1. Introduction

Staff must only prepare witness statements for court on behalf of the local authority by whom they are employed (except in certain circumstances) and only when requested to do so by the legal services department, who acts on behalf of the local authority.

A solicitor from the legal services department accepts instructions from the social worker as their client. A barrister from a set of barristers’ chambers may need to be briefed by the instructing solicitor when a complex matter is before the court or where a hearing may take several days.

The circumstances when a member of staff may be asked to provide a witness statement on behalf of the local authority will usually be made in relation to adults who lack mental capacity. These may include but are not limited to:

  • section 16 welfare applications brought by the local authority in the Court of Protection;
  • appeals issued against a DoLs under s21A of the Mental Capacity Act 2005;
  • third party or private applications. There may also be other situations when staff may be asked by a third party (either by an individual or a partner agency) to provide a report or a witness statement. Any such documentation could result in the worker being asked to attend court. In such circumstances, they should inform their team manager, who should then seek advice from the legal services department.

Staff should remember that the local authority is a statutory body and its constitution sets out who is authorised to act in performing its functions and how staff must conduct themselves as local authority employees (Code of Conduct for Employees). Whilst this applies whenever employees are acting on behalf of or representing the local authority, it should be particularly remembered in matters relating to the court. Failure to comply with court directions in the Court of Protection can lead to cost orders being made against the local authority.

Please note: If a direct request for court documentation, especially by way of a direction in a court order, is received from any person other than a solicitor in the legal services department, you should inform your team manager, who should immediately contact legal services for advice.

2. Examples of Requests Within or External to the Local Authority

Some of the circumstances when a statement may be requested by another service within the local authority, another statutory agency or a third party are outlined below. Please note this list is not exhaustive.

2.1 Office of the Public Guardian

In cases of financial abuse, where the local authority may have completed a section 42 safeguarding investigation, the Office of the Public Guardian (OPG) can bring proceedings in the Court of Protection to remove an attorney. It may request that the local authority files a witness statement to support the application. Advice should be provided on the formatting and contents of any such statement. The local authority may assist with the application, but legal advice should be sought before responding to any requests from the OPG.

2.2 Coroner

When a coroner is involved in the case of a deceased person, they may approach adult social care for information.

The coroner’s office can informally request information about the involvement of adult social care in relation to a deceased person, such as safeguarding reports or a chronology of the local authority’s involvement with the deceased person. A coroner may request the worker to attend any coroner’s hearing when the cause of death needs to be ascertained and there are public liability issues for the public bodies to address to family members, connected persons and others.

The coroner can also formally request that a witness statement is provided by a member of staff who was involved with the provision of services or support to the deceased person. The member of staff may be required to attend the Inquest to give evidence in person. In complex and protracted coronial matters, it is advisable for legal services to assist with witness preparation.

2.3 Children’s social care

Children’s services can ask a member of adult social care staff who are working with a parent to provide a report in relation to safeguarding or child protection proceedings in accordance with the statutory guidance Working Together to Safeguard Children; also under Practice Direction 12A, the Public Law Outline (PLO) and the Children Act 1989. The local authority is required to prepare or obtain all its multi-agency partner assessments and reports on the family prior to the issue of any court proceedings.

The report must be signed and dated and bear a ‘Statement of Truth’ at the end of the report which should confirm that the matters contained within the report are true to the best of the member of staff’s knowledge and belief.

If care proceedings are issued and the local authority has filed a copy of the member of staff’s report as part of its evidence, they may be called to give evidence in relation to that report. Children services are often involved when the adult has been a looked after child who moves on to an adults and young person’s team for example. Ordinary residence often becomes a difficult issue when the adult moves from one local authority to another (see Liverpool City Region: Ordinary Residence Practice Guidance chapter). Ordinary residence matters are not normally determined by a court but by the Secretary of State.

Please note: staff should not provide a witness statement on behalf of a parent or have any contact with the solicitor representing the parent to avoid any accusation of bias or conflict of interest. All communication with the parents’ solicitors should be done through or in the presence of the local authority solicitor.

2.4 Housing

Proceedings to repossess property or end a tenancy are civil proceedings brought in the County Court by a landlord and are determined under housing legislation. Staff may be asked by the defendant or by the social housing landlord to submit a witness statement. Advice from legal services should always be sought first.

2.5 Social Work England investigations

If Social Work England (SWE) contact staff for a witness statement in relation to investigations about an individual on the SWE register, the member of staff should first speak to their team or service manager and the principal social worker.

2.6 Criminal proceedings

The police may want to interview staff if they are a witness to a crime concerning an adult who receives care and support services or if they have knowledge about a crime based on their involvement with them. The member of staff may be required to provide a witness statement and to attend to give evidence in person if the matter proceeds to court. If a request is made by the police for case records relating to an adult who uses services, this should be referred to the legal services department.

