We are all waiting with bated breath for the Supreme Court decision in CN & GN, a case which will have a huge practical impact on service providers. Previously the Court of Appeal was dismayed about the damages claims, that had been litigated with little regard to, or understanding of, the law and reality of social care practice. Some of the team involved in the case discus what might happen next, and analyse the practical effect for you of the Supreme Court judgment. Whilst that judgment has been awaited many claims have been on ice, but to fill that gap we are seeing many of our clients being affected by: - pressure to consider Redress Schemes - the Independent Inquiry into Child Sexual Abuse - claims being brought directly against them as fostering agencies - claims under the Human Rights Act - issues following the implementation of GDPR. For further information and training visit our webpage - https://www.brownejacobson.com/insurance

1. Manchester
6 March 2019
Social care forum

2. Legal update
Ceri-Sian Williams, Browne Jacobson

3. James Arrowsmith
Human Rights in
Social Care Claims

4. In this session:
— HRA claims mindset
— Children's Act s 20 and Family proceedings
— HRA claims relating to Failure to Remove

5. HRA mindset
— Victim v Public Body
— Absolute, limited or qualified
— The ECHR and the HRA
— The remedy under the HRA

6. Time limits
— HRA effective from 02/10/2000
— 1 year time limit
— or such longer period as appears
equitable

7. Forum
— May bring a Part 7 claim under
the Act
— Or may rely on rights, and seek
damages in other legal
proceedings
— Issues may also be examined or
determined in other proceedings

8. Qualified rights
— Interference with the right?
— In accordance with the law?
— Necessary in a democratic society
in the interests of … ?

9. Remedies
— Declaratory relief
— No damages unless…necessary to
afford just satisfaction.
— Quantum determined by
reference to the ECtHR cases.

10. S 20 and Family Proceedings
— Circumstances of Williams v London Borough of Hackney
— The Human rights claims

11. Human Rights issues in the Family Court
— Family Court’s ability to deal with HRA claims
— The Court’s current approach to claims
— Impacts on litigation

12. Responding to the risk
— Assessment of risk
— First Notification
— HRA issues during other Court proceedings
— Standalone HRA claims

13. HRA claims from Failure to Remove
— The (potential) CN gap
— The Human Rights response

14. FTR under the HRA
— Article 3 claim
— Response to an established risk
— Duty to investigate

15. FTR under the HRA
— Art 8 and 6
— Limitation
— Damages

16. Key points
— HRA claims raise distinct issues
— They may arise in other proceedings
— Limited precedent and discretionary
aspects, create uncertainty

17. Collaboration
— Children's (and Adult) Services to
understand risk
— Legal teams (internal and external)
— Insurers and Brokers
— Family and other courts

18. Thank you
James Arrowsmith
Partner
t: 0121 237 3981
e: james.arrowsmith@brownejacobson.com

19. Coffee break

20. Redress across the
world
David Maggs, Browne Jacobson

21. Aus. Jer. Sco. N Ire. MIB Coal CICA Lam.
Scheme
in
place?
Yes Yes &
No
No No Yes Yes Yes &
No
Yes
Sex
abuse
only?
Sort of Yes No No N/A N/A No No
Inst.
abuse
only
Yes Yes No Yes N/A N/A No Sort of
Ave. £35,800 £15,000 ? £7,500+ N/A N/A N/A £10,000
+
Ins Maybe No ? ? Yes No No No

22. The Australian Redress Scheme
— Royal Commission into Institutional Responses to Child Sex
Abuse
— Apology, meeting, safeguarding reassurance
— Therapy
— Payment (£5,500 to £110,000). Average £35,800
— ‘Central government’ run scheme
— Funded by institutions with ‘central government’ being the
funder of last resort

23. The Jersey Redress Scheme
— Original and extended
— payment focused
— Average payment £15,000
— Government funded

24. The Scottish Redress Scheme

25. The Northern Ireland Redress Scheme
— A work in progress
— The Hart Inquiry recommendations:
— minimum lump sum payment of £7,500 - suffered or witnessed
abuse in care homes or other institutions
— Maximum payment £80,000
— Child migrants £20,000

26. The Motor Insurers’ Bureau
— An insurance based solution for road traffic accidents where
insurance wouldn’t otherwise respond
— Conventional treatment of claims
— But motor insurance compulsory
— Does a pot to fund claims distort claims volumes?

