Social services and negligence

The Court of Appeal has this week handed down a judgment of importance to all those involved in litigating claims in negligence against local social services authorities. Paul Stagg and Robert Hams consider the implications of the ruling.

Factual background

In 2006 Mrs N and her two minor sons CN and GN were living in Poole. CN suffers from severe physical and learning disability. He is totally dependent on others and requires a high level of supervision.

In May 2006, the family moved into new accommodation in Poole, rented from the Poole Housing Partnership Ltd (“PHP”) and arranged by the council as local housing authority. The accommodation was rented from the Poole Housing Partnership Limited (“PHP”).

Over the ensuing years, the family suffered from the effects of anti-social behaviour at the hands of members of a neighbouring family. This behaviour was frequently reported to officers of the council, local police and to PHP. The family made complaints about the lack of response and involved local politicians. Eventually, the Home Office became involved and commissioned an independent case review carried out by Mr Trevor Kennett, whose report in March 2010 was critical of the response of the agencies. The family continued to suffer from the behaviour of their neighbours until they were finally provided with alternative accommodation in December 2011.

The Litigation

After a claim brought by the family against the council, the police and PHP was struck out for failure to serve Particulars of Claim, a second set of proceedings was commenced in December 2014. The council was the sole defendant. The claim was based solely in negligence. The primary allegation was that the claimants had suffered personal injury and other losses as a result of the council’s failure to take appropriate and necessary steps to re-house them or otherwise safeguard them from the prolonged anti-social behaviour. An alternative claim was also advanced on behalf of the sons alone that the council had failed to comply with its duties under the Children Act 1989 to safeguard them and promote their welfare.

The council applied to strike out the second claim as disclosing no cause of action. The application was heard by Master Eastman in October 2015, who struck out the claim in its entirety, ruling that the council owed no arguable duty of care at common law in relation to its housing functions or its powers to tackle anti-social behaviour. He also decided that no duty could be owed to the sons under the 1989 Act.

An appeal was then mounted on behalf of the sons alone, in respect only of the dismissal of the claim in respect of the council’s social services functions. The appeal was based on a submission that the Master had failed to have regard to binding authority, in particular the decision of the Court of Appeal in JD v East Berkshire NHS Community Trust. It was submitted that a duty of care could be owed in relation to decisions to investigate significant harm being suffered by children and, if necessary, remove them from the care of parents.

The appeal was heard by Slade J in February 2016. The council’s response to the appeal was that recent decisions of the House of Lords and the Supreme Court, culminating in Michael v Chief Constable of the South Wales Police, were inconsistent with JD, which should be taken as having been impliedly overruled. Alternatively, the real claim was not that the sons should have been removed from their mother’s care but that the whole family should have been rehoused together, which was not a function of the social services department.

Slade J acceded to the submissions of the sons, allowed their appeal and reinstated their claims. Amended Particulars of Claim were served, clarifying the claims. The allegations of fault were that there was a failure to assess the ability of the claimants’ mother to protect them and the risk to the claimants. It was said that if a competent assessment had been carried out, they would have been removed from their mother’s care.

The council was granted permission to appeal by Christopher Clarke LJ. He observed that “the question whether JD .... remains good law is one of considerable public importance justifying a second appeal”.

The decision of the Court of Appeal in CN

In CN & Anor v Poole Borough Council [2017] EWCA Civ 2185 the Court of Appeal unanimously allowed the defendant’s appeal. The main judgment was given by Irwin LJ. He accepted the defendant’s submission that “the heart of the claim is that this family were placed in the relevant house, and not moved, despite the prospect and then the actuality of significant harassment”. He described the proposition that the claimants should have been removed from their mother’s care as a means of dealing with such harassment as “rather startling” and “highly artificial” and noted that the failure of the claims in respect of housing and anti-social behaviour functions meant that “the claim has been re-cast”.

He pointed out that JD had purported to depart from X v Bedfordshire CC on the basis that the Human Rights Act 1998 removed its binding force. Irwin LJ considered the subsequent case law, including the Court of Session and House of Lords decisions in Mitchell v Glasgow CC and the Supreme Court decision in Michael. He concluded that two particular aspects of the case law militated against liability; the danger of encouraging defensive decision-making and the general absence of liability for the wrong-doing of others. It would be unjust for a potential liability to exist on the part of the local social services authority when the housing department of the same local authority, the landlord and the police could not be held liable.

He went on to conclude that JD was indeed inconsistent with the subsequent decisions of higher authority and should no longer be followed. He also acceded to the defendant’s alternative argument that, in reality, the claim had nothing to do with its social services functions but was “in fact a criticism of the housing functions of the local authority”.

