The decision not to cap legal aid for care and supervision proceedings will leave professionals vulnerable to litigation. To address this, the social worker’s duty of care must be rethought, writes Peter Wake
Children’s services have their backs against the wall at the moment. In the three months before last September it was reported that the number of care applications increased by nearly 50%. In the annual Local Government Workforce Survey by the Local Government Association, 85% of councils reported difficulties in retaining children’s social workers. This figure is comfortably higher than all other areas of employment. The survey also revealed that nearly eight in 10 local authorities have trouble recruiting children’s social workers.
With October’s comprehensive spending review leaving only the schools budget ring-fenced, local authorities face a challenge to fund child protection. On top of this, the government has decided not to abolish court fees paid by local authorities for care and supervision proceedings.
It is against this difficult backdrop that civil damages claims against social services continue to rise. These range from negligence claims for failure to remove children to those made under the Human Rights Act (by parents and children) for removing children without justification. Regardless of specifics, these claims share some common features, including the fact they are document-heavy and expensive.
Further, the proposed reforms to the legal aid system suggest public funding may well remain in place for claims of this type given they often involve state intervention alongside alleged human rights violations and allegations of abuse and assault.
It could be argued that the exposure of social services departments to litigation has gone too far. Just 15 years ago the situation was under much tighter control. In X Minors v Bedfordshire , the House of Lords dismissed negligence claims by children who alleged the council had failed to protect them from parental abuse. The Lords said the task of dealing with children at risk was so delicate that it would be disrupted by the threat of potential civil liability. It was also dictated by policy decisions of government. In effect, social workers were largely, if not entirely, immune from claims in negligence.
The situation changed with the Human Rights Act 1998. Under this, local authorities that unlawfully interfered with family life could be subject to Article 8 damages claims. In JD v East Berkshire Community NHS Trust , the Court of Appeal ruled that the case law in X Minors could not survive the implementation of the Act.
Accordingly, the court’s view was that there was no sound basis for continuing to deny a duty of care to children on policy grounds in relation to decisions on whether to take children into care.
We harbour reservations about the accuracy of the Court of Appeal’s reasoning on this because it is not consistent with subsequent decisions, such as Smith v The Chief Constable of Sussex . This was a claim struck out on public policy grounds by the House of Lords, which held that imposing a duty of care on the police would induce defensive policing “focused on preventing, or at least minimising the risk of claims in negligence”.
Similarly the decision-making in social care is not only intensely difficult but also part of a wider process that involves obtaining and interpreting information from multiple sources.
Subjective and decisive judgements need to made by the professionals involved and, for the same reasons cited by the House of Lords in respect of the police in Smith, social workers should not be inhibited in their decision-making by the threat of litigation.
It is true that the threshold for establishing negligence in these cases is a high one. Mere mistakes, errors of judgement or even bad social work will not usually amount to negligence, the test being more one of manifest incompetence. Importantly, the resources (or lack of) available to social workers will always be a relevant consideration.
However, the current climate gives cause for concern. There must be a risk that the environment created by the austerity programme may lead to increased exposure to litigation. Arguably, this is evidence in itself that the situation has gone too far. Further, by not limiting legal aid to these claimants it will mean that such claims will continue to rise unless boundaries are drawn more narrowly around social workers’ duty of care.
Peter Wake is an associate in the local government team of Weightmans LLP. Email firstname.lastname@example.org; tel 0151 242 6866
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