EWHC 2091
This case raised the interesting and important question of the extent to which a local authority’s child care team (social workers and lawyers) owe a duty to a child in care to make an application on the child’s behalf for criminal injuries compensation.
The claimant had suffered catastrophic injuries at the hand of her father as an infant. She was made the subject of a care order in 1994. In 1997 the Council made an application for compensation for her under the new Criminal Injuries Compensation Authority (“CICA”) scheme which was introduced on 1 April 1996. The claimant, represented by the Official Solicitor, alleged that her claim should have been made before 1 April 1996 under the old Criminal Injuries Compensation Board (“CICB”) scheme which the CICA scheme replaced. She would have received substantially higher compensation under the old CICB scheme (potentially millions of pounds higher).
MacKay J rejected her claim. He held that whilst the Council undoubtedly had a power to make a claim for criminal injuries compensation on behalf of the claimant, it did not owe a duty of care in tort to do so. The child care team’s primary focus was on the physical welfare and safety of the claimant and trying to rebuild her family unit, the Council’s child care plan being to rehabilitate the claimant with her parents. The fact that the council saw itself as being under a duty to make criminal injury compensation claims on behalf of children in its care was a factor but was not determinative of the legal position. Imposing a duty to promote the claimant’s financial interests would not be fair just or reasonable given the delicacy of the relationship between the Council and the claimant’s mother, who herself was having difficulty accepting the responsibility of the claimant’s father for the injuries and resented the involvement of social services. The judge also concluded that even if a duty had been owed, it had not been breached as judged by the Bolam standard: on the evidence there had been little publicity concerning the impact of the new scheme at the time it was introduced and a solicitor acting in a local authority child care team could reasonably not have known that the new scheme would adversely affect claims for injuries which had been suffered before it was introduced.
This decision is not being appealed. There have been a number of claims threatened against local authorities in recent years for not making applications for criminal injuries compensation timeously or at all and the case will be of particular interest to those involved in them. Whilst in some respects the decision is fact specific, it is clear that the courts will be wary of imposing a duty which would promote the economic interests of a child over child welfare plans or cut across delicate social work decisions. Moreover, child care solicitors in a local authority’s legal department are not to be judged by the same standard as personal injury solicitors in private practice.
Lord Faulks QC and Andrew Warnock appeared for the Defendant Council.