When a failure to care amounts to negligence

Community Care’s legal expert looks at the liability of social care providers for negligence in the light of the Jake Pierce v Doncaster Council ruling

Q: What happened in the Jake Pierce case?

A: As a baby, Jake Pierce (known in court as P) was taken into care due to severe parental neglect. He was returned to his parents aged two despite no evidence of improved parenting skills.

At three, he was admitted to hospital with scalding but then returned to his parents again. He continued to suffer emotional and physical abuse until, at 13, he ran away from home and went into care.

As an adult, Pierce suffered with severe mental illness. He brought a claim for damages for negligence against his local authority, Doncaster Council. Pierce argued that his illness was caused by their negligent failure to protect him from his parents.

Q: Why was the local authority liable to pay damages?

A: The High Court held that Doncaster owed Pierce a ‘duty of care’ when investigating suspicions that his parents were abusing him. This duty was breached.

Doncaster’s conduct fell below the standard expected of a reasonably competent social work department. The court awarded
Pierce £25,000 for the pain and suffering he endured as a result of Doncaster’s breach of duty.

Q: Does this mean that all negligence leads to liability?

A: No. Negligence claims are only possible if a ‘duty of care’ exists. Here, ‘duty of care’ has a technical legal meaning and the courts decide if a duty exists in a particular situation.

This, however, does not mean there is liberty to act carelessly in other situations. Carelessness could give rise to other legal claims, for example human rights claims, or maladministration complaints.

Q: Are there other social care ‘duties of care’?

A: The courts have held duties of care to exist in a range of other contexts relevant to social care including:

• Children in care – Barret v Enfield LBC (1999): In this case, it was found that a council, acting as corporate parent, could owe a duty of care to a looked-after child.
  
• Foster parents – W v Essex CC (2001): In this case, it was found that a duty of care could be owed to a foster parent in respect of placement decisions. (Foster parents in this case were assured that their foster child was not a known sexual abuser when in fact he was and went on to abuse their children.)
  
• Foster parents – Beasley v Bucks CC (1997): In this case, it was found that a duty of care could be owed to a foster carer who injures themself lifting a disabled foster child.
  
• Child care recommendations – T v Surrey CC (1994): In this case, it was found that a duty of care could be owed to parent when recommending a suitable child minder. (The mother in this case was recommended a child minder who was in fact being investigated for abuse and went on to injure her child.)
  
• Quality of education – Phelps v Hillingdon LBC (2001): In this case, it was found that teachers and educational psychologists could, in the provision of education, owe children a duty of care.
  
• Bullying – Bradford-Smart v West Sussex CC (2001): In this case, it was found that schools could owe pupils a duty of care to protect them from bullying.

Q: When is there no ‘duty of care’?

A:  Where a public body is acting for the benefit of someone other than the person claiming, the courts are more likely to hold that no duty of care exists. Recent examples include:

·        Care standards enforcement – Jain v Trent HA (2007): In this case, it was found that a registration authority did not owe a provider a duty of care when taking urgent enforcement action.

·        Child protection investigations – JD v East Berks NHS Trust (2006): In this case, it was shown there was no duty of care owed to parents under investigation (in contrast with the position as regards children, as the Jake Pierce case shows).

·        Relationships between public bodies – Islington LBC v UCL NHS Trust (2005): In this case, it was shown there was no duty of care owed by an NHS hospital to a social services department in the provision of medical care. (The local authority in this case had unsuccessfully attempted to sue the NHS for damages to cover the long-term care costs of a person left disabled as a result of medical negligence.)

Ed Mitchell is a solicitor, editor of Social Care Law Today and Community Care’s legal expert

To read more on the Jake Pierce case, go to More than just an error