Courting disaster?

The European Court has thrown down a gauntlet
to councils by challenging their immunity to negligence claims,
leading to fears that social services departments will face a
mountain of litigation. Natalie Valios reports.

The phrase “see you in court” strikes terror
into the hearts of most professionals. The exception to date has
been local authority social care staff, who have enjoyed protection
from negligence claims because they are deemed not to have a duty
of care to individual children.

But this comfortable position could be about
to change. The principles affecting the law of negligence were
successfully challenged in landmark cases at the European Court of
Human Rights in Strasbourg this year. And a number of long-running
and complicated cases in the UK have already reflected this sea
change.

For instance, in June 1995 the House of Lords
dismissed an action for breach of statutory duty and struck out a
negligence claim against Bedfordshire Council on the grounds that
it would not be “fair, just and reasonable” to impose a duty of
care on the authority. The case concerned four children who were
severely emotionally and physically abused by their parents.
Despite numerous reports of neglect, it took Bedfordshire Council
five years to intervene and take them into care.

The House of Lords claimed that giving the
four siblings the right to sue the council for neglect would “drive
a coach and horses” through joint working and might make
professionals cautious and defensive. It would create a “fertile
ground in which to breed ill-feeling and litigation” that would
mean “money and human resources will be diverted from the
performance of social services”.

The children took their case to Strasbourg,
alleging breaches of various articles of the European Convention on
Human Rights by the UK government. The court ruled in May that
article 3, which prohibits inhuman or degrading treatment, had been
violated, as had article 13, the right to effective legal remedy –
because domestic law excluded a claim of negligence.

In the same month, the European court ruled
that Newham Council had violated article 8, the right to respect
for family life, after it wrongly took a child into care. Again, it
held that article 13 had been violated.

It took until 1999 for domestic courts to
challenge local authority immunity to negligence claims. Keith
Barrett took his case against Enfield Council to the House of Lords
after being turned down at every other stage. He claimed that
multiple moves between foster parents and children’s homes denied
him the psychiatric care and stable adoptive home he needed.

In a shock ruling, the Law Lords agreed,
giving Barrett permission to press ahead with his negligence claim.
Eventually, the council settled out of court, paying him
damages.

The upshot is that in principle local
authority immunity has been lifted – although this is yet to be
tested in domestic law. And an alternative route for claimants
seeking compensation for negligence was opened by the Human Rights
Act 1998, which came into force in October 2000. The act means that
public bodies have to ensure that everything they do is compatible
with the European Convention on Human Rights.

Local authorities’ initial panic, reflected
across the private and voluntary social care sector, was that the
changes might lead to a deluge of litigation. But will this prove
to be the case?

Mike Leadbetter, vice president of the
Association of Directors of Social Services, is upbeat about the
situation, despite the fact that his own department in Essex has
had a similar case hanging over it for several years.

“I don’t think we will go the way of the US in
terms of litigation,” he says. “When the Human Rights Act came in
there was a huge amount of worry that it would mean much
litigation, but it hasn’t proved to be the case.”

The Essex case involves a foster family who
claim they were not told that a foster child was a known sex
offender. They allege that the boy subsequently abused their four
children. The Law Lords gave the family permission to sue the
council last year, and the case is now on the verge of being
settled out of court.

Philip Thomson, Essex Council’s head of legal
services, says: “When our case started it would have been almost
certainly unlawful for us to pay compensation, but the law has
changed with the European Convention of Human Rights coming into
our jurisdiction.

“Over the past five years the pendulum has
gone from almost one end of the scale to the other and local
authorities don’t have that indemnity now,” he says. “The door is
now pretty wide open. You could search around and look for some
remnants of immunity but I don’t think they amount to much.”

So, what are the implications for local
authorities? The Association of Lawyers for Children has identified
several issues: insurance and claims excess; pressure on future
resources as the number of future claims is unknown; and liability.
Local authorities – and other social care bodies – now have to face
the fact that they will probably have to defend proceedings sooner
or later, says vice chairperson Liz Goldthorpe.

