Social care issues continue to dominate the local authority claims landscape so we focused on a range of social care topics for our last claims clubs of the year including: - STPs and ACOs - Inquests - Vicarious liability - Armes -v- Nottinghamshire County Council [2017] UKSC 60

1. Social care claims club
October/November 2017

2. Inquests
Andrew Hopkin

3. Headlines
• Autumn Grange – 2017
• death of Ivy Atkin
• home run by Sherwood Rise Limited
• manslaughter convictions
• inquest called witnesses form CQC and local
authority
• “serious and deeply concerning issues”

4. Headlines
• local authority and private domiciliary care agency-
2014
• individual found in her bed suffering from
starvation and dehydration 9 days after the UKBA
and Police shut the domiciliary care agency she
was receiving support from
• the Council had failed to call her to make
alternative care arrangements
• Coroner concluded that neglect contributed to her
death
• two Council workers were suspended

5. Headlines
• safeguarding reports
• “No one agency appeared to hold the full picture
of his care needs and what was happening at any
one time”
• “Information was held by various agencies
providing care and support …there ..appeared to
be a lack of clarity around roles of certain agencies
and lack of understanding about how teams
functioned”

6. Headlines
• “working with people with multiple and complex
needs, across agencies, has to hinge on
coordinated assessment, care management and
working with the risk of harm together”
• “a professional led, multi agency approach was
required and this was entirely absent…”
• “the assessment processes experienced by [the
resident ]…were not integrated and had no impact
on inter professional working...”

7. Inquests
• impact and consequences underestimated
• precursor to prosecution or civil claim
• professional disciplinary proceedings
• criticism of staff
• increased focus on learnings and PFDs
• publicity
• preparation can be poor

8. How might local authority be involved
• commissioners
• providers
• equipment
• staff

9. Principles
• follows unnatural deaths
• sometimes jury
• range of verdicts from accidental death to unlawful
killing
• narrative verdict
• Article 2
• HMC cannot allocate blame BUT….

10. Early stages
• police investigation – dual role i.e. investigators
and HMC officers
• regulator investigation – CQC, HSE
• safeguarding
• decisions of above
• HMC requesting documents from you – timing
depends on HMC
• internal investigation report

11. Internal investigation
• legal privilege?
• remit and scope must be clear and documented
• author
• draft
• structure
• action plan

12. Your people
• may be spoken to a number of times
• conflict?
• provide a statement if none to date
• care with those already drafted
• support in process

13. Running up to Inquest
• be clear about scope
• liaise with HMC
• liaise with other IPs
• attend PIRs
• check and monitor availability of witnesses and
who is needed
• who needs to know?
• what is our approach?

14. Immediately prior
• ensure full disclosure
• meet witnesses – discuss process - and support
• arrangements for the day
• press release

15. During Inquest
• be prepared for change!
• press coverage and your staff
• presence in court
• the family
• verdict

16. Key areas in Social Care Inquest
• transfer of information/handover – should be
proactive/ongoing
• documenting roles and responsibilities – clarity…
• understanding how other teams function
• checks upon providers pre placement
• checks post placement
• warnings
• training
• poor/inadequate equipment

17. What can you do now?
• ensure have a proper system for checking providers
• operate to an SLA with providers
• have a lead professional for each agency
• have an effective system for investigating incidents
and near misses
• if you are a provider is there a proper up to date
system for managing facility
• are staff trained and qualified?
• is equipment regularly checked and replaced?

18. Key points
• is an Inquest likely?
• have we identified possible issues
• timely engagement with HMC and inquests process
• be aware your documentation may become public
• decide upon approach
• support staff
• seek to prevent PFD by early action
• inquiries

19. Contact us…
Andrew Hopkin
E: andrew.hopkin@brownejacobson.com
T: +44 (0)115 976 6030

20. STPs and ACOs - Governance
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21. What is an STP?
• a Sustainability and Transformation Plan footprint
• purpose – to build health and social care services
around the needs of local populations
• aim – to improve health and care for local
populations
• membership – NHS Commissioners, NHS Providers
and local councils
• currently we have 44 geographical areas/footprints
across the country

22. Some questions and answers?
• why 44? – because its not 152 or 49!
• what is role for GP providers, the third sector and
private providers (for health and social care)?
• are the STP policy and legal framework
compatible?
• is this devolution by the back door?
• are new care models still relevant?
• what will happen now?

