Paying the price of failure
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.
Sarah Erwin-Jones is a Partner in the social care team at law firm Browne Jacobson and specialises in defending local authorities in relation to claims made against their social care and education departments
