Poole Borough Council v GN (through his litigation friend “The Official Solicitor”) and another

Public authorities are generally governed by the ordinary law of negligence. A statutory power or duty does not itself create a common law duty of care, although conduct undertaken under a statutory scheme may involve an assumption of responsibility.

A person is not ordinarily liable for failing to protect another from harm caused by a third party. Liability may arise where the defendant created the danger, assumed responsibility for protection, prevented another from protecting the claimant, controlled the source of danger, or occupied a status carrying an obligation to protect.

A local authority may therefore owe a child a duty when exercising social services functions. There is no general public-policy immunity. An assumption of responsibility nevertheless requires conduct amounting to an undertaking of careful performance and foreseeable reliance or an equivalent entrustment; merely investigating and monitoring a child under the Children Act 1989 is insufficient.

The claimants were children who allegedly suffered physical and psychiatric harm from prolonged harassment by a neighbouring family. The respondent council knew of the anti-social behaviour and provided social services support and assessments, but the claimants remained at home until the family was rehoused.

The claimants alleged that the council and its social workers negligently failed to exercise functions under sections 17 and 47 of the Children Act 1989 to protect them. They contended that proper investigation would have led to their temporary removal from their mother's care.

Master Eastman struck out the claim. Slade J allowed the claimants' appeal: [2016] EWHC 569 (QB); [2016] HLR 26. The Court of Appeal restored the strike-out order: [2017] EWCA Civ 2185; [2018] 2 WLR 1693. The central issue before the Supreme Court was whether a local authority or its employees can owe children a common law duty of care when exercising social services functions, and whether the pleaded facts disclosed such a duty.

1. Appeal dismissed unanimously. Lord Reed, with whom Lady Hale, Lord Wilson, Lord Hodge and Lady Black agreed, held that the particulars disclosed no recognisable basis for a duty of care. The Court of Appeal's order was upheld, although its reasoning was corrected.

2. Public authorities are generally subject to the same principles of negligence as private persons. They may be liable where ordinary common law principles impose a duty, unless that duty would be inconsistent with the legislation governing their functions. Statutory powers and duties do not themselves create a common law duty merely because their exercise could prevent foreseeable harm.

3. The court applied the distinction clarified in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 between causing harm and failing to protect against harm. A failure to protect against third-party wrongdoing does not ordinarily attract liability. Relevant exceptions include creation or control of the danger, assumption of responsibility, interference with another's protective action, and a status carrying an obligation to protect.

4. X (Minors) v Bedfordshire County Council [1995] 2 AC 633 could no longer be regarded as good law so far as it excluded, on public-policy grounds, any possible duty towards children encountered through functions under the Children Act 1989. Its reasoning in the Newham proceedings was also disapproved so far as it made liability for positively inflicting harm depend upon an assumption of responsibility. The Court of Appeal's decision in D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151 had not been overruled and correctly rejected a categorical immunity.

5. An assumption of responsibility may arise from conduct performed under a statutory scheme, but it does not arise automatically. It ordinarily involves an express or implied undertaking of careful performance, accompanied by foreseeable reliance, or the claimant's equivalent entrustment of an affair or service to the defendant. The existence of an assumption may depend on facts unsuitable for determination on a strike-out application, but the pleading must identify conduct capable of supporting the inference.

6. The council's investigation, monitoring, allocation of social workers and assessment of needs involved only the performance of statutory functions. They did not constitute a service on which the family relied, an acceptance of responsibility for the children's safety, or the taking of the children into care. The social workers supplied information and advice for the council's decision-making, not advice on which the children's mother was expected to rely. Neither the direct nor the vicarious-liability claim therefore disclosed an arguable assumption of responsibility.

7. The pleaded breach was independently untenable. Sections 31(2) and 38(2) of the Children Act 1989 required harm attributable to inadequate parental care, or reasonable grounds for believing that condition existed. The alleged harm was attributable to the neighbours, while the mother provided reasonable care. There was consequently no lawful basis for removing the children from her. The claim was struck out because a trial would be inevitably fruitless.

1. United Kingdom Supreme Court: The claimants' appeal was dismissed unanimously: [2019] UKSC 25 . The Court of Appeal's order was upheld for different reasons.
2. Court of Appeal: The council's appeal was allowed and the strike-out restored: [2017] EWCA Civ 2185 ; [2018] 2 WLR 1693 .
3. High Court, Queen's Bench Division: Slade J allowed the claimants' appeal from Master Eastman and permitted amendment of the particulars: [2016] EWHC 569 (QB) ; [2016] HLR 26.
4. High Court, Master: Master Eastman struck out the claim on 2 October 2015.