Agenda item

The Leader of the Council, Councillor Lib Peck, welcomed all those in attendance and explained the purpose of the meeting. On behalf of the Council she issued a full apology to all those who had been affected by abuse in Lambeth Children’s Homes between the 1930s and 1990s. Whilst nothing could be done to right the wrongs of the past, it was the Council’s responsibility to confront its history and accept liability for its failures and the harm caused. The proposed Redress Scheme (‘the Scheme’) would enable survivors to receive the financial redress to which they were entitled, without having to incur excessive legal costs or reliving their experiences through the Court system. Survivors had already waited too long to receive justice and there was no national redress scheme yet in place.

Councillor Peck noted the difficulties encountered during the development of the Scheme, which had taken longer than previously anticipated to reach this stage. The Scheme was the first of its kind in the England and had to be both legally sound and credible enough for the Government to permit the substantial borrowing, £100 million, required to finance it.  Multiple organisations and officers were thanked for their involvement and considerable work, including in particular the Shirley Oaks Survivors Association (SOSA) who were also thanked for their contribution.  However, it was regrettable that they had not endorsed the proposals, noting the contested issue of independence. However, Councillor Peck was confident that there were sufficient safeguards for survivors in the scheme, including independent legal representation paid for by the Council and an independent appeals panel to review any disputed claims. Too many survivors had waited far too long for any redress and this would start to be put right should Cabinet approve the Scheme.

The Strategic Director for Adults and Health, Helen Charlesworth-May, provided a summary of the report and explained the key aspects including the policy framework, financial implications and equalities issues. The Scheme had taken a long time to draft but could now begin to compensate for the historic failings of the past for which the Council had apologised. It was crucial to implement the Scheme with the utmost urgency and the aim was to start making payments by March 2018.

Helen Charlesworth-May explained that the Council had not conducted an investigation into the historic failings because one was due to be carried out by the Independent Inquiry into Child Sexual Abuse (IICSA) to which Lambeth had provided over 112,000 pages of documents. However, the IICSA investigation and hearings into Lambeth would not be heard before 2019/20 and therefore, so as to avoid further delay, the Council had chosen to press on and deliver the Scheme now.

A key element of the Scheme included the Harms Way Payment (HWP) which would provide compensation of up to £10,000 to former residents of the homes who were in fear of abuse through the Council’s institutional failures. Residents who suffered abuse could receive compensation of up to £125,000 in line with current law.  The estates of deceased former residents who were abused would also be entitled to individual redress payments Children who were moved from Lambeth homes directly to foster care and suffered abuse would be included in the Scheme.   It was emphasised that other children who were abused in foster care would be compensated through a mechanism outside of the Scheme.   A counselling service would be operated for the duration of the Scheme and individuals requiring more support would have their needs assessed when they submitted their application.  Three key elements which provided independent oversight: that each survivor would have access to independent legal representation funded by the Council; that any appeal would be heard by an independent panel comprised of multi-disciplinary experts; claimants could opt out of the Scheme and proceed through the Courts if they were not satisfied with the outcome of their appeal.  Whilst the Scheme funded legal fees for survivors the Council could not prevent solicitors from deducting fees from compensation although the Council would encourage lawyers not to do so. The Council had consulted a range of stakeholders, including the Association of Child Abuse Lawyers and SOSA. The estimated costs of the Scheme were outlined in the report and it was noted that a full Equalities Impact Assessment had been carried out. The Council’s Equalities Panel had concluded that the Scheme would benefit those with protected characteristics and the Council would monitor the implementation of the Scheme every six months.