27. The Coal Industry Pneumoconiosis
Compensation Scheme
— Accurately assess the pool of claimants
— Manage expectations
— Take actuarial advice
— Ensure scheme rules are tested for practicality and cost
against the likely evidence quality
— Have a procurement strategy, a resource plan, a data plan
and a communications plan
— Have a procedures and operations manual

28. The Criminal Injuries Compensation
Scheme (CICS)
— Time limits
— The ‘same roof’ rule
— Unspent convictions
— Crime of violence

29. The CICS

30. Lambeth Redress Scheme
— Harm’s Way Payment – maximum £10,000
— Individual Redress Payment
— Is a local authority scheme ever value for money?

31. Redress Schemes – points to consider
— Damages inflation
— Impact on applicant’s benefits
— Impact on insurance cover
— Limitation
— Untested rules
— It’s never enough

32. Thank you
David Maggs
Partner
t: 020 7337 1005
e: david.maggs@brownejacobson.com

33. The impact on unconvicted Third
Parties and their families
Sarah Erwin-Jones

34. Donald Rumsfeld
— Known Knowns – convictions and claims that go no further
— Known Unknowns – convictions – tip of iceberg?
— Unknown unknowns – allegations, but no convictions and no
way of ever finding out ( at least to the criminal standard)
— Unknown knowns – alleged perp is still around – only he or
she knows the truth, and we have to work with that fact

35. Who might the individuals affected be?
— Employees
— Contractors
— Ex employees/Pensioners
— Foster carers – ( see current push for employee rights)
— Friends & Family Carers
— Birth Family Members
— Adopters

36. Human Rights/Employee Rights
— We all have ‘em, even alleged perpetrators and their families
— Even people who have been convicted of something
— Right to a fair trial and respect for family life
— Employee’s rights – health safety and welfare at work

37. And yet, and yet
— General sense that even asking C to prove the allegations they
have to make is unconscionable
— Particularly
– If there have been any convictions at all
– If there were any disciplinary hearings, no matter what the
outcome
– Where the perpetrator is dead
— And even where there is good reason to be concerned about
the accuracy of the claimant as an historian

38. John v Rees [1970] Ch. 345
— When something is obvious," they may say, "why force
everybody to go through the tiresome waste of time involved
in framing charges and giving an opportunity to be heard? The
result is obvious from the start." ... As everybody who has
anything to do with the law well knows, the path of the law is
strewn with examples of open and shut cases which,
somehow, were not; of unanswerable charges which, in the
event, were completely answered; of inexplicable conduct
which was fully explained; of fixed and unalterable
determinations that, by discussion, suffered a change.'

39. Murray –v- Devenish [2018]
— D Counsel was inhibited in how he could cross-examine the
Claimant. Can’t plead a denial.
— Absent evidence to contradict their accounts of abuse, it
would have been professionally improper …. to suggest that
{the claimant was} not telling the truth.
— Judge found Defendant was significantly prejudiced in the
conduct of the defence because of the death of alleged
abuser. The cogency of the evidence available was the poorer
because of the lapse of time.

40. What does that mean for you?
— If around, the alleged perpetrator has to be asked?
— Did it happen?
— Will you/they pay?
— Part 20
— Witness
— Contribution afterwards
— QOCs – could you end up paying C’s costs and the alleged
perp’s costs?

41. Practicalities
— What can we show the alleged abuser?
— Try to get C to direct the claim – in England & Wales s33
burden is on the claimant
— Good for the money?
— Judicial discretion a very important feature

42. Have to make an early decision
— How much is the alleged abuser worth?
— Losing control of the litigation
— Cost benefit analysis
— Supporting the good guys – you want your best employees and
your foster carers to know you won’t leave them in the lurch
now, or in the decades to come

43. What would you do?
— Horrible early life experiences
— C placed with FP’s in early 90s who very shortly adopted
— Advice – on risk up to adoption, but abuse may have happened
after this date
— Conviction of father in 2015/16 – he appealed
— Home worth £400-£500,000
— LoCs to both family ( M & D) and placing authority
— What would you do?

