Negligence caselaw

Hi all,

I was just checking to see if there had been any more recent case law on the Department’s duty of care or taking an action for neligence since the old decision of Jones v Department of Employment? (Plus anyone know where I can find a copy of Jones v Department of Employment!). One of my colleagues in the office vaguely recalls there having been some more recent decisions which may have cast some doubt on the Jones decision, particularly in relation to actions for negligent advice.

We currently have one of those relatively common cases where an EEA national comes out of work and attempts to claim JSA but is advised to claim, in this case, Pension Credit. There’s a potential Elmi argument but we’re just looking to see what other options the person has.

Any help would be greatly appreciated as always!

Thanks

Lee

It might be seen as maladministration, have a look at this guidance;

https://www.gov.uk/government/publications/compensation-for-poor-service-a-guide-for-dwp-staff

I’m not sure whether Jones would assist.  That case concerned an adjudication officer’s disallowance of Unemployment Benefit.  The court of appeal said that “it is a general principle that if a government department or officer, charged with the making of decisions whether certain payments should be made, is subject to a statutory right of appeal against his decisions, he owes no duty of care in private law”.  I haven’t got a copy of the decision so I don’t know whether any obiter remarks were made concerning wrong advice from officials other than decision makers.

Tony

The case is cited in and directly quoted in Hepple, Howarth and Matthews “Tort Cases and Materials”, fifth edition, Butterworths 2000, p113.  However, it could have since been overtaken.

Thanks for the replies. It’s been ages since I read Jones and I haven’t been able to find a copy to refresh my memory!

I did find a very old rightsnet post where it’s mentioned in the context of taking a negligence claim (you’re on there Nevip so you’ve clearly been here a while, 2005 at least!)

http://www.rightsnet.org.uk/forum-archive/index3ed8.html

There’s mention of a case Haringey LBC v Cotter which I will try to find and have a read over but I get the impression it’s not that relevant.

And thanks Pete for the maladminstration guide, I’m very familiar with it! It’s just that the loss to this client goes beyond what they would usually consider in one of those payments. By claiming PC instead of JSA, he’s deemed to have lost his worker status. He claimed ESA about six months after the PC claim was originally made and is being paid that but only at the single person contribution-based rate whereas if he had claimed JSA and then needed to claim ESA he’d arguably have retained worker status throughout and would now be getting ESA at the couple rate for him and his wife.

There’s a number of issues and potential arguments in the case but I just wanted to check to see if anyone had tried suing them for negligence given that in this case we could establish with relative ease that he was mis-advised when he contacted them.

“C1225 Cotter: Haringey London Borough Council v Cotter (1997) 29 HLR
682 CA. Striking out a counterclaim for damages, the Housing Benefit
(General) Regulations 1987 were a self-contained code; there was no legislative
intention to confer a private law cause of action for breach of statutory duty”.

From:  http://www.judicialreviewhandbook.com/cases.pdf

See also Murdoch v DWP. However it’s important to distinguish between negligent decision making and negligent advice. As I understand it, the latter remains actionable.

I think the rationale is that in a case of negligence you have no remedy other than a private law claim for damages; in a case where a public body gets a decision wrong your remedy is to get the decision put right through the appeal mechanism.  Either way you end up with the same result - restitution of the proper position.

It’s not unlike the principle that the Ombudsman cannot investigate a complaint of maladministration where you have a right of appeal.  It may be that the lack of a private law remedy prevents a person from getting compensation for knock-on consequences beyond the immediate loss of benefit - eviction for example - but the Ombudsman will look at those issues once you have established your primary right to benefit through the appeal mechanism. If the case was handled badly, resulting in a delay in getting what you should have got in the first place, then you can be compensated for any further problems you suffered in the meantime.

I believe there is also the doctrine of “frolic”, which means that you might have a private law case against an individual official (not the department itself) who does something so outrageous off his/her own bat that it wouldn’t be right to view his/her actions as those of the department.  But I don’t think that would stretch to cover failure to recognise a possible Elmi right.  It’s a common enough mistake and should be remedied by way of an appeal.

Thanks for your responses guys.

HB Anorak, just to be clear it isn’t the failure to identify an Elmi right that would be the cause of any action for negligence. The arguable negligence came about from giving our clients the wrong advice about what benefit to claim; he went to the office to claim JSA and was told instead to claim PC. As the case law currently stands, by claiming PC rather than JSA he’s left the labour market and lost worker status. He was refused PC and by the time the decision was made and explained to him, six months had passed. He had had ongoing health problems and so went to claim ESA at this stage. Income related was refused (on right to reside grounds), so they’re getting by at the moment on the single person rate of ESA. Whereas if he claimed JSA initially, worker status would have been retained throughout.

There’s no guarantee that an appeal against the PC decision will restore them to the position they would have been in if the correct advice was given at the outset. Aside from Elmi, on the face of it they were not entitled to PC. And unfortunately an Elmi argument is going to be tough to run because while he attended at the office with a clearly stated intention to claim JSA, when he then made the claim to PC on their advice, he completed the HRT2 form stating that he was not currently looking for work! Again, this was on the basis that they had advised him that he didn’t need to look for work on a PC claim.

An alternative argument is that he has retained worker status since leaving work on the basis of being temporarily incapable. We have some medical evidence to show his health wasn’t great when he left work (and was one reason he was selected for redundancy). But the claim to JSA is inconsistent with a temporarily incapable argument so even that approach has it’s problems!

I’d much rather win an appeal in this case as it protects his worker status but failing that, it looks like a claim for negligent advice might be an option if he has no other remedies?

Then it’s likely that the remedy would be a claim for an ex gratia payment on grounds of statutory loss.

nevip - 02 October 2013 12:18 PM

Then it’s likely that the remedy would be a claim for an ex gratia payment on grounds of statutory loss.

I was thinking the same thing!