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Military Claims – Part of Our Duty of Care

Medico Legal

by Simon Duffy, BA (Hons), Dip Arch, R.I.B.A, Member of the Expert Witness Institute, Cowan Architects of Care

Simon Duffy, Expert Witness at Cowan Architects explores the current climate for military claims and how an understanding of discrete and adaptable design solutions can help our war veterans start a new life in the comfort of their own home.

Setting Military Claims in Context

According to Help for the Heroes, 750,000 people served as regulars in the British Armed Forces between 1991 and 2014 and recent research suggests that 1 in 11 (some 66,000) of these need help and support, either now or in the future. They will suffer from either or both mental health issue and physical disabilities, often requiring claims for compensation or legal challenges in Court to ensure that their homes are suitably adapted and their caring needs are provided.

“A man who is good enough to shed his blood for his country is good enough to be given a square deal afterwards”, so said Theodore Roosevelt on the 4thJuly,

1903. This feeling is at the heart of the Military Covenant and the Armed Forces Compensation Scheme.

However, since 2005, when the Armed Service Compensation Scheme was introduced, it is claimed that more than 16,000 military personnel have been paid in excess of £340 million in compensation for injuries sustained on the battlefield and in training. A total of 36,470 compensation claims were made between 2005 and 2012 of which 11,000 were rejected leading to calls that the system could be being abused. Certainly, a Google search on Military Claims produces several pages of website offering legal specialists in the area.

The Legal Position

Whatever the veracity of some of these claims, the UK’s roles in the Middle East theatres of war and the modern asymmetric nature of warfare have led to an increasing number of Military Veterans who have suffered life changing injury or post traumatic stresses that need our care and attention.

If you had served in the armed forces and suffered an accident or disease arising out of your service before 1987, you would have been prevented from bringing a claim for damages because of the Crown Proceedings Act. But since 1987, changes to this Act have allowed members of our Armed Forces to pursue a claim against the Ministry of Defence if they have been injured either in the UK or overseas in an accident that was not their fault. There is the complication of ‘combat immunity’ where injuries sustained during an active operation or ongoing combat cannot be claimed but these situations are rarely clear cut.

The Military Covenant

The Military Covenant is a term introduced in 2000 to refer to the mutual obligations between the nation and its Armed Forces. Britain has a duty of care to its armed forces and the unspoken pact which existed between society and the military dating back some 400 years was formally codified in this covenant.

The Military Covenant

Soldiers will be called upon to make personal sacrifices – including the ultimate sacrifice – in the service of the Nation. In putting the needs of the Nation and the Army before their own, they forego some of the rights enjoyed by those outside the Armed Forces. 

In return, British soldiers must always be able to expect fair treatment, to be valued and respected as individuals, and that they (and their families) will be sustained and rewarded by commensurate terms and conditions of service.

This mutual obligation forms the Military Covenant between the Nation, the Army and each individual soldier; an unbreakable common bond of identity, loyalty and responsibility which has sustained the Army throughout its history. It has perhaps its greatest manifestation in the annual commemoration of Armistice Day, when the Nation keeps covenant with those who have made the ultimate sacrifice, giving their lives in action.

James Rowley QC, a barrister at Byron Street Chambers, says that ‘In the UK, the MoD has now accepted that, when not directly in combat, it owes a similar duty to that between employer and employee to take care for the health and safety of personnel, covering premises, equipment, personnel, systems of work including supervision and, where appropriate, medical supervision, care and support’.

 Accommodation Needs

Any member of the Armed Forces is at risk of a wide variety of possibly serious injuries both during training and in the field –brain injury, chest injury,spinal injury, loss of sight, burns /scalds and cold injury. Specialist personnel may be open to an even wider source of potential harm. Military personnel may be discharged with a variety of different traumas that can affect them both mentally and physically. Whether they are dealing with a Traumatic Brain Injury, Post Traumatic Stress Disorder or loss of limbs, the personal adaptations that they will have to make may seem insurmountable to both them and their families and friends.

It’s important that they know that they can trust their advisors to provide sound advice based on experience and understanding of their particular condition.Cowan Architects has a team of accommodation experts that have many years’ experience in designing environments for both physical and mental disability so that they can assess any individual and ensure that their housing needs are met creatively and with empathy.

