Council not liable for actions of third parties on children in its care, Supreme Court rules

The Supreme Court has struck out a claim that a local authority was liable to pay damages for harm inflicted by third parties on children under its supervision.

In Poole Borough Council (Respondent) v GN (through his litigation friend “The Official Solicitor”) and another (Appellants) [2019] UKSC 25, the anonymous claimants sought damages from Poole Borough Council for personal injuries suffered while they were children living in the area of the defendant council. One of the claimants had serious physical and learning difficulties.

They alleged that in May 2006 they and their mother were placed by the council in a house on an estate in Poole next to a family who, to the council’s knowledge, persistently engaged in anti-social behaviour.

The claimants and their mother became the target of harassment and abuse at the hands of this family, which persisted over a period of several years until they were re-housed in December 2011. This included vandalism of the mother’s car, attacks on the family home, threats of violence, verbal abuse, and physical assaults on the mother and one of the claimants.

As a result, the claimants suffered physical and psychological harm. During the period in question, both claimants were identified by the council as children in need as defined in the 1989 Act, and had social workers allocated to them.

The claimants argued that the injuries were suffered as a result of the council’s negligent failure to exercise its powers under sections 17 and 47 of the Children Act 1989 to protect them from harm at the hands of third parties.

However, the Supreme Court unanimously ruled that the claimants’ particulars of claim “do not disclose any recognisable basis for a cause of action and that the case should not proceed to trial”.
The judges - Lady Hale, Lord Reed, Lord Wilson, Lord Hodge and Lady Blacksaid – said that the Children’s Act does not create a statutory cause of action.

The Supreme Court also examined liability for breach of a Common Law duty of care in relation to the performance of their functions under the Act, in which respect the judges ruled that public authorities “do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm”.

Local authorities can come under a common law duty to protect someone from harm in circumstances where the principles applicable to private individuals or bodies would also impose such a duty, for example where the authority has created the source of danger or assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation.

However, this case was not one where the council is alleged to have harmed the claimants, but one in which the council is alleged to have failed to provide a benefit to the claimants by protecting them from harm.

The judgment said: “The claimants’ case is that the council had assumed a responsibility towards them to take reasonable care in investigating and monitoring their position. If such care had been taken, the council would have exercised its powers under the 1989 Act to remove the claimants from their home into at least temporary care. The council’s conduct in investigating and monitoring the claimants’ position did not, however, involve the provision of a service to them on which they or their mother could be expected to rely.

“It could not 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. The council therefore did not assume a responsibility towards them.”

James Arrowsmith, head of the social care and abuse team at Browne Jacobson said that the decision reaffirms limits on claims against public bodies that arise as a direct result of statutory functions, adding that it is also likely to mean that the law applicable to social services interventions will move more in line with the law that is applicable to the Police.

“The Supreme Court specifically dealt with the absence of any evidence in the claimant’s case of an assumption of responsibility, including reliance on the local authority intervention by the claimants” he said. “It is likely that in future claims there will be a close focus on any evidence of assumption of responsibility or reliance of this sort. The court may be asked to draw some fine distinctions between assurances which merely form part of a supportive social care relationship and those which are sufficient to create a duty of care in law.”

“The claimants were not helped by the fact the court concluded that the grounds for removal of the claimants under the Children Act 1989 were not met. The claimants had placed strong reliance on this as the step they said the local authority ought to have taken to prevent the harm. It is encouraging to see the court paying this level of attention to the options which were in fact open to a local authority dealing with children in need and recognising that there are practical limits to what such authorities can achieve.”

“It is important to acknowledge that the claim arises from terrible acts of harassment towards the claimants committed by members of the public in the area. However, other routes to redress have been created by Parliament for individuals in such circumstances, including compensation from the Criminal Injuries Compensation Authority. The issue was whether the court should intervene to create a liability on the part of the Local Authority where none would otherwise exist. The Supreme Court has rightly refused to do so.”

The claimants initially brought their claim on the basis that the council had been negligent in the exercise of both its housing functions and its functions under the 1989 Act. The claim was struck out before reaching the Supreme Court on the basis that no relevant duty of care towards the claimants arose out of the statutory powers and duties relied on. The claimants appealed in relation the council’s functions under the 1989 Act only. The appeal was allowed by Mrs Justice Slade in the High Court. The Court of Appeal then allowed the council’s further appeal to the Supreme Court.

The claimants also made an alternative claim on the basis that the council was vicariously liable for negligence by the social workers in its employment. The Supreme Court considered whether, under the law of tort, the social workers concerned owed a similar duty to the claimants to exercise proper professional skill and care as they did under their contractual duty to the council.

That, the judges said, depended on whether the social workers assumed a responsibility towards the claimants to perform their functions with reasonable care. “A defendant may assume responsibility to a claimant where he undertakes the performance of some task or the provision of some service for the claimant with an undertaking that reasonable care will be taken,” the ruling said. “Such an undertaking may be express but is more commonly implied, usually by reason of the foreseeability of reliance by the claimant on the exercise of such care. In the circumstances of this case, however, the particulars of claim do not set out any basis on which such an assumption of responsibility might be established at trial.”

Solicitor for the claimants, Emma Jones of Leigh Day, said: “Whilst our clients are disappointed that the Justices decided that their case should remain struck out on the facts they welcome the fact that the Supreme Court Justices were with them on a number of our grounds of appeal and are pleased that by bringing this case they have helped to clarify the law and move it on for other individuals.

"This Supreme Court judgment today is an incredibly important decision for so many cases that have been in limbo since the court of appeal judgment as it confirms that local authorities could owe a duty of care when undertaking their social welfare functions. This is a departure from the law on the issue as it was left following the Court of Appeal judgment and I hope that local authorities recognise the importance of this decision when considering work practices.”

The full judgment is available from the following link: http://www.bailii.org/uk/cases/UKSC/2019/25.html