Andrew Ellis Kella Bowers 11 September 2017

Dealing with large-scale abuse claims

The last few years have seen a significant increase in the number of critical reports on children’s services practice, large criminal investigations into abuse, Ofsted intervention, and Home office Committee investigations, culminating in the creation of the Independent Inquiry into child sexual abuse.

Although some local authorities have been affected more than others, all authorities are at risk of criticisms of past practice or abuses in establishments for which they are or were the responsible authority. As such we intend, in these two articles, to advise of the effects of these types of claims on an authority, how best to manage them and what to do now to try and avoid claims in the future.

Our involvement in some of the country’s largest groups of personal injury claims arising out of child sexual exploitation, have led us to see first-hand the effects that such claims have on an authority, over and above the complexity of handling the cases themselves. The significant media interest and widespread criticism, sometimes of individual staff members as well as the children’s services department as a whole, has led to human resources issues such as stress absences, low morale and recruitment difficulties due to substantial damage to the authority’s reputation.

This is unsurprising bearing in mind that such scandals can and do result in Government intervention, unannounced Ofsted inspections and calls to give evidence to the Home Office Committee. But as with all things, it is being caught off guard by such a situation and a failure to communicate with all those who are likely to be involved, that results in difficulties and delays in responses.

In our work with the Association of Local Authority Risk Managers we sought to create detailed guidance for local authorities on how to deal with such major incidents, but the main take away from that guidance was the need to create an internal strategic management group now, in preparation for such an event.

The strategic management group should include members from insurance and risk, information governance unit, media and communications, human resources, children’s services as well as a designated elected member liaison. Insurance and risk are likely to take the lead in this group in dealing with claims, but information governance and children’s services will need to be aware of their potential involvement in locating significant amounts of documentation, the resource implications and their need to keep Insurance advised of communications received.

For example, the information governance unit may receive subject access requests from solicitors on behalf of their client, requesting documents to investigate a potential claim. A failure to advise the Insurance and Risk department of this potential claim could result in a failure to advise the authority’s insurer until much later. Also, if a claim is likely to be presented it is often better for this to be dealt with under the civil procedure rules and thereby avoid the need for significant redaction and duplication of work and will save essential resources within the council.

With regard to children’s services it is understandable that, with resources stretched, they will prioritise children at risk now rather than historic matters. However, their involvement is essential not only in terms of learning from failures of the past to avoid those in the future but also as claims could be brought for children who remain in the care system and their best interests need to be considered.

Communication and sensitive management of staff involved can also avoid a feeling of abandonment and therefore absences or resignations in a department that needs to maintain continuity.

Communication between all the relevant departments is essential and having a designated officer within each who will take ownership of requests for action, if and when called upon, will prevent the ability to act and respond grinding to a halt.

In cases of multiple child sexual exploitation (CSE) claims and claims of large scale abuse in care homes, the authority will inevitably need to liaise with the local police constabulary, and the creation of a strategic management group will make this process easier as well. Historic claims can be presented to the authority at the same time as an active police investigation. The disclosure of documentation to the claimant therefore becomes a complex issue as the police will often not want such documents to be disclosed before Achieving Best Evidence interviews have been conducted with the claimants. The establishment of relationships with the operational teams within the constabulary will, in our experience, lead to a managed way through this issue without the authority being faced with applications to the court for disclosure and the potential additional media criticism that can create.

In terms of avoiding claims in the future with regards to abuses in care homes, not only does an authority need stringent recruitment policies but also regular checks of such establishments and its practices, as well as evidence that such are taking place.

Social workers should try and see children placed there on their own to allow disclosures to be made, if there are any, and the authority should have a clear and sensitively handled whistleblowing policy to ensure that concerns are raised and action taken.

With the increasing use of outsourcing of such services to the private sector, authorities should ensure that private care homes have the same stringent recruitment policies, supervisory and management processes and appropriate insurance provision.

With regards to CSE, a number of authorities that have experienced criticism for their handling of CSE have engaged in multi-agency partnerships with the police and health services, such as Sunrise in Rochdale and the Evolve team in Rotherham. The careful and sensitive sharing of information within these teams has led to effective disruption in CSE.

Government guidance on how to deal with CSE is far from ideal but in our experience allocating appropriate level social workers, continuity and the avoidance of the assumption that the child’s actions are normal teenage behaviour are advisable. The use of out of area placements and, in severe cases, secure placements should also be considered. However, as such placements are limited and there may be resource issues involved if they are not available or practical, this should be evidenced and the best alternative strategy put in place and followed through.

The take away from this piece should therefore be a need to prepare to communicate. In terms of historic cases, communication between departments, with the police, with insurers and with the media. In terms of current risks, communication within the multi-agency teams, with the child, family and within children’s services.

Kella Bowers is a partner at Forbes Solicitors and is a member of the Forum of Insurance Lawyers abuse claims, practice and procedure sector focus team.

Andrew Ellis is a partner at Forbes Solicitors and is a member of the Forum of Insurance Lawyers public sector focus team.

This feature first appeared in Local Government News magazine. Please click here to sign up for your free copy.

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