From humbling the health secretary to high-profile inquests, Lewisham Council’s legal chief has centre stage in the London borough’s life.
‘The poor relation of private practice.’ That is how certain members of the profession were wont to dismiss working as a lawyer for a local authority. But had they spent an hour with the London Borough of Lewisham’s head of legal Kath Nicholson, they would have been rapidly disabused of any such notion.
Nicholson’s current and past caseload includes the unexplained deaths of 13 teenagers, a landmark discrimination claim brought by a man suffering from schizophrenia, a successful challenge to the health secretary’s proposal to cut services at the local hospital and an attempt to reverse changes to the way that English GCSEs are marked.
All of that is on top of her day-to-day responsibilities as the leader of a team of 27 fee-earners dealing with child protection, governance, employment, property, litigation and all the other issues that a large inner-city local authority generates. She also found time to co-author a book, A Guide to the Local Government Act 1999, with Trowers & Hamlin partner Helen Randall.
‘As lawyers, we all have to be the goalkeeper who can also take penalties,’ Nicholson tells the Gazette. ‘We have to be proactive while getting the balance right – because nobody wants an overly conservative lawyer. The big difference is that as local authority lawyers, we are working with politicians and so have to be politically astute, too. My job is to help them do what they want to do. In more than 30 years [in local government], I’ve only said “You can’t do that” once or twice.’
Nicholson began working at Lewisham in 1980, becoming head of legal in 1997. The attraction was, and remains, she says, the sector’s combination of ‘intellectual rigour’, variety of work and the opportunity to make a difference to people’s lives. ‘Where else can you work on education, child protection, property, litigation and crisis management, while simultaneously advising councillors on constitutional matters?’ she asks.
It sounds the perfect job, but is there not a downside – such as the swingeing budget cuts imposed on Lewisham and all other councils? She says that in the last year, her department has had to lose three solicitors from a headcount of 30 fee-earners and is expected to cut a further 40% over the next four years.
‘I have been asked to show what it would mean to legal services provision if we cut so deep,’ she says. ‘It would be very expensive if we put work out to external law firms, but already we are struggling to meet demand.’
The pressure is certainly intense. The department has 103 live child protection cases being handled by just eight solicitors. ‘An individual solicitor can safely handle between 10 and 12 cases, except my staff are doing adult protection work too,’ says Nicholson. ‘Cases can be hugely complicated, particularly where there are six or seven children in the family.’
The problem is not confined to child protection, Nicholson adds. Lewisham’s education team is now down to one solicitor, yet more than 90 schools need legal advice on how to become academies. The employment team, moreover, comprises just two solicitors to handle the affairs of thousands of staff. Employment claims commonly arise from the downsizing policies of the council and have included a Transfer of Undertakings (Protection of Employment) case that went as far as the Court of Justice of the European Union in Luxembourg and this country’s Supreme Court.
On the property side, primary schools need to expand rapidly to meet the demand for more places, while the property team has a number of large-scale retail and housing developments on its books, as well as various planning and environmental challenges. There is a housing crisis, with the recession stalling new-build social housing projects, with the result that waiting lists are growing longer. The housing team also has the implications of the government’s new right-to-buy scheme to take into account.
However, there is some light at the end of the tunnel. A 16-year-old paralegal apprentice, who is ‘as bright as a button’, Nicholson says, has just started in the department and two law undergraduates from the University of Greenwich are about to begin a one day per week work experience placement. These are good law in the community initiatives, Nicholson says, but no substitute for the experienced lawyers that the department has been forced to shed.
‘Local government will have a completely different shape in the future. Shared services may be the answer, but only if they can be shown to deliver savings before any financial commitment is made. Shared services require shared governance, too, which is politically tricky if adjacent councils are of very different political persuasions.’ Nicholson adds that Lewisham is already sharing some services, such as IT, with five other boroughs and has a joint private finance initiative with Croydon to replace streetlights.
Nicholson has been at Lewisham for 33 years. What high-profile cases has she been involved in during that time? She starts with the most recent, when in August government plans to slash services at Lewisham Hospital were declared unlawful and quashed by the High Court.
The High Court hearing followed a demonstration by 25,000 local people. Nicholson acted for the hospital and a solicitor from a private firm acted for the campaign group that had been formed to oppose the proposed cuts.
Lewisham Hospital was ordered to downgrade accident and emergency, and maternity services after administrators were brought into the neighbouring South London Healthcare Trust (SLHT), which was losing £1m a week. The administrators argued that by reducing services at Lewisham, public funds could be redirected to the failing SLHT.
Mr Justice Silber ruled that the Department of Health (DoH) had acted outside its powers when deciding to cut services at Lewisham because of the situation in a neighbouring health trust. Its plans, Silber ruled, were unlawful and should be quashed because they breached provisions of the National Health Act 2006. The DoH has been granted permission to appeal.
Nicholson tells the Gazette: ‘This was plainly the right decision. Lewisham and the SLHT are completely separate legal entities and it was wrong to cut services at one because of what was happening at the other. The DoH failed to consult, but just told us what it was going to do. We will strenuously resist any appeal.’
EDUCATION Sociology and politics degree, University of Leicester; conversion course, College of Law, Chester; articles in private practice, Liverpool
ROLES Criminal law practice, King’s Cross, London; joined Lewisham Borough Council in 1980; head of legal since 1997
Another recent high-profile case was the legal action, co-ordinated by Lewisham, against exam regulator Ofqual and two exam boards over their decision, between January and June 2012, to raise the marks needed to achieve a C grade in GCSE English.
Nicholson says: ‘In the case of Lewisham, more than 100 children whose marks would have earned a grade C in January were only given a grade D in June.’ The effect was that many of them were denied places in college or work that were conditional on a grade C. Thousands of children elsewhere in the country were similarly affected.
Lewisham, part of an alliance of 150 schools, 42 English councils, six professional bodies and 176 individual pupils, argued that shifting the grade boundaries in this way was unfair. The High Court rejected the alliance’s argument, ruling that it was the structure of the qualification itself that was unfair and that Ofqual and the exam boards had not acted unlawfully. Nicholson says: ‘We lost because it was a choice between two unfairnesses.’
A third high-profile case, decided in June 2008, was London Borough of Lewisham v Malcolm. Malcolm was a council tenant who suffers from schizophrenia and was evicted from his flat because he had sublet it in breach of the terms of his tenancy and had moved elsewhere. The House of Lords, then the highest court, rejected Malcolm’s claim that he had been discriminated against on the grounds of disability. It ruled that he had not been treated less favourably than others who were not disabled.
The fourth high-profile case has proved not only controversial, but also long-running. In January 1981, two teenagers were celebrating their birthdays when fire broke out in the downstairs of a New Cross house where a party was being held. The fire quickly spread and 13 teenagers died, while another later committed suicide.
The case attracted accusations of racist attacks and police tardiness in investigating the cause of the fire. To date, no arrests have been made. Advances in forensic science now point to the fire starting within the house, rather than as a result of a fire bomb thrown from outside, but it is still not known whether the fire was an accident or arson.
Nicholson acted for the council at a second, inconclusive inquest in 2004, which was ordered by the High Court following a ‘community initiative’ to keep the campaign alive. She says: ‘We wish we had got a result, but we didn’t.’
Returning to the present, what does the future hold for Lewisham Council? ‘The continuing cuts are our biggest challenge,’ Nicholson replies, ‘not least because as the cake gets smaller, demand keeps getting bigger. We have an increasingly frail and elderly population, along with a stressful economic climate and growing youth unemployment.
‘It’s a matter of hope for the best, prepare for the worst.’
Jonathan Rayner is a Gazette staff writer