The law is in a state of flux and it is important to maintain focus on care users and managing the risk of providing services to them. For that reason this forum offered sessions on: - the practical impact of demanding and high profile litigation on defendant organisations - emerging risks, both for providers and legacy insurers - the impact of the General Data Protection Regulation (GDPR).

1. Social care forum
March 2018, London

2. Legal and Practical Update
James Arrowsmith, Browne Jacobson
Paul Stagg, 1 Chancery Lane

3. Direction of travel

4. Vicarious Liability
Non Delegable DutyNegligence

5. Vicarious Liability
Non
Delegable
Duty
HRA
Negligence

6. Vicarious Liability
• Liability of an employer for a tort committed by an
employee in the course of employment.
• The employer need not be at fault.

7. Who is an employee?
• Nightclub doorman employed via an agency
• Brother of the Institute of Brothers of the Christian
Schools
• Prisoner working in a prison kitchen
• Foster Carer
• Independent contractor GP (subject to any appeal)

8. The test
(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

9. Armes
• Abuse by foster carer. D was not negligent.
• D “recruited, selected and trained…paid
allowances…provided equipment [and] in-service
training”.
• Foster careers were expected to meet and
cooperate with social workers, and involved in
decision making

10. Lord Hughes’ Concerns
• What about parents and family with whom a child
is placed, where monitoring takes place?
• Parents “would not have been recruited, selected
or trained by the LA to discharge its functions”
Lord Reed
• Raising their own child is clearly distinguishable
from and independent of the LA care function.

11. Independent Foster Agencies
• 31,500 approved fostering places in England via
IFAs in March 2016 (around 38%).
• Agencies may “recruit, select and train”
• What is the legal position?
• “It would not be appropriate in this appeal to
address…the law and practice of the present day”

12. Other VL scenarios
• Agency workers
• Locums/independent contractors
• Volunteers
• Private care homes
• Family foster placement (Hughes)
• Adoption placement
• Adoption

13. Course of employment
• Did the employment create or enhance the risk?
• Were actions purportedly part of duties?
• Or, are connections to the employment (time and
place, without more) no more than incidental

14. Course of employment
• Abuse
• Assaults
• Work related events
• Grooming for abuse
• Use and abuse of position / reputation gained
through work.

15. Non Delegable Duty
• Generally speaking, a defendant is personally liable
only for doing negligently that which he does at all
• “non-delegable duty” has become the conventional
way of describing those cases in which the ordinary
principle is displaced and the duty extends beyond
being careful, to procuring the careful performance
of work delegated to others

16. Woodland
• Child seriously injured in a school swimming lesson.
She was in a group being taught by a teacher and
lifeguard engaged via a contractor trading as Direct
Swimming Services.
• NDD found
• Would this now meet the VL test?

17. NDD test
(i) C vulnerable (eg patient, child, care home resident)
(ii) Independent antecedent relationship of custody,
charge or care from which assumption of a positive
duty to protect can be imputed
(iii)C lacks control over D’s performance of duty
(iv) D delegated an integral part of the duty to a TP who
thereby has D’s custody or care, and control
(v) TP is negligent in performance of the duty.

18. Justifications for NDD
• Protection of those who are vulnerable by those with
authority
• Parents are legally required to entrust children to
schools
• Limited scope of duty (school hours and educational
premises)
• Historically, most functions would have been carried
out by employers, for whom school has VL – NDD is a
response to the move to outsource.

19. NDD in Armes
• Key question: were the LA under a duty to provide
day to day care, or merely to arrange to have care
provided, subject to a duty to take care in making
and supervising arrangements?
• S 21 of the Child Care Act 1980 allows an LA to
discharge their duty by boarding our or making
other arrangements
• “discharge” suggests that the duty is to arrange
care

20. NDD in Armes
• The Supreme Court also considered duties under S
10 CCA 1980 in relation to a child in care, which
included duties to safeguard and promote health,
development and welfare.
• To impose a non delegable duty would create strict
liability when placed with patents or relatives, a
form of state insurance
• Therefore no NDD

21. Where does that leave NDD?
• Position under Children Act 1989 should not be
materially different.
• NDD has very limited application in relation to
social work.
• CN & GN further narrows scope for finding a duty
• Does VL now cover some of this ground?

