This page draws together a monthly selection of articles and features supplied by LexisNexis for publication on Local Government Lawyer and Public Law Today. We also showcase other publications and resources that LexisNexis produces to support lawyers working in the public sector. To see all articles, please click here.
Slide background

Exploring the limits of public authority’s liability for children

Housing family 96709182 sDuncan Fairgrieve and Jim Duffy, barristers at 1 Crown Office Row, examine the Supreme Court’s decision in Poole Borough Council v GN and another that the respondent local authority did not owe a common law duty of care to exercise its functions under the Children Act 1989 to protect the appellants, who were children of a family which it had housed, from harm at the hands of anti-social neighbours.

LexisNexis Public Law Free Trial

Poole Borough Council v GN and another [2019] UKSC 25[2019] All ER (D) 15 (Jun)

What are the practical implications of the judgment?

The appellants in Poole Borough Council v GN and another were two children who claimed damages for a breach by the respondent of an alleged common law duty to take steps to prevent them from suffering harm from their abusive neighbours. The practical implication of this judgment for them is that their case remains struck out.

However, the wider implications are positive from the perspective of children who are not in local authority care but who find themselves at risk of harm from others. The Court of Appeal’s decision in this case had effectively closed the door on future claims in ‘failure to remove’ cases, by holding that there could be no common law duty of care on local authorities carrying out their statutory social welfare functions. Such claims generally feature vulnerable and damaged children and young adults who have suffered sexual, physical and/or emotional abuse in circumstances where the local authority has missed opportunities to take some form of action, such as removal from the family home to separate them from an abuser.

Hundreds of current claims had been stayed pending the outcome of this case. The Court of Appeal had followed X (minors) v Bedfordshire County Council, M (a minor) v Newham London Borough Council, E (a minor) v Dorset County Council [1995] 3 All ER 353, in which the House of Lords had ruled out the existence of such a duty for policy reasons, such as avoiding the encouragement of defensive practice by social workers.

The Supreme Court disagreed with the Court of Appeal on that crucial point. This means that children once again have a clear common law cause of action in ‘failure to remove’ cases, provided they can satisfy the classic legal tests pertaining to the establishment of a common law duty to prevent harm by a third party.

The judgment underlines the need for particulars of claim to set out clearly the factual basis on which a common law duty is alleged to exist. Claims that fail to lay the ground for the leading of evidence demonstrating that the local authority created a danger to which the claimants were exposed, or that fail to set out the facts surrounding an alleged assumption of responsibility towards those children, risk coming unstuck at trial or being struck out.

What was the background?

The respondent became involved with the appellants and their mother, having placed them in accommodation adjacent to another family. The other family was known by the respondent to have persistently engaged in anti-social behaviour.

Following their placement, the two boys (one of whom was severely disabled) and their mother suffered years of physical and mental abuse at the hands of those neighbours. At one stage, the abuse led the older boy to run away from home, leaving a suicide note. The handling of the case by both social services and the police was heavily criticised in an independent report commissioned by the Home Office after the appellants’ mother had sought help from a number of agencies and MPs.

The appellants’ case had been struck out before a Queen’s Bench Master, before being reinstated on appeal to the High Court. That judgment was then overturned by the Court of Appeal.

What did the Supreme Court decide?

The Supreme Court held that a duty of care could be owed by local authorities when undertaking their social welfare functions. In so doing, the court explicitly departed from the previous decision of the House of Lords in X (minors). Importantly for all such cases in future, the court reaffirmed the decision in D v East Berkshire Community Health NHS Trust, K v Dewsbury Healthcare NHS Trust, K v Oldham NHS Trust [2003] EWCA Civ 1151[2003] All ER (D) 547 (Jul). The Court of Appeal in the instant case had been mistaken to find that D v East Berkshire had been impliedly overturned by the decision in Michael v Chief Constable of South Wales Police [2015] UKSC 2[2015] All ER (D) 215 (Jan)In D v East Berkshire, the Court of Appeal had found that the policy concerns that had troubled the House of Lords in X (minors) in 1995 had fallen away, given the intervening creation of separate causes of action under the Human Rights Act 1998 (HRA 1998).

Lord Reed delivered the unanimous judgment of the court. He made important statements of principle concerning the liability of public authorities for negligence.

