G, R (on the application of) v The Legal Services Commission

MR JUSTICE PITCHFORD: With the permission of Collins J, the claimant seeks review of a decision of the Legal Services Commission not to grant public funding for a proposed action in negligence and breach of statutory duty against a public authority. That public authority is, for these purposes, a local authority. In essence, the claim turns on the meaning of the words "proceedings against public authorities concerning serious wrongdoing" contained in the Lord Chancellor's direction, issued pursuant to section 6(8) of the Access to Justice Act 1999.

A second issue is whether, since the decision was notified on 2nd June 2003, the defendant has changed the ground upon which the decision was made, and if so, whether that change should affect the Court's discretion to grant relief.

The nature of the proposed claim is as follows, and for present purposes, I must assume that the averments made on behalf of the claimant will be established. In March 1999, the claimant's mother referred the claimant, a child, to a Social Services department on the basis that he was beyond her control and posed a threat to himself and to others. The local authority failed to appoint a social worker and instead assigned the duty social worker to deal with his case. During 2000, the claimant was arrested for a number of offences including theft, criminal damage, assault and burglary. In May of that year, a court report prepared upon him by the youth offending team indicated that a full report of the steps that needed to be taken with regard to the claimant was necessary. No such Social Services report was ever compiled.

The Youth Court remanded him to secure accommodation for three months from October 2000. He was, however, released on bail on 17th November. The duty social worker, to whom I have already referred, wrote a letter to the Disability Living Allowance Tribunal in September 2000 expressing the view that the claimant was a danger to himself and to others. That month, a meeting held at Right Track was required because of concerns regarding the claimant. Social Services were invited to that meeting but failed to attend.

In April 2001, the claimant was admitted to a school with a view to assessment for placement. That assessment noted that the claimant required secure accommodation in order to ensure his safety, amongst other things. A month later he was placed in a remand foster placement, from which he continually absconded. During that time he continued to offend. There were reports of him taking motor vehicles without consent and riding motorcycles without a helmet.

In July 2001, the claimant's mother twice requested that Social Services place the claimant in secure accommodation, because he was out of her control and posed a danger to himself and to others. On 20th July, the claimant was permanently excluded from the school. At that time, the claimant's mother provided Social Services with a detailed chronology of his deteriorating behaviour, but, it is said, Social Services continued to fail to act. Both Right Track and the Children's Society made representations to Social Services saying that it was vital that the claimant be placed in secure accommodation, and again warned of the danger he posed to himself and to others. No action was taken, and on 2nd September 2001, the claimant was seriously injured when the stolen car which he was driving collided head-on while being pursued by a police car.

The cause of action is essentially one of negligence. My attention, as was the defendant's, was drawn to sections of the Children's Act 1989, in particular sections 17 and 20, in which are set out some of the duties of local authorities with relation to children, and their powers to act. Secondly, it is suggested that on the authority of Barrett v Enfield [1999] 3 All ER 193, the local authority owed a common law duty of care towards children in their care.

In order to pursue a claim against the local authority, the claimant's mother and litigation friend required funding. The statutory scheme under which an application for funding is now made begins with section 1 of the Access to Justice Act 1999. Section 1 provides:

Section 4 (1) provides:

The services referred to are of course legal services which are described in paragraphs (a) to (e) inclusive of section 4(2). The question for the Legal Services Commission, therefore, is whether an applicant qualifies for legal services.

Section 6(6) provides that the Commission may not fund, as part of the Community Legal Service, any of the services specified in Schedule 2. However, by subsection (7), "Regulations may amend that schedule", and by subsection (8):

The exclusion contained in Schedule 2 includes at paragraph 1 the following:

For present purposes I am concerned only with the exclusion provided by paragraph (a). Other examples of exclusion include conveyancing; boundary disputes; the making of wills; defamation; matters of company or partnership law; and business matters. This is a proposed action for damages for negligently caused injury.

The Lord Chancellor has issued a direction under section 6(8) of the 1999 Act which provides, amongst other things, as follows:

Those claims, which come within section 8 of the Funding Code, are by use of its terminology said to be "within scope". Thus, claims in negligence against public authorities are within scope if they concern 'serious wrongdoing'.

In a handbook produced by the Commission are set out the framework of the legislation; advice on the approach to decision making; the Lord Chancellor's Direction; and Guidance generally to decision makers. As paragraph 1.1(1) of the manual discloses:

I should explain that the Funding Code is published by the Commission pursuant to its powers under section 8 of the 1999 Act.

At paragraph 3.2 the Commission sets out the Lord Chancellor's guidance in the following terms:

For present purposes I need refer only to subparagraphs (4) and (5).

