In Poole Borough Council v GN & anor [2019] UKSC 25 both claimants were children, one of whom had serious physical and learning difficulties, at the relevant time and were housed by the local authority near a family who harassed them and their mother.
They alleged the council knew the family nearby had engaged in persistently anti-social behaviour. The abuse they suffered included vandalism, threats of violence, verbal and physical abuse. A later report commissioned by the Home Office criticised Poole Borough Council, the housing partnership and Dorset Police for failing to intervene.
Ruling this week, however, the Justices unanimously dismissed the appeal and upheld the decision that the claim be struck out. The cased on the question of whether a local authority owes a common law duty of care to children in its area who it knows or ought to know are at risk of harm. The court held not.
James Arrowsmith (pictured) head of Browne Jacobson’s social care and abuse team, said: ‘The decision reaffirms limits on claims against public bodies that arise as a direct result of statutory functions.
‘It will also mean that the law applicable to social services interventions will be more in line with the law that is applicable to the police. The Supreme Court specifically dealt with the absence of any evidence in the claimant’s case of an assumption of responsibility, including reliance on the local authority intervention by the claimants.
‘It is likely that in future claims there will be a close focus on any evidence of assumption of responsibility or reliance of this sort. The court may be asked to draw some fine distinctions between assurances which merely form part of a supportive social care relationship and those which are sufficient to create a duty of care in law.’
Arrowsmith said it was important to acknowledge the terrible harassment endured by the claimants. ‘However, other routes to redress have been created by Parliament for individuals in such circumstances, including compensation from the Criminal Injuries Compensation Authority. The issue was whether the court should intervene to create a liability on the part of the Local Authority where none would otherwise exist. The Supreme Court has rightly refused to do so.’
The case has wider implications for public bodies including local authorities, police, educational and health organisations, according to Forum of Insurance Lawyers' (FOIL) Kella Bowers, member of the abuse claims sector focus team, and Sarah Swan, member of the public sector focus team.
Bowers and Swan said: ‘They may owe a duty under common law to protect children who are not in care if they created the source of the danger, or assumed responsibility for the child by way of an implied or expressed act.
‘However, the concept of assumed responsibility is open to interpretation and the threshold is high; assessing whether an organisation has reached the relevant threshold so as to be held to have assumed responsibility will need to be dealt with on a case by case basis and will be difficult. In particular, there are potential implications for police forces in civil claims involving child sexual exploitation (CSE). In these claims, the position of the police at common law appears now to be essentially the same as that of local authorities.
‘However, police forces may be liable in certain defined circumstances where they undertook a positive act which causes personal injury or where there is an assumption of responsibility, which is of more relevance to CSE claims. Because there is a relatively high bar that exists before an assumption of responsibility can arise in police cases, it is unlikely to arise merely from police presence at multi-agency meetings or because a suspected perpetrator is being investigated.’
Bowers and Swan said they expect satellite litigation around the issue of assumption of responsibility.
As far as local authorities are concerned, they said: ‘A council cannot be deemed to have assumed responsibility merely by dint of the fact that they are operating a scheme for the benefit of society.
‘This would seem to counter arguments raised by claimant solicitors over the last 12 months that the mere fact that social services have investigated child protection concerns or placed a child on the child protection register, amounts to an assumption of responsibility. It is clear that a local authority cannot be deemed to have assumed responsibility merely by the performance