First, the incremental approach in Caparo Industries plc v Dickman and another [1991] Lexis Citation 2729 was re-affirmed and the recent wane in the role of public policy confirmed. Lord Reed underlined that when examining the existence of a duty of care, the courts should, in the ordinary run of cases, apply established principles of law, rather than imposing a universal tripartite test for the existence of a duty of care and basing their decisions solely on public policy.

Second, Lord Reed reaffirmed the principle, also found in recent cases, that public authorities are subject to the same general principles of the law of tort as private individuals. As a consequence, it was held that an authority would be under a duty of care in social welfare cases when it had either created a source of danger or assumed responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the statutory framework within which the authority was operating.

Third, the distinction between omissions and positive acts was considered by the court, following discussion in the previous cases of Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4[2018] All ER (D) 47 (Feb). Lord Reed preferred to distinguish between causing harm (making things worse) and failing to confer a benefit (not making things better) rather than between acts and omissions, with which lawyers and law students have previously been so familiar. In underlining the importance of the distinction between causing harm and failing to protect from harm, Lord Reed relied on the authorities of Stovin v Wise (Norfolk County Council, third party) [1996] 3 All ER 801 and Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15[2004] All ER (D) 06 (Apr). It was emphasised that public authorities, like private individuals, did not generally owe a duty of care to confer benefits on individuals, such as protecting them from harm by third parties. It was noted that the current circumstances represented just such a case in which the respondent was alleged to have failed to provide a benefit to the appellants, by failing to protect them from harm.

Fourth, the court made important statements about the notion of an assumption of responsibility—one of the bases on which the law recognises a common law duty to prevent harm by third parties. The court defined this concept as ‘an undertaking that reasonable care will be taken, either express or more commonly implied, usually from the reasonable foreseeability of reliance on the exercise of such care’ (at para [80]). Lord Reed held that an assumption of responsibility could arise within the operation of a statutory scheme by a public authority, if the ordinary criteria for such a finding were present. However, he observed that ‘the nature of the statutory functions’ was not sufficient for an assumption of responsibility to arise, in particular that the respondent’s investigation and monitoring of the appellants’ position did not involve the provision of a service to them on which they or their mother could be expected to rely (at para [81]).

It was recognised by the court that, even though the carrying out of statutory duties did not itself give rise to a common law duty owed to individuals, an assumption of responsibility could be inferred from the facts of individual cases due to the manner in which public authorities behaved towards a claimant in a particular case (at para [82]).

The court rejected the respondent’s contention that D v East Berkshire had been impliedly overruled by later cases such as Michael—the point made by the Court of Appeal in D v East Berkshire was not that the common law should develop in harmony with the obligations of public authorities under HRA 1998 (a point rejected in Michael), but that the possibility of claims under HRA 1998 had ‘pulled the rug from under some of the policy-based reasoning in X (minors)’ (at para [62]).

The quintessentially factual issue of whether a duty exists will no doubt be explored in later cases. However, the court did give some consideration of relevant circumstances, indicating that in social welfare cases an assumption of responsibility was likely to arise where the authority provided advice on which it was reasonably foreseeable that the claimant would rely (at para [87])—it took a child into care (such as in Barrett v Enfield London Borough Council [1999] All ER (D) 632) or it performed some task or provided a service for the claimant with an undertaking that it would take reasonable care, such as in the provision of medical or educational services or custody of prisoners (at para [73]).

While he made clear that the mere statement by a local authority that it was under a duty would not be enough, Lord Reed was not prescriptive in setting out the scenarios in which a duty might be said to apply, effectively leaving first-instance courts to assess the facts of particular cases to determine whether the above factors exist.

The court found that it was unarguable that any of these factors existed in the appellants’ case.

It also held that there was no vicarious liability on the part of the respondent for the negligence of its employees—there was no suggestion that the social workers provided advice on which the appellants would rely, and this was not a case of the respondent undertaking the performance of some task or the provision of a service for the appellants with an undertaking that reasonable care would be taken.

The court further considered that the alleged breach of duty, namely a failure to remove the appellants from the care of their mother, was not made out in this case.

Duncan Fairgrieve and Jim Duffy appeared with Elizabeth-Anne Gumbel QC and Iain O’Donnell for the appellant children in this case.