23. Legally how do STP areas work?
• following slides set out proposed governance
framework.
• a number of STPs use this or a similar looking
model
• many want answers on how to take forward policy
and plan at least risk to statutory organisations
• this establishes how we can start to help them and
is an example of work IPR are doing

28. What are ACOS/ACSs/ACPs?
• have you discussed and agreed what your ACS will
look like within STP? Or do you already provide
care through an ACS approach?
• define purpose of ACS and how regional provision
and local provision will integrate to provide health
and social care
• the relevant organisations? NHS E;CCGS; NHS FTs;
NHS Trusts; Third/Voluntary sector; Private
(nursing homes, care homes, private providers)

30. Moving forward with an ACS
• agree model – regional v local
• how will providers work together – contractual
joint venture v formal joint venture vehicle?
• who will lead and integrate provision – acute;
community; GP?
• strategic commissioning – CCGs; LAs; NHS E
– function delegation v management
• strategic regulation – NHS E; NHS I; CQC; PHE

31. Conclusions
• clarity of roles in STP is essential
– simple model – public understanding is key
– corporate memory - handbook
• joint understanding of what you mean by ACS
– what do your region and localities need?
– who will be involved?
• back to the future on creating an ACS (but with
built in management of commissioning functions)
• strategic commissioner and regulator

32. Vicarious Liability
Ceri-Sian Williams & James Arrowsmith

33. Judge a man by his questions
rather than by his answers
Voltaire

34. Session objectives
• discussion
– Non-delegable duty
– Vicarious liability
• recent developments
• future developments

35. When do liabilities arise from 3rd
party actions?
• common law generally requires fault
• vicarious liability imposes duty for “employees”
• statute may impose duties by their wording
• statutory duties may be found to be non-delegable

36. Armes –v- Nottinghamshire
County Council [2017] UKSC 60
Judgment – took 8 months to deliver
“hard cases made bad law?”
Did the Supreme Court get it wrong?
- non-delegable duty – no
- vicarious liability – yes?

37. Non-delegable duty - 5-0 against
1. Parents are not under a duty to ensure that reasonable care
is taken by everyone to whom they entrust the safety of their
child;
2. Risk of conflict between a local authority’s duty to give first
consideration to the need to safeguard and promote the welfare of
the child and a local authority’s interest in avoiding liability if a
child was placed with its family and friends and there was a want
of care by that child’s family and friends;

38. Non-delegable duty - 5-0 against
3. If a duty existed it would make a local authority strictly liable for
tortious acts by the child’s parents or relatives if the child was living
with them;
4. If such a duty was found it would mean that the duties imposed on
a local authority by the Boarding Out Regulations did not materially
add to the local authority’s obligations;
5. A local authority discharges its obligation to provide
accommodation and maintenance by the placement of the child –
and does not delegate that duty to the persons with whom the
child is placed.

39. Non-delegable duty cont.
• so, should (must) draw a line under the argument
that a local authority owes a child in care a non-
delegable duty
• e.g. as a “placing authority”
• but let me come back to this…

40. Vicarious liability
• “The law of vicarious liability is on the move”
Lord Phillips –
Various Claimants –v- Catholic Child Welfare Society
[2012] UKSC56

41. “A more fine-grained approach”
• the two part test:
1. the “employment” relationship
2. incident in the course of employment
…now…
1. the “relationship” between Defendant and
Tortfeasor
2. “Conduct related” to that relationship

42. Lord Reed – Cox –v- MOJ [2016] UKSC10
(i) employer more likely to have means to compensate or
be insured?
(ii) tort results from activity by the worker for the
employer
(iii) activity part of business activity of employer
(iv) employer, by employing the worker to carry out the
activity created risk
(v) employer controls worker (to some extent)

