How much comfort can local authorities take from the Supreme Court’s decision in Poole Borough Council v GN [2019] UKSC 25?

12.07.19

In the context of a number of decisions which apparently increase the scope of vicarious liability (i.e. liability for another’s negligence) and particularly in light of the Supreme Court’s decision in Armes v Nottinghamshire County Council [2017] UKSC 60; local authorities might feel reassured that Poole Borough Council was not found liable for harm caused to the claimants by abusive neighbours. However, any such comfort may be misplaced.

Background

This case concerned claims brought by two men who, when they were children, had been placed in local authority housing along with their mother. One of the children had significant disabilities and so the house was adapted to meet his needs and the mother was provided with a care plan by the council.

Unfortunately the family was placed next to another family who harassed and abused the claimants and their mother over several years between 2006 and 2011. The council took various steps in an attempt to prevent the abuse, including eviction, injunctions, antisocial behaviour orders and securing imprisonment of some of the perpetrators.

However it was not until 2011, when the family was housed in a different area, that the problem ceased.

The claimants’ case

By the time the case reached the Supreme Court it proceeded on the basis that the council had breached its common law duty of care to the children and its duties in terms of the Children Act 1989.

In particular, the claimants argued that the local authority had breached its duty to the claimants by not removing them from their mother and, more generally, for not providing them with relevant services as children in need.

Importantly, the claimants did not argue that the local authority had failed in the context of legislation relating to the provision of support to carers, the provision of housing or protection from anti-social behaviour.

It was accepted by the claimants that a breach of the Children Act 1989 by the local authority did not create a statutory claim. It was instead argued that the local authority owed a duty of care in the performance of its functions set out in the Act.

The Supreme Court decision

Lord Reed delivered the leading (and unanimous) judgment. He found that the council had not owed the claimants such a duty, and therefore had not breached it.

He carried out a detailed analysis of previous case law relating to the liability of public authorities for negligence from 1995 to the current date. He observed that the approach by the House of Lords and then the Supreme Court had changed during the period and that the Supreme Court was more recently attempting to set out a “clearer framework”.

Ultimately he concluded that X (Minors) v Bedfordshire County Council [1995] 2 AC 633 is no longer good law. In that case it was found that public policy excluded a local authority’s common law liability towards children in the context of the authority’s performance of its statutory duties under the Children Act 1989. More generally, it has been relied upon to argue that public policy excluded a public body’s liability for its negligence in its exercise of its statutory duties or powers.

Lord Reed found that, in fact, a local authority could owe a common law duty in this context and that any such duty would only be avoided if it was inconsistent with, and therefore excluded by, the legislation from which the local authority powers or duties arose

He noted a crucial distinction between a local authority who, or whose staff, did a positive harm by way of negligence and one which failed to exercise a power to prevent harm by a third party.   A local authority could be liable in both scenarios but in the second, only in circumstances in which a private individual or body would owe a duty; for example where there had been an assumption of responsibility.

In this case, there was no liability because it fell into the category of cases where the council had failed to provide a benefit rather than one in which they had created a risk. Furthermore, the council, and its employees, had done nothing to assume a responsibility towards the claimants or their mother. No advice, guidance or actions had been taken in the knowledge that the mother or her children would rely upon that.

The implications of the decision

Local authorities cannot avoid liability for harm simply on the grounds that they are carrying out statutory functions. There is no automatic immunity, and public policy will not offer blanket protection.  The common law duties of public bodies will be assessed on the same basis as those of private individuals; unless the imposition of the duty is inconsistent with the legislation imposing the statutory duty or power. Thus the emphasis has shifted and the onus is on the public body to demonstrate that the alleged duty is inconsistent with the exercise of its statutory functions.

Further, where a public body has created a risk or has inflicted a positive harm, there is no requirement to demonstrate an assumption of liability.

However, a public body will not be liable for a failure to confer a benefit or to protect an individual from a third party’s actions unless there has been an assumption of responsibility or its equivalent.

The key message is that all cases will be decided on their own facts and care must be taken to consider the particular facts of each claim, especially in an area of law which is constantly developing.