Interviewed by Robert Matthews.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

LexisNexis Public Law Free Trial

More content from LexisNexis

October 16, 2020

Coronavirus (COVID-19) - local government tracker

This LexisNexis tracker is intended to be used to track key developments, legislation, guidance, parliamentary briefing notes and other sources of interest relating to COVID-19, where relevant to local government lawyers.
October 09, 2020

The Planning White Paper

LexisNexis looks at the government's proposals for a ‘whole new planning system for England’ in White Paper published for consultation, alongside interim reforms.
October 02, 2020

The Public Sector Equality Duty

The following LexisNexis Public Law guidance note, produced in partnership with Zoe Bedford of Ellis Whittam, provides comprehensive and up to date legal information covering the scope of the Public Sector Equality Duty.
September 25, 2020

Housing disrepair for local authority landlords - a practical guide

The following LexisNexis Local Government guidance note, produced in partnership with Alexander Bastin of Hardwicke, provides comprehensive and up to date legal information for local authorities covering all aspects of dealing with disrepair issues.
September 17, 2020

Employment law and Covid-19

This Employment guidance note from LexisNexis provides comprehensive and up to date legal information covering employment law issues arising from the Covid-19 pandemic.
September 11, 2020

Introduction to Public Contracts Procurement

The following LexisNexis Local Government guidance note, produced in partnership with Walker Morris, provides comprehensive and up to date legal information covering public contracts procurement, including the impact of Brexit.
September 04, 2020

Guide to Care Act 2014 repeals

The following LexisNexis Private Client guidance note provides comprehensive and up to date legal information covering repealed legislation (in whole or in part), secondary legislation revoked (in whole or in part), relevant new secondary legislation and statutory guidance and directions cancelled.
August 21, 2020

Obtaining possession of a secure tenancy

The following LexisNexis Local Government guidance note, produced in partnership with Karl King of Hardwicke Chambers, provides comprehensive and up to date legal information covering the grounds on which and steps required to obtain possession of a secure tenancy.
August 14, 2020

Obstruction of highways

This LexisNexis Local Government guidance note, produced in partnership with Nicholas Hancox Solicitors, provides comprehensive and up to date legal information covering a wide variety of circumstances in which public highways may be obstructed and what measures are available to councils to deal with them.
August 07, 2020

LexisNexis Gross Legal Product (GLP) Index: Quantifying legal demand growth and the impact of COVID-19

LexisNexis has built a data model to track growth in demand for legal services – the Gross Legal Product Index, or GLP. The report provides a framework for quantifying the impact of COVID-19 on your sector.
July 31, 2020

COVID-19: What’s worrying lawyers?

Elizabeth Rimmer of LawCare examines some of the issues encountered by lawyers when working remotely during the pandemic.
June 19, 2020

The First-tier Tribunal (Property Chamber) - practice and procedure

This Property Disputes guidance note from LexisNexis provides comprehensive and up to date legal information covering the jurisdiction, practice and procedure of the First-tier Tribunal (Property Chamber).
June 12, 2020

Quick guide to landlord’s remedies for breach of lease

The following property disputes guidance note from LexisNexis provides comprehensive and up to date legal information for commercial landlords.
June 05, 2020

The Public Law Outline 2014

This Practice Note provides practical guidance on key aspects of procedure and the PLO 2014 for public children proceedings.
May 07, 2020

Anti-social behaviour - powers to control behaviour under the Anti-social Behaviour, Crime and Policing Act 2014

This LexisNexis Local Government guidance note, produced in partnership with Hardwicke Chambers, provides comprehensive and up to date legal information covering the powers available to control behaviour under the Anti-social Behaviour, Crime and Policing Act 2014
May 01, 2020

Anti-social behaviour - powers to close premises under the Anti-Social Behaviour, Crime and Policing Act 2014

This Local Government guidance note from LexisNexis provides comprehensive and up to date legal information outlining the powers available to local authorities to close premises where anti-social behaviour is taking place.
Coronavirus Hand sanitizer 146x219
April 24, 2020

Coronavirus – What’s the impact on the legal profession?

With Coronavirus dominating the news and the majority of Europe now entering different stages of lockdown due to the rise in uncertainties about the virus, LexisNexis has rounded up its latest articles discussing the pandemic.
Human Rights 96780326 s 146x219
April 23, 2020

Why is advancing the rule of law so important?