If insurers refuse to pay for compensation
claims, the result is likely to be a heavy and unpredictable drain
on budgets – something that will inevitably affect future service
provision. And even if insurers do pay up, Goldthorpe warns that
the excess in most insurance policies is at least the first
£10,000 per claim.

Liability is also an issue, she adds. With a
multi-disciplinary child protection system, who is liable when
something goes wrong? “The social services department may be the
lead agency but there are others involved, overseen by the area
child protection committee,” she points out. “The fact is that it’s
not the outcome of litigation that matters, but whether it happens
at all and how you can go about insuring yourself against
that.”

Fears that a growing compensation culture will
lead to money being spent on court cases rather than services could
prove unfounded, if European experiences are anything to go by. In
France and Germany, anyone harmed through a public body’s failure
to do its job properly is entitled to claim compensation. But the
cost of claims in Germany is estimated to be only 0.015 per cent of
the public services budget.

Zurich Municipal, insurance company to most
local authorities is taking a contrary view to most commentators
believes the Strasbourg rulings have been misinterpreted. A
spokesperson says: “The crucial issue was whether Strasbourg
overturns the House of Lords’ decision [in the Bedfordshire case].
We don’t think it does.”

The courts are not supposed to interfere with
a social services department’s discretion – for instance, whether
to take a child into care or not, the spokesperson adds. “The
Bedfordshire case never went to trial, it was struck out by the
House of Lords. The implication of that was that you could not sue
a local authority, and it was cast in stone as a matter of
law.”

As the European court went on to rule that the
children had had a fair hearing, he adds, Zurich Municipal would
resist a claim on the same footing as these cases.

Leading child care lawyer Allan Levy QC begs
to differ. He believes that in principle these rulings do lift
local authorities’ immunity, and he welcomes that change. “It is a
great step forward for children. It means that they can seek
financial compensation for negligent treatment when they have been
in care.”

Like Goldthorpe, he forecasts a number of
similar cases surfacing, though not a deluge, but warns that there
might be some fairly old cases that come back to haunt social care
agencies.

“Rather than be negative, the effect should be
positive because social care professionals will know that they have
to match up to proper standards, bringing them in line with health
professionals,” Levy says.

There is the possibility of at least one
negative knock-on effect though – defensive or over cautious
practice. Shaun Kelly, child protection adviser at NCH, says: “We
are generally moving towards a more litigious culture. I would be
worried if that process meant we were so procedurally bound we were
too inflexible to offer children what they need for good
outcomes.”

A more positive outcome would be if agencies
learn from these cases and ensure that practices promote positive
outcomes for children, he adds.

Bob Cook, principal manager for operations,
quality and development at Barnardo’s, agrees that the way for
agencies to protect themselves from the risk of litigation is to
have the system in place that encourages good practice.

The learning points from these cases are about
having robust systems that protect children against abuse,
particularly in the care system, he argues. Robust systems need to
include the recommendations that we see time and again in every
inquiry into children’s services and child abuse scandals. These
include: recruitment practices; supervision; whistleblowing and
complaints procedures; child protection procedures; recording;
inspection; advocacy; and more recently, compliance with human
rights legislation.

“If one has that sort of framework in place
and people follow that then the chances of getting things wrong
will be diminished,” says Cook. “You don’t have to be defensive –
take it from a rights perspective and that necessitates protecting
people’s rights to be safe from harm.”

At the end of the day, says Mike Leadbetter in
Essex: “If staff have acted reasonably and can give a good
explanation of what they have done and can evidence it, they need
not fear litigation.”

Is the threat of litigation influencing
the decisions you make? Are you taking the safe option rather than
the best one for service users? Have your say by e-mailing: comcare.haveyoursay@rbi.co.uk
or by clicking
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