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Human Rights Act Claims and Care Proceedings: A New Dawn

Will Tyler QC and Ben Mansfield, both of 36 Family, who jointly represented the Local Authority and Father in Northamptonshire County Council & Anor v The Lord Chancellor (via the Legal Aid Agency) [2018], consider the important new Guidance from the Legal Aid Agency, appended to the judgment, which confirms a fundamental change in the Lord Chancellor’s position. If the Guidance is followed the Legal Aid Agency confirms that it will no longer apply the statutory charge from care proceedings to Human Rights Act 1998 damages.

Will Tyler QC and Ben Mansfield both of 36 Family

The judgment of Mr Justice Francis in Northamptonshire County Council and AW v The Lord Chancellor appends transformational new Guidance from the Legal Aid Agency ('the LAA') in relation to those Human Rights Act 1998 ('HRA') claims that are co-determined with care proceedings.

If the Guidance is followed, the LAA will no longer apply the statutory charge arising from care proceedings to HRA damages, allowing receipt in full by the wronged person of the HRA damages.

The co-determination of HRA claims and care proceedings is in accordance with long established High Court guidance (see Re: L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam), [2003] 2 FLR 160, as approved in H (A Minor) v Northants and the Legal Aid Agency [2017] EWHC 282 (Fam), [2018] 1 FLR 499).

However, this practice has frequently led to the wholly unintended, and most would argue, unconscionable consequence that the LAA has insisted that the so-called 'statutory charge' from the care proceedings ('the SCCP') attaches to the HRA damages awards.

The notion of a statutory charge has been in existence since the very inception of Legal Aid and means, in essence, that Legal Aid will be treated as a loan if property is recovered due to its assistance.  By statute, there will be a charge over any such property in respect of any shortfall of costs incurred by a legally aided party after deduction of costs recovered by that party (if any). The concept derives from the common law solicitor's lien over property recovered and has a public policy justification that the legally aided litigant should not be in a better position than a privately funded one.

The LAA has previously asserted that, pursuant to section 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ('LASPO'), such HRA proceedings are 'connected' to the care proceedings, and as such the SCCP is applied against the HRA damages.  In the many cases in which the LAA has decided that the SCCP does indeed apply to the HRA award, the HRA award actually received by the wronged party has been substantially diminished, if not entirely extinguished.

This has created significant and obvious injustice for some of the most vulnerable people in society, including, principally, the children and parents subject to care proceedings.

By definition, the cohort of children affected by the statutory charge in this context include those who may have both been failed by their parents to the extent that care proceedings have been necessary, and whose Article 8 and/or Article 6 ECHR rights have been breached so gravely by the local authority that HRA damages were deemed necessary in order to afford 'just satisfaction'.

In such circumstances the monies awarded by the court against the local authority are not actually received by the child but are recouped by another branch of the state. The net effect being that the child has to pay for their representation in the care proceedings.  (To emphasise the point: the operation of the charge is not to pay for bringing a successful HRA claim, the defendant local authority will usually be liable for the reasonable costs of that claim; rather it is to set-off against the costs of the care proceedings.)
The child of course bears no responsibility for the care proceedings, has no say in their being brought, nor to being joined as a party in them.  Furthermore, these are proceedings for which legal aid is available as of right, irrespective of means, which legal aid is never repayable, regardless of result, except by operation of the SCCP.

Care proceedings have nothing conceptually or legally to do with HRA claims. Such HRA claims merely take place within varying degrees of commonality of a factual matrix, hence the judicial guidance that they are co-determined, to ensure proportionate use of judicial resources.

Very often, parents in care proceedings have significant vulnerabilities. Again, those affected by the operation of the statutory charge applies will include individuals whose human rights have been significantly breached by an organ of the state.  These parents have faced an outcome whereby they lose the award which a judge has determined they should recover, for what, by definition, have been breaches of their human rights.

In addition to those who have been awarded damages, only to lose them by operation of the charge, it is submitted that it is probable that many parents and children, with wholly valid claims, have decided against making a HRA damages claim when advised of the overwhelming likelihood of the entirely Pyrrhic outcome of such a course.

Local authorities have also been affected by this practice.  If a HRA claim is brought against a local authority, on the establishment of liability, by finding or admission, quite rightly the authority pays HRA damages and costs.  However, whilst these sums come directly from extremely pressured social care budgets the subsequent HRA damages which are recouped go to the Lord Chancellor's department.

Wider Difficulties
A potential remedy that parents and children in this position often feel compelled to seek is an order for the costs of their representation in the care proceedings against the local authority, thereby reducing or extinguishing the SCCP and facilitating the receipt of the HRA damages.

However, this may lead to prolonged litigation that is not focused on the purpose of the case. Whether ordered by the court or by (judicially invited) agreement, generally speaking, but for the SCCP/HRA award issue, these costs would have been neither sought, nor awarded.

Courts have found themselves in an invidious position in such cases because if they do not order the costs of the care proceedings then the HRA damages that are necessary to afford just satisfaction will be entirely swallowed by the Lord Chancellor. In complex care proceedings, these care costs will be likely to dwarf the quantum of the HRA damages. 

