Where are we now in ‘failure to remove' claims?

Poole Borough Council v GN & Another [2019] UKSC 25

The Supreme Court finally delivered its Judgment in Poole Borough Council v GN & Another on 6 June 2019, unanimously dismissing the Claimants’ appeal on the basis that the Particulars of Claim in the proceedings did not disclose any recognisable basis for a cause of action. However, the facts of this case were far removed from the typical ‘failure to remove’ type claim and it is, therefore, necessary to consider the Judgment in greater depth to understand its application more widely.

The factual background 

It should be borne in mind that because this case arose out of a strike out application, it is based on the limited matters that were set out in the Particulars of Claim.  In summary, it was alleged that in 2006, the Claimants and their mother were placed, by the Council, in a house adjacent to another family who, to the Council’s knowledge, had persistently engaged in anti-social behaviour. GN was then aged 7. CN was aged 9, is severely mentally and physically disabled, and requires constant care.

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The Council made extensive adaptations to the house to meet CN's needs and provided a care package through its Child Health and Disability Team, and CN had an allocated social worker. The family were subjected to harassment and abuse by the neighbouring family, including vandalism of the mother’s car, attacks on their home, threats of violence, verbal abuse and physical assaults on GN and his mother. These incidents were reported to the Council and various measures were taken against the neighbouring family, but the harassment continued.

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In 2008, GN expressed suicidal ideas and, in September 2009, ran away from home leaving a suicide note. A social worker carried out an Initial Assessment and recommended that a Core Assessment should be carried out. That was completed in February 2010 and GN was allocated the same social worker as CN. In May 2010, a Children’s Services Manager acknowledged that the Initial Assessment had been flawed. A Child Protection Strategy Meeting was held in July 2010, when it was decided that GN’s risk of harming himself should be managed via a Child in Need Plan. In November 2010, the Council concluded that its Core Assessment had also been flawed and a revised assessment was commenced. Following its completion, in June 2011, a Children Act 1989 s.47 investigation was carried out, resulting in a Child Protection Conference at which it was decided to make GN the subject of a Child Protection Plan.
 

In the meantime, the Claimants’ mother had involved her local Councillors and MPs, prompting media coverage. This resulted in the Home Office commissioning an independent report which was critical of the Police and of the Council’s failure to make adequate use of powers under the anti-social behaviour legislation. The family was, ultimately, moved to a new home in December 2011. It was alleged that the abuse and harassment that the Claimants suffered between May 2006 and December 2011 caused them physical and psychological harm.

Route to the Supreme Court

Proceedings were issued in 2012 by the Claimants and their mother against the Council, the Police and Poole Housing Partnership Limited. Those proceedings were struck out as no Particulars of Claim were served. Further proceedings were issued by the Claimants and their mother in 2014 with the Council as the sole Defendant. Master Eastman struck out the claims, relying on X v Bedfordshire County Council [1995], on the basis that no duty of care arose out of the statutory powers and duties under the Children Act 1989. The Claimants appealed (their mother did not appeal against the striking out of her claim) submitting that Master Eastman had erred in relying on X v Bedfordshire as he had overlooked subsequent cases, including D v East Berkshire Community NHS Trust [2003] in which the Court of Appeal effectively held that the public policy objections to the existence of a duty of care set out in X v Bedfordshire no longer applied following the implementation of the Human Rights Act 1998.

 
The appeal was heard by Slade J. The principal issue before her was whether or not D v East Berkshire had been overruled by the subsequent decisions of the House of Lords in Mitchell v Glasgow City Council [2009] and the Supreme Court in Michael v Chief Constable of South Wales [2015]. Slade J held that it had not and she allowed the Claimants’ appeal. The Defendant appealed.

The Court of Appeal delivered its Judgment on 21 December 2017 and turned child abuse litigation ‘on its head’ by holding that D v East Berkshire was no longer good law. Accordingly, the legal position effectively reverted to X v Bedfordshire. The Claimants appealed to the Supreme Court.
 

The Supreme Court’s decision

In answering the question whether local authorities may be liable for breach of a common law duty of care in relation to the performance of their functions under the Children Act 1989, the Supreme Court restated the distinction between a duty to take reasonable care not to cause injury and a duty to take reasonable care to protect against injury caused by a third party. A duty of care of the latter kind would not normally arise at common law in the absence of special circumstances.

