The Supreme Court has overturned a 2017 decision on councils’ ‘duty of care’ to protect children from harm by third parties, reinstating the possibility of negligence claims where children were known to be at risk.
In a ruling last week, the court dismissed an appeal from a disabled man and his brother seeking damages for physical and psychological harm caused to them as children by abusive neighbours when their family was placed in an adapted house. However, it found there could be circumstances where a council would be liable, and would have a duty of care when undertaking statutory social work, not just for looked-after children.
The ruling was described as ‘landmark’ by lawyers and the human rights and children’s charities who applied to be interveners in the case, and is expected to lead to a number of negligence claims proceeding to the courts that had been put on hold pending this decision.
Appeal court mistaken
The judgment, delivered by Lord Justice Reed, reviewed developments in negligence law and found the Court of Appeal had been wrong in its 2017 ruling on this case to find social workers and councils could not be liable for failing to protect children from harm caused by a third party.
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The Court of Appeal had placed emphasis on an earlier case (X v Bedfordshire ) where neglected children had not been removed from their parents, which found that “liability in negligence would complicate decision-making in a difficult and sensitive field, and potentially divert the social worker or police officer into defensive decision-making”. This did not take into account more recent decisions, Lord Reed said.
The Court of Appeal had also been “mistaken” in saying that a 2003 judgement (D v East Berkshire) – which had allowed for negligence claims to be made against a local authority for a failure to act – had been overruled.
Factors to consider
Lord Reed found that the question of whether a council or its social workers had a duty of care, and was therefore liable for negligence, was down to a number of factors and specific circumstances, but the following would need to be considered:
- ‘Duty of care’ is covered by tort law and therefore public authorities are subject to the same principles in this area of law as private individuals (‘common law’ duties). This means public bodies do not generally owe a duty of care to ‘confer benefits’ on individuals. Providing protection from harm, as distinct from a duty not to cause harm, would generally be viewed by the courts as ‘conferring a benefit’.
- There is no automatic duty of care to confer this benefit when a local authority provides statutory safeguarding and welfare services, “even if, by exercising their statutory functions, they could prevent a person from suffering harm”.
- However, the duty may apply in some cases. Lord Reed said that previous case law that found statutory powers or duties do not automatically confer a duty of care on public authorities “should not be understood as meaning that an assumption of responsibility can never arise out of the performance of statutory functions”.
- A local authority would have a duty of care if it “has created the source of danger or has assumed a responsibility to protect the claimant from harm”.
- Whether a council or social workers have “assumed responsibility” depends on the specific circumstances of individual cases. It might be made explicit “or, more commonly, implied”. Lord Reed cited cases when professionals or public authorities had been found to have assumed responsibility. For example, in Barrett v Enfield (2001), which was brought by a child who had been in care throughout his childhood, the local authority was found to have a common law duty of care and social workers to have a duty of care because of their obligations to monitor the child’s welfare. He also emphasised ‘reliance’ on the service provided. For example, in another case “[an] educational psychologist assumed responsibility for the professional advice which he provided about a child where it was reasonably foreseeable that the child’s parents would rely on that advice”.
- Lord Reed also cited examples where the courts had decided there had not been an assumption of responsibility. In a case where a social worker and psychiatrist were investigating child abuse claims, they were responsible for advising the local authority about the child’s wellbeing but not for advising or treating the child. “It was not reasonably foreseeable that the claimants would rely on the reports which they provided to [the local authority],” so there was no assumption of responsibility.
Lord Reed stressed that assumption of responsibility “is not confined to the provision of information or advice,” and that future claims would be considered on their specific circumstances.
“The existence of an assumption of responsibility can be highly dependent on the facts of a particular case, and where there appears to be a real possibility that such a case might be made out, a court will not decide otherwise on a strike out application.”
Children’s rights charity Article 39, which intervened in the case, said the judgment had “important and welcome implications”. Its director, Carolyne Willow, said she was particularly concerned about mistreatment in secure training centres and young offender institutions and “local authorities’ failures to take robust, protective action”.
“We are incredibly relieved that the Supreme Court has reinstated the potential for children and young people to bring negligence claims against local authorities who have failed to protect them from harm,” she added.
More on negligence
Lawyers expect to see further court judgments on duty of care issues in order to clarify when provision of statutory services would involve an assumption of responsibility. James Arrowsmith, head of law firm Browne Jacobson’s social care and abuse team, commented:
“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. 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.”
What happened in the Poole case and why did the court decide the council had not assumed responsibility?
The older brother in this case, whom the court referred to as Colin, is severely mentally and physically disabled. He received support from Poole’s child health and disability team as a child in need under section 17 of the Children Act 1989. In 2006, as part of the package of care, Colin (then aged nine), his brother (referred to as Graham) and his mother (‘Amy’) were placed in a house where adaptations were made to meet Colin’s needs.
A neighbouring family on the estate targeted the children and their mother following an initial incident where Amy reported their threatening behaviour to the council. The harassment and abuse continued for a period of years, including vandalising Amy’s car, attacking the home, and making threats and carrying out verbal abuse and physical assaults on Amy and Graham. Anti-social behaviour orders, injunctions, eviction orders and court proceedings issued against the neighbours were ineffective in preventing the harassment.
In 2009, when he was 10, Graham ran away from home, leaving a suicide note. Following assessment, Graham was initially allocated to the family support team and the same social worker as Colin and a recommendation made that Amy be provided with mental health support. After Graham’s child in need plan had been completed, the council concluded its initial assessment was flawed and he was put on a child protection plan.
Amy wrote to councillors and MPs about the impact of the ongoing behaviour by the neighbours, leading to a Home Office-commissioned independent report, which criticised the police and council’s failure to make adequate use of anti-social behaviour powers.
In 2011, the council rehoused the family away from the estate.
The family’s initial claim for the physical and psychological harm caused during this period had initially included that the council acting as a housing authority owed it a duty of care to protect them from abusive anti-social behaviour by rehousing them. This did not succeed and subsequent hearings have focused solely on the council’s powers and duties under the Children Act.
There were then two claims:
- The council had breached its duty to protect children in its area at risk of harm. If it had properly investigated the abuse they were suffering from neighbours, it would have removed the children as their mother was unable to protect them from this behaviour.
- The council was vicariously liable for failures by social workers involved with the family who had a duty of care to protect the children.
The Supreme Court upheld decisions by the Court of Appeal and lower courts that the first claim – that the children should have been taken into care – “had no possible basis”. The situation could have not have met the threshold conditions for any type of care order. In order to remove a child, the risk of significant harm has to be attributable to lack of reasonable parental care, when in this case it was due to the conduct of the neighbours.
The second claim would have required the assumption of responsibility by social workers. The claim stated that that there was a “special relationship” between the family and council because social workers were “attempting to monitor the claimants’ plight” and their investigations meant they had taken responsibility to protect the children. However, the court found:
“In the present case…there is no suggestion that the social workers provided advice on which the claimants’ mother would foreseeably rely.
“It may have been reasonably foreseeable that their mother would be anxious that the council should act so as to protect the family from their neighbours, in particular by re-housing them, but anxiety does not amount to reliance. 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. ….In short, the nature of the statutory functions relied on in the particulars of claim did not in itself entail that the council assumed or undertook a responsibility towards the claimants to perform those functions with reasonable care.”