Denis Hamilton & Anor v The London Borough of Sutton

A local authority does not assume a common-law duty of care merely by exercising statutory social-services functions or complying with duties owed to a child. A claimant must identify conduct capable of establishing an assumption of responsibility to that claimant, applying the principles in Poole. Where the pleaded case discloses no such basis, the claim may be struck out without a trial. Statutory special-guardianship assessment duties do not, without more, create a duty of care to a prospective special guardian. A misrepresentation claim based on information supplied under the statutory scheme likewise requires an assumption of responsibility. A special guardianship arrangement and associated support package do not constitute a contract between the local authority and prospective guardian.

The appellants appealed against an order of Deputy District Judge Jonson dated 22 September 2023. The order struck out their claims and granted summary judgment to the London Borough of Sutton, and dismissed an application for an interim payment.

Mr Hamilton alleged that, before a special guardianship order was made in respect of HBC, the local authority and persons for whom it was responsible negligently failed to identify HBC’s developmental difficulties and provided inaccurate information. He claimed that he relied on that information in accepting special guardianship and suffered psychiatric injury and financial loss.

The principal issue was whether the pleaded facts provided a basis for finding that the local authority had assumed responsibility to Mr Hamilton, distinct from its statutory duties towards HBC.

1. Appeal dismissed. The pleaded case disclosed no basis on which the local authority could be found to have assumed responsibility to Mr Hamilton.
2. Under Poole, a public authority does not owe a common-law duty of care merely because it has statutory powers or duties, even where exercising those functions could prevent harm. An assumption of responsibility may arise from conduct under a statutory scheme, but the claimant must identify conduct satisfying the ordinary principles applicable to assumption of responsibility.
3. The assessments, records and medical arrangements concerning HBC during the interim care order were undertaken because of the local authority’s duties to HBC and the foster carers’ role as carers. They were not undertaken as a service to Mr Hamilton or because of a prospective special-guardianship application. The local authority’s later obligation to provide information and a report in connection with the application did not itself establish an assumption of responsibility.
4. Regulations 11 and 12 of the Special Guardianship Regulations 2005 did not alter the result. No request for an assessment under those provisions had been pleaded or made. In any event, statutory assessment duties did not displace the requirement for an assumption of responsibility.
5. The alleged misrepresentation claim did not avoid that requirement. Nor did the financial-support arrangements create a contract or relationship akin to contract. The decision whether to make the special guardianship order was the court’s, and Mr Hamilton retained the ability not to proceed or later to seek variation or discharge.
6. The court criticised the Deputy District Judge’s reasoning and expressed concern that factual issues may have been assessed impermissibly on a strike-out application. Nevertheless, because the absence of any arguable assumption of responsibility was fatal, those procedural concerns did not affect the result. Ground 1 therefore failed, and grounds 1A and 5 fell away.
7. Directions were to be agreed concerning Mr Hamilton’s appointment as HBC’s litigation friend and protection of HBC’s identity.

• High Court (King’s Bench Division): appeal from the order of Deputy District Judge Jonson dated 22 September 2023. Permission to appeal was granted by Constable J on 24 January 2024. The appeal was dismissed.