paying the price of failure
14 April 2011
Social care lawyer Sarah Erwin-Jones examines why the rise in
failure to remove claims may not be mirrored by an increase in CICA
claims
In the last seven years there has been an increasing trend for
local authorities to face claims from former looked after children
or even young people currently in care, for failing to remove them
from abusive homes. This follows the Court of Appeal decision in JD
–v- East Berkshire NHS Trust and Others [2003]. The court concluded
that a common law duty of care could be owed to a child in relation
to both investigation of suspected child abuse and the initiation
and pursuit of care proceedings.
Around the same time, Lord Laming’s report following the death
of Victoria Climbie came out. His report identified social services
departments at four London Boroughs, two Police forces, two
hospitals and a specialist children’s unit who all failed to act
when presented with evidence of abuse. This, along with the widely
publicised death of Baby Peter, seems to have made the prospect of
suing social services departments more palatable to the general
public at large.
A complex picture
Most of the claims or potential claims we see are made on behalf
of children who are still under 18 (although in those two reported
cases which have gone to trial, both Claimants were adults
complaining about events which had taken place between 10-20 years
ago).
About 65% of the cases we deal with concern allegations of
serious physical or sexual abuse by a child’s birth family (which
abuse often only comes to light after the child has been removed
into foster care, and feels safe enough to disclose).
The remaining 35% are cases where, over a period of time,
sufficient evidence has accrued to enable the local authority to
prove the child’s parents can simply not prove good enough
parenting.
Common to both these types of clams is the assertion that social
workers did not act fast enough to apply for a care order, and that
children have suffered unnecessary abuse or neglect as a
result.
The position is further complicated by the fact that the Court
made it clear in B –v- Reading Borough Council, Woking and District
Council and the Chief Constable of Thames Valley Police [2009] that
in order to pursue a claim in negligence against a local authority,
a Claimant needs to demonstrate that one or more of the individual
social workers involved was negligent. Broad allegations of
failings made against the local authority will not be sufficient.
This means that both parties face complex and very delicate
investigations, trying to trace witnesses to ask them about their
involvement in multi-disciplinary decision making processes five,
ten or even twenty years after the events in question.
Many Claimant lawyers who specialise in this sort of case have a
clinical negligence practice. After all, much of the relevant law
is the same, and the quantity of relevant documents is similar.
Sadly they are also used to the generous costs clinical negligence
cases attract.
Failure to remove cases are relatively new to the market and it
is difficult at this stage to ascertain how much they may be worth,
but we can confidently say that they are, for the most part, worth
tens of thousands of pounds rather than the hundreds of thousands
or millions of pounds that the more severe clinical negligence
cases attract in damages.
We know that in terms of public opinion and developments in the
law, the doors to these types of cases were opened in around 2003.
Most claims are made on behalf of children and very few of them
have got to trial. I am aware of just two reported cases that have
been tried. In one case the Court found in favour of the local
authority, and the other in favour of the Claimant. In both cases,
the Claimant was wholly or partly legally aided. In the case that
the local authority successfully defended, it spent an
irrecoverable £80,000, had three days in Court and had to call
seven social work witnesses to defend the claim.
Weighing up the alternatives
Why don’t Claimant lawyers make Criminal Injuries Compensation
Authority (CICA) claims? Every case depends on its own facts, but I
understand these are common reasons:-
- A significant percentage of claimants do not allege that they
were victims of assaults, but instead of neglect and poor
parenting. Their cases are not suitable for CICA claims.
- Claimant lawyers may be squeamish about taking costs from their
client’s CICA award, particularly if their client is still a
minor.
- Both damages, and significantly, costs are likely to be higher
in Civil Claims.
- An unsuccessful civil claim will not preclude a successful CICA
claim. One can follow the other.
We would like and expect to see more Claimant lawyers making
CICA claims on behalf of their clients, particularly where it is
claimed they were abused (as opposed to neglected) by their
families.
To bring a CICA claim it is simply necessary to show that the
Applicant has been the victim of a crime. Contrary to what many
believe, under paragraph 10 of the Criminal Injuries Compensation
Scheme, it is not necessary for there to have been a prosecution.
What is required is evidence, on the balance of probabilities, of a
crime of violence. There is no need to attack the professionalism
of individual social workers in an already besieged profession.
Lawyers can recover their costs from the CICA award. They will
have to cut their coats according to their cloth. These costs can
be limited because the lawyers can prepare the cases efficiently.
They don’t have to go though documents in minute detail to deal
with complex questions of duty and breach. Most firms who deal with
CICA claims say they will charge “up to” 25% of the award
recovered, plus VAT.
The Applicant isn’t necessarily just entitled to a tariff award
for injuries. Claims can be made for loss or earnings or earning
capacity. There are also facilities for claims for treatment and
care.
Whether or not this will be given serious consideration remains
to be seen, but I am pleased to see that the Association of
Personal Injury Lawyers’ most recent Guide to Child Abuse
Compensation Claims devotes a whole Chapter to Criminal Injuries
Compensation.
This article was first published by
http://www.localgovernmentlawyer.co.uk/