X & Anor v London Borough of Hounslow

A public authority does not assume a common law duty to protect a person from third-party crime merely by performing statutory social services or housing functions. Foreseeability, vulnerability, proximity and the availability of statutory powers are insufficient without an orthodox basis for liability, such as creation of the danger, control of the wrongdoer or a voluntary assumption of specific responsibility for the claimant’s safety.

Interdepartmental communication failures do not themselves create a duty owed to members of the public. Where a professional response falls within the range reasonably open to a competent practitioner, neither the professional nor the authority is negligent merely because another employee might have adopted a more protective course.

Two vulnerable adults with mild learning difficulties were violently and sexually assaulted in their council flat by local youths who had been exploiting them. Before the assaults, the Council’s social services and housing departments knew of harassment, threats, an earlier assault and the respondents’ wish to move.

Maddison J held that the Council owed a narrowly defined duty to move the respondents into emergency accommodation and had breached it through inadequate communication and coordination between departments. He awarded agreed damages of £97,000. The Council appealed against liability.

The central issues were whether the Council had assumed a common law duty to protect the respondents from third-party criminal acts and, if so, whether failure to arrange emergency accommodation breached that duty.

1. Appeal allowed. The Council had not assumed responsibility at common law for protecting the respondents from the criminal acts of the youths. Neither the Council nor its employees therefore owed the asserted duty to remove them into emergency accommodation.

2. Foreseeability of criminal harm was necessary but insufficient. The common law ordinarily imposes neither liability for a pure omission nor a duty to prevent harm caused by another’s deliberate wrongdoing. Something more was required, such as creation or increase of the danger, control over the wrongdoer, or a voluntary assumption of specific responsibility for the claimant’s safety. The principles stated in Mitchell v Glasgow City Council [2009] UKHL 11, Smith v Littlewoods Organisation Ltd [1987] 1 AC 241 and Gorringe v Calderdale MBC [2004] UKHL 15 applied.

3. The Council’s social services and housing officers were performing statutory functions. Their involvement, knowledge of the respondents’ vulnerability, efforts to obtain rehousing and the respondents’ reliance on public services did not establish the required assumption of responsibility. The Council had not created the danger, controlled the youths or specifically undertaken responsibility for the respondents’ safety.

4. The Council had to be considered by reference to the distinct social services and housing functions in issue. Although it was a single legal entity, an internal failure to communicate was not itself a common law duty owed to members of the public. The Housing Department also had to balance competing interests as housing provider and landlord.

5. In any event, breach was not established. The social worker who knew the circumstances most closely had acted impeccably and reasonably considered that a single move to suitable permanent accommodation was preferable to an emergency move. Since that was an approach reasonably open to a competent social worker under Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, the Council could not be held negligent because another officer might have initiated the emergency procedure.

6. The Court also considered that section 21(1)(a) of the National Assistance Act 1948 was excluded by section 21(8) where Part VII of the Housing Act 1996 applied. The availability of a statutory housing duty or emergency procedure did not, without more, generate an actionable common law duty.

1. Court of Appeal (Civil Division): Allowed the Council’s appeal and set aside the finding of common law liability.

2. High Court, Queen’s Bench Division: Maddison J gave judgment for the claimants on liability, awarded agreed damages of £97,000 and granted permission to appeal. No citation for that judgment is stated.