43. Armes – 4-1 in favour of finding
1. the local authority exercised sufficient control over the foster
parents - recruited, selected and trained them;
2. the burden of the risk borne in the general interest should be
shared rather than being borne solely by the victims;
3. the local authority had the means/insurance to pay claims;
4. it was not accepted that the finding of a duty would discourage
foster placements;

44. Armes – 4-1 in favour of finding
5. If abuse is widespread its exposure might encourage more
adequate vetting and supervision;
6. There is a cost anyway to society if vulnerable children are not
protected (by calls on the criminal justice and mental health
systems);
7. Vicarious liability would not apply if the abuse had been
perpetrated by the child’s parents in the event that the child had
been placed with them (the local authority would not have recruited,
selected or trained the parents).

45. Foster parents
• foster parents establish status as empes/workers
– Scotland – James & Christine Johnstone
– England – Ms Anderson –v- Hampshire
• “Kinship” foster placements
– assessment and approval only for financial help

46. Services of Fostering Agencies
• Fostering agencies
– agency recruits, approves, monitors foster parents
– LA monitors child in placement
– both LA and FA could be vicariously liable
– share risk - agreements and indemnities

47. Recoveries
• our litigation division has recovered £1M+
• recovery against abusers - £200,000+
• convicted abuser with assets – relatively simple
– ask tortfeasor to deal direct, or
– join to proceedings as Third Party, or
– issue contribution proceedings
• no conviction but assets – trickier issue

48. Foster parent management –
witness or co-defendant?
• factors to consider:
– if no assets = witness, litigate “as normal”
– if assets, number of issues to consider
 invite Claimant to issue against FPs direct?
 how to approach foster parents?
 be upfront about possible recovery?
– assessment of credibility
 Claimant against foster parent denial

49. Limitation – still a good defence?
• yes (to be discussed later), BUT
• will England follow Scotland?
• limitation abolished = more claims
• claims will be cheaper to deal with

50. Vicarious liability –
out of county placements
No non-delegable duty but vicarious liability?

51. Various Claimants –v- Barclays
There was a ‘quasi-employment’ relationship as:
• only the bank could now compensate
• the work was for the bank, on its behalf
• it ensured an effective workforce, which was intrinsic to
the business
• the bank made the arrangements, creating the risk
• the bank controlled the choice of doctor and specified
questions he was to address

52. Applying Armes and Barclays…
• to say, claims for abuse at a private out of county
placement:
– only a LA could compensate
– the work was for a LA, on its behalf
– the service was integral to the LA “business activity”
– the LA made the arrangements, creating the risk
– the LA exerted control on some “macro” level
• …so, the next extension to the principle?

53. Famous last words….
• “The common law is a dynamic instrument. It develops and adapts
to meet new situations as they arise. Therein lies its strength. But
therein lies a danger, the danger of unbridled and unprincipled
growth to match what the court perceives to be the merits of the
particular case”
• “…the words used by judges in explaining why they are deciding as
they do are not to be treated as though they were the words of
statute, setting the rules in stone and precluding any further
principled development should new situations arise”
Lady Hale – Woodland –v- Essex County Council [2013]

54. A few practice points
• evolving law is creating new risks
• contracting out of services cannot be assumed to
reduce risk (and may increase it)
• indicators of risk may include:
– “mixed” in house/outsource provision
– outsourcing of previously in house service, with little
evidence of process change
– scenarios involving vulnerable service users or
unequal power relationships

55. Any questions?
Ceri-Sian Williams
E: ceri-sian.williams@brownejacobson.com
T: +44 (0)115 976 6563
James Arrowsmith
E: james.arrowsmith@brownejacobson.com
T: +44 (0)121 237 3981

56. All information correct at time of production.
The information and opinions expressed within this
document are no substitute for full legal advice. It is for
guidance only and illustrates the law as at the published
date. If in doubt, please telephone us on 0370 270
6000.
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