Relevant advice as to personal injury claims is included in the manual by the powers given to the Commission under section 3. At paragraph 3.8 commencing at subparagraph (1), page 121 of the bundle:

It is noteworthy that it is at this stage of the advice published by the Commission, when considering negligently caused injury, that reference is made to the term "deliberately inflicted harm", since the word "deliberate" becomes relevant in a later context.

It may be that in this part of the advice, an inconsistency has crept in since, as I have already noted, at paragraph 3.2 of the handbook, in extracting the Lord Chancellor's guidance, it is said that paragraph 1(a) only excludes allegations of negligently caused injury or damage and does not exclude assault or deliberate abuse. Accordingly, assault and deliberate abuse were never excluded. Subparagraph 6(c) appears to indicate that they have only come back into consideration as a result of the directions set out at paragraph 7(b) of section 3.3 of the handbook.

The Commission's advice concerning the scope of section 8 is set out at paragraph 17. This is, I repeat, not the guidance issued by the Lord Chancellor, but the advice issued by the Commission aiding those who are interpreting and applying the guidance. At paragraph 17.2 (1), it is said:

One of the matters to which I have been required to give consideration is what is meant, if anything of significance, by the use of the word "simple" in the context of a claim in negligence, and whether the use of that term does distinguish in reality between one form of claim in negligence and another.

At subparagraph 3:

At subparagraph 5:

At paragraph 17.3 subparagraph 1 appear some examples primarily related, it seems, to abuse of position or power by comparison with what was described as simple negligence, but they are useful:

Here, too, one wonders whether the author has recalled the advice originally given in respect of the exclusion. Schedule 2 paragraph (a) would not exclude an action for deliberate assault.

On 12th July 2002, the claimant's solicitors wrote to the defendant with details of the proposed claim seeking a grant of public funding to make preliminary enquiries. The application form was dated 8th July 2002. Also enclosed were supporting documents submitted in an attempt to make good the allegations of breach of duty and negligence. Mr Colin Stutt is the Head of Funding Policy with the Commission. In his witness statement of 25th November 2003, Mr Stutt describes his experience and responsibilities. He has been with the Policy and Legal Department of the Legal Services Commission, and before that with the Legal Aid Board, since leaving private practice over 12 years ago. He is an employed barrister.

As Head of Funding Policy, he is responsible for the rules and guidance applied by the Commission in deciding whether to fund individual civil cases. He was responsible for drafting the Code which sets out the merits criteria, and he has responsibility for the Commission's Decision Making Guidance both in relation to the Code and the Rules on exclusion from scope. In other words, Mr Stutt had overall responsibility for those passages of the guidance which I have read.

Mr Stutt explains the policy behind section 8 of the Funding Code. He says:

Mr Stutt then proceeds to give one or two examples, not unlike those which appear in the guidance.

On 14th October 2002, the claimant's solicitors received a reply from a senior case worker on behalf of the London regional office of the commission. The application was refused and the reasons were said to be these:

Thus far, it appears that the defendant was maintaining that if the wrongdoing is formed by a failure to act, that failure, in order to qualify under Section 8, must be deliberate and malicious.

The claimant applied for a review of the decision. His solicitors argued that the claim fell within the Lord Chancellor's Direction and was accordingly within scope. Mr Stutt explains the function of the Funding Review Committee at paragraph 29 of his statement.

The Committee considered the claimant's appeal on about 21st November 2002. The Committee disagreed with the regional office. The matter was therefore placed before Mr Stutt for head office guidance. Mr Stutt exercised powers delegated by the Regional Director when writing in reply to the claimant's solicitors on 2nd June 2003. The grounds for further rejection of the application are contained in the following extract:

It seems to me that there can be no question but that Mr Stutt was faithfully directing the claimant's attention to the Lord Chancellor's direction and his own guidance as to interpretation and application of the direction. In doing so, however, it seems to me that, with respect to him, he identified those cases which would normally be covered by the term "serious wrongdoing", that is deliberately or knowingly causing harm, but did not identify any criteria by which he assessed the small number of cases which involve serious wrongdoing by omission.

The claimant's solicitors responded. On 28th July 2003, Mr Stutt repeated his view that, as he called it, "simple negligence" by a public authority would not be within scope. He said this:

I remind myself that the terms of section 17.2 of the Funding Code guidance contained within the LSC manual are themselves the responsibility of Mr Stutt, that advice and guidance having been published under section 3 of the Act of 1999. Again, Mr Stutt identifies positive acts of commission by a public authority, which will qualify under section 8, but he does not deal with the very area in which this application fell; that is an allegation of negligence by omission. What he appears to have been doing in this letter is applying a benchmark. If there is not something in the nature of deliberate, malicious or dishonest action then there is simple negligence which, in his opinion, was not enough.