43. The implications
Later today:
• Minimising the risk - David Maggs
• Business Impact – Sarah Erwin-Jones

44. Coffee break

45. Minimising the risk – following
NA and CN
David Maggs, Browne Jacobson

46. NA – the key principle
If a Claimant establishes abuse by non-kinship foster
parents the local authority is strictly liable

47. CN – the key principle
If a Claimant is not a looked after child and suffers
injury at the hands of a third party the local authority
children’s services department is not liable

48. NA & CN liability – what is the
risk?
• As at 31 March 2017 there were 72,670 looked after
children
• As at 31 March 2013 there were 68,070 looked after
children

49. Historical position
Year Looked after
children
Boarded
out/fostered
Residential Other
No. No. % No. % No. %
1965 63,900 33,200 52 23,800 37 6,900 11
1970 68,300 32,800 48 26,100 38 9,400 14
1975 94,200 30,400 32 37,600 40 26,200 28
1980 95,300 35,200 37 32,500 34 27,600 29
1985 69,600 35,000 50 16,300 23 18,300 26
1990 60,500 34,500 57 11,500 19 14,500 24
1996 51,200 33,200 65 6,000 12 12,000 24

50. NA & CN liability – what is the
risk?
• The recent increase in looked after children
doesn’t just reflect population increases
• 2013 - 60 looked after children per 10,000
population
• 2017 – 62 looked after children per 10,000
population

51. Proportions of looked after
children by category of need

52. Historical perspective - 1996

53. Numbers by legal status

54. Historical perspective - 1996
• 40% were looked after by voluntary arrangement
with their families (26%)
• 57% were subject to various forms of care order
(68%)

55. NA & CN liability – what is the
risk?
• 74% (53,420) in foster placements – a similar
proportion to previous years (up from 50,560 in
2013)
• 8,830 fostered with a relative or friend (4,370
placed with parents)
• 1% fostered for adoption

56. NA & CN liability – what is the
risk?
• 7,890 (11%) placed in secure units, children’s
homes and semi-independent living
• 2,520 (3.5%) placed for adoption (that figure has
been falling since 2014)

57. Historical perspective - 1996
• 9.2% were living with their parents
• 4.5% were placed for adoption
• 2.7% were in lodgings or living independently
• 5.3% were otherwise placed

58. NA & CN liability – what is the
risk?
• One third drop in applications to be foster carers -
11,460 applications in 2015/2016, compared to
16,920 the previous year

59. NA & CN liability – what is the
risk?
13% increase in the number of family and friends
households - from 4,145 in 2015 to 4,665 in 2016

60. NA & CN liability – what is the
risk?
In 2015/2016, there were 1,725 (3%) children and
young people in foster care considered to be at risk
of child sexual exploitation and 500 (1%) considered
to be subject to child sexual exploitation - both in
line with 2014/15

61. NA & CN liability – what is the
risk?
There was a slight increase in the percentage of
children placed through IFAs at risk of child sexual
exploitation (from 4% to 5%). The percentage for LAs
remained stable at around 3%

62. NA & CN liability – what is the
risk?
During 2015/2016, there were 2,450 allegations made
against foster carers
Just under two thirds of these (63% or 1,550) were
made by fostered children

63. NA & CN liability – what is the
risk?
Over half of all allegations were related to physical
abuse, with allegations of sexual abuse being least
common, much the same as in 2014/15

64. NA & CN liability – what is the
risk
• The number of children’s homes is increasing -
2,145 active children’s homes as at 31 March 2017 –
an increase of 74 from 31 March 2016 (2,071)

65. NA & CN liability – what is the
risk?
The number of local authority-run children's homes is
reducing – LAs ran 20% as at 31 March 2017 compared
with 22% in 2016 and 26% in 2013

66. NA & CN liability – what is the
risk?
• Nationally, the number and percentage of children
who are looked after is increasing. The effect of
that trend, and the judgment in NA means that the
risk of claims is increasing.

67. NA & CN liability – what is the
risk?
• The average local authority has 478 looked after
children

68. NA & CN liability – what is the
risk?
• Since 2015 the number of section 20 agreements
have been decreasing and the number of care
orders have been increasing – the result of Human
Rights claims brought on behalf of those on section
20 agreements
• An example of case law impacting social work
practice

69. NA & CN liability – what is the
risk?
• The average local authority has 74% (354) of its
looked after children in foster care.

70. NA & CN liability – what is the
risk?
• The average local authority has 17% of its fostered
looked after children placed with family and
friends and 6% of its looked after children placed
with parents

71. NA & CN liability – what are the
risks?
The number of foster parent applications is falling (by
a third)
Will the rigour of assessment of those applicants fall
or will it increase as envisaged in NA?
What effect, if any, will the recovery by a local
authority of payments made in respect of foster
parent abuse have on the number of foster parent
applications?

