CN & GN v Poole Borough Council [2017] EWCA Civ 2185 – duty of care
Up and until the decision in this case, claims for “failure to take into care” were regularly being made and settled, and some that we will see below. The new duty of care was then applied in subsequent cases including Pierce v Doncaster MBC [2007] EWHC 2968 and NXS v London Borough of Camden [2009] EWHC 1786. As leading counsel in
GN & CN told the Court of Appeal, failure to take into care claims were now widespread.
The Claimants were two children (one of whom was severely disabled) who alleged that the Defendant local authority had negligently failed to take appropriate and necessary steps to safeguard them. They were the target of prolonged abuse perpetrated by members of a family who lived on the estate on which they were housed by the Defendant between May 2006 and December 2011.
Early on in the progress of CN and GN through the courts, an attempt was made by the Defendant to persuade the court that the judgment of the Court of Appeal in D v East Berkshire had been implicitly overruled by two subsequent decisions of the House of Lords, Mitchell v Glasgow Council [2009] 1 AC 874 and the Supreme Court in Michael v Chief Constable of South Wales [2015] 2 WLR 343.
Mitchell concerned the liability of a local authority to warn a tenant about an event which could trigger violence by another tenant against the Claimant. It was held that no action was taken by it to show that the local authority made itself responsible for protecting the Claimant from the criminal act of another person. Accordingly, it would not be fair, just or reasonable to impose a common law duty of care. The Supreme Court in Michael considered whether the claimants, a victim's estate and her dependents, could bring a claim in negligence against a police force for failing to prioritise a call from a victim who was then killed by her partner. By a majority the Supreme Court held that the duty of the police for the preservation of the peace did not involve the kind of close or special relationship necessary for the imposition of a private law duty of care. In particular, the Supreme Court said that the advent of human rights legislation did not necessarily mean that there should be an extension of common law liability.
So, in CN & GN, the existence of a duty of care was called into question by the Defendant local authority, as was the reasoning of the Court of Appeal in D v East Berkshire.
In CN & GN, the claims were struck out by Master Eastman at first instance, but in the High Court, Justice Slade rejected the Defendant's argument and reinstated the claims. She quoted from the judgment of Baroness Hale in Michael, who observed that there were exceptions to the general rule that local authorities were not liable in these kinds of situations, and that one of those situations did exist in the judgment of the Court of Appeal in D v East Berkshire.
The Defendant local authority appealed to the Court of Appeal. Lord Justice Irwin gave the lead judgment, which was handed down today. He considered the arguments from both sides and the judgment of Slade J.
In Irwin LJ's analysis, applying the conventional principles of common law, and in the absence of an assumption of legal liability, there was no liability on the local authority in this case. The heart of the claim was that these Claimants had been placed in housing and not moved, despite the prospect and then the actuality of significant harassment. No-one was saying that the Claimants were at risk of harm from their mother or indeed any family member. It could not be seriously argued that the local authority had a duty under the Children Act to remove the Claimants from their single parent mother because of harassment by their neighbours.
Irwin LJ then went on to say that the Defendant local authority was entitled to rely on the principles set out in X v Bedfordshire. In other words, that judgment and the principles that it set out would apply. In relation to the reasoning of the Court of Appeal in D v East Berkshire, Irwin LJ said that their decision could not stand with the subsequent decisions of the Supreme Court in Mitchell and in Michael. The two other members of the Court of Appeal, Lady Justice King and Lord Justice Davies agreed.
Permission was given to appeal to the UK Supreme Court.
4.4.15 What does CN & GN mean for failure to take into care claims?
Firstly, the writer has been told by one Defendant firm, that it is not withdrawing offers to settle in certain cases, but there are reports that other firms are withdrawing offers and refusing to settle at all. The appeal to the UK Supreme Court was heard on 17th/ 18th July of this year and judgement should be with us any day now. The UKSC could adopt a very different reasoning.
Secondly, there are other avenues to compensation – for instance, a human rights claim, a claim to the Criminal Injuries Compensation Authority or a complaint (for children) made under the Children Act 1989 Representations Procedure (England) Regulations 2006. These avenues have their own particular restrictions, not least in the actual amount of compensation available, but they are there.
