Brain injury and welfare benefits: Does the government provide enough compensation?

For those who suffer a brain injury of such severity that they are unable to work, the loss of income is likely to have an immediate impact on their quality of life, at a time, when they are most vulnerable. Whilst some head injury victims may be fortunate to the have the benefit of generous sickness schemes or insurance policies, that will not apply to all. In any event, even those who are blessed with financial support from employers, may still be entitled to welfare benefit payments from the Department of Work and Pensions. Beyond welfare benefits to assist with income, brain injury victims may also be entitled those benefits to assist with care and mobility.

As a solicitor who regularly acts for brain injury victims, I believe that it is important that they and their families consider applying for welfare benefit payments as soon as possible. Unfortunately, the application process can be protracted and thus delay in making an application should be avoided. Further, payments may not necessarily be backdated to the date of the head or brain injury and thus a prompt application for a benefit payment is recommended.

Government policy on brain and head injury compensation

The welfare benefits system is complex. This article does not attempt a detailed analysis of the system but focuses on two particular benefits that are most likely to be called into play when someone suffers a brain injury. These are the Personal Independence Payment (PIP) and Universal Credit.

Both these benefits are relatively new and are part of the Governments Social Justice Policy. This Policy is controversial and what follows may prompt its own discussion. However, the purpose of this article is set summarise the Government’s aims and the two welfare benefits identified. It is for others to argue for change, if necessary, elsewhere.

The aim of the Government’s strategy is to “fix” the welfare benefits system. The Government wishes to ensure value for money and deliver a culture change with greater emphasis on claimants taking personal responsibility. Importantly, it is the Government’s stated aim that employment must be an aspiration for all those that can work.

Of course part of the reason for the welfare reforms is to put public spending on a more sustainable footing, that it be fair to taxpayers, and be targeted at those in genuine need for support. Of course, those with brain injury are clearly in genuine need.

Personal Independence Payments (PIP)

Brain injury claimants in need of care have hitherto received Disability Living Allowance (“DLA”). However, this is gradually being replaced, phased in across the country, by Personal Independence Payments (“PIP”). PIP is available to those aged between 16-64, with Disability Living Allowance remaining for those aged up to 16 years.

PIP is to help towards extra costs arising from health conditions or disability. Importantly, marking a change from DLA, the qualifying criteria for PIP is the effects of the condition rather than the condition itself.

Like DLA, PIP is payable whether the brain injury claimant is in or out of work. It is not means tested or taxed.

There are a number of qualifying criteria, including a requirement the condition last 12 months. Further, following an application there may be a face to face assessment by an assessor to determine if the brain injury claimant qualifies. If they do qualify, then depending upon the outcome of the assessment, they will be entitled to either a standard or enhanced rate of payment.

As to qualifying for a standard or enhanced payment, this will depend on a point scoring system, which applies to both components of the PIP benefit, ie Daily Living or Mobility. The issues on which qualification will be judged for Daily Living are:

1. Preparation of food.
2. Taking nutrition.
3. Washing and bathing
4. Toilet needs
5. Dress or undress.
6. Communicate verbally.
7. Read and understand signs
8. Engage with people face to face.
9. Make budget decisions.

The issues on which qualification will be judged for Mobility are:

1. Plan and following a journey.
2. Moving around

With some brain injury victims exhibiting fluctuating behaviours and capabilities it is helpful that PIP will take account of those fluctuations.

It has not been possible to transition all DLA recipients to PIP on one date. The transition process began in 2013 and is expected to continue through to at least the end of 2015.

The need for financial support can become quite critical for brain injury claimants and thus turnaround time for applications for PIP is most important. According to the DWP (January 2015) the process takes 15-16 weeks but anecdotally it is thought to take closer to 6 months. Therefore, claimants should not delay.

Finally, for those entitled to DLA payments, claimants with long term symptoms arising from brain injury can expect payments for life. However, lifetime payments will not be made under PIP. All PIP payments will be reviewed, at either 2, 5 or 10 year intervals.

Universal Credit

Like PIP, Universal Credit is being phased in over time. It was rolled out in 2013, which will continue through to 2016. It is one payment to cover a current range of welfare benefits that seek to redress income deficits in families. Universal Credit will replace the following welfare benefits.

• Jobseeker’s Allowance
• Housing Benefit
• Working Tax Credit
• Child Tax Credit
• Employment and Support Allowance
• Income Support

One of the smaller changes is that those who qualify for a Universal Credit payment will receive this on a monthly basis, in line with when most workers are paid their salary or wage. Another change is that the application is made on-line. We will no doubt see more and more welfare benefit applications proceeding down this route.

The Government say the new system of Universal Credit is designed to reward work. Under the current system, benefits paid to make up for a loss of earnings, will cease if the claimant works more than 16 hours each week. Importantly, under the new system, a claimant can work over 16 hours and still claim benefit. It will not be lost but gradually reduced as the claimant’s earnings increase.

Running alongside the payment system, is a framework designed to reward those who seek work. DWP Work Coaches will support claimants in their work search activities. They will help plan and focus the job search as well as set them actions, which give them the best chance of securing work.

Of course, some brain injury victims find it very hard to return to work, but to assist disabled groups there is the Work Choice facility, a specialist disability employment programme.

Conclusions

The welfare benefits systems is a complex area of law and thus in each case, reference should be made to the detailed application process, to determine whether an individual may qualify for payment.

The system may appear daunting to some and whilst attempts are made to streamline it, those with brain injury may still not be able to access the application process. However, they should not be put off, but seek assistance where necessary to apply for benefits.

Some claimant’s may regard an application for welfare benefits as being unnecessary if they have a claim for brain injury compensation. If that compensation claim is successful then welfare benefits may be less relevant to their financial well-being. However, welfare benefits should still be claimed and continue to be claimed even after receiving a compensation payment. While receipt of a large sum of money may act as a bar to a means tested benefit, this may be circumvented by using a personal injury trust, a widely accepted and legitimate device, to put the compensation monies in a trust so that the DWP cannot take those monies into account when assessing entitlement to welfare benefits.

In short, welfare benefits (subject to qualifying criteria) are a legitimate entitlement to all and should be applied for, to support those with long and short term brain injuries.

Helping you get the support you need following a brain injury

IBB has built a reputation for quality of service in pursuing justice in cases involving accident, illness or death.

Our lawyers are members of the Association of Personal Injury Lawyers (APIL), and Headway, the brain injury association. Our ultimate aim is to obtain justice for victims of the negligence of others by securing an award reflective of their pain and suffering in addition to related financial losses, which means you can start rebuilding your life, secure in the knowledge that the costs of ongoing care, rehabilitation and domestic adaptations can be met.

Call our brain injury solicitors and experts in confidence on 01895 207835. Alternatively, email us at PI@ibblaw.co.uk.