72. NA & CN liability – what is the
risk?
To what extent does your authority use IFAs and what
are the arrangements?

73. NA & CN liability – what is the
risk?
The average local authority had 10 allegations made
by looked after children against foster parents
principally in respect of physical abuse

74. NA & CN liability – what is the
risk?
The average Local Authority runs 3 children’s homes

75. NA & CN liability – what is the
risk?
Your thoughts

76. Contact us…
David Maggs
E: david.maggs@brownejacobson.com
T: +44(0)20 7337 1005

77. GDPR implications for social
care
Patrick O’Connell, Browne Jacobson

78. Lunch

79. The litigation journey from the
alleged abuser’s perspective
Rupert Butler, 3 Hare Court

80. The business impact & litigating
in the current climate
Sarah Erwin-Jones, Browne Jacobson

81. Complaints procedures
• What is their purpose? Is it always about
apportioning blame?
• Improving service/managing expectations
• Time limits
• Lost documents and witnesses
• Who is supposed to benefit?
• Challenge of providing quality services with
limited, and often reducing budgets

82. Subject access requests
• No fee following GDPR
• 30 days
• Exemptions
– Third parties ( need for redaction)
– Info likely to lead to serious harm if subject or
others saw them
– Prevention or detection of crime
• But, Dunn –v- Durham [2012]

83. Defendant's employees
• Really important to breathe life into the reality of
social care practice
• May be dead, retired, or simply moved on
• Naturally feel exposed – need sustained support
• Exactly what case are they facing/addressing?
– Negligence/Assumption of Responsibility
– Colleague exploited their position
– Human Rights Act

84. Co-Defendants
• Current or past employees
• Foster carers
• Assets/Pensions
• Level of co-operation

85. Who's at the core of this?
– Children and young people who have unhappy,
sometimes deeply unhappy, memories of their
childhoods
– People who believe that they were let down by the
system
– People who have difficult, and often complicated
relationships with their families

86. But also……
• Parents, siblings, extended families
• Foster Carers and Adopters
• Other agencies – Police, Housing, Health, Schools,
volunteers
• Your employees: Committed and hard working SWs

87. What were the facts of Armes?
• Claimant alleged ( and proved at first instance)
physical and sexual abuse over 2 foster placements
between 1985 and 1988.
• TJ - Concluded that a fair trial was possible and
that it was just and reasonable to disapply the
limitation period.
• Did not prove negligence – SWs acted reasonably in
accordance with the standards of the day
• No VL and no N-D Duty

88. Litigation is responsive
And in our jurisdiction it is adversarial – its roots are
in trial by combat.
• Armes lost at first instance
• She lost in the Court of Appeal
• She changed the law in the Supreme Court

89. Climatic issues
• The IICSA and Compensation Schemes
• Liability where there is no “fault”
• Limitation – litigating events that took places 20,30
and even 40 years ago
• The length of litigation itself

90. Why defend?
• The law today – no duty of care, statute barred
• The facts – abuse denied, social work was acceptable,
causation not proven. Support your team.
• Settling too pragmatically could unleash a flood of
claims
• The Claimant is unrealistic

91. Why settle
• You’re going to lose – settle ASAP so most of the
outlay goes to the Claimant, not to lawyers.
• It’ll cost more to successfully defend to trial than
to settle now
• It “feels” morally right even though its currently
defensible in law.

92. Who is affected by “today’s”
decision
• Claimant
• Staff and volunteers, foster carers
• Insurers
• Your successors

93. Lessons learned
• Keep a really clear record of what strategy is fixed and why – look
at the wider perspective
• Cases can be defended ( and closed early) on their facts where
organisations are engaged, and support the staff.
• Good handovers – if there's a change of personnel there's a chance
to review strategy – and change it in a timely and well managed
way if appropriate
• Ask questions of your advisers

94. Contact us…
Sarah Erwin-Jones
E: sarah.erwin-jones@brownejacobson.com
T: 0115 976 6136

95. “In someone else’s shoes”
Leah Jones & Helen Rideout,
Browne Jacobson

96. 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.
© Browne Jacobson LLP 2018 – The information contained
within this document is and shall remain the property of
Browne Jacobson. This document may not be reproduced
without the prior consent of Browne Jacobson.