Local Authority Is Not Required to Exercise Functions to Protect Children From Harm

Public Liability Insurance

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DATE PUBLISHED: August 4, 2020

ABSTRACT

 This decision addressed whether a local authority was liable for failure to exercise social service functions to protect against harm from a third party.


INTRODUCTION

 In Poole Borough Council v GN[1] Lord Reed, with whom the remainder of the Bench of the Supreme Court of the United Kingdom agreed unanimously, accepted that the relationship between the Appellants and the Council did not possess the necessary characteristics for an assumption of responsibility to arise at common law[2].


BACKGROUND

 The Appellants were a family comprised of a mother and 2 sons, aged seven and nine years. The Appellants were placed in a house within a housing estate adjacent to another family who were known to engage in antisocial behaviour. The Appellants became the target of harassment and abuse spanning several years. One of the boys was receiving social services support for mental and physical disability since 2006. In 2010, the second son also started receiving support services. 

The Appellants allege that the abuse and harassment which the children experienced between May 2006 and December 2011 caused them physical and psychological harm. It was alleged that the Council had a common law duty of care to protect the Appellants from harm (by removing them from their home) after having placed them in the house and being involved in providing care and social support to the Appellants.

The Appellants argued that the Council’s duty of care arose when it carried out investigations and monitoring by the social services department. These investigations were undertaken as part of a statutory obligation under the Children Act 1989 (UK) (the Act) to protect children where there was “reasonable cause to suspect that a child ... in their area is suffering, or is likely to suffer, significant harm”, to make such enquiries necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.[3]

Pursuant to section 17 of the Act, a general duty is imposed on a local authority to safeguard and promote the welfare of children who are in need and to provide a range of services appropriate for those children’s needs. In exercise of its statutory obligation the Council’s social services department carried out assessments of the boys’ needs. 

It was accepted that exercise of the statutory functions did not give rise to a statutory duty of care[4].

 

THE DECISION

The Appeal was dismissed. 

Assumption of Liability

The “assumption of responsibility” was an important factor in determining the case.[5]Lord Reed stated that:

Since Hedley Byrne[6], the principle has been applied in a variety of situations in which the defendant provided information or advice to the claimant with an undertaking that reasonable care would be taken as to its reliability (either express or implied, usually from the reasonable foreseeability of the claimant’s reliance upon the exercise of such care).[7]

The Court looked to previous decisions regarding this issue[8].  In X (Minors) v Bedfordshire County Council[9], the social workers were held not to have assumed any responsibility towards the claimants in the child abuse cases, on the basis that they were not providing their professional services to the claimants, and it was not reasonably foreseeable that the claimants would rely on the reports which they provided to their employers. In the education cases, on the other hand, the local authority assumed responsibility for the advisory service which it was understood to provide to the public, since the public could reasonably be expected to place reliance on the advice; a school assumed responsibility for meeting the educational needs of the pupils to whom it provided an education; the headmaster came under a duty of care by virtue of his responsibility for the school; and an advisory teacher assumed responsibility for advice which he knew would be communicated to a child’s parents and on which they would foreseeably rely. In Barrett v Enfield London Borough Council[10] the local authority assumed responsibility for the welfare of a child when it took him into its care. In Phelps v Hillingdon London Borough Council [11]  the educational psychologist assumed responsibility for the professional advice which he provided about a child in circumstances where it was reasonably foreseeable that the child’s parents would rely on that advice.

The above cases reflect the undertaking of reasonability and reliance placed on that undertaking, which if one considers the reasoning of Lord Reed, will be the crux of a successful claim (against a Public Authority) in the United Kingdom.

Lord Reed determined 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. As in cases of private individuals, a duty to protect from harm, or to confer some other benefit, might arise in a particular circumstance, for example, where the public authority had created the source of danger or had assumed responsibility to protect the claimant from harm. [12]Lord Reed intentionally drew a distinction between causing the harm (making things worse) and in failing to confer a benefit (not making things better), rather than the more traditional distinction between actions and omissions[13].  

Lord Reed noted that the traditional approach was departed from in Anns v Merton London Borough Council[14] whereby a new 2 step approach was adopted. First, it was necessary to decide whether there was a prima facie duty of care based on foreseeability of harm. Secondly, in order to place limits on the breadth of the first stage, it was necessary to considered whether there were reasons of public policy for restricting the duty.  Lord Reed noted that  the decision in Anns was departed from in Murphy v Brentwood District Council[15], its reasoning in relation to the liabilities of public authorities remained influential until Stovin v Wise[16], where a majority of the House of Lords reasserted the importance of the distinction in the law of negligence between harming the claimant and failing to confer a benefit on him or her, typically by protecting him or her from harm[17].

