Protection from neighbours – no duty

CN & Anor v Poole Borough Council (2017) EWCA Civ 2185

What, if any, duty is owed by a local authority to children to protect them from abuse and harassment by neighbours? This court of appeal decision suggests none in negligence.

CN and GN lived with their mother in a Poole Housing Partnership (a Poole BC ALMO?) property between May 2006 and December 2011. CN has severe physical and learning difficulties and was, it was agreed, a ‘child in need’ under s.17 Children Act 1989  during this period. During this time they were subjected to harassment and abuse from neighbours, also tenants of Poole Housing Partnership (and with a history of ASB prior to CN & GN moving in). CN attempted suicide during this time and a Home Office report was critical of the council, the police, and Poole Housing Partnership.

Two claims were issued. One, by the mother and the children, apparently “based on the Housing Act” (no more detail is given in the judgment), and one by the children claiming a breach of a ‘direct duty of care’ in common law in regard to Poole Social Services failure to do, well, something.

Both claims were initially struck out as disclosing no reasonable cause of action. For the ‘Housing Act’ claim, this was not appealed (perhaps unsurprisingly, as I cannot imagine what the cause of action would be). The appeal on the ‘common law’ claim by the children was allowed by the High Court, and Poole then appealed to the Court of Appeal.

No claim of breach of statutory duty was made – the claim was solely in common law breach of duty of care – although duties under the Children Act were relied upon.

The Court of Appeal allowed the appeal, finding that there was no duty (at 93-104):

It is common ground that Parliament did not create a right of private law action for breach of the duties, or negligence in the exercise of the powers, under the Children Act relevant to this case. Following the approach of Lord Steyn in Brooks, confirmed by Lord Toulson in Michael, the matter must be approached in terms of the existence or absence of a common law duty of care, not in terms of immunity from a duty of care which would implicitly otherwise exist. The critical passages from X v Bedfordshire quoted above read in that way: the policy considerations laid down there bear on whether a duty of care exists, not on immunity.

There are broadly two considerations here, reflecting the authority I have considered, which would militate against legal liability on these facts. The first is the concern, articulated in X v Bedfordshire in relation to social services and in Hill v West Yorkshire in relation to the police, that liability in negligence will complicate decision-making in a difficult and sensitive field, and potentially divert the social worker or police officer into defensive decision-making. The second is the principle that, in general, there is no liability for the wrongdoing of a third party, even where that wrongdoing is foreseeable. Both of these considerations, in my view, bite on the facts in this case.

In any event, insofar as the Defendant exercised powers and bore duties under the Children Act, it was not responsible for housing the Claimants in proximity to those who behaved in an anti-social fashion. This is not a case where the Defendant brought about the risk or had control over the individuals representing the risk: it does not fall into the Dorset Yacht exception to the general rule.

There is no attempt to revive a claim based on the Defendant’s functions as a housing authority. That would be bound to fail. There is no prospect of common law liability from such a route, as Mitchell must make clear.
Indeed, in my view this case illustrates perfectly why it is unjust to extend liability to one agency (the social services department of the local authority) when other agencies (the housing department, the “arms-length” housing provider and the police) are at least as involved and arguably more centrally involved in the relevant problem. By what logic is it just for there to be liability to a claim for damages through alleged omission on the part of social workers here, when those responsible for housing Mr Mitchell and his neighbour Drummond have no potential liability?

I accept Lord Reed’s formulation in paragraph 89 of his judgment in Mitchell, quoted in paragraph 61 above:
“The law’s caution in imposing affirmative duties to protect others reflects … moral and political values embedded in law and society.”

I accept also that society places a high emphasis on protecting vulnerable people, particularly vulnerable children. However, the essence of the common law answer to this problem is that it is not effective, or just, to do so by singling out one agency of the State for tortious liability as against the others, particularly in a crude “sectoral” manner.

The Claimants’ claim is based squarely on the extension of liability set down in D v East Berkshire. In the course of argument, Ms Gumbel QC emphasised this. The claim stands or falls by that formulation of liability. That is clear also from the decision of Slade J. Ms Gumbel also told us that claims against local authorities, exercising powers and fulfilling duties under the Children Act, are widespread. In effect she told us that as a result of D v East Berkshire, social workers are sued as a consequence of their dealings with children, where others acting in relation to children in response to other similar statutory duties cannot be sued: a professional or sectoral distinction. The question whether D v East Berkshire remains good law is critical.