The Director of Legal Services and Human Resources, Alison McKane, outlined the legal framework and key considerations as set out in the agenda pack. The Scheme was a culmination of many months of work and legal advice had been provided by a team of lawyers including solicitors with specialist experience in child abuse and two QCs specialising in public law and child abuse. The Council had also funded SOSA’s legal costs, and gratitude was expressed to SOSA’s legal representatives who had contributed significantly throughout the negotiations. These discussions had resulted in a number of changes to the Scheme, including foster care claims where children had been placed in foster care from Lambeth children’s homes, the multi-disciplinary independent appeal panel and a stepped HWP of up to £10,000 per claimant. Furthermore, the estates of deceased residents were eligible to apply for individual redress payments under the Scheme, which was unusual.  Officers were also grateful to Professor Maden who had confirmed the threshold for the HWP to be fair and appropriate.  The Tariffs in the Scheme are also in line with the common law

Unfortunately, despite the prolonged negotiations, it had not been possible to reach an agreement with SOSA on the final terms of the Scheme. The Scheme went beyond the Council’s common law liabilities, and whilst the Council had a general power of competence to set up a redress scheme, Lambeth had a duty to balance the expectations of the survivors against its fiduciary duties to residents and local council tax payers. The general power of competence was not an unlimited power and in determining final terms, a balance needed to be struck between contributors and those who received payments. The legal advice is that the Scheme struck the right balance. The Scheme was a swift compassionate and non-adversarial alternative to litigation with independent legal representation for survivors paid for by the Council.

The Director of Finance and Property, Christina Thompson, then spoke about the Council’s financial framework and approach. It was estimated that there could be 3,000 possible claims at a potential cost of £100m, with an additional level of complex claims (comprising 5-10% of all claims) which would be dealt with outside the Scheme and could cost an additional £40m. Independent actuarial advice had indicated that the Scheme offered better value to both the survivors and the Council than the litigation alternative.

The Council is unable to fund the Scheme from revenue and had applied to the Department for Communities and Local Government (DCLG) to make a capitalisation direction in order to use capital as revenue. This had been approved on 30 November 2017, for not more than £100m. The DCLG understood that the council could not be certain of the full costs of the scheme at this stage. Regular monitoring would take place and any requirement to increase the borrowing would be sought through approval from the Secretary of State. There would also need to be a capital requirement of £10min the current financial year in order to begin paying out by the end of March 2018. The expenditure would be through borrowing of £100m from the Public Works Loan Board (PWLB) over 50 years and the Council would repay at a cost of up to £4.7m-6.5m a year, depending on final amounts. A £2m growth budget was included in the 2017/18 budget and a further £3.5m had been included in the Medium Term Financial Strategy recently approved by Cabinet.

Following the presentations from officers, members of the Committee were invited to comment or ask questions of clarification.

The Cabinet Member for Planning, Regeneration and Jobs, Councillor Matthew Bennett, noted that the Council had lobbied government to produce a national redress scheme and asked if the IICSA had addressed this matter or submitted any representations in relation to the Lambeth Redress Scheme. The Strategic Director for Adults and Health said the Scheme had been shared with IICSA but that no feedback had been received. IICSA were running a work-strand around Redress and the Council had contributed to one of their seminars, but no national redress scheme had yet been forthcoming.

The Cabinet Member for Healthier and Stronger Communities (job-share), Councillor Mohammed Seedat, asked for further information about the independence of the panel members, as well as their training and support arrangements. The Director of Legal Services and Human Resources noted the distrust in the Council and provided assurances that sufficient provisions were in place to safeguard the independence of the panel. The Claims team had not been employed during the historic events, they had been DBS-checked and had all received training from the National Association for People Abused in Childhood (NAPAC).   The Scheme was being offered as an alternative to litigation.  The Council would ensure that all members of the independent appeal panel were appropriately trained and that they were specialists in their respective fields.

The Cabinet Member for Adult Social Care, Councillor Jackie Meldrum, enquired about the independent counselling support service available to survivors of abuse. In response, the Strategic Director for Adults and Health explained that the Oxleas NHS Trust would continue to provide support for survivors and their families as the Scheme progressed. The Trust was based outside the borough, in Greenwich, which had been deliberately chosen following consultation with survivors. It offered counselling services both face-to-face and over the telephone. The latter was preferred by a large amount of current users who no longer lived in Lambeth or had moved abroad. Any former residents of Lambeth Children’s homes, along with their families, would be entitled to counselling and the service could be redesigned to best suit the needs of survivors, with their input, once the Scheme was up and running.