Thirdly throughout his judgment, Irwin LJ emphasised that the facts of this case were all about a failure to house, not a failure to take into care. Looking at the language used by all three judges, it becomes immediately apparent that the judges really didn't like this claim at all, and that they felt it was a stellar candidate for strike out.
King LJ said that the Claimants' pleadings:-
"…..should have particularised the broad basis upon which it was said the threshold criteria [under the Children Act 1989] was capable of being satisfied, and, having done so, why it was thereafter averred that the local authority would have been permitted to remove the children from the care of their mother absent her consent. Had that been done, it would have been apparent that not only was the proposal that these Claimant children should have been removed from their mother ‘utterly heartless’ and ‘utterly wrong,’ as characterised by Davis LJ, but legally unsustainable."
Davies LJ said that on the facts of this case, the claim "should be struck out now."
These are harsh words, but they are also crucial – because the Court of Appeal is plainly still saying that the facts of the case are important. Irwin LJ said that the issue was not whether a local authority had blanket immunity from these kinds of claims, but whether a duty of care could actually exist on the facts. So arguably a court would still have to establish the facts of the case, before saying that no duty of care existed. What the local authority could not say was that a local authority had complete immunity.
Irwin LJ did not say that no duty of care could ever exist in these kinds of claims. Earlier in his judgment, he referred to two recognised situations, where a duty of care might exist. First, where the Defendant had control over the person causing the abuse and it was foreseeable damage might ensue unless care was exercised in that control. Secondly where the Defendant had assumed responsibility to safeguard the claimant under the principle laid down here there had been "a representation and reliance" or some kind of assumption of responsibility by the Defendant.
So, is this the end of failure to take into care claims? In the writer's view, the decision represents a serious blow to this category of claim, but that blow is not fatal. If one looks at the way in which caselaw developed after X v Bedfordshire, there seems to have a general unease amongst judges, bearing in mind the judgments of the European Court of Human Rights, that these claims should be struck out simply because they were against social services. That unease is crystallised in the position that the Court of Appeal took in their present judgment. There is still no blanket immunity for local authorities, where claims are made against social services. So, there might still be a duty of care on the facts.
What is important for Claimant practitioners is to ensure that the evidence that they collect and the way in which the case is put, satisfies the legal tests that are discussed in CN and GN.
Up and until the decision in this case, claims for “failure to take into care” were regularly being made and settled, and some that we will see below. The new duty of care was then applied in subsequent cases including Pierce v Doncaster MBC [2007] EWHC 2968 and NXS v London Borough of Camden [2009] EWHC 1786. As leading counsel in
GN & CN told the Court of Appeal, failure to take into care claims were now widespread.
The Claimants were two children (one of whom was severely disabled) who alleged that the Defendant local authority had negligently failed to take appropriate and necessary steps to safeguard them. They were the target of prolonged abuse perpetrated by members of a family who lived on the estate on which they were housed by the Defendant between May 2006 and December 2011.
Early on in the progress of CN and GN through the courts, an attempt was made by the Defendant to persuade the court that the judgment of the Court of Appeal in D v East Berkshire had been implicitly overruled by two subsequent decisions of the House of Lords, Mitchell v Glasgow Council [2009] 1 AC 874 and the Supreme Court in Michael v Chief Constable of South Wales [2015] 2 WLR 343.
Mitchell concerned the liability of a local authority to warn a tenant about an event which could trigger violence by another tenant against the Claimant. It was held that no action was taken by it to show that the local authority made itself responsible for protecting the Claimant from the criminal act of another person. Accordingly, it would not be fair, just or reasonable to impose a common law duty of care. The Supreme Court in Michael considered whether the claimants, a victim's estate and her dependents, could bring a claim in negligence against a police force for failing to prioritise a call from a victim who was then killed by her partner. By a majority the Supreme Court held that the duty of the police for the preservation of the peace did not involve the kind of close or special relationship necessary for the imposition of a private law duty of care. In particular, the Supreme Court said that the advent of human rights legislation did not necessarily mean that there should be an extension of common law liability.
So, in CN & GN, the existence of a duty of care was called into question by the Defendant local authority, as was the reasoning of the Court of Appeal in D v East Berkshire.
In CN & GN, the claims were struck out by Master Eastman at first instance, but in the High Court, Justice Slade rejected the Defendant's argument and reinstated the claims. She quoted from the judgment of Baroness Hale in Michael, who observed that there were exceptions to the general rule that local authorities were not liable in these kinds of situations, and that one of those situations did exist in the judgment of the Court of Appeal in D v East Berkshire.