Have you ever considered your human rights? The Universal Declaration of Human Rights outlines our various rights under the law, the most basic being: “We are all equal before the law."But, is this really the case?
April 16, 2020

Employment law and Covid-19

This following employment guidance note from LexisNexis provides comprehensive and up to date legal information on employment law changes caused by the Covid-19 outbreak.
Roadworks 54101373 s 146x219
February 28, 2020

Road traffic – order procedure notices

This Local Government guidance note from LexisNexis provides comprehensive and up to date legal information covering road traffic orders, regulations, procedures and the powers available to local authorities.
Housing Rogue Landlord 99725772 s 146x219
February 13, 2020

Obtaining possession of a secure tenancy

Produced in partnership with Karl King of Hardwicke Chambers, this LexisNexis Local Government guidance note provides comprehensive and up to date legal information covering the range of tenancy types for social housing and the processes involved in obtaining possession for each.
February 06, 2020

Local authority social care duties

The following Local Government guidance note, produced in partnership with Ros Ashcroft of DAC Beachcroft and Stephanie Townley of Addleshaw Goddard LLP provides comprehensive and up to date legal information covering local authority duties towards social care.
January 31, 2020

Houses in multiple occupation

This LexisNexis Local Government guidance note provides comprehensive and up to date legal information covering the management, licensing and definition of houses in multiple occupation (HMOs).
December 13, 2019

Granting assured and assured shorthold tenancies

This practice note from LexisNexis explains the criteria for assured tenancies (AT) and assured shorthold tenancies (AST) and the exceptions to those criteria, the main terms of AT and ASTs, the position regarding succession, and summarises a landlord’s obligations in respect of energy efficiency, gas safety and other health and safety obligations, right to rent and tenancy deposits.
December 05, 2019

Assignment and succession of tenancy

Morayo Fagborun Bennett looks at the circumstances in which social housing tenancies can be transferred to another tenant.
November 29, 2019

Powers to control anti-social behaviour under the Anti-social Behaviour, Crime and Policing Act 2014

This guidance note provides a comprehensive and up to date overview of powers to control anti-social behaviour under the Anti-social Behaviour, Crime and Policing Act 2014, Reform of anti-social behaviour powers (2014), Part 1 Civil Injunctions and Part 2 Criminal Behaviour Order (CBO).
Missiles 91309216 s. 146x219
October 11, 2019

Exploring the court’s power to block sale of arms to Saudi Arabia

Sue Willman, senior partner at Deighton Pierce Glynn, analyses the case of R (on the application of Campaign Against Arms Trade) v Secretary of State for International Trade (Amnesty International and others intervening) and its implications for UK arms trade.
Airport travel 3160566 640
October 11, 2019

Court rejects challenges to Heathrow expansion

Charles Streeten, barrister at Francis Taylor Building, explains how the court came to reject the claims for judicial review of the Heathrow runway expansion in R (on the application of Spurrier) v Secretary of State for Transport and other cases.
Dead end road 32516564 s 146x219
October 04, 2019

Abandoning a procurement exercise - when can a contracting authority extinguish a challenge?

Lucy James looks at the legal effect of a decision to abandon a procurement exercise and whether it extinguishes an accrued cause of action a bidder may have against a contracting authority for breaches of the Public Contracts Regulations 2015 SI 2015/102 (PCR 2015).
Education cuts 93374247 s 146x219
August 23, 2019

‘Funding crisis’ - a detailed look at the funding shortage in UK schools

According to campaigners, more than 200 schools in England are cutting their school weeks short due to funding shortages. This raises questions over legal ramifications and the responsibility of the government. Jean Tsang, associate at Bates Wells and governor of a maintained primary school, addresses these questions and looks at the worrying effects of this ‘funding crisis’ on the ‘most vulnerable children’ in the educational system.
Cost cutting 21525611 s 146x219
August 16, 2019

Judicial review challenge over closure of children’s centres defeated by local authority

The case R (on the application of L, an infant (by his mother and litigation friend)) v Buckinghamshire County Council represents the first time when the High Court considered in detail the meaning of the ‘sufficiency duty’ in section 5A of the Childcare Act 2006 (ChA 2006) in the context of whether a council’s consultation on the closure of a number of children’s centres was unlawful or not. James Goudie QC examines the background to and the practical implications of the judgment.
Market 25240022 s 146x219
August 09, 2019

How does a local authority establish a market?

The LexisPSL team outline the powers available to local authorities looking to establish a new market.
School gate iStock 000003257894XSmall 146x219
August 02, 2019

Forced academisation of schools - is resistance futile?

What are the circumstances which lead to a school being forced to become an academy, and is there anything that can be done to stop it happening? Katie Michelon provides an overview of the forced academisation process, and explains the options available to schools, parents and local authorities when faced with the possibility of an Academy Order.
Plane passenger plane 19469 640 pixabay
June 13, 2019

Home or away?