44. Thank you
Sarah Erwin-Jones
Partner
t: 0115 976 6136
e: sarah.erwin-jones@brownejacobson.com

45. Lunch

46. Dmitrije Sirovica, Browne Jacobson
General Data Protection
Regulation & Data Protection
Act 2018

47. Background to the GDPR

48. What is it?
— Probably the most lobbied piece of EU law ever
— Replaces the Data Protection Directive 1995 (DPD)
— Enforced in Member States from 25 May 2018
— Creates a ‘level-ish’ playing field across EU

49. Data Protection Act 2018
— Supplements the GDPR
— In force from May 2018
— Bases for processing and exemptions
— Law enforcement processing and intelligence services
processing

50. The Regulation

51. Key issues
— Principles and accountability
— Lawful basis for processing
— Transparency
— Responsibilities of controllers and processors
— International transfers
— Rights of data subjects
— Breach notification
— Enforcement and compensation

52. Personal Data
“means any information relating to an identified or identifiable
natural person (‘data subject’)
An identifiable natural person is one who can be identified,
directly or indirectly, in particular by reference to an identifier
such as a name, an identification number, location data, an
online identifier or to one or more factors specific to the
physical, physiological, genetic, mental, economic, cultural or
social identity of that natural person;”
This means that an IP address or roll number can amount to
personal data

53. Special Categories
Article 9 now refers to “Special Categories of Personal Data”
rather than Sensitive Personal Data. This category includes
personal data revealing:
— racial or ethnic origin,
— political opinions,
— religious or philosophical beliefs, or
— trade union membership, and
— the processing of genetic data, biometric data for the purpose
of uniquely identifying a natural person,

54. Special Categories (continued)
— data concerning health or
— data concerning a natural person's sex life or sexual
orientation

55. Genetic Data
“Personal data relating to the inherited or acquired genetic
characteristics of a person which give unique information about
their physiology or the health of that person and which results,
in particular, from an analysis of a biological sample from the
person in questions”

56. Biometric Data
“Personal data resulting from specific technical processing
relating to the physical, physiological or behavioural
characteristics of a person, which all or confirm the unique
identification of that person, such as facial images or
fingerprint data”

57. Data concerning health
“Personal data related to the physical or mental health of a
person, including the provision of health care services, which
reveal information about his or her health status”

58. Processing
will mean “any operation or set of operations which is
performed on personal data … whether or not by automated
means, such as collection, recording, organisation, structuring,
storage, adaptation or alteration, retrieval, consultation, use,
disclosure by transmission, dissemination or otherwise making
available, alignment or combination, restriction, erasure or
destruction;”

59. Data Protection Principles
Under Article 5 GDPR, personal data must be:
a) processed lawfully, fairly and in a transparent manner;
b) collected for specified, explicit and legitimate purposes and
not further processed in a manner that is incompatible with
those purposes;
c) processed adequately, the processing must be relevant and
limited to what is necessary in relation to the purposes for
which they are processed;
d) accurate and, where necessary, kept up to date; inaccurate
data should be erased or rectified without delay;

60. Data Protection Principles (continued)
e) kept in a form which permits identification of data subjects
for no longer than is necessary for the purposes for which
the personal data are processed;
f) processed in a manner that ensures appropriate security of
the personal data, including protection against unauthorised
or unlawful processing and against accidental loss,
destruction or damage, using appropriate technical or
organisational measures.
The data controller will be responsible for, and must be able to
demonstrate compliance with the Principles.

61. Accountability and Governance
— Compliant policies and procedures
— Records of processing (Art 30)
— DPO appointment (Art 37)
— Mandatory/voluntary
— Privacy by design/by default (Art 25)
— Data protection impact assessments (Art 35)

62. Lawful basis for processing
In order for Personal Data to be processed lawfully you must be
able to satisfy one of the processing conditions below:
— 6(1)(a) – Consent of the data subject (must be clear
affirmation)
— 6(1)(b) – Processing is necessary for the performance of a
contract with the data subject or to take steps to enter into a
contract
— 6(1)(c) – Processing is necessary for compliance with a legal
obligation
— 6(1)(d) – Processing is necessary to protect the vital interests
of a data subject or another person

63. Lawful basis for processing (continued)
— 6(1)(e) – Processing is necessary for the performance of a
task carried out in the public interest or in the exercise of
official authority vested in the controller
— 6(1)(f) – Necessary for the purposes of legitimate interests
pursued by the controller or a third party, except where such
interests are overridden by the interests, rights or freedoms
of the data subject (this last one does not apply to public
authorities)

