Supreme Court gives new guidance on liability of local authorities

7 June 2019 by Rajkiran Barhey

Poole Borough Council v GN and another [2019] UKSC 25

The Supreme Court has found that Poole Borough Council did not owe a duty of care to two children, CN and GN, who it failed to re-house, despite the fact that they were suffering abuse from their neighbours. However, the court overruled previous authority and found that in some situations a duty of care might arise.

Factual background

The Claimants, CN and GN, had been placed by the Council in a house on an estate in Poole with their mother in May 2006. CN was aged 9 and GN was aged 7. CN has severe mental and physical disabilities.

The family living in the neighbouring property were known by the Council to have engaged in anti-social behaviour persistently. Soon after their arrival, this family began a campaign of harassment and abuse against GN, CN and their mother which lasted for several years. This included vandalism, attacks on the family home, threats of violence, verbal abuse, and physical assaults. All measures, including eviction, anti-social behaviour orders, of sentences of imprisonment, etc. had failed to stop the abuse. Even a Home Office-commissioned independent report criticised the police and of the council’s failure to make adequate use of powers available under anti-social behaviour legislation.

GN expressed suicidal thoughts and ran away from home, aged 10, in September 2009, leaving a suicide note. Eventually the family were moved in December 2011.

CN and GN brought a claim for personal injuries caused by the campaign of abuse, but it was struck out. They appealed that strike out decision up to the Supreme Court. The case therefore did not reach the stage of going to a full hearing.

Basis of the claim

The Claimants made 2 broad claims:

• The Council had a duty, at common law, to duty to protect children in its area, and in particular children reported to it as being at foreseeable risk of harm. The Council breached this duty by failing to properly investigate the Claimants’ situation. Had a proper investigation taken place, the Claimants would have been removed from their home.
• The Council was vicariously liability for the failures by its employees, the social workers, to meet their duty of care. That duty of care included duties to protect the Claimants, monitor them, and ultimately remove them from the risk of harm.

Decision of the Court of Appeal

The Court of Appeal, whose decision is covered here, had rejected the claim for two main reasons. First, they found that imposing liability in negligence in a difficult and sensitive field, such as social work, could lead to defensive decision making in these areas which would be contrary to public policy. They relied on two previous cases, one involving social services and one involving the police, which had reached similar conclusions.

They also relied on the principle that, generally, a legal person (i.e the local authority) is not liable for the wrongdoing of a third party (in this case, the abusive neighbours), even where that wrongdoing is foreseeable.

The Claimants appealed that decision to the Supreme Court.

By the time the case reached the Supreme Court, another key judgment in the field of negligence had been handed down – Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, covered by the Blog here.

Decision of the Supreme Court

The Supreme Court unanimously agreed that the claim should be struck out, but for different reasons from the Court of Appeal. The judgment was given by Lord Reed.

Liability of public authorities

At the heart of this appeal was the question of whether a local authority could have a duty of care towards children whom they come into contact with in exercising their functions, for example, under child welfare legislation.

Two previous decisions were key. The first, X (Minors) v Bedfordshire County Council [1995] 2 AC 633 concerned a number of claims concerning a local council’s failure to remove children from their parents where the council knew that they were suffering neglect.

In X, the House of Lords found the local council had no duty of care. They stated that it would be contrary to public policy to find a duty, on the basis of:

the multi-disciplinary nature of the system of decision-making, the delicacy and difficulty of the decisions involved, the risk that local authorities would respond to the imposition of liability by adopting a defensive approach to decision-making, the risk of vexatious and costly litigation, and the availability of administrative complaints procedures.

The second important case, D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151, concerned a local authority which had negligently accused a father of abusing his daughter and had separated the family.

The Court of Appeal in that case found that the introduction of the Human Rights Act 1998, which created new heads of liability for public authorities, undermined the reasoning in X that it was contrary to public policy to impose liability on public authorities.

At paragraph [74] of CN, Lord Reed made clear that X v Bedfordshire was no longer good law in so far as it ruled out, on the basis of public policy, the possibility that a duty of care might be owed by a local authority to children that they come into contact with through the performance of their statutory functions, or whom they assume responsibility towards.

As to the more general issue of liability of public authorities, Lord Reed suggested that courts ought to be wary of reliance on public policy as the basis for making decisions about the duty of care. Rather, he stated at [75]:

public authorities are prima facie subject to the same general principles of the common law of negligence as private individuals and organisations, and may therefore be liable for negligently causing individuals to suffer actionable harm but not, in the absence of some particular reason justifying such liability, for negligently failing to protect individuals from harm caused by others. Rather than justifying decisions that public authorities owe no duty of care by relying on public policy, it has been held that even if a duty of care would ordinarily arise on the application of common law principles, it may nevertheless be excluded or restricted by statute where it would be inconsistent with the scheme of the legislation under which the public authority is operating. In that way, the courts can continue to take into account, for example, the difficult choices which may be involved in the exercise of discretionary powers.

Act vs. omission

Lord Reed also reaffirmed the approach adopted in Robinson in relation to the act vs. omission debate. He stated that it was more helpful to conceptualise the difference between the two concepts as ‘causing harm’ and ‘failure to confer a benefit’, e.g. by failing to protect someone from harm.

Assumption of responsibility

A final point of importance is Lord Reed’s comments on assumption of responsibility. The concept was important in the present case, as courts may displace the general rule that there is no liability for the wrongdoing of a third party if there has been an assumption of responsibility.

He addressed the argument that a local authority could never assume responsibility to an individual through mere performance of its statutory functions. He rejected this argument, noting at paragraph [73] that:

The point is also illustrated by the assumption of responsibility arising from the provision of medical or educational services, or the custody of prisoners, under statutory schemes.

In essence, he concluded that the fact that a local authority is carrying out statutory functions does not in itself preclude a duty of care from arising (as the respondents had contended), but neither was it sufficient to establish one. The issue would depend on the facts of the particular case.

In the present case, however, Lord Reed found that the facts did not support an assumption of responsibility. In particular, at paragraph [81] he stated:

the council’s investigating and monitoring the claimants’ position did not involve the provision of a service to them on which they or their mother could be expected to rely … Nor could it be said that the claimants and their mother had entrusted their safety to the council, or that the council had accepted that responsibility. Nor had the council taken the claimants into its care, and thereby assumed responsibility for their welfare.

As to vicarious liability, the court found that there were no facts on which it could base a finding that social workers assumed a responsibility towards the claimants to perform their functions with reasonable care.

Overall, the Court found that on the particular facts of the case, no duty of care could arise.

Conclusion

Whilst a loss for CN and GN, the decision is likely to be considered a victory for claimants generally, as the Court has explicitly overruled X (Minors) v Bedfordshire and found that, in some circumstances, a local authority can be liable to children if it fails to protect them from third parties.

This decision is another landmark in the development of negligence law generally, and particularly in relation to liability of public authorities. The entire judgment is essential reading for anyone interested in these areas.

Rajkiran Barhey is a barrister at One Crown Office Row.

A number of barristers from One Crown Office Row acted in this case: Elizabeth-Anne Gumbel QC, Iain O’Donnell, Duncan Fairgrieve and Jim Duffy acted for the Claimants, Philip Havers QC and Hannah Noyce acted for the 1st intervener, the AIRE Centre, and Martin Downs acted for the 4^th intervener, Coram Children’s Legal Centre.