This decision departed from the decision in X (Minors) Bedfordshire[18] on the basis that public policy cannot rule out the possibility that a duty of care might be owed by local authorities and their staff towards children with whom they came into contact in the performance of their functions or based on the assumption of responsibility.[19] Lord Reed emphasised that established principles of law should be applied rather than making a decision on issues of public policy[20]. As such, the principles of assumption and reliance will be pivotal going forward, without the benefit of public policy protections.

 

The Present Circumstances

The Court rejected the argument that Council had created the source of danger by placing the family in housing adjacent to the neighbouring family.  Lord Reed noted  that there is a consistent line of authority holding that landlords (including local authorities) do not owe a duty of care to those affected by their tenants’ anti-social behaviour. Lord Reed concluded that the claim against the Council was based, instead, on that assumption of responsibility and the “special relationship”. [21] Lord Reed stated that the assumption of responsibility is an undertaking that reasonable care will be taken either express or implied, usually from the reasonable foreseeability of reliance on the exercise of such care. He used the analogy that a hospital undertakes to exercise reasonable care in the medical treatment of its patient.  He differentiated the present care on that basis, ie  that the Council’s investigating and monitoring the claimant’s position did not involve the provision of a service to them on which they could be expected to rely. The mother may have been anxious that the Council should act, but anxiety does not amount to reliance. The nature of the statutory functions relied on did not itself entail that the Council assumed or undertook responsibility towards the claimants. [22]

Where no assumption can be inferred from the nature of the function itself, it can be inferred from the manner in which the public authority behaved and will depend on the facts of the individual case.  In the present case, Lord Reed was not satisfied that the particulars of the claim provided a basis for leading evidence about the particular behaviour by the Council, besides the performance of its statutory functions, from which an assumption of responsibility could be inferred[23].

 

Vicarious liability

It was also argued by the Appellants that the Council was vicariously liable for the negligence of its employees. The basis of this argument appears to have been that, as the social workers carried out assessments of the Appellants needs and provided the Council with information and advice, there was a duty to exercise reasonable care, including to remove the children from a harmful situation. Lord Reed compared the position of education psychologists’ in Phelps v Hillingdon and the advisory teacher in X (Minors) v Bedfordshire. In each of those cases, there was an emphasis on the fact that the advice would be communicated to the family and relied upon. Hence, those were cases where the duty of care arose on the basis of the Hedley Byrne principle. The present case was distinguished on the basis that the social workers did not provide advice on which the mother would foreseeably rely. Again, Lord Reed emphasised that there had to be a foreseeability of reliance on the exercise of care[24].

In this instance Lord Reed stated that the relevant legislative provisions do not themselves create a cause of action.  Reliance was placed on an assumption of responsibility arising from the relationship between the Appellants and the Council or its employees, but there is nothing to suggest that those relationships possessed the necessary characteristics for an assumption of responsibility to arise[25].

 

IMPLICATIONS

The judgement creates a clear distinction between a failure to act and positive acts contributing to an outcome. However, the judgment fails to give specific examples on how these situations may arise.

The decision is likely to impact on claims against all public bodies including health authorities involving social service functions. Claims are likely to focus on an assumption of responsibility and a public authority will not be able to rely on public policy to avoid liability.

Here in Australia, the decision is not binding but can be persuasive. In addition, limitations are already placed on the liability of public authorities pursuant to various legislative restrictions[26] and similar approaches have been taken in differentiating between omissions and positive acts where, by its conduct, the public authority has created the hazard[27].  


Published originally in the Health Law Bulletin.

 

[1] Poole Borough Council v GN [2019] UKSC 25

[2] Ibid, at [91]

[3] Section 47 of the Children Act 1989 , ibid at [19]

[4] Poole Borough Council v GN [2019] at [25]

[5] Poole Borough Council v GN at [66]

[6] Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465

[7]Poole Borough Council v GN at  [68]

[8] Ibid at [69]

[9] [1995] 2 AC 633

[10] [2001] 2 AC 550

[11] [2001] 2 AC 619

[12]Poole Borough Council v GN at [28]

[13]  Ibid at [28]

[14] [1978] AC 728

[15] [1991] 1 AC 398

[16] [1996] AC 923

[17] Poole Borough Council v GN at [30] and [31]

[18] [1995] 2 AC 633

[19] Poole Borough Council v GN [2019] UKSC 25 at [74]

[20] Ibid at [74]

[21] Ibid at [77] and [78]

[22] Ibid at [80] and [81]

[23] Ibid at [ 82]

[24]  Ibid at [80],  [87] and [88]

[25] Ibid at [91]

[26] See for example the Civil Liability Act 2003 (QLD), sections 35 and 36, Civil Laws (Wrongs) Act 2002 (ACT) sections 111 and 112, Wrongs Act 1958 (VICT) sections 83 and 84.

[27] See for example Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280 at 355 and Bryant v Competitive Foods Australia Pty Ltd & Ors [2018] QDC 258 (Jarro DCJ) [45], [46], [47].

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