64. Lawful basis for processing special
categories
In order for special categories of data to be processed lawfully
you must be able to satisfy one of the following conditions
below:
— 9(2)(a) – Explicit consent of the data subject, unless reliance
on consent is prohibited by EU or Member State law
— 9(2)(b) – Processing is necessary for carrying out obligations
under employment, social security or social protection law, or
a collective agreement

65. Lawful basis for processing special
categories
— 9(2)(c) – Processing is necessary to protect the vital interests
of a data subject or another individual where the data subject
is physically or legally incapable of giving consent
— 9(2)(d) – Processing carried out by a not-for-profit body with a
political, philosophical, religious or trade union aim provided
the processing relates only to members or former members
(or those who have regular contact with it in connection with
those purposes) and provided there is no disclosure to a third
party without consent

66. Lawful basis for processing special
categories
— 9(2)(e) – Processing relates to personal data manifestly made
public by the data subject
— 9(2)(f) – Processing is necessary for the establishment,
exercise or defence of legal claims or where courts are acting
in their judicial capacity
— 9(2)(g) – Processing is necessary for reasons of substantial
public interest on the basis of Union or Member State law
which is proportionate to the aim pursued and which contains
appropriate safeguards

67. Lawful basis for processing special
categories
— 9(2)(h) – Processing is necessary for the purposes of
preventative or occupational medicine, for assessing the
working capacity of the employee, medical diagnosis, the
provision of health or social care or treatment or management
of health or social care systems and services on the basis of
Union or Member State law or a contract with a health
professional
— 9(2)(i) – relates to public interest in the area of public health

68. Lawful basis for processing special
categories
— 9(2)(j) – Processing is necessary for archiving purposes in the
public interest, or scientific and historical research purposes
or statistical purposes in accordance with Article 89(1)

69. Consent and explicit consent
— Consent
Any freely given, specific, informed and unambiguous
indication of the data subject’s wishes by which he or she,
by a statement or by a clear affirmative action, signifies
agreement to the processing of personal data relating to
him or her
— Explicit consent

70. Rights of Data Subjects

71. Individuals’ rights
1. Right to information
– fair processing notice
2. Subject access rights
– Previously 40 day time limit
– Reduced to one month under GDPR
– Processes for handling requests
– No fee
– Supplemental information
– Manifestly unfounded or unreasonable requests

72. Individuals’ rights
3. Right to rectification
– data accuracy
4. Right to be forgotten
– right to erasure in certain circumstances
5. Right to restrict processing

73. Individuals’ rights
6. Right to data portability
– ability to move data
7. Right to object
– right to object in certain circumstances
8. Rights in relation to automated decision making and profiling

74. Third party relationships
— Assess third party relationship
– Controller to Controller
– Controller to Processor
– Joint Controller
— Appropriate contracts and controls
— Undertake due diligence and audits

75. Information to include in a contract
with a processor
Contracts must set out:
— the subject matter and duration of the processing;
— the nature and purpose of the processing;
— the type of personal data and categories of data subject; and
— the obligations and rights of the controller.

76. Information to include in a contract
with a processor
Contracts must also include as a minimum the following terms,
requiring the processor to:
— only act on the written instructions of the controller;
— ensure that people processing the data are subject to a duty
of confidence;
— take appropriate measures to ensure the security of
processing;
— only engage sub-processors with the prior consent of the
controller and under a written contract;

77. Information to include in a contract
with a processor
— assist the controller in providing subject access and allowing
data subjects to exercise their rights under the GDPR;
— assist the controller in meeting its GDPR obligations in
relation to the security of processing, the notification of
personal data breaches and data protection impact
assessments;
— delete or return all personal data to the controller as
requested at the end of the contract; and

78. Information to include in a contract
with a processor
— submit to audits and inspections, provide the controller with
whatever information it needs to ensure that they are both
meeting
— comply with their Article 28 obligations, and tell the
controller immediately if it is asked to do something
infringing the GDPR or other data protection; and
— comply with the law of the EU or a member state.

