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.