VL (A CHILD SUING BY HER LITIGATION FRIEND, THE OFFICIAL SOLICITOR) AND OXFORDSHIRE COUNTY COUNCIL[2010] EWHC 2091 (QB)
FACTS:-
The Claimant was born in 1993. She was shaken as a baby by her father and suffered severe brain damage. A care order made in August 1994, as a result of which the Defendant local authority shared parental responsibility with the mother. However the social worker involved managed to achieve a situation where the family was eventually brought back together, after the father had undergone extensive psychiatric treatment.
In November 1995, the Claimant’s social worker received an application form from the CICB, but had put off making the application until the process of rehabilitating the father into the family was complete. In December 1995, the Claimant’s mother’s solicitor in the care proceedings also advised the mother that a claim should be made, but the mother was reluctant to initiate a claim at that point. In January 1996, the mother changed her solicitors and her former solicitor wrote to the new solicitor, advising her that the regulations relating to a claim to the CICB were changing and that after April 1996, they would be less favourable to the Claimant. This advice was passed to the mother by the new solicitor, who sent the mother an application form in January 1996 and the relevant guide. However she did not complete it until July 1996. For some reason that form was lost, and a new application was not lodged until January 1997. However another form was lodged in March 1997 by the social worker. This application was initially refused, and consequently the social worker applied for a review. The matter then came up for an appeal before the Criminal Injuries Compensation Appeals Panel. They were initially reluctant to grant any compensation, on the grounds that the father would benefit. However the local authority drafted a trust, which effectively prevented any benefit accruing to the father. The CICAP then made a full award of £500,000 in 2001.
The Claimant’s case was that the Defendant local authority failed to make an application on her behalf before the 1st April 1996, after which date the Criminal Injuries Compensation Board was replaced by the Criminal Injuries Compensation Authority. The new scheme was far less favourable to applicants such as the Claimant, since it had a £500,000 ceiling on compensation.
JUDGEMENT:-
Justice McKay went over the history of the various CICB/CICA schemes. McKay J considered the awareness amongst social workers of the need to make claims to the CICB/CICA. He referred to a conference organized in 1990 organised by Joyce Plotnikoff, a qualified social worker and lawyer in which local authorities were advised that they might be laying themselves open to negligence, if they did not make CICB claims on behalf of children taken into care. The Defendant was certainly aware of its responsibilities at that time, but its legal department was not aware of the changes in the statutory scheme. McKay J said that it was the responsibility of the Defendant’s legal team not the social worker, to stay abreast of the law. Although the legal team received regular updates from central government and extensive training, the changes to the Criminal Injuries Compensation Scheme was not included within the information provided to them. Evidence was given by the Chief Executive of the CICB/CICA, who was involved in the drafting of the CICA Scheme. McKay J found it highly probably that one of the Defendant’s legal team had attended a conference that he had given, and that he had covered the date of the changeover.
McKay J considered the duties of the local authority under the Children Act 1989 and in particular Section 3. It was agreed that this was a novel claim insofar as no precedent for it could be found. McKay J considered the following cases:-
The Claimant counsel made the following concessions:-
However once the Defendant decided to make the application, it had to be done competently which meant applying in time and applying to the scheme that gave the greatest benefit to this child.
The Defendant’s counsel relied on the case of X and Y v London Borough of Hounslow [2009] EWCA Civ 286 where the Court of Appeal had said that the concept of a duty in private law which arose only when it was being acknowledged to exist was illogical. It would mean that a housing authority that accepted that it had a duty to house the applicant but did so inadequately would be liable in damages but an authority that perversely refused to accept that it had any such duty would not.
Moreover there was a difficulty defining the duty here with any precision. There was clear authority in Barrett v Enfield [2001] 2 AC 550 to the effect that it would be wholly inappropriate for a child to be permitted to sue his parents for careless decisions made in respect of his upbringing which had damaged his economic welfare.
In the case of Gwilliam v West Hertfordshire NHS Trust [2003] QB 443 a hospital organised a fair to raise funds. An independent contractor provided a fairground attraction for visitors. The duty of care of care in that case was said to include a duty to take reasonable care to ensure that the Claimant would be reasonably safe while visiting the fair, the scope of which was said to extend so as to require it to take steps to check that the contractor had effective public liability insurance in place. The court regarded that as a step too far and therefore not an appropriate incremental extension. That decision was expressly approved in the later case of Glaister v Appleby-In-Westmorland Town council [2009] EWCA Civ 1325.
