Social services, and what the future holds...

Kella Bowers looks at recent and future developments in the law relating to social work and the potential liabilities of local authorities.

The last few years have seen a tidal shift in the law relating to social work and the job itself, and the future portends to be no different. These are difficult times for those working in local authority social services Departments, especially those working within the realm of children services.

There have been a series of high profile cases over the last five years, dealing both with children who have died, such as the Baby P case and Victoria Climbié, as well as cases that extend the responsibilities of social workers far beyond that which would have been seen 10 or 15 years ago.

Vicarious liability

The recent past has seen the extension of the law of vicarious liability through the case of The Catholic Child Welfare Society & Others v Various Claimants (often referred to as the Catholic Brotherhood cases).

Although this case, and the associated case of JGE v Portsmouth Dioceses, relate to religious orders, the extension to the law of vicarious liability to non employees, which has been created by these cases, could have far reaching effects.

One questions whether these cases could ultimately lead to local authorities being liable for the actions of foster carers, for example, and many other third party non employees who could come into contact with children in care. This extension has not yet been established or tested, but is still worthy of pre-emptive consideration.

Employees of other bodies and failures to share information

Last year’s Court of Appeal decision in Selwood v Durham County Council, Tees & Wear Valley NHS Foundation Trust and Northumberland, Tyne & Wear NHS Foundation Trust, reveals the potential responsibility which can flow from a failure to share information.

In this case the social worker, who was working with the children of a man with serious mental illness, was not warned by the NHS Trust treating him, of his threats to kill her. Upon leaving his review meeting at the hospital, where the threats had been made, he arrived at a case conference unannounced and stabbed the social worker. He was later convicted of attempted murder.

Thankfully the social worker survived. She later sued the two NHS Trusts as well as her employing authority, for failing to warn her.

The NHS trust initially argued that they did not owe the social worker a duty of care as she was not their employee. 

The social worker won her case. It was found that her employer, the local authority, had signed up to a joint working protocol with the NHS trusts. This referred to the disclosure of confidential client information if a person’s health and safety was at risk.

The case suggests that public bodies engaged in joint working practices, ( a practice currently in vogue in light of Government policy), may find that it owes far more extensive legal obligations to the employees of partner organisations than had previously been assumed.

Moreover, whilst concerns regarding data protection and unauthorised disclosure continue to be a subject of great debate, it can not now be assumed that disclosure outside the provider’s organisation is always prohibited.

Disclosure

The issue of disclosure was again dealt with recently in the case of Dunn v Durham County Council. In short, a distinction has now been made between the extent of disclosure expected to be given when a request is made by a claimant’s solicitor by way of a letter of claim, as opposed to when the request is made through data protection or freedom of information channels.

There has been a relaxing of the legal restrictions which have formally been applied to social services documentation.

Future initiatives

The Government has recently announced a number of new initiatives/changes and consultations which may result in more work for social workers already struggling with reduced budgets or more claims, which will stretch already pressurised local authority funds.

The change of status of “children on remand” to their new status as “officially Looked After Children,” promises to move the burden for custodial remand from the Youth Justice Board to local authorities, meaning more cost and more responsibility.

Police will no longer be required to attend to reports of children missing from children’s homes or foster care. In cases where a child is known to abscond (generally because the child is troubled or has emotional difficulties), they will now be classed by the police as “absent” rather than “missing,” when they fail to return when expected.

In such circumstances, police officers would not attend, leaving the child to be the responsibility of social workers and emergency duty teams. Whilst leaving children in vulnerable situations would obviously not be the preferred option for any social service department, will council resources allow for nightly patrols?

Reporting of concerns/ Savile inquiry

The recent Savile inquiry is resulting in calls from claimant groups for changing the law to include mandatory reporting by those in the course of their professional duties who become aware of information or evidence that a child is or has been abused. There is growing support to make it a legal obligation for such professionals, who believe they have such knowledge, to notify their concerns to the appropriate bodies. It is being suggested that a failure to report concerns would become an offence punishable in the courts.

This may not only put additional pressure on social workers but will extend to any local authority officer, teachers, foster carers, health professionals and the police. The fear of the consequences of not reporting, whether there is any evidence or not, will far outweigh the desire to try and keep families together, thereby creating a dilemma for those in children services and paradoxically resulting in higher workloads and potentially more complaints or claims than was intended.

Keir Starmer, Director of Public Prosecutions, has announced a review of all historical decisions taken in historic child abuse cases. If the perpetrators are still alive that could lead to new prosecutions and potentially more claims against local authorities depending on their involvement. We are seeing attempts now by claimant solicitors to make tenuous links between non employees and local authorities under the Catholic Brotherhood ruling and a further stirring of criminal prosecutions and continued media interest may bring even more.

Kella Bowers is a member of the Large Loss and Complex Case Team at Forbes. She can be contacted on 01254 222437 or by This email address is being protected from spambots. You need JavaScript enabled to view it.. This email address is being protected from spambots. You need JavaScript enabled to view it.