2.7 Forced marriage protection order applications

The police may request a witness statement from a member of staff working with a person who has, or is at risk of, a forced marriage to support an application for a forced marriage protection order. Many such applications are urgent, as  immediate action is required to prevent the person at risk of being removed from the UK jurisdiction. It is advisable to seek assistance from the local police Public Protection Unit or the Foreign and Commonwealth Office.

2.8 Education, Health and Care Plan Tribunal hearings

In such instances, staff should speak to their team or service manager and ask for the name of the Education Officer who is responsible for the matter. These officers prepare Education, Health and Care Plan (EHCP) for the Special Educational Needs and Disability Tribunal (SENDIST) hearings. There is often a social care part in the EHCP that may require the worker to complete Sections B and F of the ECHP, so the tribunal can decide on placement.

3. Instructing Legal Services

3.1 Legislation

Decisions that need to be taken could be under the following legislation:

Most often they relate to:

3.2 Requesting legal services

A request for legal services support should always be made when:

  • an application is going to be made to the High Court, for example inherent jurisdiction applications;
  • a health and welfare application is going to be made to the Court of Protection. A checklist of documents should be made so the witness statement when presented to the court will have appropriate exhibits for judicial consideration so a gateway order can be issued;
  • s21A witness statement in response to a deprivation of liberty safeguard challenge. The local authority should disclose standard authorisations under the gateway order and witness statement should be filed after first hearing. Staff should follow bullet points in directions order to complete the witness statement;
  • another person or organisation has made an application to court or a letter has been received saying another person is going to make an application to court. The court will decide whether local authority should be made a party in any proceeding;
  • a report or paper is being prepared that requires legal comments.

A request should also be made for property and financial affairs applications to the Court of Protection when this application is not to be managed by a dedicated deputyship service within the local authority. A family member will often privately instruct a firm of local solicitors to make the same application.

3.3 Supported decision making

In such cases as listed above, advice from legal services is useful to support decision making including in the following situations:

  • where the decision will likely have a significant impact on the person receiving services or their carer;
  • when the legislation, codes of practice or other available guidance is unclear on what decision should be made in a particular set of circumstances;
  • where the risk of complaint or legal challenge is significant;
  • when the decision that needs to be made is complex;
  • when there are a number of options available should be thoroughly explored and investigated.

3.4 Complaints and investigations

Whilst legal advice should not be routinely requested in complaints and other investigations, advice from legal services can be particularly useful in complex complaints or investigations when:

  • statutory processes and duties are being challenged; and
  • there are legal implications for the outcome of the complaint or investigation. Please note a complaint should not be decided when the same subject is part of legal proceeding, until the court hearing is concluded.

4. The Role of Legal Services in Court Hearings

It is the role of legal services to co-ordinate and manage the following:

  • the application process;
  • response to a s21A challenge or any application when the local authority has party status;
  • any correspondence sent to or received from the court;
  • how and when evidence is provided, including how it is organised and submitted;
  • how other staff and agencies are involved in the process.

Legal services should also:

  • help develop adult social work staff understanding of court processes;
  • support staff to assess the quality of the evidence they provide, which may include amending the social worker’s witness statement for court purposes;
  • advise about completing the required forms correctly; and
  • supporting staff giving evidence in person and prepare them for cross-examination.

 5. Practice Guidance

5.1 How staff can support legal services

Staff should always:

  • inform legal services of any changes in a case where they are already involved and provide the solicitor with regular and updated instructions;
  • complete witness statements and submit evidence before the specified deadline;
  • provide up to date information when asked;
  • review statements and sign and date them when requested, as otherwise they cannot be submitted to the court;
  • attend court hearings in good time before the commencement of the hearing unless advised otherwise.

5.2 Writing a good report

Tips include:

  • plan – consider using bullet points or headings;
  • write first draft – it should not just be a summary of facts but include analysis;
  • write a summary – this may include a recommendation to the court;
  • edit – eliminating repetition and irrelevant information;
  • check – ask a manager or a colleague to check the accuracy of the report.

Avoid:

  • irrelevant, inappropriate information;
  • meaningless phrases;
  • illogical conclusions.

See How to write a good report (Community Care)

5.2.1 Court reports: three key tips for writing clearly

  • say what you mean clearly and concisely;
  • use a strong active voice and avoid the passive (for example, ‘the support worker shared concerns about visitors to the house’);
  • put the action in the verb – to do this you need to make the action clear (that can be either something you say has happened or something you think needs to happen).

See Court reports: three key tips for writing clearly (Community Care)

5.3 Top tips for giving evidence in court

  • communicate effectively and clearly, in a strong tone of voice;
  • direct your answers to the decision maker;
  • seek assistance of the decision maker;
  • assume nothing, be very thorough and ensure you are familiar with the contents of your own statement and the exhibits;
  • be ready for cross-examination techniques – your answer should not go outside the scope of the question put to you;
  • do not go outside the facts or your area of expertise;
  • take your time to answer the questions. Do not be afraid to seek clarification from the questioner about what you are being asked to comment on.

See Top tips for giving evidence in court (Community Care)

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