Many survivors and their families don’t realise that they are entitled to make an acquired brain injury claim and remain unaware of the support that it could provide. If someone else’s negligence caused the injury, a claim can provide early access to funded rehabilitation, therapy, specialist equipment, home adaptations, as well as practical and financial support.
This article answers some of the common questions that survivors and their families ask when considering an acquired brain injury claim, so that you know where to start if you are thinking of making a claim.
Brain injury solicitors are some of our biggest supporters and we are grateful for their advice and input. In this piece, one of our trustees, Kim Milan, a specialist brain injury solicitor, helps us with its legal accuracy.
Kim is one of our trustees and leads a Personal Injury team at a solicitors’ firm, specialising in compensation claims for people who have sustained a brain injury. She is also a Headway UK Life Member and an Associate Member of the Child Brain Injury Trust and the Brain Injury Social Work Group
Summary
What you will find in this article:
- What an acquired brain injury claim means
- How this differs from claiming benefits
- Brain injury caused by violent crime
- What the claims process involves
- Time limits
- Finding the right solicitor
- Headway Thames Valley’s role alongside a brain injury claim
- Frequently asked questions about acquired brain injury claims
- Support with life after brain injury
What an acquired brain injury claim means
An acquired brain injury claim is a formal legal request for compensation made in accordance with civil court protocols and procedures. The purpose of the claim is to compel the organisation or person (via their insurers) who caused the injury to compensate the victim. A claim is only possible where the injury was caused by someone else’s negligence.
That can cover situations such as:
- Road crashes or collisions
- Accidents at work (such as a fall from height or unguarded hazard)
- Accidents at public, commercial or club sports or leisure facilities and events
- Child or staff accidents in schools or colleges
- Injuries caused by defective products and equipment
- Mistakes made during medical treatment
It’s important to note that a brain injury without a negligent cause cannot lead to a claim, but in severe brain injury cases, even partial fault by someone else can often be enough to provide meaningful compensation and other benefits, such as funded rehabilitation.
How this differs from claiming benefits
Claims for compensation and claims for welfare benefits are two different things. Benefits are based on how a condition affects daily life, not on how it happened, and are available regardless of fault.
This means that it is both possible and permissible to apply for benefits and pursue a claim at the same time. Compensation can affect some benefits, so it’s worth getting welfare benefits advice early. A personal injury trust can help protect your entitlement once a payment is received.
Brain injury caused by violent crime
Where a brain injury is caused by a violent crime, compensation usually works differently. In most cases, applications should be made to the Criminal Injuries Compensation Authority (CICA), a government scheme, rather than through a claim against an individual. Applications to the scheme have a shorter deadline than a claim: normally two years from the incident.
This scheme is important because there’s often nobody to bring a claim against after a violent crime. The person responsible may never be identified or may have no means to pay.
It is important to seek early advice about whether a CICA claim or a civil claim is best for each case. In some violent cases where the violent crime took place on workplace premises a civil compensation claim may still be possible, depending on how the injury happened and the needs arising from it.
What the claims process involves
Every case is different and it can feel daunting not knowing what you need or where to start. Kim Milan explains:
“When your loved one has suffered a life-changing brain injury, as your solicitors, we are here to help. You don’t need to be fully prepared with a long list of data or a pile of evidence on the first call to a specialist. We will gather any additional evidence that we need, whether that’s from you, your doctors, your employer or the police, and we will guide you step by step through each stage of the process.
Each person’s claim involves proving that the “claimant’s” injury was caused by the “defendant’s” negligence. In many cases, the responsibility for the injury may be fully or partially admitted without the need for a formal trial or court proceedings.
The compensation settlement or award is determined by:
- Medical evidence relating to the impact of the injured person’s injury and disability on their life and ability to work and
- An assessment of the support that will be needed in future.
That’s why these cases take time. The long-term outlook for the injured person, as well as the full cost of meeting their needs, must be clear before anyone can value it fairly. Kim Milan adds:
“Whilst you focus on your own or your loved-one’s recovery, we manage the claim on your behalf, including all correspondence with the negligent person or organisation and their insurers. In most cases, we can also ensure that you or your loved-one receives timely, fully funded rehabilitation, long before their compensation claim has concluded.”
Time limits
In most personal injury for adults with unimpaired mental capacity there is a three-year time limit for issuing court proceedings to start a claim. It runs from the date the injury happened, or from date the injured person found out about it, if later.
The rules are different for children and for anyone whose injury affects their mental capacity to understand and make decisions relating to their financial affairs or their claim.
