20 July 2018, by Emma Fitzsimons
On 1 February 2017, Mr Justice Francis gave judgment in what had started as care proceedings in April 2016 brought by the Local Authority:  EWHC 997 (Fam). The Court found that the Local Authority had seriously breached the Article 6 and Article 8 ECHR rights of Child A, who was now six years old. The Court decided no assessment of damages in respect of Child A could be made now since it is impossible to know, at this stage, the extent of loss and damage he had suffered or was yet to suffer.
Mr Justice Francis also found that the rights of both Child A’s mother and father had been breached, finding eight significant failure for which the Local Authority were responsible.
Following the February 2017 decision, the solicitors acting for Child A and his parents made enquiries to the Legal Aid Agency in order to establish whether the statutory charge from the care proceedings would apply to the HRA damages recovered in this case. The Legal Aid Agency confirmed its views that the statutory charge did apply to any such damages. The damages claim was brought under section 7(1)(b) of the HRA, within the care proceedings but in freestanding pleadings.
By a claim pursuant to CPR Part 8 the Claimants sought a declaration that:
“For the purposes of section 25 of the Legal Aid and Sentencing of Offenders Act 2012; whether brought under section 7(1)(a) or 7(1)(b) of the Human Rights Act 1998, a claim for damages under the Human Rights Act 1998 does not constitute ‘proceedings…..in connection with which services are provided’, where those services comprise civil legal services provided to a parent or child in part IV Children Act 1989 care proceedings”.
Mr Justice Francis acknowledged that the costs of the care proceedings far exceeded the damages that could be recoverable such that they would be “obliterated” by the statutory charge. Yet, the Court recognised, “the moral injustice arising out of such a situation is palpable” because 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.
Following the issue of the claim, the Legal Aid Agency indicated that it was preparing draft guidance to address this matter.
The Legal Aid Agency (LAA) has now issued a position statement on the application of the statutory charge in relation to care proceedings costs and HRA applications, annexed to the judgment. In summary, the LAA’s view is that:
“The application of the statutory charge in respect of the legally aided costs of care or other family law proceedings to HRA damages can be avoided by ensuring damages are not awarded within the care and other family proceedings and by keeping the costs of pursuing the damages claim separate. For the avoidance of doubt, where the HRA claim is completed outside of the care or other family law proceedings the costs of the HRA claim itself, if sought to be claimed from the LAA, will constitute a statutory charge.”
The LAA’s position statement acknowledges that particular difficulties arise where HRA claims are made in family proceedings, particularly as to whether the costs of the care proceedings could be included. The costs of care proceedings will generally not be recovered in full from the local authority and they are likely to be so high in comparison with the HRA damages that a statutory charge would absorb most of all of those damages, so it is important that they be kept separate.
In light of the guidance, Mr Justice Francis agreed that the claimants’ application for declaratory relief should be withdrawn with no order as to costs, but he underlined the need to keep HRA claims and the care proceedings entirely separate as per the Position Statement.
The full judgment is available here: Northampton shire County Council & Anor v The Lord Chancellor (via the Legal Aid Agency)  EWHC1628 (Fam)
See also the very recent CA decision on waiver of the statutory charge in HRA claims for damages: R (Faulkner) v Director of Legal Aid Casework (2018)  EWCA Civ 1656, 19 July 2018