With very great respect to the constitution of this Court who reached that decision, I cannot see how it is consistent with subsequent higher authority. It seems beyond doubt that, but for the impact of the ECHR and the supposed need for an extension of common law liability to reflect the obligations of the State under the Convention, the decision would have been against an extension of liability. That consideration was the pivot of the decision. Yet that proposition has been explicitly rejected in the later cases cited above. With great respect to the judge in this case, it seems to me she was in error in the distinction she made as to the passage in Smith v Chief Constable of Sussex Police relied on by Lord Toulson in Michael. Although the passage in the speech of Lord Brown in Smith referred to the parents’ appeal to the House of Lords in D v East Berkshire, there seems to me no doubt that Lord Toulson was addressing the broader proposition. That was the argument advanced before him in Michael.

For those reasons I would accept the Defendant’s argument that D v East Berkshire falls into the third class of case in Young v Bristol Aeroplane and should no longer be followed.

I have considered carefully whether there was arguably an assumption of responsibility here, so as to bring the case within that exception to the general rule. That was not the basis on which Slade J reached her conclusion, and nor is it the key proposition advanced by Ms Gumbel QC. In my view there is no basis here for an assumption of care. I have summarised the matter relied on by the Claimant in paragraph 15 above, and the response from Lord Faulks QC in paragraph 29. In my view, he is correct that there is insufficient here arguably to amount to an assumption of care so as to satisfy the approach in X v Hounslow or Darby v Richmond-upon-Thames.

Therefore I would also accept the submission that this case on its pleaded facts does not fulfil any of the established exceptions in common law to the general rule that a Defendant is not liable for the wrongdoing of a third party.

Moreover, as should already be clear, it seems to me that the Defendant is correct in submitting that this claim is not in truth based on failures arising from duties and powers under the Children Act. The proposition that the remedy here was removal from the family, from the care of the Claimants’ mother, seems fanciful. The claim is in fact a criticism of the housing functions of the local authority, exercised through the agency of PHP, shoe-horned into a claim arising from duties and powers under the Children Act 1989.

It appears that the Claimants may be seeking permission to appeal to the Supreme Court.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in ASB, Housing law - All, Nuisance and tagged , .

4 Comments

  1. Hi Giles

    Thank you for taking the time to bring this to the attention of the public.

    I am not a lawyer so please forgive me for asking for clarification.

    Are you saying this Court has determined that there is no duty of care by social services, a Council, a Housing Association with regard to keeping their tenants safe from antisocial tenants?

    Or are you saying these guys simply made the mistake of using the wrong point of law to bring the case (in which case what is the point of Appeal).

    I am trying to understand whether we need new law or amendment?

    This subject is particularly close to my heart for two reasons.

    Firstly I have a child with special needs who has been tormented to the point of attempting suicide and has even been encouraged by his tormentors to take his own life.

    What is so cruel about this kind of bullying is that the victim does not have the social skills to understand what is being done to them never mind defend themselves and when they finally do understand it makes them feel suicidal because they are being attacked for being who they are, something they cannot change. We have quite strong laws against racism but much weaker when you are being attacked for having a mental condition (disorder).

    Secondly because I have a close friend who lives in social housing and is facing an issue with antisocial behaviour.

    As you will be aware most people in social housing are or have been vulnerable. In this building of 8 flats there are 3 schizophrenics, two of which are recovering drug addicts. One girl of 17 just out of care, one 17 year old single mother who has a child with special needs, a couple, a disabled woman and an alcoholic who is also a drug addict.

    The alcoholic is the one who is causing problems for all the other tenants, he knocks on their doors begging for money, gets quite aggressive at the various stages of his drink.

    The worst part is that he has been selling drugs or allowing the sale of drugs from his flat, this brought with it an undesirable crowd (about 40 a day). He has also encouraged the recovering drug addicts back onto drugs, causing one of them to be sectioned.

