Public sector - market insights Q3/Q4 2024

Public Accounts Committee reports on the care sector 

The care sector has and continues to face many challenges from an aging and more demanding population contributed to by the cost-of-living crisis and increased pressure on mental health services. A lack of public funding, high turnover of staff, Brexit, poor terms and conditions, and historically low pay compounded by the pandemic continue to strain the sector. 

A lack of financial and staffing resources is not usually a defence to a claim because providers have a statutory obligation to provide an adequate service. If the care sector is not adequately resourced, sadly things may go wrong for service users who may not receive the care they need. This can often have significant if not catastrophic consequences. Care providers, local authorities and their insurers will continue to face claims for compensation which are likely to increase in number if sufficient measures are not put into place. 

On 25 July 2024 Audit Scotland published its ‘Integration Joint Boards' Finance and performance 2024’ report. This highlighted that despite almost two-thirds of third sector social care organisations increasing recruitment spending, vacancy rates remain unsustainably high. 

Reforming the law of apologies 

On 8 April 2024 the Ministry of Justice (MoJ) launched a consultation on clarifying the law to encourage organisations to apologise more. The consultation, which closed on 3 June 2024, considered whether the existing legislation is adequate, or whether clarification or amendment would be useful. It also sought views on how apologies should be applied in cases of child sexual abuse and how improvements could support survivors and spare them lengthy court disputes. The MoJ will publish a response setting out the way forward but has not confirmed when this document will be released. 

The consultation was aimed at all those with an interest in civil proceedings in England and Wales including litigants, legal professionals representing both claimants and defendants and the insurance industry. Scotland has already introduced the Apologies (Scotland) Act 2016, which is more detailed than the UK’s Compensation Act 2006.

Potential changes to limitation in England and Wales on the horizon

From 15 May to 10 July 2024, the previous government ran a consultation on ‘limitation law in child sexual abuse cases’ in England and Wales. The consultation explored options for reform, taking into account recommendations by the Independent Inquiry into Child Sexual Abuse, namely:  

• Complete removal of the three year limitation period
• Reversal of the burden of proof from the claimant to the defendant
• Codification of existing judicial guidance
• Allowing the reopening of claims that have been adjudicated or settled
• Extending the definition of abuse to include physical and emotional abuse.
• Adjusting the factors in Section 33 of the Limitation Act 1980 in relation to child sexual abuse cases
• Extending the limitation period for child sexual abuse cases up to potentially 30 years
• Introducing a pre-action protocol for child sexual abuse claims

Submissions are being analysed but no timeframe for when the MoJ expects to publish its response setting out next steps has been offered.   

Scottish developments

The Limitation (Childhood Abuse) (Scotland) Act 2017 removed the three year limitation period for survivors of physical, emotional or sexual abuse to bring a civil claim for damages, unless the defender can prove substantial injustice, or that a fair trial is not possible due to the delay. Recent case law confirms that even in the absence of detailed records, and if the individual accused of abuse is dead, the court will allow a damages claim to proceed if the pursuer alleges that there was a generally abusive regime, and there are still some employees who can be asked about this.  

The judicial rate of interest in Scotland is currently 8%, and has been since 1993, despite bank interest rates being lower, and in more recent times much lower across that period. The result is that interest applied at the half current judicial rate, as is usual for gradually accruing losses, on claims dating from the 1960s and 1970s can equal the value of the general damages claim itself, effectively doubling the value of that head of claim. An actuarial report commenting on a reasonable figure to reflect interest rates and inflation over any given period of years can cost £3,500 to £5,000. As such reports are specific to defined start and end dates, they cannot easily be recycled in other cases. 

For claims where there is a basis for jurisdiction in either England or Scotland, forum shopping is currently an issue, as claimants seek to avoid the timebar arguments which would arise south of the border. In our view, and subject to the Government’s recommendation as to the option it wishes to proceed with, forum shopping for claims for physical or emotional abuse may still continue.

Bills of interest in Scotland

The Assisted Dying for Terminally Ill Adults (Scotland) Bill was introduced to Holyrood on 27 March 2024. A call for views on the Disability Commissioner (Scotland) Bill opened at 28 March 2024, and closed on 17 May 2024, and a Stage One report is awaited.

The Abortion Services (Safe Access Zones) (Scotland) Bill was passed on 12 June 2024. This will create safe access zones around all places providing abortion services in Scotland.

Final Bills are awaited on the approved Members’ Bill proposals for a Domestic Abuse (Prevention) (Scotland) Bill, which is expected to include a duty to educate, a Right to Food (Scotland) Bill and a Freedom of Information Reform (Scotland) Bill, which seeks to extend freedom of information rights to private and third sector bodies providing public services.  

In terms of Scottish Government Bills, there is the Education (Scotland) Bill and a Housing Scotland Bill and a Land Reform (Scotland) Bill, both of which are at Stage 1. With less than two years of the current Parliamentary session left to go, the Scottish Government will need to race against time to pass these laws before the next election.  

New government Bills

• The Terrorism (Protection of Premises) Bill
• The Crime and Policing Bill
• The Cyber Security and Data Resilience Bill
• The English Devolution Bill
• The Planning and Infrastructure Bill
• The Hillsborough Law

Click here to read more detail on our UK government’s legislative agenda page.

Case developments  

Vicarious liability for foster carers – Court of Appeal ruling

DJ v Barnsley Metropolitan Borough Council & SG (for and on behalf of the estate of AG) [23.07.24]

The Court of Appeal held that a local authority can be held vicariously liable for assaults by a foster carer who was also a relative of the claimant. 

Supreme Court provides clarity on diminution of value caused by Japanese Knotweed 

Davies v Bridgend County Borough Council [08.05.24]

The respondent alleged damage had been caused to his property by the encroachment of Japanese Knotweed from neighbouring land owned by Bridgend County Borough Council. The Supreme Court decided that the appellant council should not be ordered to compensate the respondent for the residual diminution in value (DMV) of his property as there was no causal link between the residual DMV claimed and the appellant’s breach of duty. 

We also discuss this case in the Professional liability section.