McKay J said that he had no doubt that the Defendant had the power to make a claim to the CICB on the Claimant’s behalf, even if the mother objected. That power did mean that it was under a duty in tort to maximise the economic position of a child in care by allocating time and resources to a pursuit of all available financial claims in a situation where a parent retained a share of parental rights. The primary focus of the Defendant was on the physical welfare and safety of the child and the rebuilding of the family unit.
There was an absence of evidence as to the practice of other local authorities. McKay J said that in his view, this was significant.
Finally he was also struck at the delicate relationship which existed between the mother of the Claimant and the local authority during the time in which the claim to the CICB could have been made. The social worker had delayed that application until the father had been rehabilitated back into the family. In the view of McKay J, it would not be fair just or reasonable to impose the duty alleged in this claim to promote the claimant's financial security over the unity of the family, or even run the risk of doing so.
However McKay J said that if he was wrong not to impose a duty of care, he would consider whether there was a breach of any duty. If this were a case of a personal injury lawyer, holding himself out as such, the result might well have been a different one. However in relation to the local authority’s legal team, he did not consider that a failure to be aware of the draconian effect of the 1 April 1996 deadline constituted a professional failure to achieve the standard to be expected of a reasonable competent person acting in the field in which they were acting.
There was also an argument from the Defendant’s counsel that a claim under the CICB scheme would have been rejected under Rule 7 of that Scheme. McKay J disagreed. The claim, if it had been pursued under the CICB scheme would have been pursued vigorously and even if it had been turned down at appeal, a judicial review might have been launched. There was evidence that other similar claims had succeeded. Consequently if a duty of care had been shown, and there was a breach of that duty, the Claimant would have recovered substantially more in the way of damages.
FACTS:-
The Claimant was born in 1993. She was shaken as a baby by her father and suffered severe brain damage. A care order made in August 1994, as a result of which the Defendant local authority shared parental responsibility with the mother. However the social worker involved managed to achieve a situation where the family was eventually brought back together, after the father had undergone extensive psychiatric treatment.
In November 1995, the Claimant’s social worker received an application form from the CICB, but had put off making the application until the process of rehabilitating the father into the family was complete. In December 1995, the Claimant’s mother’s solicitor in the care proceedings also advised the mother that a claim should be made, but the mother was reluctant to initiate a claim at that point. In January 1996, the mother changed her solicitors and her former solicitor wrote to the new solicitor, advising her that the regulations relating to a claim to the CICB were changing and that after April 1996, they would be less favourable to the Claimant. This advice was passed to the mother by the new solicitor, who sent the mother an application form in January 1996 and the relevant guide. However she did not complete it until July 1996. For some reason that form was lost, and a new application was not lodged until January 1997. However another form was lodged in March 1997 by the social worker. This application was initially refused, and consequently the social worker applied for a review. The matter then came up for an appeal before the Criminal Injuries Compensation Appeals Panel. They were initially reluctant to grant any compensation, on the grounds that the father would benefit. However the local authority drafted a trust, which effectively prevented any benefit accruing to the father. The CICAP then made a full award of £500,000 in 2001.
The Claimant’s case was that the Defendant local authority failed to make an application on her behalf before the 1st April 1996, after which date the Criminal Injuries Compensation Board was replaced by the Criminal Injuries Compensation Authority. The new scheme was far less favourable to applicants such as the Claimant, since it had a £500,000 ceiling on compensation.
JUDGEMENT:-
Justice McKay went over the history of the various CICB/CICA schemes. McKay J considered the awareness amongst social workers of the need to make claims to the CICB/CICA. He referred to a conference organized in 1990 organised by Joyce Plotnikoff, a qualified social worker and lawyer in which local authorities were advised that they might be laying themselves open to negligence, if they did not make CICB claims on behalf of children taken into care. The Defendant was certainly aware of its responsibilities at that time, but its legal department was not aware of the changes in the statutory scheme. McKay J said that it was the responsibility of the Defendant’s legal team not the social worker, to stay abreast of the law. Although the legal team received regular updates from central government and extensive training, the changes to the Criminal Injuries Compensation Scheme was not included within the information provided to them. Evidence was given by the Chief Executive of the CICB/CICA, who was involved in the drafting of the CICA Scheme. McKay J found it highly probably that one of the Defendant’s legal team had attended a conference that he had given, and that he had covered the date of the changeover.
