Council to review cases after judge criticises failure on duty of candour

The London Borough of Brent is to review all judicial review cases involving its Children and Young People’s Services team for potential disclosure failures, after a Deputy High Court judge criticised the council for failing properly to discharge its duty of candour.

David Elvin QC made his comments in the case of KI, R (On the Application Of) v London Borough of Brent [2018] EWHC 1068, in which the claimant sought to challenge Brent’s refusal to recognise him as a child in need requiring accommodation under s.20 of the Children Act and, subsequently, on his attaining the age of 18 on 5 January 2018, refusing either to recognise his status as a ‘former relevant child’ (“FRC”) for the purposes of s.23C of the 1989 Act or, if he was not, to exercise its discretion to treat him as such.

Prior to giving his ruling the case, Judge Elvin said that on reading the papers, he had become concerned that Brent had not fully complied with its duty of candour and questioned at the beginning of the hearing whether the Court had been given an accurate account of the material facts.

The judge said it was evident from the bundle that there were a large number of significant redactions in the documents and there were documents, especially the initial viability assessment, which were missing.

He asked the council to consider this and was told that 400 unredacted documents were provided to the claimant's legal team during the course of the lunchtime adjournment of the one-day hearing.

“Unfortunately, my concerns turned out to be well-founded and from the documents disclosed and the written submissions made to me following the hearing, it is clear that an accurate picture of the material facts was not provided by the Council. This is not disputed by the Council,” Judge Elvin said.

The judge revealed that the council had explained in its written submissions that it did not have appropriate procedures in place to enable the lawyers to be sure that the duty had been complied with.

“There must have been inadequate supervision of the drafting of [the allocated social worker’s] statement to ensure it dealt with the material facts. Indeed, the statement I have been provided on disclosure says nothing about [her] access to, and account of, the documents or the checking of the statement of [the social worker] by the legal team or what advice she was given about compliance with the duty of candour. If the legal team did not have access to all the documents until 30 April as I am told, then they cannot have properly supervised the drafting of the witness statement on 4 January,” the judge said.

Judge Elvin said he had been told that the council's Legal Department did not have direct access to client records, that Social Services kept records in multiple files, and the Legal Department was dependent on the provision of the information through the Data Protection Team.

The documents were requested by the council's legal department on 18 January (two weeks after the filing of the social worker’s statement).

The judge said that it appeared that despite several reminders both from the claimant's solicitors, and internally, a set of unredacted papers (including the viability assessment) was not provided until the day before the hearing. “In the time available, contrary to what I was told in Court, [the solicitor] had no time to go through them (they were not in the same order as the redactions apparently) before the hearing began.”

The judge was told that the non-disclosure in this case was not deliberate and that it was of grave concern to the defendant council who said it was “anxious to ensure that the same thing does not happen in the future”. The council also suggested that staff might have been overly cautious during the redaction process, adding that a full investigation would be undertaken by the various different departments to ascertain the cause of the failure.

However, Judge Elvin said the difficulties encountered could not justify the failure by Social Services, the witness and the council's Legal Department properly to review the material disclosed or referred to especially since it was requested by the claimant's legal team from the outset and the council had four months between the making of the claim and the hearing.

“The new/unredacted documents include material which goes to the Council's asserted reasonable conclusions in respect of its statutory duties in this case. I do not know why those documents were not reviewed by either the Council's legal team or counsel before the case began. I was not asked for time before the case started to allow the documents to be reviewed,” the judge said.

“Since this case concerns duties owed to vulnerable children, latterly young adults, I find this lack of effective procedures to ascertain the facts and obtain relevant documents from the department concerned to be disturbing taken with the very late concession (on the day of the hearing) that, despite resistance for over 4 months following the issue of proceedings, a duty under s. 20 had arisen at least for a period of time and that ground 1 was not contested.”

Judge Elvin said there could be “no excuse for this poor compliance given the previous decisions by the Court emphasising the ‘very high duty on public authority respondents’.”

He added that the duties apply not only to claimants but to public authorities who are defendants “since it will often be the case that the authority under challenge has access to information and materials which are unavailable, or may even be unknown, to the claimant”.

