Delegation of authority

Report: 15
Date: 2 April 2009
By: Director of Legal Services on behalf of the Commissioner

Summary

This report is intended to set out all relevant and significant matters based on which members of the MPA are requested to delegate limited authority, in respect of ex gratia payments for property damage claims.

A. Recommendation

That

1. Members delegate authority to the Director of Legal Services (DLS) and his nominated officers to make ex gratia payments in respect of claims for loss or damage to property only, where there is no legal liability; and
2. delegate financial authority up to a value of £5000 for ex gratia payments in accordance with the scheme set out in Appendix 1.

B. Supporting information

1. DLS receive a high number of claims, on a daily basis, seeking compensation for damage to property caused by police officers acting in the execution of their duty. The annual number of such claims for 2008 was circa 1,869 per year. The authority delegated to the Commissioner, and exercised on his behalf by DLS, is to settle claims (within financial limits) where there is a legal liability to pay compensation. Examples are where officers mistakenly execute a search warrant at the wrong address, and cause damage when forcing an entry, or where officers omit to obtain a search warrant in circumstances where one is required.

2. The majority of requests are rejected however upon the grounds that the action by the police was lawful, conducted in accordance with a search warrant or other lawful authority and using only such force as was necessary. The Commissioner has no delegated authority to make ex gratia payments in such cases.

3. In some cases, although there is no legal obligation to make a payment, there are strong arguments based on fairness, good public administration, maintenance of public confidence and presentationally why it might be in the best interests of the MPS that some reimbursement is agreed. Examples of cases where ex gratia payments may be considered include:

1. To elderly or vulnerable claimants where police had forced entry under Section 17 PACE to protect life & limb. An ex-gratia payment would be considered, for repair costs only, where:
   • The claimant either has no insurance or their insurers are refusing to cover them because the damage is outside the scope of their policy.
   • Police were the first emergency service on the scene. Where police had been called out by, for example, the London Ambulance Service (LAS), the claimant would be advised to re-direct the claim to the LAS.
   • Police had not been called out by another body that could reasonably meet the claim (e.g. a local authority).
2. To innocent members of the public whose property had been damaged during a struggle where police were seeking to make an arrest. This would cover items such as damage to a wall or vehicle where it was not readily apparent whether police were negligent or not. It would not cover incidents where the subject of an arrest was fleeing police and for example damaged a wall when seeking to climb it. Payment would be restricted to repair costs only and would not cover any related expenses (e.g. vehicle hire, out of pocket expenses etc).
3. Forced entry claims where a genuinely innocent person’s property, who had no connection with the incident, had been damaged by police. This would cover the comparatively rare incident where a claimant was fleeing police and sought refuge in a property where they had no connection. Again any compensation payment would be restricted to the damage repairs only.
4. Property commandeered by police to deal with an incident where damage was necessarily caused (e.g. forcing open a door), where the property owner is a totally innocent party (e.g. to deal with a siege incident).
5. Damage to property belonging to a vulnerable victim, in the course of forensic investigation, e.g. application of dyes
6. It is anticipated that the number of cases to which the proposed new policy would apply is estimated at 30 per annum.

4. Each case would be assessed on its own merits in accordance with a scheme (see Appendix 1).

5. It is right to point out that it is not proposed to pay compensation from such a scheme for all persons whose property is damaged by police action. Examples where compensation would not be paid are where a door is necessarily forced to gain entry to effect a lawful search, and drugs or stolen property is found, or where no such property is found but the search is considered justified. Whilst there may justification for paying compensation in the latter situation, the cost of so doing would be substantial.

C. Legal implications

1. In cases where police officers have acted properly and lawfully, in the execution of their duty, and the Metropolitan Police Service accepts no liability for their actions, there is no legal obligation to compensate any person suffering loss.

2. If however a decision is made to make an ex gratia payment, a disclaimer and discharge will need to be signed by the Claimant prior to payment being made. The disclaimer will state that the MPS is willing to make some reimbursement without any acceptance of liability and will clearly state that there was no failure or negligence on behalf of the MPS or its officers.

3. The signing of the discharge would mean the Claimant would have no further grounds to seek compensation.

D. Environmental implications

There are no environmental implications arising directly from this proposal therefore no decision with environmental implications is sought.

E. Race and equality impact

Payments of ex gratia compensation will be decided according to publicly available criteria, so that fairness of the application of the policy is transparent. There may be positive community impact flowing from an ability speedily to resolve some claims following police action.

F. Financial implications

1. It is considered that the proposal would be of minimal cost or in some cases may be cost-neutral as the MPS would be avoiding the costs of defending the case in court. This would be monitored in the first year. Experience suggests that the average claim is likely to be around £500 which applied to the estimated 30 claims leads to a total gross cost of £15,000 against which there may be savings to offset.

2. It is proposed that authority in respect of ex gratia payments up to a value of £5000 be delegated to the Director of Legal Services and his nominated officers.

3. Any consideration for authority to make ex gratia payments in excess of this amount would be forwarded to the MPA in the usual manner.

4. Controls would be in place to monitor use of the authority and levels of payments made. All requests for payment would be supported by an appropriate audit trail and counter-signed by a senior member of staff. The proposed levels of delegation are:

5. The DLS will provide an annual report to the Authority on the use of this delegation.

G. Background papers

None

H. Contact details

Report author: Edward Solomons, Director of Legal Services and Franca Oliffe, Assistant Director (Management & Support), MPS.

For information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

Appendix 1

Scheme for ex gratia payments in respect of property damage claims

1. The Commissioner will consider claims for compensation for damage caused by officers and staff under his control and direction in limited circumstances where he is under no legal liability to do so.

2. Claimants are required to submit claims in writing to the Directorate of Legal Services (“DLS”), supported by such documentary evidence (e.g. receipts for repairs) as DLS may require. The claim should normally be received promptly after the loss arising, although the Commissioner may accept late claims if good reason for the delay is shown.

3. The maximum sum that may be claimed under this scheme is £5,000. Any request for greater compensation must be submitted through DLS to the Metropolitan Police Authority for individual consideration.

4. Ex gratia payments will be considered if:

1. In the opinion of the Commissioner, the claimant and his or her family is entirely innocent of involvement in any criminal act or other wrongdoing that gave rise to the police action;
2. The cost of repairing any damage or rectifying other loss is not covered by any insurance;
3. No other person or body should be held responsible for the loss, e.g. call out of MPS to support London Ambulance Service or a local authority;
4. The damage or loss was caused by police, and not by the actions of another e.g. a criminal being pursued by police;
5. The claimant is an individual (and not a company or other commercial organisation);
6. The claimant is willing to sign a disclaimer and discharge form in terms acceptable to the Commissioner.

5. Compensation will not be payable under this scheme where police necessarily cause damage in executing a lawful search, in the absence of special circumstances e.g. search warrant properly obtained but informant submitted information maliciously; special vulnerability of claimant.

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