When a Fatal Accident Act dependant is already a protected party

James Murphy has obtained approval of an agreed settlement sum in the High Court of Justice, Leeds District Registry, relating to an adult protected party who brought a claim as a dependant of her deceased father pursuant to the Fatal Accident Act 1976.

The Court also approved payment of the sum of damages directly into a Disabled Persons Trust (DPT), rather than the typical order of payment to a Deputy / Court of Protection which is the starting point for an incapacitated dependant. The consequence of payment to a Deputy/ Court of Protection, this being an FAA claim and not a personal injury action, was the protected party was liable to lose her eligibility for means tested statutory funding, including social care provided via her local authority direct payments package (which had been in place since before her father’s death), plus any current/future means tested benefits (not relevant at present, but may be in the future).

A DPT was established with professional solicitor trustees, who otherwise would have been engaged under the Deputyship, with the protected party as the principal beneficiary. This proposal also had the support of the Official Solicitor.

Though the Court of Protection could order that the award be paid into a DPT rather than a Deputyship this ran the risk of being considered a decision by the protected party herself as the Court of Protection makes substituted decisions, and as such, could constitute a deprivation of capital such that the award can may be regarded as notional capital.

This is a novel approach to the difficulties surrounding existing protected parties as dependants in FAA claims. The Court agreed it was in the dependant’s best interests for the sum to be paid into the DPT which had already been established for this purpose with her litigation friend as settlor when considering the principles of s.18 MCA 2005. The court was satisfied there was sufficient safeguards for the protected party within this Trust and it would enable the dependant to benefit from her award of substantial damages without risking her eligibility for statutory funding.