Northamptonshire County Council and another v Lord Chancellor (via the Legal Aid Agency)
| Jurisdiction | England & Wales |
| Judgment Date | 05 June 2018 |
| Neutral Citation | [2018] EWHC 1628 (Fam) |
| Date | 2018 |
| Year | 2018 |
| Court | Family Division |
Legal aid – Care proceedings – Human rights – Damages – Breaches of rights in association with care proceedings – Whether statutory charge applied.
The local authority had issued care proceedings in respect of the child. Following a 10-day hearing, in a judgment dated February 2017, the judge found the local authority had seriously breached the child’s rights under the Human Rights Act 1998 (HRA), but that no assessment of damages in respect of the child, now six years old, was currently possible, since the extent of the losses that he had suffered or might yet suffered as a consequence of the relevant breaches could not be known. The judge also found that the local authority had breached the rights of both parents, identifying eight significant failures for which the local authority were responsible. The February judgment was explicitly not a determination of the parents’ HRA applications, but the judge’s findings led to the local authority compromising those applications.
In the months following the February judgment, those acting for the parents and the child made a number of enquiries of the Legal Aid Agency (LAA) about the possible application of the statutory charge relating to the care proceedings to the HRA damages. In response, the Legal Aid Agency confirmed that in its view the statutory charge relating to the care proceedings would apply to HRA damages recovered in this case.
The local authority issued a claim pursuant to CPR Pt 8, seeking a declaration that for the purposes of s 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, a claim for damages under the Human Rights Act 1998, whether under s 7(1)(a) or 7(1)(b), did not constitute ‘proceedings … in connection with which services are provided’ where the services that had been provided comprised civil legal services provided to a parent or child in Pt IV Children Act 1989 care proceedings. The father was joined as a joint applicant.
In the Lord Chancellor’s acknowledgement of service, dated 9 August 2017, it was stated that while it was ‘premature to reach a concluded view’, it was considered likely that the statutory charge would arise and would attach to any HRA damages recovered.
However, the LAA then gave further and detailed consideration to when the statutory charge would arise in cases involving HRA damages claims arising out of care proceedings and amended its approach. The LAA then wrote to the three firms representing respectively the mother, father and child in the care proceedings, explaining that, if the damages under the HRA were obtained on a freestanding basis, the operation of the statutory charge would depend on what costs were being claimed from the Lord Chancellor in respect of the HRA proceedings or dispute. If the answer was that no costs were being claimed in respect of the HRA proceedings or dispute, there would be nothing to protect by way of the statutory charge. On that basis, the LAA invited all three firms and counsel to provide an undertaking that they would not claim in respect of any costs incurred in connection with the HRA claim under their client’s legal aid certificate for the care proceedings.
These undertakings were provided. The LAA accordingly wrote to the claimants on 20 December 2017 to explain that, given the assurances provided, the cost of the care proceedings would not form part of the statutory charge, and that it was only the costs of the HRA proceedings or dispute to which the statutory charge would attach. The LAA, on behalf of the Lord Chancellor, set out its new official position in a document entitled ‘Position of the Legal Aid Agency as to the application of the statutory charge in relation to care costs and Human Rights Act applications’.
The parties agreed that the parents’ application for declaratory relief should be withdrawn with no order as to costs.
Held – (1) It was axiomatic that if the statutory charge was to apply, the costs incurred within the care proceedings were so large that they would obliterate any damages recovered by the parents (and in due course the child) within their HRA claims. The moral injustice arising out of such a situation was palpable: claimants who had been appallingly let down by a local authority would find themselves recovering money from a public body with one hand, only to give it back to another public body with the other hand. The court was very pleased to see that this obvious injustice had now been corrected, provided that appropriate guidance was followed. The LAA had apparently undertaken a review of a number of other cases where this issue had arisen since April 2017 (‘legacy’ cases) in order to remedy any previous cases in which the statutory charge had wrongly been interpreted as applying in relation to damages awarded for breach of human rights. It would not be appropriate to make any comment in relation to those legacy cases other than to note that in cases which were similar to the instant case, obvious injustices should now be cured (see [7], below).
(2) It was important to underline the need...
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