UK Supreme Court clarifies when local authorities have a duty of care to protect victims from harm when carrying out their statutory functions
By Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School)
The question of local authority liability in negligence for failing to intervene to protect vulnerable parties from harm has been discussed by the highest UK courts in recent years. Local authorities have statutory powers to intervene to assist citizens in need. When, then, should they be liable for failing to intervene to protect citizens from harm from third parties? In recent years, the Supreme Court in two cases relating to the police sought to move away from policy-based analysis (seen famously in the controversial decision in X (Minors) v Bedfordshire CC  2 A.C. 633) to one based on traditional common law approaches to omissions and precedent: see Michael v Chief Constable of South Wales  UKSC 2 and Robinson v Chief Constable of West Yorkshire  UKSC 4. These cases draw an important distinction between a defendant who harms the claimant and one who fails to stop a third party harming the claimant. The second situation will not generally give rise to liability unless:
- A relationship exists between the parties in which one party assumes responsibility for the welfare of another; or
- The authority can be said to have created the source of danger or
- The third party who has harmed the claimant was under the defendant’s supervision or control.
The latest Supreme Court decision in Poole BC v GN  UKSC 25, delivered on 6 June 2019, marks an attempt by the Court to provide clearer guidance to litigants, while trying to reconcile somewhat contradictory earlier case-law. It is a rather complex decision – although given in a single judgment – and an important one. The purpose of this blog, therefore, is to explain the Court’s reasoning and give some indication of its implications for future case-law development.
GN raises once again the difficult question of the extent to which the law of tort should get involved in social strife. Here two children (one suffering from severe physical and learning difficulties) and their mother had, in May 2006, been given local authority housing next door to a family known for anti-social behaviour. Sadly, the mother and children were subjected to abuse and significant harassment by these neighbours over a number of years. The local authority and police tried to intervene, but without success. The younger child became suicidal and ran away aged 10. Finally, in December 2011, the family was rehoused. A Home Office independent report was critical of the police and of the council’s failure to make adequate use of powers available under anti-social behaviour legislation. During the period in question, both children had been identified by the council as children in need as defined in the Children Act 1989, and had social workers allocated to them. The claim then rested on the allegation that the council had been negligent in failing to exercise its powers under the 1989 Act so as to protect the children from harm at the hands of third parties.
The Court of Appeal
The Court of Appeal ( EWCA Civ 2185) had struck out the children’s claim. In its view, two considerations militated against liability: first, 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 (the policy argument) and secondly, in general, there was no liability for the wrongdoing of a third party, even where that wrongdoing was foreseeable (the omission argument). It also refused to follow the decision of D v East Berkshire Community Health NHS Trust  EWCA Civ 1151 which had suggested that a local authority might owe a duty of care to children in certain circumstances (here negligent investigation of suspected child abuse). The Supreme Court also struck out the claim, but for different reasons to the Court of Appeal.
The Supreme Court
Despite rejecting the children’s claim on the facts, the importance of GN lies in the UK Supreme Court taking the opportunity to offer guidance on the potential liability of local authorities for negligent failures to exercise its statutory powers to intervene to protect victims from harm caused by third parties. Reviewing the leading cases on this point over the last 25 years, Lord Reed (giving judgment) outlined three key principles
- Public authorities are generally subject to the same general principles of the law of negligence as private individuals and bodies, unless such a duty would be inconsistent with, and is therefore excluded by, the legislation from which their powers or duties are derived. In that way, says the Court, the courts can continue to take into account the difficult choices which may be involved in the exercise of discretionary powers (para 75);
- 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
- Public authorities can come under a common law duty to protect individuals from harm in circumstances where the principles applicable to private individuals or bodies would impose such a duty. This would include where the local authority has created the source of danger or has assumed a responsibility to protect the claimant from harm (again unless the imposition of such a duty would be inconsistent with the relevant legislation).
The Court reiterated the fundamental division between situations where the local authority via its staff actively harms individuals (as in Robinson) and where it fails to act (as in Michael). Different rules will apply. What is noticeable, however, is that the policy debate found in X v Bedfordshire is no longer part of the court’s reasoning. Indeed, X, states the Court, “can no longer be regarded as good law in so far as it ruled out on grounds of public policy the possibility that a duty of care might be owed by local authorities or their staff towards children”: para. 74 (emphasis added). Under the new approach, then, the court must consider in the first place whether the case is one in which the defendant is alleged to have harmed the claimant, or one in which the defendant is alleged to have failed to provide a benefit to the claimant, for example by failing to protect him from harm. If it is a case in the latter category, then generally liability will only arise if there has been an assumption of responsibility. Policy does not come into it.