Following further submissions made on behalf of the claimant, Mr Stutt amplified his views in a letter of 28th August 2003. I read the following extract:

This is indeed the claimant's main argument as advanced before me by Mr Wolfe, and it is conceded by the Commission.

Mr Stutt continued in his third paragraph:

Miss Collier for the Commission explained the meaning of the last sentence in this quotation to me. It comes, in fact, as I have observed, from paragraph 17.3(5) of the guidance. The concept of negligently caused injury on the one hand and serious wrongdoing on the other are, it is said and generally understood, miles away in practice. That is why, in order to make the leap from the former to the latter category, the negligence concerned will need to be serious and extreme.

I continue the quotation:

Mr Stutt again declined to identify the criteria against which he judged this as a case of simple negligence; as the guidance calls "the excluded case".

Mr Wolfe for the claimant suggests that there has been a change of position by the defendant. He invites me to read the refusal letters of 14th October 2002 and 2nd June 2003 as an assertion by the defendant that only a deliberate and malicious act would do, and not a negligent one.

While that is certainly an arguable effect of Mr Ford's letter of 14th October 2002, as Mr Wolfe readily accepts, that letter was overtaken by Mr Stutt's review. By the use of the word "primarily" in his letter of June 2003, it seems to me that Mr Stutt was indeed recognising exceptions. As I have already said, however, that letter appears to raise more questions than it answers. Mr Wolfe argues that the refusal followed the guidance set out at paragraph 17.2:

Mr Wolfe seeks to extract from Mr Stutt's letter an intention to refuse the application on the simple ground that deliberate, malicious or dishonest actions by a public authority would come within Section 8, whereas negligence by omission would not.

There is yet a further explanation provided by Mr Stutt in his witness statement, commencing at paragraph 35:

Mr Wolfe submits that the further explanation given in the letter of 27th August is inconsistent after the event rationalisation upon which the defendant should not be permitted to rely, or which, on the authority of R v Westminster City Council ex parte Ermakov [1996] 2 All ER 302, should not prevent the court making an order quashing the decision and requiring reconsideration by a different decision maker.

Mr Stutt explained his letter as follows, at paragraph 37 of his witness statement:

Were I of the view that the defendants were now advancing a significantly different reason for refusing the application than that advanced on 2nd June 2003, I would have sympathy for Mr Wolfe's submission. However, it is not my view that there has been any material change of reason. The defendant is saying and, except for Mr Ford, has said all along, that simple negligence is not enough. It was not saying that negligence by omission would not do. Miss Collier submits that is an end of this review. I disagree.

The question I have to consider is whether in reaching its judgment, the defendant misdirected itself. It seems to me that what the defendant was doing during the course of the correspondence at the time of and following the decision was, despite Mr Stutt's definition of "simple negligence" at paragraph 3 of his witness statement, to equate the standard which the claimant was required to meet with the test of "deliberate, malicious or dishonest". There is no such cause of action as serious wrongdoing or abuse of position. A remedy for breach of human rights can be enforced by action depending upon the nature of the breach.

It follows, in my view, as the guidance advises, that the direction is not concerned with the identification of a cause of action, but with the quality of the act or omission alleged in the context of the duty owed and the circumstances in which it is breached. It is, as I have said, accepted on both sides that negligence by omission may be enough to amount to serious wrongdoing. The real divide between the parties is, it seems to me, whether that omission must be deliberate, malicious or dishonest, or so serious and exceptional as to be verging upon it.

I cannot for myself see why, in order to amount to serious wrongdoing by a public authority, an omission should be either deliberate or malicious or dishonest, or verging upon any one of them. As I have suggested, the true application of the term will depend upon the context in which it is used. If, for example, a public authority is endowed with powers and fixed with responsibilities in a field of activity essential to the health and safety of the public, a dereliction of that duty is quite capable, without straining the language, of amounting to "serious wrongdoing". Such a dereliction of duty might be inadvertent but grossly negligent.

Mr Stutt classified the claim made against the local authority here as simple negligence. If the omission had to be, in order to qualify, deliberate or malicious or dishonest, or verging upon any one of them, then I can understand Mr Stutt's classification. It seems to me that the term "simple negligence", as used in the guidance, is capable itself of being misleading and leading to error. It may mean "simple" in the sense that it is casual, as the expression is sometimes used in the field of vicarious liability, although I am not entirely happy with that analogy, or it may be "simple" in the sense that it is just negligence.

