Local authorities could owe a duty of care to children needing care, UK Supreme Court holds

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

Summary

The UK Supreme Court (the Court) examined whether the local authority had failed to fulfil a common law duty to protect two children, Colin and Graham, from harm inflicted by their neighbours. Drawing on the facts of the case, the Court held that the council was not liable for negligently failing to exercise its social services functions as there was no recognisable basis for a cause of action. While the Court dismissed the appeal, the decision in Poole leaves open the possibility for a duty of care to exist where an assumption of responsibility can be established.

Facts

In 2006, the claimants and their mother were placed by the council in a house on an estate in Poole, adjacent to a family who were known to persistently engage in anti-social behaviour. At the time, the claimants were Graham, a seven year old and Colin, a nine year old with severe mental and physical disabilities.

The mother reported various incidences of harassment and abuse by the neighbours to the police and the council, including vandalism and physical assaults. While various measures were taken by the council including eviction, anti-social behaviour orders and injunctions, the harassment continued and persisted over a period of several years. The mother escalated the issue to Members of Parliament, prompting media coverage and an independent report by the Home Office.

A social work assessment in 2009 indicated that the mother needed to be referred to mental health services. A 2010 assessment of Graham showed that he was at risk of harming himself and was in need of a child protection plan. The children and their mother were rehoused in 2011.

Colin and Graham sought damages for the injuries suffered while they were living in Poole. At first instance, Slade J held that “on the balance of probabilities competent investigation at any stage would have led to the removal of the claimants from home”. This decision was appealed by the Poole Borough Council, with the Court of Appeal allowing the appeal. The Court of Appeal found that there was no basis for holding the council liable for the wrongdoing of third parties.

Decision

The Court unanimously held that the Poole Borough Council did not owe a common law duty of care to Colin and Graham to protect them from their neighbours. The Court upheld the decision of the Court of Appeal, finding that the council had not negligently failed to exercise its social services functions under the Children Act 1989. As the council had not assumed responsibility for the claimants, there was no basis for a claim in negligence.

The Court considered whether the council owed a common law duty of care to exercise their statutory powers to protect Colin and Graham from harm. Drawing on the principles in Robinson, it was held that the relevant provisions of the Children Act 1989 do not themselves create a statutory cause of action. While section 17 of the Children Act 1989 imposes a duty on the council to provide a range of services to meet the needs of a child in need, the council does not owe a specific duty to each child. Rather, courts should look to the facts of the case and examine whether an assumption of responsibility arises from the relationship between the claimant and the council. In this instance, the Poole Borough Council's role was to monitor and investigate the claimants' situation. The Court found that the claimants had not entrusted their safety to the council. The council's role did not involve the provision of a service to the claimants on which the claimants could rely. Accordingly, the Court found that the council had not assumed responsibility for the safety and welfare of the claimants and there was no basis for a cause of action to be found.

Similarly, the Court found that the council could not be held vicariously liable for the negligence of its employees as an assumption of responsibility could not be established. While social workers employed by the council owed a contractual duty to the local authority to exercise proper professional skill and care, they had not assumed a responsibility, in negligence, to provide reasonable care to the claimants.

The Court further found that for the council to have breached their duty to remove the children from their home, the relevant breach under statutory provisions would need to be in respect of a failure to remove the claimants from harm attributable to their parents. Under section 47 of the Children Act 1989, for the claim to have been successful, the claim would have had to relate to harm caused by the claimants' mother, rather than a third party. As such, there was no possible basis for the claim.

Commentary

The significance of Poole is that it overturned the decision in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, opening the gateway for local authorities to be held liable for a failure to exercise their duty of care in relation to the performance of their social services functions. The decision in X (Minors) v Bedfordshire County Council established on the grounds of public policy that a duty of care is not owed by local authorities to children with whom they come into contact in the performance of their statutory functions. While the Court in Poole did not find the existence of a duty of care, the Court left open the possibility of the establishment of a duty of care where a relationship can be characterised by an assumption of responsibility. Poole provides some comfort to councils and their insurers in that local authorities do not owe a duty of care in all circumstances. Rather, the issue of whether a local authority owes a duty of care to exercise its powers will be dependent on the facts of the case.

While the decision in Poole provides some guidance and clarity as to the extent to which local authorities are liable for a failure to remove children from harm, the implications of Poole for local authorities and for the development of negligence law are yet to be seen.

The full text of the decision is available here.

Alex Au is a Lawyer at Ashurst