The Lead Member for Community Relations and Chair of the Equalities Impact Assessment Panel (EIAP), Councillor Donatus Anyanwu, said the EIAP would review the implementation of the Scheme every six months and asked for further detail about monitoring; seeking assurances that people with protected characteristics would be supported throughout the process. The Strategic Director for Adults and Health stated that the application form allowed people to provide details across protected characteristics and would allow the Council to monitor if any groups were being excluded.  In response to comment from SOSA, she confirmed it would not require details of any previous convictions of applicants.  Anybody with a disability would be entitled to apply for the £10,000 HWP, recognising it would be difficult for them to make a claim. Officers would also work with community groups to ensure people were encouraged to apply.  Furthermore, an update report would be fed back to Cabinet every six months to monitor financial matters and who was accessing the service.

The Chair noted to those in attendance that it was important that Cabinet understood the legality and finances around the Scheme, and that further questions or issues around specialised counselling from attendees could be raised outside the meeting.

The Chair next invited the registered speakers to make their representations. The Chief Whip of the Lambeth Conservative Party, Councillor Bernard Gentry, made the following points:

• The Conservative Group apologised on its and the Council’s behalf for how people suffered, adding that there was nothing that could be said in redemption.
• The concerns raised July 2017 had been largely addressed and though the scheme was not perfect, it had Conservative support.
• This was not a political issue, but was about bringing closure to those who had suffered.
• The independence of the appeals panel would safeguard interests. The Council had a legal responsibility and duty to run the Scheme.
• The Scheme had been referred to the DCLG and Her Majesty’s Treasury (HMT) and therefore had accountability and propriety from Government.
• It was important that the Scheme started next year to bring closure to survivors, who could leave the Scheme and go through the Courts if desired.
• The Scheme included a loan and not Government money, but Lambeth had to pay for what was done in its name.
• There could be further issues from the 1990s that had still not been addressed.
• It was requested whether Members could receive an interim report and reassurance of monitoring before the May 2018 election period, to which the Cabinet gave assent.

The Chair briefly halted proceeding following a disturbance from the public gallery.

The Green Party councillor for St Leonards ward, Councillor Scott Ainslie, then noted:

• People did not want more apologies, but to be heard and have their recommendations acted upon.
• There were historic failings, but survivors were being denied full disclosure of evidence.
• There needed to be a fully independent panel to administer the Scheme from the outset, for open and fair redress, and to start making amends for failures and show that cover ups were in the past.
• The Leader of the Council continued to offer false assurances.
• The Scheme disregarded human rights principles and alienated survivors.
• An in-house team would never earn confidence and trust was essential to this process.
• It had already been five months since the July meeting, but the Council was now claiming independent oversight would take too long to implement. 

The Leader of the Council, Councillor Lib Peck, summarised that Cabinet had heard about the Scheme’s independence and how it would be administered, noting that it was the first of its kind and needed to pass strict legal tests.  The Cabinet appreciated the poor confidence in the Council, but she hoped that those who had already expressed interest in the Scheme would find it beneficial and that more would come forward.

The following representations were received by the Shirley Oaks Survivor Association (SOSA): Raymond Stevenson, Lynton Orrett and Michael Mansfield QC.