As Mr Wolfe rightly submitted, the direction was intended to bring just negligence back within scope in so far as it affected public authorities. It must mean something more. I agree, with respect, with Mr Stutt: that it means only negligence of a quality to be distinguished from serious wrongdoing.

The Commission still had to identify what quality of negligence may amount to serious wrongdoing, and that identification never, in my view, took place, save by comparison with allegations of deliberation, malice or dishonesty. I do not consider that can be right, and with respect to Mr Stutt and his great experience, in the absence of a more sophisticated analysis I consider the defendant misdirected itself.

The Social Services department concerned owed duties towards children. Upon the factual assumptions I am required to make, it was, over a period in excess of two years, repeatedly informed of the need to take steps to protect a child from himself, but repeatedly failed to act upon that information. The child, it is claimed, was seriously injured in consequence. What is alleged here does not appear to me to be mere negligence of the quality envisaged by the illustrations in the guidance affecting the police.

The claimant's case before me is, I think, made by returning to paragraph 17.3 of the guidance. It is the duty of the Chief Constable and his officers to exercise their wide powers of arrest and detention reasonably and lawfully. Assault or trespass or wrongful arrest or false imprisonment will typically amount to serious wrongdoing in the performance of those duties. Negligence by a police driver or exhibits officer will not. It may not be the intention of the officers to commit these civil wrongs, but in the context of the duty owed, the guidance contemplates they may amount to serious wrongdoing.

What, then, are relevant criteria to be considered when making a judgment as to whether the allegations made by the claimant amount to serious wrongdoing by a public authority?

In my judgment, they will include (1) the nature of the duty owed; (2) the purpose of that duty, this will involve a consideration to whom and to what class of person was the duty owed, and the protection the duty was designed to afford; (3) the quality of the acts and omissions which are alleged to constitute the serious wrongdoing, and the circumstances in which those acts or omissions occur; (4) the harm or risk of harm which the breach occasioned; and (5) the public dimension of the duty and the breach which informs the priority for funding Legal Representation, that priority to which Mr Stutt refers in his witness statement.

It is not at this stage that ultimate questions of merit are considered. It may be that Social Services will be able to disprove these allegations. They may succeed on the issue of causation or public policy. Those are not, however, considerations which concern the primary issue of whether serious wrongdoing is an appropriate description of the quality of negligence or breach of statutory duty alleged. I have concluded only that it may be that upon a considered application of appropriate criteria, this claim meets the test of serious wrongdoing. I accept Miss Collier's submission that properly directed, the Commission enjoys a significant margin of appreciation and I propose to go no further than to find that for the for going reasons, the defendant was in error in directing itself as it did and the decision must be quashed and reconsidered.

MR WOLFE: My Lord, I am obliged. Can I deal with a number of conventional things. First of all, the question of costs. My Lord, can I ask for the claimant's costs to be paid for by the defendant. It may seem like a slightly strange application, but the claimant's to be paid by the defendant to be assessed if not agreed. My Lord referred to the section, as being section 23. I am sure that was inadvertent, I am sure my Lord meant to say section 3.

MR JUSTICE PITCHFORD: Thank you very much. I will check that.

MR WOLFE: I think my Lord may have referred to his name rather than the letter L.

MR JUSTICE PITCHFORD: Right.

MR WOLFE: I am also asked by the members of the press to canvass an identification order, they may wish to refer the matter on. Picking up clues from my Lord's judgment, my Lord refrained from referring to the name of the school, refrained from referring to the local authority and refrained from referring to his age or his name, my inference but the other facts as my Lord has put them in the judgment can be referred to.

MR JUSTICE PITCHFORD: That is correct.

MR WOLFE: I am grateful.

MR JUSTICE PITCHFORD: Thank you very much. Miss Collier, costs.

MISS COLLIER: I do not oppose the application for costs. I do have an application for permission to appeal at the Court of Appeal on the basis that there is a real prospect of success. There is a real prospect of success in showing that the Legal Services Commission did not in fact misdirect itself in law in the correspondence of June and July 2003, and on that basis, I would ask that permission to appeal be granted.

MR JUSTICE PITCHFORD: I think this is a matter of sufficient public importance to warrant an authoritative decision in the Court of Appeal if you want it.

MISS COLLIER: My Lord, I am very grateful.

MR JUSTICE PITCHFORD: I am minded to give you leave to appeal.

MISS COLLIER: Thank you, my Lord.

MR JUSTICE PITCHFORD: Claimants costs to be the subject of a detailed assessment if not agreed.