In yet another example of how #we don’t just know the law…we make it, family law partner, Matthew Montanaro led the way for the Legal Aid Agency (LAA) to issue new guidance that ensured those who brought successful human rights claims related to legal aid funded care proceedings were not obliged to hand over their awarded damages to pay back the LAA. This ensures that vulnerable parents and/or children who have been let down by local authorities can retain a human rights damages award which can help them rebuild their often-shattered lives.
Background
Long-established High Court Guidance has seen human rights claims and care proceedings determined at the same time. Furthermore, the LAA has stated that pursuant to section 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), human rights proceedings are 'connected' to the care proceedings.
This practice has led to many cases of injustice because the LAA has attached the ‘statutory charge’ from the care proceedings to the human rights damages award. A statutory charge is a clawback method used by the LAA to recover the money it has spent on a case. Any money the legal aid recipient acquires through an award of damages must pay the statutory charge first. Because the cost of care proceedings is so high, in most cases all of the human rights claim award is transferred to the LAA.
It is difficult to reconcile how an award of damages, often given in cases where a child has been routinely failed by a local authority, can be seized by another public body to pay back court costs that, but for the award, they would have received without any demands for it to be paid back.
In the case of H (A Child) v Northamptonshire County Council and Legal Aid Agency, a claim under the Human Rights Act 1998 was issued on the child's behalf during care proceedings seeking declarations and damages against the local authority in respect of alleged serious failings. The LAA granted a separate public funding certificate for the human rights claim, which was heard concurrently with the public law care proceedings. The human rights claim was settled, but an issue arose as to whether the LAA would contend that the statutory charge would attach to the damages to offset the costs incurred under the public funding certificate issued for the care proceedings, which would have the effect of reducing if not extinguishing the damages. Ultimately the LAA decided that the charge would not apply to any damages, but the process by which it came to that decision, and the time it took, led to the local authority seeking an order for costs against it.
Acting for the Claimant, Matthew, along with Counsel, led The Hon Mr Justice Keehan to state:
“The issue I raise, in the context of HRA claims brought by children, and by parents, during the currency of pending care proceedings, is whether it is just, equitable or reasonable that damages awarded to a child, or to a parent, as a result of breaches of his/her Convention Rights by one organ of the State should be recouped by another organ of the State in respect of public law proceedings which would otherwise not be recoverable. Public funding in such cases is non means tested and non merits based. Furthermore, save in exceptional circumstances, the local authority issuing the care proceedings is not liable to pay the costs of any other party
I very much doubt that such a recoupment is just, equitable or reasonable. In the vast majority of cases the effect of the recoupment of the child's or parent's costs of the care proceedings will be to wipe out the entirety of the HRA damages awarded. In this event, the child or the parent will not receive a penny.”
To avoid a situation where the Claimant won damages only to lose them again, Justice Keehan stated that human rights claims and care proceedings should be kept as procedurally distinct as possible by issuing a separate claim (with the proviso that parties are encouraged to negotiate an early settlement and try to establish the LAA’s position within proceedings). Furthermore, the costs of pursuing the human rights claim must be kept distinct from the care claim.
New guidance issued by the LAA
The issue of clawing back legal aid funded care claim costs via the damages awarded in a human rights claim returned in the case of Northamptonshire County Council & Anor v The Lord Chancellor (via the ire County Legal Aid Agency) [2018] EWHC 1628 (Fam). The Court noted that the LAA had agreed to publish an updated position statement in respect to damages claimed outside care and other family law proceedings.
The guidance states that:
“[If] HRA damages are obtained outside of the care or other family law proceedings (e.g. within separate civil proceedings, or by means of a settlement outside of the care or other family law proceedings), only the legal aid expenditure incurred in respect of pursuing an HRA claim will be treated by the LAA as provided in connection with it. If the LAA is asked to give an early indication as to whether the statutory charge will apply to any HRA damages in these circumstances, it will request undertakings from the provider and counsel in the care proceedings that they will not make a claim for costs in respect of any HRA work carried out as part of the care or other family law proceedings. Once the undertakings have been received, the LAA will be able to confirm that the statutory charge will not extend to the legally aided care costs. Note that, unless a certificate or amendment to a certificate specifically authorising an HRA claim has been granted, there could be no valid claim for such costs in any event.
For the avoidance of doubt, legal aid expenditure in relation to the HRA claim will form a statutory charge in respect of any damages or costs recovered in the settlement of that claim, to the extent that a claim is made for costs from the LAA.”
In summary
Following Matthew’s work in H (A Child) v Northamptonshire County Council and Legal Aid Agency, the LAA accepted that provided proceedings are separate, any award of damages under a human rights claim will not be used via a statutory charge to recover the costs of related care proceedings. Only the costs of the human rights claim will be recovered in such a way; however, Solicitors and Barristers can choose in such cases not to claim all or some of the costs, especially if they are awarded to a child who has been let down by the agencies who were supposed to protect them.
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