COVID-19 challenges
There is no doubt that the ways in which we are all reacting and adapting to the challenges of the COVID-19 pandemic will continue to shape our lives for the foreseeable future. The crisis has highlighted the essential nature of services provided by local authorities and the importance and value of their connections with their communities have been thrown into the spotlight. Despite the immense challenges that the next year is likely to bring, the public sector has already demonstrated resilience, flexibility and innovation in adapting to unforeseen consequences.
Public sector finances
The COVID-19 outbreak has caused significant financial strain on local authorities. Even before the pandemic, austerity and significant cuts to public sector budgets were having a major impact on the delivery of local authorities' statutory functions and there were many challenges for the public sector insurance market, not least continuing issues surrounding the implementation of Brexit. More local authorities are likely to come under immense financial pressure in 2021 and beyond. Local authorities will be having to focus on how they can deliver services within severe financial constraints while meeting increased demand.
Maintaining our highways
Despite the fall in traffic on the highways (and resultant motor claims) through long periods of lockdown, highway authorities continue to be under a statutory duty to maintain the condition of highways and must act reasonably to ensure they are not dangerous. Changes to usual inspection, maintenance and repair policies may have been necessary in certain areas due to restrictions and financial pressures caused by the pandemic and pothole claims are an increasing area of concern. The Well-Managed Highway Infrastructure Code of Practice will assist in allowing highway inspectors to assess each defect and use their discretion but local authorities will be looking to ensure that their decision-making processes are well documented.
Even before the pandemic, we had noticed a marked increase in claims by injured cyclists. Cycling has enjoyed a boom in popularity during the pandemic and we anticipate an appreciable spike in cycling (and e-scooter) claims against local authorities over the next 6-12 months Our recent defence in Nash v Hertfordshire County Council [2020] demonstrates that the courts are willing to take a forensic approach to all the components of a highways claim and that causation will be key - the question should always be asked, whether the condition of the carriageway was actually the cause of the accident.
Looking further into the future, local authorities will be exploring a longer-term approach to investment in effective road maintenance, to improve the condition of roads and help prevent potholes from forming in the first place. Consideration will likely be given to new ways of assessing the highways, using new technological developments and AI to greater effect.
Redress for victims of abuse
The Independent Inquiry into Child Sexual Abuse recently completed its final public hearing leading to 14 reports so far, with 53 recommendations to better protect children from sexual abuse. The continuing work of the Inquiry and the impact of redress schemes both south and north of the border, pave the way for increased claims and a change in the way in which claims will be dealt with. There is no doubt that the impact of substantial volumes of historic child abuse claims will continue to prove a significant challenge. Local authorities are adapting to this through engagement with the Inquiry and also with redress schemes to ameliorate the impact on the victims of pursuing such claims. There are five further reports due to be published this year and the evidence will inform recommendations in the Inquiry’s final report, due to be published in 2022.
In Scotland, the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021, which sets up a scheme to make redress payments to survivors of historical child abuse in care, became law in April 2021. Lady Smith, Chair of the Scottish Child Abuse Inquiry has also recently resumed the latest phase of hearings, examining the abuse of children in boarding schools.
Impact of climate change
2021 has already delivered significant challenges for local authorities on the flooding front, with Storm Christoph resulting in flood warnings and evacuations in large swathes of northern England and Wales. The impact of climate change, with such events increasing in frequency and severity, will be keenly felt by local authorities both in their capacity as part of the first response to these events and in their handling of claims. Local authorities will need to be alert to and adapt to flash floods and surface water issues. Sporadic and intense rainfall and storms that lead to surface water flooding are very difficult to predict but working together with insurers and the use of technology and AI to aid prediction, will assist both flood resistance, resilience and the claims process.
Tackling climate emergency and making a green recovery possible will necessitate local authorities making difficult decisions, communicating these effectively and encouraging changes in behaviour. Post COVID-19, it will be essential to find common ground and balance between objectives aimed at restarting the economy and actions protecting the environment.
Tree maintenance
Local authorities' inspection and maintenance of trees may have suffered from delay following periods of lockdown when non-essential works were postponed. This coupled with extended periods of dry weather in 2020, could see an increase in claims for subsidence and tree root damage. Allocation of resources in itself is unlikely to be a sufficient defence but will be considered alongside other issues, such as sickness absence and delay in supply of materials.
Housing disrepair
Claims for housing disrepair are likely to rise following delays in repairs during lockdown periods. Maintenance of proper documentation, particularly demonstrating the reasons for any delays to inspect or repair will be essential for local authorities in defending these claims. Courts will be trying to balance difficulties in carrying out repairs along with the health and safety of tenants, housing officers and tradespeople.
Increasing challenges for schools
As focus on children’s rights to education during periods of lockdown intensifies, are we going to see failure to educate claims under Protocol 1, Article 2 of the Human Rights Act 1998 or in negligence? Schools have gone to extraordinary lengths to provide the best education they can in the circumstances but the experience has been variable with those from poor and vulnerable backgrounds still struggling to access online provision. Courts will expect education providers to have taken reasonable steps to identify those needing assistance and steps to address that need.
New ways of working
Clearly a major challenge for local authorities as employers will be the dramatic shift in ways of working, such as the move to agile working along with greater awareness of the importance of mental health and overall well-being in the workplace, wherever that might be. Working from home presents new risks compared to office settings. Rather than any significant increase or decrease in the volume of employers' liability claims, there may now be more of a mix of type of claims. Lack of mobility, inadequate equipment provision for working at home, extended screen time, child care/schooling responsibilities and the blurring of the line between work and home could result in a shift towards more stress-related and work-related back/upper limb disorders. Local authorities will want to engage proactively with their employees to fully understand the nature of the challenge, protect employees' time away from work and provide the necessary tools for well-being. For essential workers still delivering services on the frontline, pre-COVID health and safety standards must continue, despite the extra pressure of service delivery in a global crisis.
Read our full report 'Looking Ahead in the Insurance Sector'.
