Council successfully recovers a contribution from foster parents in failure to remove claim
SS v Essex County Council and Ors [28.02.23]
This article was co-authored by Willow Arme, Solicitor Apprentice, Sheffield.
A local authority, Essex County Council (ECC), has successfully secured a contribution from foster carers in relation to the neglect and malnutrition that the claimant, SS, suffered whilst in their care.
The principal claim proceeded on the basis that SS was subjected to neglect, physical and sexual abuse and was falsely imprisoned at the hands of her foster carers whilst under the care of ECC between 1981 and 2009. SS sought to recover damages from ECC in the sum of £7 million.
ECC admitted both negligence and vicarious liability in the principal claim and on 18 October 2022 the court approved a settlement in favour of SS in the sum of £325,000. ECC also made a £200,000 interim payment towards costs.
Subsequently, ECC pursued a Part 20 claim under the Civil Liability (Contribution) Act 1978 to recover its outlay from the foster carers. This was on the basis that they were responsible for “the same damage” for which ECC had admitted liability. It is important to note that the foster carers represented themselves in these proceedings.
ECC asked the judge to find that SS was deprived of adequate or reasonably nutritious food for up to three years prior to her removal by the police in 2009 (though food deprivation probably began earlier) and that she suffered significant emotional abuse and neglect.
The foster carers denied abuse or neglect of SS and maintained that this was "a good placement".
Deputy Judge Butt held that there was insufficient evidence to prove that SS was physically or sexually assaulted whilst in foster care. The Judge was also unable to conclude on the balance of probabilities that SS was emotionally abused by the foster carers.
However, the Judge was satisfied that SS was severely malnourished when the police attended in May 2009 and that the period of malnutrition lasted for at least 18 months. The Judge also found that the foster carers were negligent in that they failed to provide SS with an acceptable living environment and ensure that her personal hygiene needs were met, again for at least 18 months.
The Judge therefore held that the foster carers were responsible for the neglect and malnutrition to SS and it followed that they were liable to ECC for this damage.
The High Court valued damages for pain and suffering caused in respect of malnutrition and neglect at £14,000. The Judge agreed with ECC that a contribution should also be made towards the costs paid to SS, this was assessed at £10,000. He therefore concluded that the foster carers were liable for a contribution in the sum of £24,000.
As for payment of ECC’s costs, the Judge highlighted that the local authority had not won on many of the important issues in the claim. ECC were awarded 33% of its costs which were to be assessed.
This is an important decision for local authorities and a good reminder that consideration should be given to pursuing a recovery and/or contribution from negligent foster carers. However, there are a number of points to reflect on in terms of the impact of admitting liability, the importance of gathering evidence and procedural aspects of dealing with contribution claims.
It is noteworthy that the level of contribution that was awarded was significantly lower than the sums paid by ECC to SS (less than 5%). This reflects the fact that the Judge could only make a finding that the period of malnutrition and neglect lasted for at least 18 months on the evidence available.
There is often a misconception when pursuing contribution claims that the party seeking the contribution need only prove that the settlement was genuine. The Judge in this case disagreed; it was not enough that ECC was vicariously liable for the foster carers actions. ECC had to prove the foster carers liability for the same damage. This was difficult as the trial bundle was never agreed, expert evidence was incomplete and witnesses/experts were not called to give oral evidence.
With regards to the costs that were awarded, i.e. 33%, this demonstrates that it does not automatically follow that costs will be recoverable in full; the court has wide discretion and there is scope for the court to modify the usual order as to costs to reflect whether a party has been wholly successful on certain issues.
Also worthy of mention is the recoverability of the contribution. The foster carers were in their 70s at the date of trial and the actual recovery of the sums awarded remains to be seen.
We would encourage consideration of pursuing a contribution at an early stage of a claim so that it can be taken into account when determining liability, progressing the main action and gathering evidence.