    He has been arrested now and it took that for the HA to decide to do something, However, the tenant is very canny and has managed to avoid action by not engaging, he has managed to have certain accidents on days when the HA were trying to take the critical steps to evict him. He has actually been offered temporary accommodation by the Council but refuses to engage with them either.

    Now his latest stunt is to allow about 6 homeless drug addicts to stay in his property as long as they keep him in booze and drugs. So the problems are now 7 fold. They are aggressive to legitimate tenants, they do not have keys so vandalise the communal doors, they knock endlessly on the doors of the alcoholic who is passed out, the “guests” also fight with each other and Police have been involved with this. None of the other tenants feel safe.

    Is your case here saying the that HA (in this type of case) or a Local Authority has no duty of care to the other people under their charge?

    Particularly children and disabled children at that?

    It is the HA or Council that controls the tenancies of the people who are being antisocial.

    The Tenancy agreements in social housing are very strict for antisocial behaviour.

    Often the tenants of social housing have already been through something pretty traumatic, so surely the Council has (or should have) a duty of care to protect other tenants.

    Do we need new law to establish this liability?

    • There is no duty of care. This case was trying to establish a duty of care via responsibilities under the Children Act but was unsuccessful. Previous cases have established that there is no duty of care arising from the Housing Acts, or the landlord/tenant relationship, and no claim in breach of statutory duty. There is no general duty of care in common law either. Whether there is a Human Rights case is not clear. The domestic courts have said that there isn’t, but X,Y & Z v Hounslow went to the European Court of Human Rights but was settled before any decision.

      I’m sorry about your situation. The HA should have an antisocial behaviour policy and should follow it, but it is very difficult if they are not taking adequate steps or fast enough.

    • Hi Mike.

      As Giles says, there’s no duty of care but the HA will have ASB policies and procedures that they should be following in these circumstances. I worked for years for a Local Authority Housing Team dealing with tenancy matters, ASB and fraud.

      HA and Local Authority ASB Teams have to rigidly follow procedures to take enforcement action against tenants that are perpetrating ASB. It can be a lengthy process, and sometimes painfully slow (believe me, it’s frustrating for Officers too). There are a number of potential outcomes to any given ASB case and relatively few end in eviction.

      Often these teams are under-staffed and over-worked and rely heavily on information from the public to put together enough evidence to take action against perpetrators. They don’t have the capacity to respond immediately to issues on the estates and can very rarely mount surveillance to substantiate reports. As such, they rely on building a picture of events from local residents and community policing teams.

      What I would encourage you and your friend to do is to make diaries of incidents and regularly contact the HA or LA to update them on issues. You can report ASB incidents to the police on 101. The more information you give them regarding dates and times and who was involved, the better. If you’re already doing this, keep it up. I know it might feel like it’s doing no good but it allows Officers to show that the problems are continuing. If information is sporadic or stops altogether, then it is very difficult for the HA or LA to take any action.

      If you want to check the ASB policies out, they should be available to the public via the HA or LA website. If you feel that the policies have not been adhered to in your case, you should write to them following their official complaints procedure. They should investigate your complaint and provide you with a written response within their stated timescale.

  2. Hello Mr Giles,

    I just want to comment on the subject of Human Rights as it clearly states that any person from any background has a right to live free from degrading, torture, peaceful enjoyment of your property, right to live in your own privacy of your home. These are the human rights have these not been breached or am i wrong because after reading this case everyone of these has been breached. I was also under the impression that the local authority has an obligation to safeguard our communities and undertake a duty of care especially for our young and vulnerable, this pains me to say that the way things are going we are going to see a lot more vigilante behaviour due to peoples frustrations in these cases.
    We recently had a case that hit the papers whereby a mother and her disabled child were taunted for months this resulted in devastating consequences which makes me think that the system is not taking on and improving these drastic situations. The worst thing to feel in your life is when yours and your childrens life are in danger and there is no one who can help you and it takes tragic events to show this! It is not about dragging people through the courts it is more a case of taking responsibility and taking actions to enhance peoples lives giving them opportunities to live life comfortably. Therefore i do feel there should be some change in the law to protect and care for our communities!

    Thankyou for reading

    Tracey

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