There are numerous very good public policy reasons why costs in care proceedings should generally not be in issue.  (See e.g. Re T (Care Proceedings: Costs) [2012] UKSC 36   

Recent Guidance from High Court Judges of the Family Division:
In the last 18 months Keehan J and Cobb J have, given clear guidance as to how to approach these claims, (see, H (A Minor), Re: C-Z (Human Rights Claim: Costs) [2017] EWFC 11 and Luton Borough Council  v PW, MT, SW and TW No.1 [2017] EWHC 450 (Fam), and Re W (Children) (Convention Rights Claim: Procedure): Practice Note [2017] 1 WLR 3451 ), including a strong invitation to the Lord Chancellor to change his practice of recoupment in these cases (H (A Minor) at §§118-123, as per Keehan J). Notwithstanding this the LAA has continued to recoup against such HRA damages.

The essence of the judicial guidance is to keep the HRA claims and care proceedings as procedurally distinct as possible by issuing a separate claim (with the proviso that parties are encouraged to seek negotiated settlements and are to seek to establish the LAA position within proceedings).  The guidance emphasises that HRA claims are governed by the Civil Procedure Rules.

There are two possible routes to bring HRA claims under section 7(1) of the HRA.  Section 7(1)(a) refers to standalone claims, whereas 7(1)(b) allows recovery within existing proceedings.  The judicial guidance expects that such claims should be pursued by section 7(1)(a), but co-determined with the care proceedings.

Northamptonshire CC and AW v the Lord Chancellor:
This case arose out of care and HRA proceedings heard before Francis J (Northamptonshire v M & Ors. [2017] EWHC 997 (Fam)).  The final hearing was adjourned, in part, to allow settlement of HRA claims.  Issues then arose as to the LAA's application of the SCCPs to the prospective HRA awards.

In response to the LAA's stance, the local authority issued proceedings for Declaratory Relief (DR) in July 2017.  Reflecting the rare coalescence of interests in this area, the father in the care proceedings (whose human rights had been breached by the local authority's actions) subsequently joined the DR application as second applicant and was represented by the same counsel as the local authority.

The key declaration sought was that the Lord Chancellor would be acting unlawfully in attaching the SCCP to the HRA awards, as HRA awards are not property recovered '…. in proceedings … in connection with which the services are provided' where those services are legally aided care proceedings.  The challenge was to the Lord Chancellor's interpretation of the tortuous wording of s.25, LASPO.

During the course of the DR proceedings the LAA fundamentally changed its position in relation to the application of the statutory charge in the instant case, confirming that the SCCPs would not apply to the HRA awards. However, the applicants did not abandon the DR proceedings, seeking Declaratory Relief of global application in order, finally, to determine the lawfulness of this issue.

During that stage of proceedings, the Lord Chancellor confirmed a change in his position of general application to HRA claims determined with care proceedings, and adopted the new Guidance.

The steps that must be taken in order to ensure compliance with the Guidance are:

a. In accordance with the judicial guidance cited in the LAA Guidance; attempt resolution of the claim without issuing HRA proceedings. This may include seeking agreement from the Local Authority to pay the claimant's reasonable costs of a Part 8 CPR infant approval hearing in the event settlement is reached, to be heard by the care proceedings judge, see H (A Minor).

b. If contested proceedings are necessary, practitioners are to:

- seek a separate legal aid certificate for the HRA damages claim; and

- issue separate HRA claim forms pursuant to s.7(1)(a), HRA, in accordance with Part 8 of the Civil Procedure Rules, to be listed and determined alongside the care proceedings.

c. In any event, seek early confirmation from the LAA that the care proceedings statutory charge will not apply to the prospective HRA award.

d. The LAA will then require undertakings from the lawyers involved to confirm that they will not and have not claimed HRA costs under the legal aid certificate covering the care proceedings.

Provided the Guidance is followed, the LAA will no longer cross-apply the SCCP to HRA damages, and claimants will be able now to receive their HRA damages.  We suggest that this will ensure that substantial future injustices will be avoided.

Legacy Cases
The Lord Chancellor has further confirmed that the LAA has conducted a review of certain 'legacy' cases, arising since April 2017.  It is to be hoped that a number of the previous injustices may be remedied by this process.

Further Challenge?
It is interesting to note that the claims in the instant case were issued prior to the judicial guidance in Re H (A Child) and were brought under s.7(1)(b) of the HRA.  Thus, the LAA's concession in the instant case seemingly went further than the new LAA Guidance, which applies only to separately issued Part 8 HRA claims.

As above, the review of 'legacy' cases has been confined to those 'where this issue has arisen since April 2017'.

It may be that the controversy and the litigation in this area is not finally and comprehensively concluded.  Others will, no doubt, consider what action, if any, to take in relation to those cases in which repayment of recouped damages is said not to be possible as (a) the SCCP was applied prior to April 2017, and/or (b) the claim was brought under s.7(1)(b) rather than s.7(1)(a) of the HRA.