UK: Firm Stance Saves Millions For Local Authorities

Last Updated: 9 August 2010
Article by Tom Walshaw

VL (a Child suing by her Litigation Friend the Official Solicitor) v Oxfordshire County Council

Mr Justice Mackay, today handed down Judgment in the High Court, in favour of Oxfordshire County Council in an action that has implications for all Local Authorities and their Insurers.

The facts

The Claimant, VL, was born in May 1993, and as a result of being violently shaken by her father on 12 November 1994 suffered catastrophic injuries.

Various Care Orders were made, the effect of which was that Oxfordshire County Council acquired parental responsibility, shared with VL's mother.

No criminal prosecution was ever brought against VL's father, but instead, with the approval of the Court, VL's father was rehabilitated into the family, where he still lives, successfully caring for his children. The work of the Oxfordshire County Council Social Worker involved was praised in the care proceedings. She also took steps to obtain such financial assistance and respite care as was available for the benefit of the family, and also took steps to apply on behalf of VL, to the Criminal Injuries Compensation Board for an award. She sent for an Application Form in November 1995, read it through, and put it aside to deal with at a later date, when the Care Proceedings were concluded, and the family situation became clearer.

What the Social Worker did not realise, and it was not mentioned on the Application Form, was that the Criminal Injuries Compensation Board was to be abolished on 1 April 1996 and replaced with a new scheme administered by the Criminal Injuries Compensation Authority. The new scheme was introduced by Act of Parliament, and implemented by Statutory Instrument. The old scheme allowed for substantial awards under common law principles, whereas the new scheme, tariff based, had a maximum award ceiling of £500,000. The new scheme applied not, as might be expected, to claims in respect of injuries inflicted after the date of its introduction, but in line with what Mr Justice Mackay interpreted as "its predominantly money saving purpose", it applied to all claims lodged after 1 April 1996 irrespective of the date of the injury.

Oxfordshire County Council also maintained a Legal Department, including staff specifically working on child care legal issues. The Legal Department monitored general legal developments, and prepared legal summaries, but it too was unaware of the forthcoming imposition of the award ceiling of £500,000.

It was common ground between the parties that if the claim had been submitted under the old scheme, the Claimant would have received substantially in excess of £500,000. In the Civil Claim, with interest, the Claimant sought around £4 million.

The Social Worker waited until what she perceived to be the appropriate moment, after resolution of the Care Proceedings, and submitted the claim after the imposition of the ceiling.

In her legal action, VL alleged that Oxfordshire County Council were negligent in failing to appreciate the forthcoming ceiling for awards and failing to submit the application for compensation prior to its introduction.


All parties agreed that this was a novel claim, and no precedent existed. As a claim based on common law negligence, Mr Justice Mackay had to start from first principles, and applied the line of authorities which guide Judges as to how to deal with such claims. The Judge looked at the issues of reasonable foreseeability, proximity, and whether it would be "fair, just and reasonable" to impose a duty in the circumstances.

The Judge concluded that although the Local Authority had a power to make an application under the Criminal Injuries Scheme on VL's behalf, if it thought advisable, it was not under a duty to maximise the economic position of a child in care by allocating time and resources to a pursuit of all available financial claims in a situation where a parent retains a share of parental rights. The Judge felt the primary focus of Oxfordshire was, rightly, on the physical welfare and safety of the child and the rebuilding of the family unit which it did in a way that the Judge considered to be "assiduous and thoughtful".

He therefore concluded that there was no duty of care to make an application in the circumstances of this case.

The Judge then went on to consider whether, if he had found that there had been a duty of care, it had been breached by Oxfordshire County Council. He considered whether the Child Care Team would have been in breach of any duty as a result of its admitted failure to be aware of the cut off date of 1 April 1996 for claims. The Judge looked at the actions of the Legal Team and took note of the fact that there had been no effort by Central Government to notify professionals or public of the significant changes taking place and although there were articles in some legal magazines and newspapers, these were few and far between. The Judge therefore concluded that there was no professional failure by any member of the Child Care Team at Oxfordshire in not being aware of the draconian effect of 1 April 1996 deadline. There would therefore have been no breach.

Submissions were also made as to the changed wording of the CICA scheme which on the face of it seemed to make applications in circumstances such as VL's more difficult to succeed. The scheme had a presumption against granting compensation to Applicants who were living with the person who had harmed them, but the Judge held that any change in the wording was not material, and that Oxfordshire would have pursued the application with the "same level of good judgment and determination", no matter what the wording was, and obtained compensation for VL.


Local Authorities and their Insurers have been aware of many similar claims of this nature and Oxfordshire, their Insurers Zurich, and Legal Team were the first to press any such claim through to trial. The Claimant had the benefit of Legal Aid Funding, so even having won, Oxfordshire and/or Zurich will recoup none of their costs. However, they felt that the overall financial benefits of obtaining Judgment on the issues, for the wider market, were compelling.

Having obtained Judgment in the Defendant's favour on both the question of the existence of duty, and the breach of duty, Local Authorities and their Insurers have a powerful weapon with which to deal with current and future claims arising from the Board/Authority change over. In particular, a finding that a Local Authority Child Care Team was not negligent and not in breach of duty for failure to be aware of the ill publicised and drastic effect of the compensation ceiling will hopefully save many millions of pounds for Local Authorities and their Insurers. And, of course, the Judgment will assist in the defence of all claims involving allegations that Local Authorities have failed to maximise the financial affairs of those in their care.

Finally, as the Judge put it, "it is a pleasure to record, in an age when criticism of social workers is all too frequently expressed, that this was highly professional work, and an impressive example of how to keep a family together in the most testing of circumstances."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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