Poole Borough Council v GN (through his litigation friend ‘The Official Solicitor’) and another [2019] UKSC 25
The article originally appeared in Issue 2 (July 2019).
In this judgment, handed down by Lord Reed in June 2019, the Supreme Court found that Poole Borough Council did not owe a duty of care to two children, CN and GN, who it had failed to re-house, although they were suffering severe abuse from their neighbours. Despite the loss for the individual Claimants, the court opened the door to claims against local authorities.
Factual background
The Claimants, referred to as ‘Colin’ and ‘Graham’, aged 9 and 7 respectively, had been housed by the Council on an estate in Poole with their mother, known as ‘Amy’ in May 2006. Colin had severe disabilities.
The neighbouring family were known by the Council to have persistently engaged in anti-social behaviour. Soon after their arrival, this family began a campaign of harassment and abuse directed at Amy and her children. Amy repeatedly reported their behaviour and asked for help from the Council, but the measures taken did not stop the abuse. The Home Office even commissioned an independent report which criticised the police and the Council’s failure to make adequate use of powers available under anti-social behaviour legislation.
In September 2009, Graham expressed suicidal thoughts and ran away from home, aged 10. Eventually, Graham was made subject to a child protection plan. Amy and her family were rehoused in December 2011.
Basis of the claim
Colin and Graham alleged that, as a result of the abuse and harassment from May 2006 to December 2011, they suffered psychological harm. The claim was struck out by Master Eastman in October 2015, who relied on X (Minors) v Bedfordshire County Council [1995] 2 AC 633 to find that no duty of care arose. The Claimants’ appeal was allowed by Slade J who granted permission to serve amended Particulars of Claim.
The Claimants alleged that two broad duties existed:
- 1. The Council had a duty, at common law, to protect children in its area, and, in particular, children reported to it as being at foreseeable risk of harm. The Council were aware of the foreseeable risk of harm from July 2006 and therefore had a duty to investigate whether the Claimants were at a foreseeable risk of harm and to take reasonable steps to protect them. The Council had accepted responsibility towards the Claimants by purporting to investigate the situation and, in so far as it is shown that the investigation was negligent, the Council were liable for breach of duty.
- 2. 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, ascertain if they were at risks from which their mother could not protect them and ultimately remove them from the risk of harm.
The Claimants’ case was that the duty of care existed in the common law, but they relied on sections 17 and 47 of the 1989 Children Act as part of the statutory backdrop which gave rise to that common law duty. Those parts of the Act provided for a statutory duty to safeguard the welfare and promote the upbringing of all children in a LA’s geographical area.
As to breach of those duties, the Claimants alleged that the Council failed to properly investigate and, had competent investigations and assessments been carried out, the Council would have found that Amy was unable to meet the children’s’ needs and would have removed them from her care, at least temporarily.
Decision of the Court of Appeal
The Court of Appeal in CN & Anor v Poole Borough Council [2017] EWCA Civ 2185 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 in particular on X (Minors) v Bedfordshire County Council.
They also relied on the principle that, generally, a party is not liable for the wrongdoing of a third party even where that wrongdoing is foreseeable. The two exceptions, that (1) the Council had brought about the risk of harm or had control over the individuals representing the risk, or (2) that the Council had assumed responsibility towards the Claimants, were not applicable in the present case.
The Court of Appeal also found that the Claimants had misunderstood the statutory basis upon which an order resulting in the removal of the claimants from their mother could have been made.
The Claimants appealed that decision to the Supreme Court.
By the time the case was heard in the Supreme Court, Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 (concerning liability of the police to a bystander injured during the apprehension of a suspect) had been decided.
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 authorities
After summarising the background of the case at [1] to [24], Lord Reed traced relevant developments in the law of liability of public authorities since 1995 at [25] to [64].
At [28], he set out the core principle that:
“Like private individuals, public bodies did not generally owe a duty of care to confer benefits on individuals, for example by protecting them from harm.” He deliberately framed the distinction as: “between causing harm (making things worse) and failing to confer a benefit (not making things better), rather than the more traditional distinction between acts and omissions.”
He went on to restate the principle that there may be a duty to protect from harm in some circumstances, e.g. where the public body had created the source of danger or assumed responsibility to protect the Claimant from harm.
He explained that Anns v Merton London Borough Council [1978] AC 728 and Caparo Industries plc v Dickman [1990] 2 AC 605 had, in trying to clarify the law, been misunderstood. In particular, he described Caparo at [30] as
“widely misunderstood as establishing a general tripartite test which amounted to little more than an elaboration of the Anns approach, basing a prima facie duty on the foreseeability of harm and “proximity”, and establishing a requirement that the imposition of a duty of care should also be fair, just and reasonable: a requirement that in practice led to evaluations of public policy which the courts were not well equipped to conduct in a convincing fashion.”
He emphasised at [34] that decisions such as X (Minors) v Bedfordshire CC had to be viewed in this context.