79. Joint Controllers
— Article 26 GDPR
– Determine respective responsibilities in a transparent
manner, by means of an arrangement, in particular as to:
– Exercise of rights of data subjects
– Respective duties to provide information

80. Data Breaches

81. Breach notification
— Personal data breach
— Controller breach notification – 72 hours
– Supervisory Authorities
– Affected individuals
— Processor breach notification – without undue delay
– Controller

82. Sanctions for non-compliance
— Supervisory Authorities
– Investigative powers
– Corrective powers
— Penalties
– 2% global turnover or €10m
– 4% global turnover or €20m
— Compensation

83. Thank you
Dmitrije Sirovica
Solicitor
t: 0115 976 6238
e: dmitrije.sirovica@brownejacobson.com

84. Child Exploitation – the perils of
multi-disciplinary decision making
Saara Idelbi

85. Challenges for multi-handed decision
making
— The non-delegable duties
— Vicarious liability

86. JW v Leicester City Council and Leicester
Constabulary: Background Facts
– July 2009 15 year old boy
– Challenging behaviour in foster care setting and other
community homes
– Placed at a Community Home ( 13-18)
– Ofsted outstanding, incl safeguarding
– Capacity 7 young people
– Children there had emotional and behavioural difficulties
– Claimant regularly absconded – not unusual for this age
group
– Its purpose was to prepare young people for independence

87. The Perpetrator
— MT, a persistent sex offender, was placed a 3 minute walk
away under the supervision of the Multi Agency Public
Protection Arrangements ( MAPPA)
— Risk level 3 – the highest provided for in the statutory
guidance
— Police were the lead MAPPA agency responsible for assessing
the suitability of the address – council was landlord

88. The MAPPA meetings
— Accepted that it is better to know where high risk offenders
are living – easier to manage the level 3 risk
— Also easier to manage in an urban rather than a
rural/suburban environment
— Not many ( if any) landlords prepared to offer housing
— Therefore an exception to housing policy was made –
offenders priority. Housing identify properties that are
available and pass details to the police to check location and
suitability of the area

89. After MT’s placement
— MT moved into the area a month after C moved into the children's home
— Grooming
— Abuse
— Disclosure
— MT Convicted March 2011
— Criminal trial judge asked police to carry out an inquiry

90. The Claims
— Alleged failures by community home staff
— Failures during the MAPPA process by both the police and the
local authority
– Pleaded against the Housing department
— Breaches of the Claimant’s Article 3 and 8 rights

91. The Defence
— Statute Barred
— Denied breach of duty
– Community Home Staff
– The Participation in the MAPPA meetings

92. The Judgment
— The claim in negligence against the care home staff
— The participation in the MAPPA meeting
– Police
– Housing
– Children’s Services
— Apportionment

93. The Analysis of the Court
— Limitation
— MAPPA
— Operational Duties
— Investigatory Duties

94. JW: the implications
— Lead agencies vs co-operating agencies
– How far can a department resist?
– Efficacy of the meetings
— Risk assessments
— Disclosure
— Staffing actions: proactive steps and documentation

95. Wider Implications
— Context Specific?
— How far can these principles be taken elsewhere?

96. Problem Question 1
— Marius, an EEA national, is subject to a deportation order having been
convicted for sexual offences relating to children. He was transferred to
immigration detention after the custodial element of his sentence completed;
while his appeal against the deportation order was pending. Owing to an attack
in prison, prior to his transfer to immigration detention, Marius has a leg injury
which adversely affects his ability to mobilise, though he is not wheelchair
dependent. On a number of occasions, the detention notes record that Marius
is found in poor hygiene and on one occasion with faecal matter on his hands
and person. Sometime into the period of detention, the IRC’s GP records a
diagnosis of Korsakoff’s psychosis (acute onset of severe memory impairment
without any dysfunction in intellectual abilities) and notes that Marius’s
condition is declining.