The absence of a general requirement to provide disclosure should not encourage a public authority to consider that it can adopt a less rigorous approach than a claimant, or to redact relevant material, and thus not ensuring that an accurate account of the facts is presented to the Court, the judge continued.

Judge Elvin said he did not consider that the council properly discharged its duty in this case and this was of particular concern given the nature of the claim and the vulnerable status of the claimant.

“I cannot emphasise strongly enough the importance of the duty of candour in the case of vulnerable children and young people and that the local authorities charged with these duties should have in place procedures to ensure that that they do not fall into similar errors such as those made by Brent Council in this case - which included the lack of access by the legal department to the social services records relied on by [the social worker] until almost 4 months after her witness statement was filed.”

Judge Elvin QC said the Court's overriding concern was to ensure that the interests of children and young persons had been properly protected and the question of inconvenience and costs to the authorities concerned in reporting and accounting for their decisions and actions could not be permitted to take precedence or to provide an excuse for a failure to comply.

“It is the responsibility of the lawyers involved in such cases to ensure that all those involved in the authority are aware of the duty of candour and comply with it,” he stressed.

In the case in question, the claimant advanced three grounds of challenge, namely that:

1. The council was in breach of its duty under s. 20 in seeking to accommodate K (the claimant) with his uncle in October 2017;
2. The council had wrongly refused to acknowledged that K was a FRC within s. 23C of the 1989 Act which gives rise to specific duties to facilitate K's transition into adulthood;
3. Alternatively to Ground 2, if K was not a FRC then the council had failed to consider whether to treat him as such within its discretion.

Judge Elvin concluded that the judicial review succeeded on grounds 1 and 2. He did not deal with ground 3 as this was an alternative to ground 2.

A Brent Council spokesperson said: “We accept without reservation Judge David Elvin QC’s ruling in the High Court in allowing the judicial review in this case, and we sincerely apologise both to the claimant and to the Court.

“Our error was not deliberate and was as a result of administrative difficulties managing the huge volume of sensitive documents concerned. This does not excuse our shortcomings, which we acknowledge and regret."

The spokesperson added: “The authority has taken urgent and concrete steps, at the highest level, to ensure that our administrative systems are materially and immediately changed, so that we, and the Court, might be confident that this error will not be repeated. Moreover, we are urgently reviewing other open judicial review cases to ensure our compliance therein. The duty of candour is an important obligation which we continue to take very seriously.”

The claimant’s barrister, Felicity Williams of Garden Court Chambers, said Brent had subsequently drawn up the following plan:

1. On 8 May 2018, senior managers within the Data Protection Team, Social Care team and Legal Services met to discuss the issue. They decided that the following steps should be taken as a matter of urgency:

(a) Children and Young People’s Services will ensure that Legal Services have prompt and manageable access to their unredacted files;

(b) Legal Services will oversee any redactions of Children and Young People’s Services’ files in judicial review cases including where subject access requests (under the Data Protection Act 1998) are made;

(c) Legal Services will supervise the drafting of witness statement by officers in Children and Young People’s Services in judicial review cases after provision of all the social work records;

(d) Legal Services will revise the current judicial review protocol between Legal Services and Children and Young People’s Services to make specific reference to the obligation to disclose all relevant documents and the duty of candour;

(e) Legal Services will have regular meetings with senior managers in Children and Young People’s Services regarding current litigation (including judicial review cases) to resolve any issues, such as disclosure, in a timely manner;

(f) Legal Services will provide training and advice to frontline staff and social workers in Children and Young People’s Services on the obligation to disclose all relevant documents and the duty of candour; and

(g) social workers and frontline staff in Children and Young People’s Services will have monthly workshops with Legal Services to address any gaps in their legal knowledge.

2. Children and Young People’s Services are currently subject to a number of judicial claims in respect of other clients. It is intended that senior managers, including the Head of Children and Young People’s Services and the Head of Litigation and Dispute Resolution, will meet during the week beginning 14 May 2018 to review current cases to establish whether there has been any failure to disclose records or other documents and, if so, to take immediate action to rectify such failures.

Felicity Williams was instructed by Eleanor Ronson at GT Stewart.