This is a short note following the further guidance in this area set down by Northamptonshire County Council & Anor v The Lord Chancellor (via the Legal Aid Agency) [2018] EWHC 1628 (Fam) (05 June 2018). http://www.bailii.org/ew/cases/EWHC/Fam/2018/1628.html and the Legal Aid Agency position: http://www.bailii.org/ew/cases/EWHC/Fam/2018/1628.image.pdf
As described in the above judgement: The moral injustice arising out of such a situation is palpable: claimants who have been appallingly let down by a local authority would find themselves recovering money from a public body with one hand only to give it back to another public body with the other hand (pp7). Surely that is not the purpose of a financial award in damages that runs alongside a HR declaration.
The following guidance applies when making a HRA application:
1. Make a separate and standalone application;
2. Keep costs of pursuing the HRA claim separate from the care case.
The purpose of this is to ensure that damages are not awarded in the care case. If they are, the statutory charge will apply and be linked to the costs of the care proceedings. However, if the HRA claim is completed outside of care proceedings and funded by legal aid, the costs of pursuing that claim would be still subject to a statutory charge. The statutory charge will be linked only to the costs of the HRA proceedings which are likely to be substantially less.
The guidance from Munby J in Re L (Care Proceedings: Human Rights Claims) [2004] EWCA Civ 54 is best not followed due to the issue of costs as though under the Children Act 1989 the Court is in a position to offer an appropriate remedy, a free standing application is what assures the position on the statutory charge. In any event, the more recent cases H v NCC and LAA [2017] EWHC 282 and Re W (Children) (Convention Rights Claim: Procedure): Practice Note [2017] 1 WLR 3451 outline applications for relief under HRA should be pursued separately to the care proceedings.
In reality the position is this:
1. HRA claims must be pursued separately from care proceedings if the clients hope to access any damages they are awarded;
2. If the client is self-funding / funded on a pro bono basis the statutory charge will not apply as there are no claims being made to Legal Aid;
3. If the client is legally aided the statutory charge will apply but only to the proceedings the damages are awarded in.
At least with a clear understanding of the above there is more of a chance that the applicants will see some of the reward, depending on quantum and the length of proceedings.
The real shift is the clarity that from a costs perspective these cases must be standalone applications.
However, the conundrum continues. Every respondent to care proceedings is entitled to legal aid. If human rights are breached during the course of the Local Authority’s dealings, the only tangible way for most people to challenge is to use legal aid. Self-funding is not a reality for most respondents to care proceedings and hoping for the kindness of a pro-bono legal team provides no guarantees. If the LAA application is approved, when damages are awarded recipients will be taking from one public body to give to another.
The patent unfairness of setting the entirety of the care proceedings against the public funds has been allayed if solicitors are aware of the above guidance. But, how to fund the raft of costs that come alongside free-standing applications; and whether there would be any money left in the ‘award pot’ once the statutory charge is claimed against any long-standing contested free-standing applications for HRA declarations remains to be seen. In those cases a costs order against the Local Authority would be the only way to keep the award untouched.