Where are we now on social services liability?

19 February 2018 by

CN and Anor v Pool Borough Council [2017] EWCA Civ 2185, 21 December 2017 – read judgment

Just over six weeks before the Supreme Court ruled that the police owed the public a duty of care in Robinson (see our post here) the Court of Appeal had unanimously rejected the existence of such a duty in the context of social services and vulnerable children. Giving the leading judgment, Irwin LJ said that there were two strong reasons for rejecting the claimants’ case.

 [F]irst is the concern, articulated in X v Bedfordshire in relation to social services and in Hill v West Yorkshire in relation to the police, that liability in negligence will complicate decision-making in a difficult and sensitive field, and potentially divert the social worker or police officer into defensive decision-making. The second is the principle that, in general, there is no liability for the wrongdoing of a third party, even where that wrongdoing is foreseeable. Both of these considerations, in my view, bite on the facts in this case.

In his concurring judgement, Davis LJ observed that “nothing in this case as pleaded requires or justifies it going to a full trial.”

The claimants have sought permission to appeal to the Supreme Court.

Background facts

In 2006 Mrs N and her two sons CN and GN, then aged nine and seven, moved to a housing estate in Poole. The accommodation was arranged by the council as the local housing authority. Over the ensuing years, the family suffered from the effects of anti-social behaviour at the hands of members of a neighbouring family. This behaviour was frequently reported to the property owners, officers of the council and local police. Eventually, the Home Office became involved and commissioned an independent case review which reported critically on the reaction of the agencies. The family continued to suffer from the behaviour of their neighbours until they were provided with alternative accommodation in December 2011.

Litigation background

Proceedings were first commenced by the claimants and their mother in 2012 against, among others, the Chief Constable of Police and the property owners. These were struck out in 2013, on the basis that there was no viable cause of action against the housing authorities. After that, a claim was advanced on behalf of the sons alone, to the effect that the council had failed to comply with its duties under the Children Act 1989 to safeguard them and promote their welfare.

The council applied to strike out the second claim as disclosing no cause of action. The strike out was successful as Master Eastman  held that there was no basis to hold that a local authority, whether in its guise as local housing authority or the authority with powers to tackle anti-social behaviour in the area, owed a duty of care in respect of those functions. In relation to the alternative claim advanced on behalf of the sons, he stated that

I am not satisfied that there is any foundation in law for the assertion that there is in fact the common law duty in favour of children provided by that Act particularly in the circumstances of this case.

An appeal was then mounted on behalf of the sons alone, in respect only of the dismissal of the claim in respect of the council’s social services functions. Elizabeth-Anne Gumbel QC for the claimants submitted that the effect of X v Bedfordshire CC  [1995] 2 AC 633  had been restated by subsequent authorities. Those authorities were Z v United Kingdom [2001] 34 EHHR 97, S v Gloucestershire County Council [2001] Fam 313, Barrett v Enfield London Borough Council and, “most importantly”, D v East Berkshire Community NHS Trust [2004] QB 558.  D established that a duty of care could be owed in respect of the council’s failure to remove the sons from the harm that they were suffering at the property where they lived with their mother.

Slade J accepted these arguments. She observed that the Human Rights Act and Strasbourg jurisprudence had  led to the removal of an absolute bar to claims falling within the “core proposition” in X v Bedfordshire which remained after Barrett.  She found that X v Bedfordshire could not now preclude the child claimants from pursuing such a claim in the circumstances of this case.

The claim should  be considered on its particular facts to ascertain whether all the elements necessary to establish a cause of action in negligence are present: forseeability, proximity or assumption of responsibility and that it is fair, just and reasonable to impose liability. Whether a common law duty of care was owed by the council to CN and GN will depend upon a full examination of the facts. This issue is not apt for determination on an application to strike out the claim.”

She accordingly concluded that the sons’ claims based on the council’s social services functions had been wrongly struck out by Master Eastman, and set aside that part of his order. She also gave permission to CN and GN to file and serve Amended Particulars of Claim.

Arguments before the Court of Appeal

CN and GN contended in the Amended Particulars of Claim that the defendant had failed to assess the ability of their mother to protect them from abuse and violence, nor had they carried out any timely or competent risk assessment. Any competent investigation, they maintained, would have led to the removal of the claimants from home, if the family as a whole could not be moved.

It was argued on behalf of the defendant Council that there had been no assumption of duty such as to bring this case into one of the exceptions to the X v Bedfordshire “no duty” rule. Although at one point a member of the defendant’s social work staff had written a letter which spoke of the defendant’s “duty of care” to the claimants, that was a clearly insufficient basis for assumption of a legal duty of care in a context where a policy of the law ran counter to the existence of such duty. The case law since X v Bedfordshire militated against any such duty. The general principle is that, in the context where

state controlled licensing, regulation, inspection, intervention and assistance aimed at protecting the general public from physical or economic harm caused by the activities of other members of society

the imposition of a duty of care would be contrary to the ordinary principles of law: see Michael v Chief Constable of South Wales [2015] UKSC 2, paragraphs 112-114.  Slade J was in error in accepting that she was bound by D v East Berkshire  so as to conclude that it was arguable that the Council owed a common law duty of care to the claimants in the exercise of its functions under the Children Act. The defendant argued that this ground rested on the contention that D v East Berkshire had been “impliedly overruled” and was inconsistent with more senior authority in Smith and Michael.

The Court of Appeal unanimously allowed the defendant’s appeal.