 Understanding the System

At a time when they feel most inadequate and vulnerable, these servicemen and women are then asked to deal with a complex legal system that assesses, decides and allocates funding. The Armed Forces Compensation Scheme can be limited in its application and a civil claim may take much longer to get a result. A critical part of being able to rebuild a life, is to be able to live in a house that is home. It must be practical, functional and above all, an area of comfort and support.

 The Role of an Accommodation Expert

For the majority of Experts, the assessment of the claimant provides them with the information that they require in order to form an opinion, however the Accommodation Expert has a much more reactive role as their opinion will be formed not only by the claimant and their environment but also the opinions of other experts from the medical, care, occupational therapy and physiotherapy teams as well as the specialists in assistive technology. Anyone who is advising on how best to provide adapted housing for someone who is facing sudden disability, cannot ignore this medical dimension. Often, clever architectural rearrangements can keep them in their own home, but sometimes a new property will be needed.

The typical, and natural, ‘solution’ for wheelchair access may be a bungalow accommodation with a ramped pathway. Sometimes, however, a shortage of single-level, bungalow availability necessitates the need to ‘think outside the box’ for a answer to disability housing. Geographical location compounds this too; in Central London and certain parts of Wales there are no bungalows or single level accommodation and in some coastal towns both the topography and demographics dictate that two storey houses are the only available option.

It’s not just physical disability that needs to be accommodated as there are plenty of design techniques that can help combat the mental stresses of military life such as PTSD. Such individuals are oversensitised by their training and their condition so that they react very differently to visual, environmental and noise stimuli. Living areas that are open-plan with limited textures, colour palettes and ‘hidden’ areas will provide a more calming influence as will elements of sound attenuation to lessen loud noises. Sensory outdoor spaces with water features and fragrant plants are also calming.

Interestingly, Cowan Architects is also looking at how Passivhaus Technology may be used in homes to help those where a constant temperature environment is of particular benefit, such as those suffering from the worst cases of Non Freezing Cold Injury (NFCI) where there can be a permanent increased sensitivity to cold and changes in temperature.

What does the Architect need to do?

Initially when we visit the claimant we are formulating an opinion on their spatial needs in order to provide the basis for our recommendations. We would check these space requirements against the size of the current home in order to draw a conclusion on whether or not they are able to stay and convert their current property. Sometimes the current properties are totally unsuitable with little or no hope of extension or adaptation and this means searching for potential future properties which is best done by an architect who understands the living requirements.

Having identified a range of properties that have the right potential, the levels of adaptation and extension that they will require need to be assessed, together with and probably most importantly a confident estimate of the costs involved.

 Lastly we need to give an assessment of the various annual costs that they will incur in living in a larger and possibly more expensive property. This is an area  where the use of Passivhaus Technology might provide an attractive comparison in lowering energy levels and significantly reducing running costs.

 Purchase Options

There are two equally effective options available to the claimant where the first is to buy a larger house that only requires adaptation and the second is to buy a more modest property that needs both adaptation and extension.

In the first option, the largest part of the cost is being met through the Roberts & Johnstone formula and a quick look at the maths shows that there will always be a shortfall in the sums allowed in the case, which has to be made up from other heads of claim. Since the judgement in Eeles v Cobham Hire Services where periodic payments were formalised, the capital sums available and the room for manoeuvre has been considerably reduced.

In the second option, the cost of purchase is reduced thereby reducing the shortfall whilst the cost of the extension to make up the difference in area is recoverable in full.

Adaptation Options

Military claimants can present with an enormous variety of injuries and many will often also involve families in some way. One of the important criteria is to try and maintain a semblance of family life in these difficult circumstances and to ensure any adaptations do not appear too obvious. We know the importance of the clinical care setting and facilities should be designed to enable any necessary carers to work in an unobstructed environment but discussions with claimants show the importance to them of getting back home and if “home“ feels just like the hospital then it sets back their rehabilitation. One of our overriding design objectives is that guests to the house should not realise immediately that they have come to a home where somebody is disabled. We must provide design solutions that are discrete, adaptable and sensitive to the needs of the entire family.

It is an unfortunate consequence that sudden disability is a real threat in the military environment. Whatever the circumstance, a life changing injury or mental trauma can be a hard reality and the dream of coming home, a thought to hang onto. Understanding the specific nature of military injuries and designing a living space that allows Veterans to return to a life approaching normal, is an essential part of their rehabilitation and one that we, as a society, have a duty of care to provide.