How easy will it be to prove an assumption of responsibility?
This is key and will depend heavily on the facts of each individual case. The court will look for evidence of an express or implied undertaking amounting to an assumption of responsibility. In most cases, such an undertaking will be implied; the court finding it foreseeable that the claimant would rely on the authority exercising reasonable care towards them – note that this is an objective test. Going back to X v Bedfordshire, the Court held that the social workers had correctly not been found liable in the child abuse cases. They had not assumed any responsibility towards the claimants. They had been providing their professional services to their employers, not the claimants, and it was not reasonably foreseeable that the claimants would rely on these reports. In contrast, in Phelps v Hillingdon  2 A.C. 619, where the child (through his or her parents) was the intended recipient of professional advice, or could be expected to rely on advice provided to the local authority, there could be an assumption of responsibility giving rise to a duty of care. Equally, unlike the Court of Appeal, it was happy to stand by the decision in D v East Berkshire but reframed the case as one involving doctors and social workers allegedly causing harm to the child by separating her from her father due to unfounded allegations of sexual abuse and not one of failing to protect her from harm.
The test, then, is whether the local authority has undertaken the performance of some other task or service for the claimant with an undertaking (express or implied) that reasonable care would be taken. The Court was happy to accept that a public body which offers a service to the public will often assume a responsibility to those using the service e.g. hospitals, private or public, offering medical treatment to patients. However, by simply investigating and monitoring the position of the claimants, the local authority here had not provided a “service” on which the children or their mother could be reasonably expected to rely. Further, even though individual social workers and/or social work managers and other staff employed by the defendant had been tasked with investigating the plight of the claimants, the assessments of the claimants’ needs had been carried out on the council’s instructions, and provided the council (and others who may have been involved in decision-making) with information and professional advice about the children for the purpose of enabling the council to perform its statutory functions. There are been therefore no individual assumption of responsibility to the children by the social workers for which the council could be vicariously liable.
In GN, the Supreme Court has established a legal framework for future claims. It has made it very clear that no longer will arguments based on “policy” be sufficient to justify rejecting the imposition of a duty of care on local authorities for failing to protect victims against harm caused by third parties. Instead, the court will follow a set procedure with a primary focus on whether an assumption of responsibility has given rise to a duty of care. Lord Reed reiterated the concerns in Robinson that the policy arguments found in Caparo v Dickman  2 A.C. 605 had proven too influential and that they should be confined to novel cases where the question whether the imposition of a duty of care would be fair, just and reasonable forms part of the assessment of whether such an incremental step ought to be taken. Over-enthusiastic application of the Caparo test “had in practice led to evaluations of public policy which the courts were not well equipped to conduct in a convincing fashion”: para 30.
The fact remains, however, that the claimants in this case lost. As in Michael, it seems that the less that is done for the claimants, the less likely the local authority will be deemed to assume responsibility to them for their welfare (here, if the council had taken the children into care, for example, it would have owed them a duty of care). How easy, then, will it be in practice to show an assumption of responsibility? Let us consider briefly X v Hounslow LBC  EWCA Civ 286. Here no assumption of responsibility was found towards vulnerable adults where the housing and the social services departments were found to have simply been trying to exercise their statutory functions, no more and no less. Much seems to lie on the precise interaction between the parties and the readiness of the courts to find an assumption of responsibility. If, as indicated in the Michael and Hounslow decisions, the courts take a tough line on this, we might wonder whether the Supreme Court is giving with one hand (no policy bar to a duty of care) and taking with the other (no assumption of responsibility for exercising statutory function in the absence of clear evidence of an undertaking to the victim). The burden will, of course, lie on the victims to provide evidence of this undertaking.
The reality of the GN case is that a vulnerable family had been brutally harassed by their neighbours. The easiest solution would have been to rehouse the family, but this requires resources and there was no statutory duty on the local authority to do so; the House of Lords having ruled that the provision of residential accommodation to rehouse a child in need so that he can live with his family is not the principal or primary purpose of the 1989 Act: R (G) v Barnet London Borough Council  UKHL 5. Criminal law had failed the family. Tort law, as we can see, does not lend itself well to the broader questions of social policy raised in this case. GN, however, leaves one final question unanswered: in the light of Michael (no assumption of responsibility) and GN (ditto) just how willing will the courts be to find a duty of care in this category of cases?