King and Davis LJJ both delivered short concurring judgments. They agreed with Irwin LJ that JD had to be taken as overruled. In addition, King LJ was critical of the notion that the family court would grant a care order in the circumstances of the case. She pointed out the high threshold for the making of a care order and that even where the threshold is met, the court would only sanction removal from a parent if it was clearly required by the child’s safety. To bring such proceedings would have been “legally unsustainable”. For his part, Davis LJ described the claim as “most disconcerting” and suggested that care proceedings purportedly to protect the sons by removing them from the mother would have been “utterly heartless” and “utterly wrong”.

The appeal was therefore allowed on a unanimous basis. The claimants have sought permission to appeal to the Supreme Court.

The implications of the decision

The first question for consideration is where this leaves claims which are termed ‘failure to remove’ cases. The facts in CN are not those of a conventional case of that type, where it is alleged that the claimant’s parents or guardians were subjecting him or her to abuse or neglect of which social workers were or should have been aware, and that insufficient action was taken to remove them. In CN, of course, the threat came not from within the household but from outside it.

It is on that ground that Irwin LJ pointed out the distinction between the facts of CN and those in JD. It is suggested, however, that it is not possible simply to distinguish the ‘typical’ failure to remove case from CN on the facts, for at least two reasons. The narrower, legalistic reason is that each of the judges in CN expressly stated that JD was inconsistent with higher authority and should no longer be followed. X v Bedfordshire CC has been restored as a governing authority which establishes that no duty of care is owed by the local authority, at least in the making of decisions as to whether care proceedings should be commenced.

Another reason is that there is, in reality, no clear factual distinction between CN and other ‘failure to remove’ cases. They can be seen as a continuum; at the one end is the case of the abusive parent and at the other is the situation in CN, where the threat comes from the behaviour of unconnected third parties not resident in the family home. In between these are cases where the threat to the child comes not from a member of the household but from a non-resident family member, or a partner or friend of a parent with care. As a matter of legal principle, the policy justifications for holding that it is not fair, just and reasonable that a duty of care should be owed, as reiterated by Irwin LJ, retain their strength.

The second issue is whether a ‘failure to remove’ claim could nevertheless succeed by focusing on other parts of the process into investigating and dealing with child abuse, such as alleging a negligent investigation. Such an approach suffers from the same sort of artificiality as was criticised in CN, and in any case it was recognised in JD that the “core principle” in X v Bedfordshire CC extended beyond the decision as to whether care proceedings should be brought; it applied to “the investigation of suspected child abuse and the initiation and pursuit of care proceedings”.

Thus if the Court of Appeal’s decision stands, no duty of care can be owed by a local social services authority in the exercise of its child protection functions to investigate and take action to prevent significant harm to children, whatever its source.

The third question for consideration is where this leaves claims relating to abuse and neglect suffered after a care order has been made and the child is in the care of the local authority. A local authority is now liable for abuse by foster carers: Armes v Nottinghamshire CC. In any case, it was no part of the council’s argument in CN that cases such as Barrett v Enfield LBC and S v Gloucestershire CC were wrongly decided. Barrett remains good law for the time being. However, it is suggested that the basis of liability in these cases deserves re-examination by the higher courts. It is highly arguable that the logic of Lord Toulson’s analysis in Michael would be held to apply to ‘in-care’ cases as well as ‘failure to remove’ cases.

For so long as ‘failure to remove’ and ‘in-care’ claims fall to be treated differently, a further unresolved question is the treatment of cases where claimants have been accommodated with the agreement of parents pursuant to section 20 Children Act 1989. The degree of control which a local authority has over a child’s life in such cases is significantly different from cases where a care order is in place. It is likely that careful consideration would have to be given to the facts of a particular case and whether the error or errors giving rise to the child’s injury can be said to arise from matters within the ambit of the local authority’s control.

Finally, it should be remembered that children who have suffered abuse or neglect by not being taken into care still have a range of remedies open to them. Claims under Articles 3 and 8 of the Convention may be available under the 1998 Act. Some perpetrators of abuse do have assets that make them worth pursuing. If the child has suffered a “crime of violence”, a CICA claim can be made. More general cases of maladministration by a local authority can be investigated by the Local Government Ombudsman, and a recommendation made that compensation should be paid. The effect of the Court of Appeal’s ruling will not, therefore, leave aggrieved individuals who have suffered abuse or neglect in childhood wholly without any recourse.

Paul Stagg is a barrister at 1 Chancery Lane Chambers. Rob Hams is a partner at Wansbroughs Solicitors. Together with Lord Faulks QC of 1 Chancery Lane, they were instructed to act on behalf of the council by Zurich Municipal, insurers of Poole Borough Council.