Children’s three-year timeclock doesn’t start ticking until they reach the age of 18, so their time limit expires on their 21st birthday.
For those with impaired mental capacity, which commonly occurs after severe brain injury, there is no deadline.
Claims relating to accidents abroad, some types of plane crashes, and claims against MIB (Motor Insurers’ Bureau), where the negligent driver was uninsured or is untraced, and CICA may have shorter time limits.
Just like road speed limits, you should aim to stay well within your time limits when contacting a solicitor to start your claim. Personal injury negligence is much easier to prove with recent evidence and memories. There are also significant benefits for the injured person in starting a claim as soon as possible, including improved recovery from early rehabilitation and help with financial hardship from interim payments (advance compensation).
Finding the right solicitor
Headway UK maintains a Head Injury Solicitors Directory: a list of solicitors assessed on their brain injury experience, who work within Headway’s Personal Injury Lawyers Code of Conduct.
It can be searched by postcode and filtered by the type of case and by the services solicitors offer, such as home visits. It’s a great tool for finding a specialist with the right experience for your situation.
Headway Thames Valley’s role alongside a brain injury claim
We aren’t a legal service and we don’t advise on claims. What we can offer is support that doesn’t have to wait for a claim to be resolved or depend on there being one at all.
Our Living with Brain Injury courses, Community Support Groups and Advice and Counselling services are open to clients and families across Berkshire and South Oxfordshire. Most of our services are free to attend.
Frequently asked questions about acquired brain injury claims
What’s the difference between a claim and applying for benefits?
A claim seeks compensation because someone else’s negligence caused the injury. Benefits are assessed based on how much difficulty someone has with daily living and mobility, and don’t depend on how the injury was caused. The two can run alongside each other.
Can rehabilitation start before a claim is settled?
Yes. Rehabilitation can start at any time following a brain injury, and the sooner the better. That’s why we have a Hospital Liaison Adviser working inside hospitals, so people receive brain injury support immediately after discharge. Most of our services are free to attend, including the Living with Brain Injury Course.
Where there is a claim, you may also be able to receive rehabilitation which is directly funded by the defendant’s insurers in accordance with The Rehabilitation Code. You may also be able to obtain some of your compensation early, before the case concludes. This is known as an interim payment. This helps fund treatment, equipment and any adaptations you need, and can help ease financial hardship caused by loss of earnings.
How long does an acquired brain injury claim take?
Kim Milan advises:
“Each person’s claim is different, but in most cases, it is unwise to settle a claim until the injured person’s injuries have stabilised, their rehabilitation has reached maintenance (rather than trauma or acute) level, and their future needs can be assessed. Claims for young children with acquired brain injury often involve a waiting period until certain milestones have been reached, such as GCSEs, to ensure that their claims are not under-compensated. In most cases, whilst rehabilitation or other wait-and-watch delays the conclusion to the claim, we can obtain substantial interim payments to help ease any financial hardship for our clients. Once liability and the medical prognosis are established, the claim usually settles quite quickly.”
Will compensation affect existing benefits?
Compensation can affect your entitlement to means-tested benefits, so if you are receiving benefits you should let your solicitor know. Your solicitor can advise you or signpost you to welfare benefits advice, tailored to your own circumstances, and can help you protect your entitlement to benefits after you receive a substantial interim payment or compensation settlement, via a personal injury trust.
Do I need a solicitor to make a brain injury claim?
Brain injury claims are extremely complex and are best handled by a solicitor with specialist experience in brain injury claims. Relying on a professional means you’ll be guided and supported all the way. Legally you can make your own claim as a litigant person (representing yourself), but going without specialist support can cost you in time, in stress and in what you are eventually awarded.
Do I need to pay for a solicitor to make a brain injury claim?
Most solicitors with experience in personal injury claims for acquired brain injury offer no-win-no-fee funding arrangements. There is nothing to pay up front, and nothing to pay if you lose your claim. If you win, the negligent defendant pays the bulk of your legal fees, and your solicitor can, if they choose, deduct a success fee (capped at a maximum of 25% of your compensation) and any unrecovered costs from your compensation. You should check with your solicitor at the outset as to what deductions they would take.
Other funding sources include legal expense insurance, but most policies do not provide sufficient cover for a fully contested brain injury claim.
Legal Aid is also available for certain birth injury and neonatal brain injury cases.
Support with life after brain injury
A claim, where there is one, is only one part of what comes after a brain injury. We support clients and families across Berkshire and South Oxfordshire with courses, groups and advice, whatever stage they’re at.
Get in touch to find out more about how we can support you and your family.
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