Legal Aid Agency rapped over approach to damages payable by council to ward of court

A High Court judge has severely criticised the Legal Aid Agency (LAA)’s actions in a case concerning a ward of court to whom a local authority had agreed to pay damages for the unauthorised release of information.

In P v A Local Authority [2016] EWHC 2779 (Fam) Mr Justice Keehan referred to the LAA’s “wrongful conduct” and “erroneous and muddled” decision making.

P was moved from adoptive parents to local authority care aged 17 on deciding that he wanted to change his gender identity to male.

Relations between P and the adoptive parents deteriorated to the point where P wished to end all contact with them.

Keehan J ordered in August 2015 that the local authority concerned, which cannot be named, was “absolved from any and all obligation to consult, refer to, and/or inform [P's] parents” of his welfare and whereabouts.

In January 2016 information about the unit in which P lived was passed to friends of P's adoptive parents by a council officer.

P as a result moved out, suffered a deterioration in his mental health and made a number of suicide attempts.

Following this P sought damages from the local authority, which were agreed at £4,750.

But the LAA said P's entire award would be clawed back through its statutory charge because it incurred costs in the earlier wardship proceedings.

The judge noted: “If the LAA are right, most unfortunately P will receive not a penny of the damages awarded to him.”

Keehan J in July invited the Lord Chancellor to waive the statutory charge “in the unusual circumstances of this case”.

But the LAA said it could waive it only if this were agreed at the outset of a case.

The judge said the LAA appeared to believe the wardship and damages cases were connected when in fact they were legally separate.

P's damages claim was based on Article 8 of the European Convention on Human Rights and was “nothing to do with the declaratory relief granted to P in the wardship proceedings”.

The judge added: “I am wholly satisfied that the damages resulting from the HRA claim are not recovered in proceedings in connection with which legal services were provided. There is no legal or factual connection between the wardship proceedings and P's HRA claim.”

He concluded: “The manner in which the LAA has made determinations on public funding in these proceedings is extremely unfortunate. In some aspects the decisions are plainly wrong and/or unreasonable and in others the reasoning of the LAA is difficult to understand, if not incomprehensible.

It would be “extremely regrettable” if P were denied the benefit of damages “as a result of the wrongful conduct of an organ of the state”, the judge said.

P’s claim under human rights legislation had not been funded by the LAA and so “however erroneous or muddled the LAA's decision making was on this issue, in my view…the statutory charge is not and cannot be applicable to P's award of damages”.

The Ministry of Justice has been contacted for comment.

Mark Smulian