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Local authority duty of care: VL v Oxfordshire County Council [2010] EWHC 2091

The High Court has held that a local authority did not owe a duty of care in tort to make a an application to the Criminal Injuries Compensation Board on behalf of a child in its care prior to the replacement of that body by the Criminal Injuries Compensation Authority. The Claimant had suffered catastrophic injuries at the hands of her father before she was taken into care.

Mr Justice Mackay held that although she would have received substantially more compensation under the old criminal injuries compensation scheme than she did under the new, it would not be fair just or reasonable to impose a duty of care on the local authority to promote her financial security over the rebuilding of her family unit, or even to risk doing so.

The judge also held that even if a duty of care had arisen, he would not have found it to be breached given the lack of publicity from central government at the time about the changes it was making to the criminal injuries compensation scheme, in particular as to the fact that the new scheme would deprive those with existing claims to a large part of their remedy.

Lord Faulks QC and Andrew Warnock appeared for the Defendant, instructed by Barlow Lyde & Gilbert.

Debt relief order precludes recovery of social security debts: R (Cooper and Payne) v Secretary of State for Work and Pensions

On July 26th 2010, the Administrative Court held that the making of a debt relief order precludes the Secretary of State for Work and Pensions from recovering overpaid benefits or social fund loans by making deductions from ongoing entitlement to benefit, because in doing so the Secretary of State would be exercising a "remedy in respect of the debt" within the meaning of section 251G(2)(a) of the Insolvency Act 1986. 

In his oral judgment, Cranston J decided that: (1) in the absence of any indication to the contrary, "remedy" should be given its normal meaning to include methods of self-help such as abatement and set-off, and the Secretary of State was effectively exercising a statutory right of set-off, (2) the so-called 'net entitlement principle' under which, prior to consideration of insolvency law, a claimant was only entitled to receive an amount of benefit net of deductions, did not detract from that conclusion and did not, properly understood, preclude section 251G(2)(a) from having the effect contended for by the claimants, and (3) given the differences between the DRO schemes and the differences in language used, it was not possible to attribute an intention by Parliament, in enacting the DRO legislation in 2007, to adopt the conclusion in the cases of Mulvey and Taylor that bankruptcy left the Secretary of State's right of recovery unaffected prior to discharge.  Accordingly, the Secretary of State's continued withholding of benefits was unlawful. The Secretary of State was given permission to appeal, but refused a stay of execution pending appeal. The judgment will also apply to local authorities administering housing benefit and council tax benefits who seek to recover overpayments of those benefits by way of deductions from ongoing entitlement. 

Paul Stagg of 1 Chancery Lane represented Ms Cooper and made the oral submissions on behalf of both claimants.

The Court of Appeal has considered the inter-relationship between police protection powers and emergency protection orders

F-v- (1) East Sussex County Council; (2) Chief Constable of Sussex Police [2010] WLR (D) 171

This case concerned the use of powers under Sections 44 and 46 of the Children’s Act 1989 (“the Act”). The applicant mother was appealing the decision of HHJ Coltart, sitting at Brighton County Court. He held the Respondents’ use of a Police Protection Order (“PPO”) under Section 46 of the Act to enable the removal of her child when she was in hospital, was lawful. The child was admitted to hospital following the mother’s contention that he was suffering from fits. There was nothing medically wrong with the child. A doctor and medical staff suggested it was a case of fabricated illness by the mother, who had a history of mental health problems and was being uncooperative. The Respondents’ considered the removal of the child necessary for his protection and wellbeing, in light of medical advice which suggested the child was at risk of being harmed by the mother. It was between Christmas and New Years Day, and the Respondents’ considered it was impractical to seek an Emergency Protection Order (“EPO”) under Section 44 of the Act from a court.

The Court of Appeal (Carnwath, Jackson LJJ and Hedley J) held that, in accordance with Langley v Liverpool City Council [2005] EWCA Civ 1173, local authorities and police forces must effect the removal of a child via an EPO where practical, in preference to PPOs. However, HHJ Coltart in the present case was entitled to find that the exercise of a PPO was justified and neither unlawful nor disproportionate in such circumstances where there was substantial evidence that the child was at risk from harm and an application to a court for an EPO was logistically impractical. The Court gave guidance on how police and social services should handle such situations. 

Andrew Warnock appeared for the Second Defendant.

Edward Faulks QC elevated to House of Lords

Chambers are delighted to announce that Edward Faulks QC, long-standing former head of this Set, has been elevated to the House of Lords. We wish him every success in his new role. We are also pleased to be able to confirm that he will be continuing in practice from 1 Chancery Lane.

Assured tenancies - Rent Threshold Increase

With effect from 1 October 2010 the rental threshold for assured tenancies under the Housing Act 1988 Schedule 1, paragraph 2(1)(b) will be £100,000 per annum (SI No 908-Assured Tenancies (Amendment) (England) Order 2010). This means many lettings, currently outside the statutory protection of the Housing Act 1988, will now be covered by the Act.   The amendment applies to existing and new tenancies. Thus a landlord (if their status or the other terms of the tenancy do not take it outside the auspices of the Housing Act 1988) must take measures to ensure compliance with the requirements of the tenancy deposit scheme under the Housing Act 2004. Given there is no statement of intention by the government to amend the timing requirements under section 213 of the Housing Act 2004 for deposits of extant tenancies affected by this change, it may be prudent to prepare the paperwork in advance of 1 October 2010.

 Samantha Jackson, Barrister

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