Statutory Charge and Article 8 Damages
In the case of P v A Local Authority  EWHC 2779 (Fam), P was a 17 year old who had been born female but wanted to change his identity to male. His relationship with his adoptive parents broke down because of their difficulties in coming to terms with his decision. P stated that he did not want his adoptive parents to be involved with his life and he was moved by the local authority to live with foster carers.
During wardship proceedings, the court ordered that the local authority should not share with P’s adoptive parents any information regarding P’s medical treatment or wellbeing without P’s express consent. However, the local authority disclosed personal information about P to third parties who were friends of P’s adoptive parents.
When P found out, his mental health was severely compromised and he made a number of suicide attempts and self-harmed. He later brought a claim against the local authority for damages for breach of Article 8 ECHR.
Although P had received legal aid during the wardship proceedings, the Legal Aid Agency refused to grant legal aid for the proposed damages claim. The local authority conceded liability and offered to pay damages of £4,750 to P.
The Court approved the damages award but had to deal with the issue of whether the statutory charge applied. If the statutory charge applied to the damages award then P would receive no damages from the human rights claim as the entire award would be owed to the LAA for the costs incurred during the wardship proceedings. The LAA declined to waive the statutory charge.
The High Court (Family Division) held that the statutory charge did not apply to P’s damages award as the LAA had refused to fund P’s human rights claim. The damages awarded to P were recovered in a claim that did not have the benefit of a public funding certificate. The Court found that there was no legal or factual connection between the wardship proceedings and the human rights claim and so damages awarded for the human rights claim could not be recovered by the LAA for legal aid granted in the wardship proceedings.
The Court also described the LAA’s approach in this case as being “extremely unfortunate” and some aspects of their decisions were “plainly wrong and/or unreasonable and… difficult to understand, if not incomprehensible” (para 77). The Court made plain its view that “it would be extremely regrettable if P were to be denied the benefit of damages awarded to him as a result of the considerable emotional distress and harm to his mental well being he has suffered as a result of the wrongful conduct of an organ of the state.”
It was also considered unfortunate that the wording of the Regulations meant that the Lord Chancellor, through the director of the LAA, could only exercise his power or discretion to waive the statutory charge at the time when the determination of funding was made and not at some later date. It was not clear to the court why the discretion to waive the statutory charge had been fettered in that way.
There are two important lessons that can be learned from this case by practitioners.
First, it is not unusual for human rights claims to follow Court of Protection proceedings, especially where there has been a successful s.21A MCA 2005 challenge which may open the door to a damages claim for unlawful deprivation of liberty in breach of Article 5 ECHR or breach of Article 8 ECHR.
Whilst there is still an entitlement to non-means tested legal aid in section 21A challenges, legal aid is often not available for any subsequent human rights claims. Applying this case by analogy, the LAA would not be permitted to apply the statutory charge to recover non-means tested legal aid in s.21A proceedings where the LAA had refused to fund the subsequent human rights claim.
Second, any request to the LAA to waive the statutory charge must be made at the time of the funding decision. There would appear to be no power or discretion for the LAA to waive the statutory charge after the funding decision has been made.