above however, has long been contested.

It has long been established that a Claimant’s need for a specialist adapted home, as a result of the negligence of a Defendant, cannot be awarded the full capital cost of the property because to do so would “provide them a windfall over and above proper compensation”, quoting a number of articles on this matter, online.

The reason for this view is the argument that a Claimant, in their uninjured state would have purchased their accommodation with their earnings over the course of their life, and that the compensation of the loss of earnings, already forms part of the claim. It is viewed then, that if a Claimant receives the award for specialist accommodation and their other losses, such as loss of earnings, the Claimant could be “overcompensated” for their loss. It is also assumed that the value of the property would increase over the Claimant’s lifetime, resulting in a windfall to their estate upon their death.

Roberts v Johnstone sought to tackle this issue, and outlined that the Claimant would have to “borrow” the capital cost of a new home from other parts of the compensation (such as loss of earnings, pain and suffering etc), but would include the compensation for the loss of interest on the extra money that the Claimant must invest for the required accommodation. The loss of interest was achieved using a multiplier based upon life expectancy, and assuming a net rate of return of 2.5% per annum.

Since then, the discount rate was changed in 2017 to -0.75% and again in April 2019 to -0.25%.

At the time of the Roberts v Johnstone case, the rate of interest was 7-9 % net. The time for a healthy interest has now changed, with today’s interest rate being significantly lower. As a result of a change to the market conditions and subsequent discount rate, many accommodation claims utilising the Roberts v Johnstone formulae results in a "£NIL award”.

In the recent JR v Sheffield Teaching Hospitals case, Sir Rupert Jackson commented in the settlement of the case that “it is clear that sooner or later this Court is going to have to grapple with the Roberts v Johnstone issue in the new world”. In another case in Manna v Central Manchester University Teaching Hospitals, Sir Stephen Tomlinson commented on Roberts being “imperfect yet pragmatic”.

Mr. Jonathan France has been asked on a number of occasions to consider various alternative options within his accommodation report, such as interest-only mortgage payments or the cost of suitable rental property, for example. In the recent case of Swift v Carpenter, there were four options put forward to the Court, to allow a claim for £900,000 (over and above her present property) for accommodation.

The first option of an interest only mortgage was dismissed by the Court, as it resulted in a significant windfall. The second option on periodic payments was also dismissed, on the basis that if the Claimant lived to her full life expectancy, it too would result in a significant windfall. The third option was using the Roberts v Johnstone formulae, but substituting the discount factor the purposes of calculating loss – in this instance the Claimant claimed that the appropriate figure should be 2%. The fourth option was for the Defendant to cover the annual costs for a suitable rented home, to the value of £48,000 per annum, which like option one and two, was dismissed out of hand.

In this case, Mrs Justice Lambert commented that although the Robert v Johnstone is “imperfect”, she was in no doubt bound by the Roberts v Johnstone and therefore made no award in respect of additional capital cost of a property purchase.

An appeal has now been put in place on the 29th July 2019, and is due to be heard in March 2020. It was originally proposed to be heard in July 2019, but has been postponed to March 2020 for further experts from different disciplines to be approached, namely an IFA/mortgage borrowing expert, a valuer/surveyor, an economist and actuary. The experts will comment on the following issues:

  • Indexation of borrowing costs

  • The impact of inflation

  • Investment return and discount rates

  • Mortgage rates, products and the costs of borrowing for the purchase of property

  • And valuation of potential reversionary interest in any property purchased

The outcome on the above case is of profound importance to not only the Claimant, but also the Defendants, insurers and various representatives within similiar cases, where accommodation forms part of the claim.

For France and Associates list of services for litigation purposes and in instances where funds are available for Property Finding, Suitability Reports and Design Services, see https://www.franceandassociates.co.uk/services.

Sources: Byrom Street Chambers, Mayo Wynne Baxter

Exploring the Sensory Garden

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Robert Hardy Garden Design

www.hardygardens.co.uk

@hardy_gardens

Any keen gardener will tell you how spending time in their garden promotes feelings of wellbeing.  The latest research points to a range of health benefits; the work-out we get in these so-called ‘green gyms’, or how gardening can reduce the levels of the stress hormone, cortisol.  It is even believed that exposure to certain microbes in the soil can improve our emotional wellbeing. 

Naturally, we can’t help but feel more alive when we hear the rustle of wind in the leaves, see the light reflected off a mirror-like pool, or run our hands through soft fronds of grass. A garden is a place that can delight the senses.

In a recent project in Cheshire, Robert Hardy Garden Design worked with France + Associates to create a sensory garden; one that consciously stimulates the senses in an orchestrated way. The garden is designed to marry aesthetic, practical and therapeutic qualities, meeting the specific needs of the client.

So what makes a successful sensory garden?  As with any garden, putting people at the heart of the design is key.  An effective sensory design will allow for gentle exploration rather than assaulting the senses.  Creating distinct zones, each focusing on an individual sense, can bring clarity.  This can be carefully balanced with areas which blend different sensory elements to create intrigue and interest.

Once the overall structure is in place, the choice of plants, a considered palette of materials and distinctive elements such as a water feature, can all heighten the sensory experience.  Here are a few simple suggestions of things to try in your own space to delight and excite the senses.

Smell – scent in a garden can be an evocative and arresting feature as well as attracting pollinators.  Consider the warm scent of Lavender on a summer’s evening, or the heady fragrance of winter flowering jasmine when snow is on the ground. Think about their location. The scent of a mock orange blossom brushed at a garden gate is a delightful example.

Sight – as well as using colour to catch the eye, adding movement in a garden can produce a stunning visual effect. Try soft grasses such as Stipa tenuissima and let the wind make waves through the planting.