At [64] he explained that Robinson did not lay down any new principles of law but clarified: (1) that Caparo did not lay down a 3-part test to establish whether a duty of care existed. Rather, it recommended an incremental approach to new situations, based on using previous cases as guides, and in which the question of whether a duty of care would be ‘fair, just and reasonable’ was part of the assessment of whether the incremental step should be taken. However, generally courts should apply established principles of law and not try and assess the requirements of public policy (2) the distinction between harming the claimant and failing to protect the claimant from harm was significant and (3) public authorities are generally subject to the same principles as private bodies, except where legislation requires a departure from those principles.
He ultimately concluded at [65] that:
“It follows (1) that public authorities may owe a duty of care in circumstances where the principles applicable to private individuals would impose such a duty, unless such a duty would be inconsistent with, and is therefore excluded by, the legislation from which their powers or duties are derived; (2) 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; and (3) that public authorities can come under a common law duty to protect from harm in circumstances where the principles applicable to private individuals or bodies would impose such a duty, as for example where the authority has created the source of danger or has assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation.”
Assumption of responsibility
Lord Reed went on to discuss the nature of an assumption of responsibility, setting out the origin and development of the concept at [67] to [69].
At [70] to [73] he addressed the Council’s argument that a public authority cannot assume responsibility merely by operating a statutory scheme. He rejected this argument, noting at paragraph [73] that:
“There are indeed several leading authorities in which an assumption of responsibility arose out of conduct undertaken in the performance of an obligation, or the operation of a statutory scheme… 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.”
The present case
Lord Reed then went on to find at [74] that X (Minors) v Bedfordshire CC was no longer good law in so far as it ruled out the possibility of a duty of care on the basis of public policy. He found that the question of whether a local authority owes a duty of care towards a child in particular circumstances depends on the general principles clarified in Robinson.
The first question, therefore, is whether the case is one in which the defendant has harmed the claimant or whether it is one in which the defendant has failed to confer a benefit, i.e. by protecting him from harm. The present case fell into the latter category.
At [75] he acknowledged that the Court of Appeal had taken a different approach, starting by considering public policy. He effectively disavowed that approach, emphasising that:
“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.”
Because the case involved a ‘failure to confer a benefit’, Lord Reed went on to consider at [76] whether there had been an assumption of responsibility. The Claimants argued that, in purporting to investigate the risk that the neighbours posed and in attempting to monitor the Claimants situation, the Council assumed responsibility for the Claimants’ particular difficulties – see [78].
Lord Reed agreed at [79] with the Court of Appeal that the Particulars of Claim did not provide a basis on which an assumption of responsibility might be established. He found at [81] that 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. Furthermore, it could not be said that the family had entrusted their safety to the Council, nor had the Council accepted that responsibility. The Council also had not taken the children into care.
At [84] to [88] the question of whether the Council was vicariously liability for the individual social workers was considered. Lord Reed noted at [86] that the first question was whether the social workers assumed a responsibility towards the Claimants to perform their functions with reasonable care. In finding that there was no assumption of responsibility he relied at [87] on the argument that, “there is no suggestion that the social workers provided advice on which the claimants’ mother would foreseeably rely.” Furthermore, he found at [88] that there was no suggestion that the Council had undertaken the performance of some task or the provision of some service with an undertaking (express or implied) that reasonable care will be taken.
Lord Reed finally found, at [90], that to dispel any doubt that the claim ought to be struck out, there were real difficulties in in relation to the breach of duty alleged. He found that the Claimants’ case, namely that “any competent local authority should and would have arranged for [the claimants’] removal from home into at least temporary care” could not succeed because, to obtain a care order, the Claimants would have to establish that they were suffering significant harm which was attributable to a lack of reasonable parental care. In the present case, the source of the harm was the neighbours, not the parent, and so there were simply no grounds for removing the children from their mother.
Conclusion
Whilst a loss for the Claimants, the decision is likely to be considered a victory for claimants generally as the Court has explicitly overruled X (Minors) v Bedfordshire CC and found that, in some circumstances, local authorities can be liable to children if it fails to protect them from third parties.
The decision re-emphasises the decline of Caparo as a ‘one size fits all’ test which can be simply applied to see if a duty of care exists. Rather, the court has reaffirmed that the incremental approach is correct, and courts should generally avoid wading into complex questions of public policy.
Furthermore, the decision hails the end of the act/omission distinction in favour of the more conceptually sound causing harm/failing to confer a benefit distinction.
Finally, the judgment reiterates the general rule that liability of public authorities will generally be the same as liability of private authorities unless inconsistent with legislation.
Lizanne Gumbel QC, Iain O’Donnell, Duncan Fairgrieve and Jim Duffy acted for the Claimants in this case. Philip Havers QC and Hannah Noyce acted for the 1st intervener, the AIRE Centre, and Martin Downs acted for the 4th intervener, Coram Children’s Legal Centre. None of them have been involved in the writing of this article.
