SKX v Manchester City Council

A local authority is not vicariously liable for abuse by an employee of an independent children’s home merely because it placed a child there. The decisive question is whether the relationship is akin to employment; an independent business relationship is fatal to the claim.

A local authority’s statutory duty to arrange and fund a child’s day-to-day care is discharged, rather than delegated, when the child is placed under Child Care Act 1980, section 21. The authority may remain liable for negligent placement or monitoring, but it is not subject to a non-delegable duty ensuring that care is taken by the placement provider. The limitation discretion under section 33 requires an assessment of fairness to both parties, with particular weight given to delay and evidential prejudice.

The claimant, who had been taken into the defendant local authority’s care as a child, was sexually abused in 1989 by the chief executive of a privately-run children’s home to which the authority had placed him. The defendant accepted that the abuse occurred but denied liability.

The claimant advanced alternative claims in vicarious liability and non-delegable duty. He also sought an extension of time under section 33 of the Limitation Act 1980. The court tried those three issues as preliminary issues, against the statutory framework in the Child Care Act 1980 and the Supreme Court’s decisions on vicarious liability and non-delegable duties.

1. Vicarious liability. The claim failed. The governing question was whether the relationship between the tortfeasor and the alleged defendant was akin to employment. If the tortfeasor was carrying on an independent business of his own or of a third party, there was no vicarious liability. The five incidents identified in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 were not a checklist for non-employment cases and need not be considered where the independent-business character was clear.

2. The children’s home was a separate, profit-making business providing services to numerous local authorities. The defendant was one client among many and had no organisational integration or day-to-day control. The chief executive’s senior position within the home did not alter his relationship with the defendant. The fact that the authority had referred the claimant to the home was insufficient.

3. Non-delegable duty. The claim also failed. Following Armes v Nottinghamshire County Council [2017] UKSC 60, the critical question was whether the authority was under a duty to provide day-to-day care itself, or only to arrange, supervise and pay for that care. Under section 21(1) of the Child Care Act 1980, placement discharged the authority’s duty to provide accommodation, maintenance and daily care. It did not delegate that function while retaining strict responsibility for its performance.

4. The authority could still be directly liable for negligent placement or monitoring, but it owed no non-delegable duty ensuring that the independent provider took care. The differences between voluntary care under section 2 and care under section 10, and between foster care and a privately-run home, did not distinguish Armes. The earlier County Court reasoning in JB and BB v Leicestershire County Council could not stand in light of the binding Supreme Court reasoning.

5. Limitation. The court exercised its discretion under section 33 of the Limitation Act 1980. Although the delay was nearly 28 years, the defendant suffered no significant evidential prejudice. The claim involved largely undisputed facts and legal issues, and the claimant had pursued other avenues of redress before acting promptly after receiving advice about a possible claim against the authority.

6. The claim was nevertheless dismissed because neither substantive basis of liability succeeded.