• It appeared from the Cabinet’s discussions that a decision had already been made.
• This was a significant moment as Cabinet were acting as public custodians of the truth.
• It was queried why questions or input from SOSA’s submissions were not answered or used.
• It was asked why the Scheme was not fully independent, unless the Council was continuing to protect paedophiles within its workforce.  It appeared the Council did not want a third party looking through its records and that it knew more than it was letting on and it was trying to cover up what the Council did in the past.
• The Council had not been open and honest and it was asked what further details were yet to emerge. 
• The case of James McCourt was raised, and SOSA asked if the Council was lying due to implications of further abuse, noting that his abuser was a foster carer who the Council said was not employed by them. It was further asked whether James McCourt’s mother would be able to receive compensation and why the Scheme only applied if children in care were sent directly to foster homes from a Lambeth children’s home.
• SOSA was told that they could only legally receive £1,000, but this had now increased to £10,000 in stepped increments.
• The Leader of the Council had misinformed Mr Stevenson that the Strategic Director for Adults and Health, Helen Charlesworth-May, was an independent person.
• The Cabinet was being asked to cover up the past and stop a third party looking at what happened.
• The same officers had persuaded the Leader of the Council to ignore further incidents in 1998-2003, and the same insurers had advised that the Council would be exposed.
• A three-year investigation had found that the Council had a paedophile ring at every level of management, representing absolute corruption.  Those who knew turned a blind eye as the Council continued to abuse children and this Scheme helped the Council cover its actions and protect people, of which the details, implicating senior officers, would soon come out.
• The 1998 Operation Trawler led by Inspector Clive Driscoll, investigated abuse at Shirley Oaks run by John Carroll, and had raised the seriousness of incidents, but this information had only now been disclosed by SOSA, with the Leader of the Council previously saying that it was a ‘healthcare issue’.
• Nigel Goldie, former Lambeth officer in social services, had expressed concerns over appointing a non-independent panel and questioned officers’ reasons for this.
• The 1998-2003 Operation Middleton had expressed significant concern over Lambeth’s leadership.
• 40 MPs had written in support of the Scheme being fully independent.
• The Council said it had written to the Association of Child Abuse Lawyers, but had not and SOSA had to instead.  These lawyers had then requested an independent panel.
• People had died from the result of the Council actions, noting the case of James McCourt who had committed suicide following his rejection from the investigation.
• The Council had failed to recognise that this was not about money and had acted shamefully.
• The Council had asked SOSA 11 months ago to draft a scheme, but they were not aware if councillors had reviewed this submission. This scheme met international standards of natural justice and due process, with impartiality and independence at its core. 
• The Scheme could not be safeguarded in the way Lambeth had approached it, some of the features went some way but as the decision-makers were not fully independent, whilst administration by decision-makers was wrong and was not what SOSA had requested, noting that the redress team were not there to make decisions, but to compile evidence.
• SOSA’s Scheme was not properly summarised in the agenda pack.
• There appeared to be confusion about what SOSA meant; the decision maker did not mean you were administering the Scheme.  There could be a team to receive applications and put files together but not to make the decision. 
• SOSA’s solicitors had sent a letter to the Council dated 06.12.17 noting that the fulcrum of the process was fully independent decision-makers and advisors. The letter included 10 main points which were not in the Scheme which were vital to natural justice, three of which were highlighted:
  • there was no provision for disclosure and survivors would want to know what files were held or what information was available, since Lambeth had been complicit in abuse and a cover up.
  • there was no provision for decision-makers to give reasons for their decisions which was fundamental; and,
  • appeals had to be provided in writing, but the opportunity to give direct oral representation was needed since some matters could not be phrased properly in document format.
• The Scheme did not satisfy the basic tenets of human rights law.
• Kennedy’s had been previously been involved in legal cases regarding child abuse and officers were misleading councillors.

The Head of Legal Services and HR, Alison McKane, responded to points raised as below:

• The Scheme put forward by SOSA’s lawyers in March 2017 did not provide for independent administration.
• SOSA’s lawyers acknowledged in June 2017 that an opportunity for the parties to reach an agreement was reasonable to have in the Scheme.
• Kennedys were not previously involved in dealing with claims until the decision to develop a redress scheme was taken, and also they were not decision-makers but advisors in the Scheme. 
• If the Council could not agree payments there was still recourse to the Court process.
• The appeals panel was independent and the Council had privately consulted an ACAL lawyer to provide detailed comments on the Scheme. No issues regarding independent administration had been raised.
• The Council had been clear which foster care claims would be eligible under the Scheme.  This does not mean people would not get compensation if they were not eligible under the Scheme.  The family of James McCourt would be entitled to apply for compensation even if they were not eligible under the Scheme.
• The Council had responded to the letter dated 6 December regarding the points raised about disclosure, reasons for decisions being provided, and appealing in writing. The letter could be circulated to Cabinet.

RESOLVED:

1. Cabinet to approve and implement the Lambeth Children’s Homes Redress Scheme as set out in Appendix A.
2. Cabinet to refer the increased budget requirement to Full Council for approval.
3. To note the grant payments made to Shirley Oaks Survivors Association (SOSA) via Urban Concepts Ltd to a value of £423,060.
4. To approve additional payments to cover their reasonable legal costs and work undertaken by SOSA up to the value of £420,000.