97. Problem Question 1
A Rule 35 report is prepared expressing that the healthcare team cannot manage Marius’s
needs in detention and his continued detention at the IRC is injurious to his health. It is
further recommended that Marius is assessed by Local Authority X, where he had been
ordinarily resident and exercising his treaty rights prior to his arrest and imprisonment. The
Secretary of State refuses to release Marius from detention and he brings judicial review
proceedings, as a result of which the Court orders that Local Authority X identify a suitable
address for Marius in respect of his needs. An addressed is sourced. Local Authority X
assesses that Marius has needs that would engage its duty under section 18 of the Care Act
2014. The Secretary of State in conjunction with the local police force assess the address
and approve the address. Marius is released. One month later, Marius is arrested for sexual
assault of P, a pupil at a local school ten minutes’ walk away from the address.
— Who is liable for the error?
— Would it change your mind if the Secretary of State had advised that it had concerns about the
location of the address, but the Court ordered Marius’ release nonetheless?

98. Problem Question 2
— Jessica is a young woman with a mild learning disability, borderline personality disorder
and epilepsy. Her childhood was disruptive and concerns have been recorded that
Jessica suffered neglect in her family home. There are some documented suspicions that
she was the victim of sexual abuse from her wider family. Jessica’s history notes
sexualised behaviour towards children, with attempts to engage children when naked.
— She is resident in a 24 hour care placement where she is supported with her daily needs;
Care Home Y. She is mostly independent with regard to her daily activities though
requires prompting with her medication and personal care. Her behaviour has calmed
since her move to Care Home Y. Jessica aspires to live independently and the goal is to
move Jessica towards independence through gradual permission for unaccompanied trips.
The care plan appears to be successful. Care Home Y together with Local Authority Z
consider that Jessica is able to live in a less restrictive setting. Jessica moves to
Placement A, a supported accommodation facility. It is then discovered that Jessica has
been engaging with children in the local community and she is found in bed with K, a
pupil from the local secondary school based ten minutes away from Placement A.

99. Problem Question 2
— Would either Care Home Y or Local Authority Z be liable for a claim by K?
— If the Care Home Y had documented an incident where Jessica was found in bed with a
vulnerable resident at Care Home Y, would that change your mind?
— Would it matter if the mandate of less restrictive setting had been ordered by the Court
of Protection?

100. Problem Question 3
— Andrew has been convicted of arson. He is a persistent offender and has been
habitually in and out of prison. He suffers from generalised anxiety disorder and has
a history, in prison, of self-harm, suicidal ideation and is a known class A drug user.
On entry to Prison B on this occasion, Andrew is received by healthcare staff who
carry out the initial reception process. Andrew denies ever having had suicidal
thoughts or a history of substance misuse. The reception nurse does not note
Andrew’s medical history in his prison medical record, but has concerns for his mental
health because of his presentation and refers him for a consultation. Mental Health
services are supplied by Mental Health R and Mr S has Andrew booked to see him on
his second day in prison. However, the Mental Health R assessment room is in the
healthcare area is managed by Healthcare 1, an organisation that in the most part
provides the primary care function within the prison, and reception staff of
Healthcare 1 refuse Andrew entry to the area because they have no record of his
appointment.

101. Problem Question 3
— Andrew self-harms and presents to custodial staff at Prison B with cuts to his arms. An
ACCT document is opened for Andrew. A consultation takes place between Andrew, Mr
S and Prison Officer C. Andrew is initially on hourly observations. Mr S has referred
Andrew for mental health intervention to support his apparent depression. The ACCT
process appears to progress well and four weeks later, Prison Officer C and Mr S
consider that the ACCT should close; Andrew is happy with this conclusion. Two days
later, Andrew is found in his cell with wounds to his arms. The custodial staff record
that Andrew was concealing razors from staff. Separately, the healthcare record
notes that Andrew has been concealing his medication pregabalin, but this does not
appear to have been communicated to custodial staff.

102. Thank You

103. Workshop
Cynthia Watts, Browne Jacobson
Ceri-Sian Williams, Browne Jacobson

104. Workshop - Part 1
What are your obstacles to
reaching an early resolution ?
Build your wall
— As the Claimant
— As the Defendant

105. Workshop – Part 2
What obstacles can you remove?
— Can you do things differently?
— Can you influence what other
people do?
— As you think of a solution
dismantle your wall

106. Summary
The donut of despair!
— What can you influence?
— What can’t you influence?
— What can you influence
indirectly?

107. Thank you
Name: Cynthia Watts
Title: Partner
t: 0330 0452727
e: cynthia.watts@brownejacobson.com
Name: Ceri-Sian Williams
Title: Associate
t: 0115 976 6563
e: ceri-sian.williams@brownejacobson.com