The Defendant local authority appealed to the Court of Appeal. Lord Justice Irwin gave the lead judgment, which was handed down today. He considered the arguments from both sides and the judgment of Slade J.
In Irwin LJ's analysis, applying the conventional principles of common law, and in the absence of an assumption of legal liability, there was no liability on the local authority in this case. The heart of the claim was that these Claimants had been placed in housing and not moved, despite the prospect and then the actuality of significant harassment. No-one was saying that the Claimants were at risk of harm from their mother or indeed any family member. It could not be seriously argued that the local authority had a duty under the Children Act to remove the Claimants from their single parent mother because of harassment by their neighbours.
Irwin LJ then went on to say that the Defendant local authority was entitled to rely on the principles set out in X v Bedfordshire. In other words, that judgment and the principles that it set out would apply. In relation to the reasoning of the Court of Appeal in D v East Berkshire, Irwin LJ said that their decision could not stand with the subsequent decisions of the Supreme Court in Mitchell and in Michael. The two other members of the Court of Appeal, Lady Justice King and Lord Justice Davies agreed.
Permission was given to appeal to the UK Supreme Court.
4.4.15 What does CN & GN mean for failure to take into care claims?
Firstly, the writer has been told by one Defendant firm, that it is not withdrawing offers to settle in certain cases, but there are reports that other firms are withdrawing offers and refusing to settle at all. The appeal to the UK Supreme Court was heard on 17th/ 18th July of this year and judgement should be with us any day now. The UKSC could adopt a very different reasoning.
Secondly, there are other avenues to compensation – for instance, a human rights claim, a claim to the Criminal Injuries Compensation Authority or a complaint (for children) made under the Children Act 1989 Representations Procedure (England) Regulations 2006. These avenues have their own particular restrictions, not least in the actual amount of compensation available, but they are there.
Thirdly throughout his judgment, Irwin LJ emphasised that the facts of this case were all about a failure to house, not a failure to take into care. Looking at the language used by all three judges, it becomes immediately apparent that the judges really didn't like this claim at all, and that they felt it was a stellar candidate for strike out.
King LJ said that the Claimants' pleadings:-
"…..should have particularised the broad basis upon which it was said the threshold criteria [under the Children Act 1989] was capable of being satisfied, and, having done so, why it was thereafter averred that the local authority would have been permitted to remove the children from the care of their mother absent her consent. Had that been done, it would have been apparent that not only was the proposal that these Claimant children should have been removed from their mother ‘utterly heartless’ and ‘utterly wrong,’ as characterised by Davis LJ, but legally unsustainable."
Davies LJ said that on the facts of this case, the claim "should be struck out now."
These are harsh words, but they are also crucial – because the Court of Appeal is plainly still saying that the facts of the case are important. Irwin LJ said that the issue was not whether a local authority had blanket immunity from these kinds of claims, but whether a duty of care could actually exist on the facts. So arguably a court would still have to establish the facts of the case, before saying that no duty of care existed. What the local authority could not say was that a local authority had complete immunity.
Irwin LJ did not say that no duty of care could ever exist in these kinds of claims. Earlier in his judgment, he referred to two recognised situations, where a duty of care might exist. First, where the Defendant had control over the person causing the abuse and it was foreseeable damage might ensue unless care was exercised in that control. Secondly where the Defendant had assumed responsibility to safeguard the claimant under the principle laid down here there had been "a representation and reliance" or some kind of assumption of responsibility by the Defendant.
So, is this the end of failure to take into care claims? In the writer's view, the decision represents a serious blow to this category of claim, but that blow is not fatal. If one looks at the way in which caselaw developed after X v Bedfordshire, there seems to have a general unease amongst judges, bearing in mind the judgments of the European Court of Human Rights, that these claims should be struck out simply because they were against social services. That unease is crystallised in the position that the Court of Appeal took in their present judgment. There is still no blanket immunity for local authorities, where claims are made against social services. So, there might still be a duty of care on the facts.
What is important for Claimant practitioners is to ensure that the evidence that they collect and the way in which the case is put, satisfies the legal tests that are discussed in CN and GN.