The Supreme Court set out the following general principles:

 

• 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;

• 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 someone from harm in circumstances where the principles applicable to private individuals or bodies would also impose such a duty, as, for example, where the authority has created the source of danger or assumed a responsibility to protect the Claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation.

The Court held that X v Bedfordshire can no longer be regarded as good law insofar as it ruled out on grounds of public policy the possibility that a duty of care might be owed or insofar as liability for inflicting harm on a child was considered to depend upon an assumption of responsibility. Whether a local authority or its employees owe a duty of care to a child in particular circumstances depends on the application in that setting of the general principles. Applying those principles to this case the Supreme Court:

 

• Began by considering whether this case was one in which the Defendant was alleged to have harmed the Claimants or one in which the Defendant was alleged to have failed to provide a benefit to the Claimants, for example, by protecting them from harm. The Court found that the case fell into the latter category. Accordingly, it was necessary for the Claimants to establish one of the exceptions to the general rule that a duty to take reasonable care to protect against injury caused by a third party would not normally arise.

• It was suggested in argument that a duty of care might have arisen on the basis that the Council had created the source of danger by placing the Claimants’ family in housing adjacent to the neighbouring family, but the Court confirmed this argument could not be sustained as 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.

• The Claimants’ claim was, therefore, based on an assumption of responsibility. An assumption of responsibility is an undertaking that reasonable care will be taken, either express or, more commonly, implied, usually from the reasonable foreseeability of reliance on the exercise of such care.

• On the facts of this case, there had been no assumption of responsibility. "The Council’s investigating and monitoring of the Claimants’ position did not involve the provision of a service to them on which they or their mother could be expected to rely. … 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. … It is of course possible, even where no such assumption can be inferred from the nature of the function itself, that it can nevertheless be inferred from the manner in which the public authority has behaved towards the Claimant in a particular case … Nevertheless, the Particulars of Claim must provide some basis for the leading of evidence at trial from which an assumption of responsibility could be inferred. In the present case, … the Particulars of Claim do not provide a basis for leading evidence about any particular behaviour by the Council towards the Claimants or their mother, besides the performance of its statutory functions, from which an assumption of responsibility might be inferred."

• The claim that the Council was liable on the basis of vicarious liability for the negligence of its employees also depended on whether the social workers assumed a responsibility towards the Claimants to perform their functions with reasonable care. The Court found they had not. There was no suggestion that the social workers provided advice on which the Claimants’ mother would foreseeably rely or that they had undertaken the performance of some task or the provision of some service for the Claimants with an undertaking that reasonable care would be taken. 

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Implications 

The general rule is that no duty of care is owed to take reasonable care to protect against injury caused by a third party.  In order to establish a duty of care, Claimants in ‘failure to remove’ claims will have to show that one of the exceptions applies.  In such claims this is most likely to be that there has been an assumption of responsibility.  It is clear that once a child has been taken into care, the local authority assumes a responsibility for the welfare of the child (Barrett v Enfield London Borough Council [2001]). However, the question of what, short of taking a child into care, may be sufficient to constitute an assumption of responsibility remains a ‘grey area’ and each case will turn on its particular facts.

Many cases involve children who have been accommodated by the local authority with their parents’ consent and no care proceedings have been issued.  Will this be sufficient to establish an assumption of responsibility akin to Barrett?  It remains a moot point, but there are risks that a duty of care could be established in such circumstances.

The mere exercise of the statutory functions will be insufficient. On the facts in Poole Borough Council v GN, the investigation and monitoring by the Council’s Social Services Department, assignment of social workers to the Claimants, the various assessments of their needs, meetings at which the appropriate response to GN’s behaviour was discussed and the Child Protection Plan were held to be insufficient.

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Whilst there will, undoubtedly, be further cases before the Courts regarding the existence or otherwise of an assumption of responsibility, the onus is now firmly on Claimants to identify the particular behaviour by local authorities, beyond the performance of their statutory functions, from which they allege an assumption of responsibility may be inferred.