Touch – think about textures across the whole garden. Create contrasts such as the velvety soft leaves of Stachys next to the crisp, serrated foliage of Melianthus, or polished paving next to crunchy gravel.

Sound – whilst a grand fountain might be out of place in a typical domestic garden, there are affordable and modest water features available that can bring the calming sound of flowing water to your space.

Taste – even if you don’t want a full-blown allotment, edible plants can enhance your garden.  Mint, chives or rosemary are easy to cultivate and can provide a herby punch to your recipes.  A rhubarb plant will enjoy a shady corner or experiment with lettuces planted in amongst the flowers. 

Why not give these ideas a go and create your own sensory space?  For more inspiration, visit www.hardygardens.co.uk

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Red Tape Cut to make Permitted Development Permanent

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Home owners will continue to be allowed to carry on building large house extensions without full planning permission after the government announced it was making temporary rules permanent.

Under the present rules, home owners can put a single story rear extension on their property extending up to 6 metres for a terraced or a semi-detached home, or up to 8 metres for detached property.

Present housing minister Kit Malthouse said that the move will help homeowners to extend their properties, without battling through “time consuming red tape”.

He continues.. “by making this permitted development right permanent, it will mean families can grow without being forced to move”…..

At present records indicate that 110,000 extensions have been completed since 2014 under previously temporary rules.

The general feedback across the architectural industry has been mixed with some senior architectural designers noting that although it was “well intentioned” by the government it could lead to a “loss of control over design quality”.

Being able to skip the planning process, means that there is risk of the process of design being neglected, leading to “ill considered and poor quality schemes”

On the other hand, the permanent rules put in place have been welcomed by many in the industry, who note that the rules will continue to speed up projects avoiding even small projects having lengthy delays by overstretched councils.

France + Associates regularly use permitted development rules to reduce risk and increase the chances of planning success for clients with disabilities, who often require additional accommodation to meet their housing needs.

Notable success in recent months has seen France and Associates utilise relaxed planning rules, to extend a property to provide specialist accommodation within greenbelt, which would have been far more contentious with lengthy delays, had a full planning application been required. For further information on this application see the following link.

Changing Places - should they be mandatory?

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The Ministry of Housing, Communities & Local Government has recently opened consultation for “Changing Places” to be made mandatory in all new public buildings.

Changing Places bathrooms are a larger than average bathroom than standard accessible toilets, which often do not have the right equipment, are not the large enough and do not meet the needs of all disabled people. Further information can be found on http://www.changing-places.org/the_campaign/what_are_changing_places_toilets_.aspx 

The Figures

There are 1300 Changing Places facilities nationwide, which has only increased by 140 new facilities in the last 12 years, since 2007, averaging 11 across the nation per year. According to some government reports, there are 250,000 disabled persons nationally who would benefit from a Changing Places facility. That equates to on Changing Place facility, per 192 persons nationally.

What the Government intends to do

The Government is seeking to improve this by:

  1. Mandatory requirement in legislation in Planning and Building Regulation terminology and stipulated requirements, specifically Part M of the Building Regulations

  2. Provide a £2 million fund for over 100 hospitals to have them installed in existing buildings

The mandatory standards will remove ambiguity on optional requirements, which can at times be taken out on “reasonable provision” arguments. One area which may continue to become an issue, are in historic buildings which are often listed. The consultation seeks that it should be considered to be installed, with the Building Control authority becoming the authority in deciding when it is not possible, to install a Changing Places facility.

This will apply to new buildings, buildings being extended or where a “change of use” application applies, meaning existing public buildings will not be required to change/improve present facilities.

France and Associate’s Comments:

At present, Local Governments can stipulate one of the above requirements in Planning Conditions for housing schemes and new public buildings, IF “it is considered reasonable, proportionate and financially viable”.

What that means is that there is scope for developer to prove that it is not reasonable or financially viable. This can leave a gap in the market, so changes need to be made to legislation in order for it to have a knock on effect on the build environment.

The present requirements which are compulsory fall way short of Changing Places standards, and although the higher standards found in Part M of the Building Regulations are a right step in the right direction, they are often taken out following a value engineering process. Unfortunately, a lot of standards around accessibility – certainly in new housing, remain optional.

With regards to Public Buildings, the Government’s manifesto set out “that where you live, shop, go out, travel or park your car should not be determined by your disability”, and increasing the provision of Changing Places toilets would certainly be a step in the right direction.

The proposed changes which will make it mandatory for designers and developers to include in public buildings, will certainly increase provision.

Have Your Say Here

Get involved and have your say on this consultation, by clicking on the link here - https://www.gov.uk/government/consultations/changing-places-toilets

Planning Application submitted for a Large New Dwelling

A planning application has been submitted for a Large New Dwelling in Almondbury, Huddersfield.

France+Associates have been appointed by Roseda Properties to design a bespoke Dwelling in the sought after area of Almondbury, Huddersfield. 

The large family home is designed to make the best of the far reaching views and prominent hill side position.

Planning Approval has now been applied for from Kirklees Council, with the supporting statement prepared by David Storrie of D5 Planning Consultants.

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Greenbelt Planning Application receives Green Light

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France+Associates have successfully achieved planning consent within Greenbelt, lead by Nick Willock of Robert Halstead.  

The early 18th century property in Warrington, had an application submitted to utilise existing permitted development rights, to accommodate extension works required. 

Once complete onsite, the uncompromising design and finishes applied will incorporate the wheelchair users needs for specialist bathing and therapy areas, as well as hydrotherapy pool house within its grounds. 

The historic property is set within an area of outstanding natural beauty, having its extension and improvement works carried out sympathetically and in mind with its historical status & local importance.

The project is due to start mid 2019.

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