McKay J considered the duties of the local authority under the Children Act 1989 and in particular Section 3. It was agreed that this was a novel claim insofar as no precedent for it could be found. McKay J considered the following cases:-
- X (Minors) v Bedfordshire County Council [1995] 2 AC 633.
- Connor v Surrey County Council [2010] EWCA Civ 286
- Caparo Industries PLC v Dickman [1990] 2 AC 605
- Gorringe v Calderdale [2004] 1 WLR 1057
The Claimant counsel made the following concessions:-
- If the Defendant had merely decided against making any application, as a bona fide decision based on social work grounds, his argument would be difficult.
- This was a pure economic loss claim, which weighed heavily at this "fair just and reasonable" stage of the consideration.
- The existence of a duty should not be declared if it conflicted with the defendant's exercise of its statutory powers, or its duties, or made demands on its resources.
However once the Defendant decided to make the application, it had to be done competently which meant applying in time and applying to the scheme that gave the greatest benefit to this child.
The Defendant’s counsel relied on the case of X and Y v London Borough of Hounslow [2009] EWCA Civ 286 where the Court of Appeal had said that the concept of a duty in private law which arose only when it was being acknowledged to exist was illogical. It would mean that a housing authority that accepted that it had a duty to house the applicant but did so inadequately would be liable in damages but an authority that perversely refused to accept that it had any such duty would not.
Moreover there was a difficulty defining the duty here with any precision. There was clear authority in Barrett v Enfield [2001] 2 AC 550 to the effect that it would be wholly inappropriate for a child to be permitted to sue his parents for careless decisions made in respect of his upbringing which had damaged his economic welfare.
In the case of Gwilliam v West Hertfordshire NHS Trust [2003] QB 443 a hospital organised a fair to raise funds. An independent contractor provided a fairground attraction for visitors. The duty of care of care in that case was said to include a duty to take reasonable care to ensure that the Claimant would be reasonably safe while visiting the fair, the scope of which was said to extend so as to require it to take steps to check that the contractor had effective public liability insurance in place. The court regarded that as a step too far and therefore not an appropriate incremental extension. That decision was expressly approved in the later case of Glaister v Appleby-In-Westmorland Town council [2009] EWCA Civ 1325.
McKay J said that he had no doubt that the Defendant had the power to make a claim to the CICB on the Claimant’s behalf, even if the mother objected. That power did mean that it was under a duty in tort to maximise the economic position of a child in care by allocating time and resources to a pursuit of all available financial claims in a situation where a parent retained a share of parental rights. The primary focus of the Defendant was on the physical welfare and safety of the child and the rebuilding of the family unit.
There was an absence of evidence as to the practice of other local authorities. McKay J said that in his view, this was significant.
Finally he was also struck at the delicate relationship which existed between the mother of the Claimant and the local authority during the time in which the claim to the CICB could have been made. The social worker had delayed that application until the father had been rehabilitated back into the family. In the view of McKay J, it would not be fair just or reasonable to impose the duty alleged in this claim to promote the claimant's financial security over the unity of the family, or even run the risk of doing so.
However McKay J said that if he was wrong not to impose a duty of care, he would consider whether there was a breach of any duty. If this were a case of a personal injury lawyer, holding himself out as such, the result might well have been a different one. However in relation to the local authority’s legal team, he did not consider that a failure to be aware of the draconian effect of the 1 April 1996 deadline constituted a professional failure to achieve the standard to be expected of a reasonable competent person acting in the field in which they were acting.
There was also an argument from the Defendant’s counsel that a claim under the CICB scheme would have been rejected under Rule 7 of that Scheme. McKay J disagreed. The claim, if it had been pursued under the CICB scheme would have been pursued vigorously and even if it had been turned down at appeal, a judicial review might have been launched. There was evidence that other similar claims had succeeded. Consequently if a duty of care had been shown, and there was a breach of that duty, the Claimant would have recovered substantially more in the way of damages.