Judge slams council for failing in duty of candour to the court

High Court: No justification for failure

The High Court has slammed a London council for failing in its duty of candour and told lawyers that they have a responsibility to ensure that all those involved in local authorities are comply with their duty.

Hundreds of documents were not put before the court during the hearing due to failures at Brent council.

David Elvin QC, sitting as a deputy High Court judge, was ruling in a judicial review of the council’s refusal to recognise the claimant as a child in need requiring accommodation, and once he had reached 18 as a “former relevant child”.

He found for the claimant, but began the ruling by outlining his concerns that the council had not fully complied with its duty of candour.

“It was evident from the bundle that there were a large number of significant redactions in the documents and there were documents… which were missing.

The redactions were initially said to relate to another child, but the judge said he had since been given another explanation.

It then emerged that some 400 unredacted documents were provided to the claimant’s legal team during the course of the lunchtime adjournment of the one-day hearing.

Judge Elvin said the documents disclosed and the written submissions made following the hearing showed that “an accurate picture of the material facts was not provided by the council”.

He said: “This is not disputed by the council. The council explains in its written submissions that it did not have appropriate procedures in place to enable the lawyers to be sure that the duty had been complied with.”

There must also have been inadequate supervision of the drafting of a social worker’s statement to ensure it dealt with the material facts, the judge continued.

“Indeed, the statement I have been provided on disclosure says nothing about Ms Low’s access to, and account of, the documents or the checking of the statement of Ms Low by the legal team or what advice she was given about compliance with the duty of candour.

“If the legal team did not have access to all the documents until 30 April as I am told, then they cannot have properly supervised the drafting of the witness statement on 4 January.

“I am told that the council’s legal department does not have direct access to client records, that social services keep records in multiple files, and the legal department is dependent on the provision of the information through the data protection team.”

The documents were requested by the legal department on 18 January but a set of unredacted papers were not provided until the day before the hearing.

“In the time available, contrary to what I was told in court, [the in-house solicitor] had no time to go through them… before the hearing began.

“I am told that the non-disclosure in this case was not deliberate and that it ‘is of grave concern to the defendants who are anxious to ensure that the same thing does not happen in the future. It maybe that staff have been overly cautious during the redaction process. A full investigation will be undertaken by the various different departments to ascertain the cause of this failure’.”

But Judge Elvin said the difficulties encountered “cannot justify” the failure given that the council had four months between the making of the claim and the hearing.

“I do not consider that the council properly discharged its duty in this case and this is of particular concern given the nature of the claim and the vulnerable status of the claimant.

“I cannot emphasise strongly enough the importance of the duty of candour in the case of vulnerable children and young people and that the local authorities charged with these duties should have in place procedures to ensure that that they do not fall into similar errors such as those made by Brent council in this case…

“It is the responsibility of the lawyers involved in such cases to ensure that all those involved in the authority are aware of the duty of candour and comply with it.”

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