Katherine Illsley outlines how a local authority should approach the situation where a parent to be assessed for the purposes of public children care lives in another jurisdiction.
House key iStock 000004543619XSmall 146x219
June 07, 2019

Tenant Fees Act 2019 - government guidance

The government recently published guidance on the Tenant Fees Act 2019 (TFA 2019). Robin Stewart and David Smith of Anthony Gold Solicitors look at some of the key questions relating to the guidance, including enforcement, penalties and some controversial aspects such as guidance pertaining to payment of damages.
Choice 33452110 s 146x219
June 07, 2019

How should the courts approach cases with an ‘open’ pool of possible perpetrators?

Chris Stevenson, barrister at Fourteen, examines the Court of Appeal’s decision in Re B (children: uncertain perpetrator) to allow a father’s appeal against a Family Court judge’s finding that he was within a pool of possible perpetrators responsible for sexually transmitting gonorrhoea to three of his children (registration required).
Planning 146x219
May 24, 2019

Court of Appeal finds permissive housing policies can restrict development elsewhere

In Gladman Developments Ltd v Canterbury City Council [2019] EWCA Civ 669, the Court of Appeal dismissed an appeal by developer Gladman against the decision of the High Court to quash planning permission granted on appeal for a residential development on a site not allocated for development, not on previously developed land, and outside the existing built-up area.
Child safety gate 36045624 s 146x219
May 24, 2019

Safety first?

Daljit Kaur looks at the implications for disability discrimination of a case concerning a nursery-age child prevented from accessing provision over 15 hours.
UK map 66823434 s 146x219
May 17, 2019

The changing landscape of local authority Trading Standards prosecutions?

Richard Heller considers the potential impact of Qualter and others v Crown Court at Preston [2019] EWHC 906 (Admin) could have on the way regional Trading Standards services investigate and prosecute criminal offences (registration required).
Child removal iStock 000007583512XSmall 146x219
May 17, 2019

Wish they weren't here?

Can a parent with parental responsibility object to their child, who is subject to an interim care order, being taken on holiday by their foster parents?
Housing Rogue Landlord 99725772 s 146x219
May 10, 2019

Exploring the new guidance on greater protections from rogue landlords

Jason Hobday, associate at Womble Bond Dickinson, discusses the implications of recent government guidance documents which intend to enforce greater protections from rogue landlords (registration required).
Bias iStock 000008329150XSmall 146x219
May 09, 2019

Court finds judge in Uber licensing case was not biased

Philip Kolvin QC examines the High Court’s decision in R (United Cabbies Group) v Westminster Magistrates’ Court to dismiss the claimant’s application for judicial review of a district judge’s grant of an operator’s licence for London private hire vehicles to the third interested party, Uber.
Housing timer 45568205 s 146x219
May 03, 2019

End of the road?

Morayo Fagborun Bennett looks at the Court of Appeal's decision on waiving offers of alternative accommodation and the lawfulness of an earlier review decision on a subsequent homelessness appplication in Godson v London Borough of Enfield [2019] EWCA Civ 486.
Council Tax 89947548 s 146x219
May 03, 2019

Court rejects implied duty to report change of address for council tax purposes (R v D)

Samuel Genen, solicitor at Steel & Shamash, comments on the case of R v D [2019] EWCA Crim 209 where the Court of Appeal ruled that a failure to notify the local council of a change of address for the purpose of council tax did not constitute a criminal offence under the Fraud Act 2006 (FrA 2006). (Registration required)
Evidence in Foreign Courts 71283762 s 146x219
March 22, 2019

Is it in the best interests of a child to give evidence in a foreign trial?

Katherine Duncan explains how the court, in Re X, carried out a balancing exercise in determining whether a child, who was ward of the court, should be permitted to travel out of the jurisdiction to give evidence at a foreign criminal trial.
High Courts inherent jurisdiction for the protection of vulnerable adults 95112860 s 146x219
March 15, 2019

High Court’s inherent jurisdiction for the protection of vulnerable adults

The case of Southend-on-Sea Borough Council v Meyers [2019] EWHC 399 (Fam) highlights the wide and largely unfettered nature of the power to grant injunctive relief under the High Court’s inherent jurisdiction for the protection of vulnerable adults and the difficulty surrounding the issue of how the balance should be struck between protection of a person on grounds of vulnerability and respect for their autonomy, writes Bethan Harris.