Reasoning behind the judgment

Irwin LJ accepted the defendant’s submission that “the heart of the claim is that this family were placed in the relevant house, and not moved, despite the prospect and then the actuality of significant harassment”. He described the proposition that the claimants should have been removed from their mother’s care as a means of dealing with such harassment as “rather startling” and “highly artificial”. He accepted the defendant’s argument that, in reality, the claim had nothing to do with its social services functions but was “in fact a criticism of the housing functions of the local authority”

There was no reason to depart from  X v Bedfordshire CC, which remained good law. As Lord Browne Wilkinson famously said in that case, it would be wrong to impose a common law duty of care across the statutory system for the protection of children at risk. His reasons included the multi-disciplinary nature of the system of consultation and decision-making, the delicacy and difficulty of the decision-making, the need to avoid stimulating caution and defensiveness on the part of social workers, the need to minimise ill feeling and litigation arising from such disputes, the presence of complaints procedures to address alleged maladministration and the principle that the law of negligence should proceed incrementally and by analogy with decided categories.

The Supreme Court has recently confirmed this approach in Michael. The myriad of public services set up to protect the public from harm caused by third parties cannot be obliged by private law to confer the benefit of this protection. But, as Lord Toulson pointed out,

It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible. To impose such a burden would be contrary to the ordinary principles of the common law.

The refusal of the courts to impose a private law duty on the police to exercise reasonable care to safeguard victims or potential victims of crime, except in cases where there has been a representation and reliance, does not involve giving special treatment to the police. It is consistent with the way in which the common law has been applied to other authorities vested with powers or duties as a matter of public law for the protection of the public. [Michael, para 115]

Lord Toulson reiterated in Michael the general rule that the common law does not impose liability for pure omissions, or for failing to prevent harm caused by someone else. There were only two recognised exceptions:

first, where the defendant had control over the third party and it was foreseeable damage might ensue unless care was exercised in that control. That is the Dorset Yacht example (paragraph 99). The second exception is where the defendant has assumed responsibility to safeguard the claimant under the principle laid down in Hedley Byrne & Co Ltd v Heller and Partners Ltd [1964] AC 465

Neither of these exceptions applied to the case before Irwin LJ.  The facts of D were in any event quite different from the present case. The Court there was considering the decision whether to leave a child in a family where abuse was in question.

For the purposes of such a decision there exists no true “third” party, in the usual sense. The actual or potential wrongdoing by those who would retain (or gain) custody of a child is central to the decision being taken. It is the mainspring of the relevant decision. That is a significant distinction from the current case.

Irwin LJ concluded that two particular aspects of the case law militated against liability; the danger of encouraging defensive decision-making and the general absence of liability for the wrong-doing of others (paragraph 94). It would be unjust for a potential liability to exist on the part of the local social services authority when the housing department of the same local authority, the landlord and the police could not be held liable. Society of course places a high emphasis on protecting vulnerable children.

 However, the essence of the common law answer to this problem is that it is not effective, or just, to do so by singling out one agency of the State for tortious liability as against the others, particularly in a crude “sectoral” manner.

He went on to conclude that D was indeed inconsistent with the subsequent decisions of higher authority and should no longer be followed.  King and Davis LLJ both agreed with Irwin LJ that D could not stand with the subsequent decisions at higher levels and had to be taken as overruled.

Comment

If the claimants are given permission to appeal and there is a real prospect of resurrection of D, there will be considerable interest if not consternation in the public sector, particularly since the decision in Robinson.   As Irwin LJ commented, this case illustrates perfectly why it is unjust to extend liability to one agency (the social services department of the local authority) when other agencies (the housing department, the “arms-length” housing provider and the police) are at least as involved and arguably more centrally involved in the relevant problem. By what logic, he asks, is it just for there to be liability to a claim for damages through alleged omission on the part of social workers here, when those responsible for housing have no potential liability?

A similar question has been raised with regard to the differing liabilities of public authorities in an emergency.  As the law now stands, two emergency services contacted from the scene of a road traffic accident will owe very different duties to the injured parties involved. The paramedics will be held liable for being late (Kent v Griffiths (No.3) [2001] Q.B. 36 CA (Civ Div)) but the firefighters will not liable for delay or even not arriving at all  (Capital and Counties Plc v Hampshire City Council [1997] QB 1004).  And of course, if the accident had been caused by the state of land beside the highway or other motorists, no action lies against the highway authority (Gorringe v Calderdale MBC [2004] 1 WLR 1057.

Elizabeth-Anne Gumbel QC and Iain O’Donnell acted for the claimants in this case. They are not associated with the writing of this post.

 

 

 

1 comment;


  1. John Bradfield says:

    As a former social worker, tutor and writer on law and practice relating to bereavements, I have to say that I find this report unintelligible. The question, therefore, in my mind is whether it is intended in part for social workers and victims of harassment? If so, could Human Rights Blog present the facts in a way which is effortless to understand?

    Are the judgments referred to, saying it is not fundamental to the raison d’être of social work and policing, to protect vulnerable individuals and groups, from harm by others?

    I am deeply concerned about victims of abuse, then being subjected to ongoing abuse by “hundreds” of police officers, as I’ve mentioned this month on the websites of The Independent newspaper and Brighton & Hove News, following the Oxfam crisis.

    In 2016 HMIC’s Mike Cunningham reported that sexual abuse by police officers is, “the most serious form of corruption. It is an exploitation of power where the guardian becomes an abuser. There can be no greater violation of public trust.”

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: