Poole: why can’t the law do more for vulnerable children?

Stephen Knafler QC, Landmark Chambers

 

Introduction

The Supreme Court has decided that Poole did not owe vulnerable children a duty to take reasonable care to exercise its functions under the Children Act 1989 so as to protect them from injury resulting from the extremely anti-social conduct of neighbours: Poole BC v GN and CN [2019] UKSC 25, [2019] 2 WLR 1478 (Justices Hale, Reed, Wilson, Hodge and Black).

The first question that any lawyer is likely to ask, before even reading into the judgment, is how did it come about that the family went all the way to the Supreme Court in negligence, when they could simply have brought proceedings for damages under the Human Rights Act 1998? Although compensation is significantly lower under the 1998 Act, than in negligence, the family would probably have been able to establish liability, at least, in the light of cases such as E v Chief Constable of the Royal Ulster Constabulary [2008] UKHL 66, [2009] 1 AC 536, which establish that public authorities are under a duty to take reasonable steps to protect vulnerable persons, including in particular children, from ill-treatment contrary to Article 3 ECHR.

The answer appears to be that there were earlier proceedings on behalf of the family under the 1998 Act but that these were struck out because of a failure to serve the Particulars of Claim in time. This was not an ideal basis for seeking to persuade the courts to extend the law of negligence. More importantly, the concerns one might feel about the Supreme Court’s failure to hold Poole liable in negligence may need to be tempered by the consideration that there will be, in similar cases, an alternative remedy under the 1998 Act; but more about that, later.

The second question that any lawyer is likely to ask, is why the family didn’t utilise the statutory complaints procedure and, if need be, complain to the Local Government and Social Care Ombudsman? The short answer is that, according to the case-law, having gone down the litigation path, it is impossible to change horses. The longer answer is that this would have been a viable, low-cost option that would have most likely resulted in a decent award of compensation for the family and with Poole being required to revise its practices. Nothing is certain, but in the light of the facts of the case, summarised below, it seems highly probably that the LGSCO would have had a field day.

So, in a sense, the main lesson to be drawn from the Poole case is not to do what this family did, but to use the statutory complaints process/LGSCO or, at least, to bring proceedings under the 1998 Act and to conduct them competently so they don’t get struck out.

Having said that, was the Supreme Court right to decide the case in the way that it did? In my view, the answer to that is ‘no’. Is there any point in even considering this question, though? Yes, I think so, because it shines a light into the judicial decision-making, its strengths and its flaws, that might be useful in future cases and may highlight some further options that could be explored in a different case. After all, although Poole was in some ways an extreme case, cases like it do arise.

Facts

In May 2006, Poole placed a mother (‘Amy’) and her two children in a house on an estate in Poole, adjacent to another family who, as Poole knew, had persistently engaged in anti-social behaviour. One child, ‘Colin’, was aged 9 and was severely disabled mentally and physically. Poole adapted the house for his needs and provided him with a care package and a social worker. The other child, Graham, was aged 7.

Between May 2006 and December 2011, when Poole eventually re-housed the GN family, the family was subjected to a campaign of abuse and harassment by the anti-social family, including vandalism of Amy’s car, attacks on their home, threats of violence, verbal abuse and physical assaults on Amy and Graham. These had serious adverse consequences for the physical and mental health of Amy and Graham.

Amy complained about the anti-social family from the start and Poole, and the local police, did take some steps to help her and her sons including the eviction of the neighbouring family, injunctions against them, contempt of court proceedings, anti-social behaviour orders and imprisonment.  These measures were ineffectual. To be fair to Poole, we’ve all seen authorities that have done a good deal less and got away with it. The problem for Poole was that, as a result of considerable publicity surrounding the case, the Home Office commissioned an independent report that concluded that the police and Poole failed to make adequate use of the powers available to them under the anti-social behaviour legislation.

Once a lawyer reads the facts of the case, he or she is likely to want to ask a further question, not directly connected with the negligence judgment: why didn’t the family bring proceedings during the period of nearly 5 years during which they were subject to this horrible campaign of anti-social behaviour? Maybe they did; there’s nothing about that in the law reports, one way or the other – but if they did, they obviously failed to succeed in getting an accommodation transfer. I suspect they didn’t, for the same reason that, if they did, they failed: the judicial review system tolerates negligence and incompetence unless a clear error of law is involved, or the negligence reaches such a grotesque pitch it passes the Wednesbury threshold. The regime is one that accords a huge latitude towards local social services and housing authorities such that, in practice, it is incredibly difficult to use judicial review to force through a housing transfer (or even a reconsideration of a decision not to transfer), in particular when, as in this case, the factual context was always shifting. It does though seem to me that the question is a relevant one and that the ineptitude of judicial review in certain real-world situations has some relevance to the approach to issues of negligence.

How the children’s case was put

The children brought proceedings against Poole in the tort of negligence, alleging that Poole had failed to take proper care in the exercise of its functions under sections 17 and 47 of the Children Act 1989 (‘the Act’).

Section 17 of the Act is the general provision which, inter alia, requires local authorities to take reasonable steps to prevent children suffering ill-treatment or neglect, through the provision of services under Part III of the Act (which can include accommodation).

Section 47 of the Act provides for local authorities to, inter alia, take care proceedings where a child is suffering, or is likely to suffer, significant harm attributable to unreasonably poor care.

The children’s case was put on the basis, essentially, that Poole knew that this was a highly vulnerable family and that it was being subjected to anti-social conduct likely to cause family members significant injury and that Poole was under a duty to take reasonable steps under sections 17 and/or 47 of the Act to protect the children, but failed to do so.

A few other arguments were also run, but they were dealt with quite shortly and it is unnecessary to go over them here. No reliance was placed on the functions of local authorities relating to housing, protection from anti-social behaviour or the provision of support for carers. As will become clear, however, it is almost inconceivable that any attempt to rely on these provisions would have made any difference to the outcome in this case. It also seems though that no reliance was placed on section 20 of the Act. That possibly might have made a difference – see the end.

The law of negligence and public authorities

In the only judgment, Lord Reed summarised developments in the law of negligence between the 1970s and the present time. He drew attention, in particular, to the distinction in the cases between ‘causing harm (making things worse) and failing to confer a benefit (not making things better)’ (previously referred to as the distinction between ‘acts’ and ‘omissions’; and to the cases that established that, where there had been a failure to confer a benefit, or make things better, the defendant – whether that was a private individual or a public authority – would not in general be liable but might be liable in particular circumstances, for example, where they had created the source of the danger or had assumed responsibility to protect the claimant from harm. His analysis brilliantly clarifies what these cases actually decided and how they all fit together.

Lord Reed concluded his survey in these terms:

  1. It follows (1) that public authorities may owe a duty of care in circumstances where the principles applicable to private individuals would impose such a duty, unless such a duty would be inconsistent with, and is therefore excluded by, the legislation from which their powers or duties are derived; (2) that public authorities do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm; and (3) that public authorities can come under a common law duty to protect from harm in circumstances where the principles applicable to private individuals or bodies would impose such a duty, as for example where the authority has created the source of danger or has assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation …

75…That approach is based on the premise that public authorities are prima facie subject to the same general principles of the common law of negligence as private individuals and organisations, and may therefore be liable for negligently causing individuals to suffer actionable harm but not, in the absence of some particular reason justifying such liability, for negligently failing to protect individuals from harm caused by others. Rather than justifying decisions that public authorities owe no duty of care by relying on public policy, it has been held that even if a duty of care would ordinarily arise on the application of common law principles, it may nevertheless be excluded or restricted by statute where it would be inconsistent with the scheme of the legislation under which the public authority is operating. In that way, the courts can continue to take into account, for example, the difficult choices which may be involved in the exercise of discretionary powers.

On this basis, the Court concluded that what was critical was whether Poole had assumed a responsibility to protect the children from injury.

As to that, Lord Reed said that Poole had not assumed a responsibility to protect the children from injury because neither Poole’s statutory functions under the Act, in themselves, nor the particular manner in which Poole discharged those functions, showed that Poole had undertaken a responsibility to protect the children from injury caused by the neighbours on which it was reasonable for the family to rely. The reasoning here is a little murkier and, I would say, laden with assumptions and value judgments, as to which more later. For the time being, this is it:

  1. As Lord Browne-Wilkinson explained in relation to the educational cases in X (Minors) v Bedfordshire(particularly the Dorset case), a public body which offers a service to the public often assumes a responsibility to those using the service. The assumption of responsibility is an undertaking that reasonable care will be taken, either express or more commonly implied, usually from the reasonable foreseeability of reliance on the exercise of such care. Thus, whether operated privately or under statutory powers, a hospital undertakes to exercise reasonable care in the medical treatment of its patients. The same is true, mutatis mutandis, of an education authority accepting pupils into its schools.

  2. In the present case, on the other hand, the council’s investigating and monitoring the claimants’ position did not involve the provision of a service to them on which they or their mother could be expected to rely. It may have been reasonably foreseeable that their mother would be anxious that the council should act so as to protect the family from their neighbours, in particular by rehousing them, but anxiety does not amount to reliance. Nor could it be said that the claimants and their mother had entrusted their safety to the council, or that the council had accepted that responsibility. Nor had the council taken the claimants into its care, and thereby assumed responsibility for their welfare. The position is not, therefore, the same as in Barrett v Enfield. In short, the nature of the statutory functions relied on in the particulars of claim did not in itself entail that the council assumed or undertook a responsibility towards the claimants to perform those functions with reasonable care.

  3. It is of course possible, even where no such assumption can be inferred from the nature of the function itself, that it can nevertheless be inferred from the manner in which the public authority has behaved towards the claimant in a particular case. Since such an inference depends on the facts of the individual case, there may well be cases in which the existence or absence of an assumption of responsibility cannot be determined on a strike-out application. Nevertheless, the particulars of claim must provide some basis for the leading of evidence at trial from which an assumption of responsibility could be inferred. In the present case, however, the particulars of claim do not provide a basis for leading evidence about any particular behaviour by the council towards the claimants or their mother, besides the performance of its statutory functions, from which an assumption of responsibility might be inferred …

So, what are the key questions for future claimants and defendants?

In the light of Poole, when a case arises where a person may have suffered injury as a result of lack of reasonable care by local authority (acting unlawfully in public law), it looks as though the key questions, in order to decide whether there was a duty of care, are as follows:

  • did the local authority/staff cause the harm?
  • did the local authority/staff create the source of the danger?
  • did the local authority/staff assume a responsibility to protect the claimant from harm?
  • is the nature of the statutory function exercised by the local authority such that it is implicit that the local authority has assumed responsibility to exercise a special skill to protect the claimant from harm and was the claimant entitled to rely on local authority (e.g. in the case of teachers and educational psychologists, or social workers exercise functions in relation to children in care)?
  • on the particular facts, does the way in which the local authority exercised its statutory function show that the local authority has assumed responsibility to exercise a special skill to protect the claimant from harm and was the claimant entitled to rely on local authority?

If the answer to any of these questions is ‘yes’, then there will be a duty of care unless that would be inconsistent with and excluded by the legislation that provided the powers or duties the local authority was exercising.

A critique of the judgment from a claimant’s perspective

The judgment is not all bad, from a claimant’s perspective. A positive is that the Supreme Court has – on the face of it – dealt the coup de grace to the decision in X (Minors) v Bedfordshire CC [1995] 2 AC 633, insofar as that case ruled out on grounds of public policy the possibility that a duty of care might be owed by local authorities or their staff towards children with whom they came into contact in the performance of their functions under the Act, to protect them from harm from third parties, and insofar as it held that any liability on the part of such persons for inflicting harm on a child was dependent on their having been an assumption of responsibility: whether a local authority or its employees owe a duty of care to a child in particular circumstances will depend on the application of the principles summarised above.

I question below, however, whether Poole truly has driven policy considerations out of the equation or whether, rather, it has simply driven them underground.

It might also be said that it is difficult to criticise the judgment insofar as it simply applies to local authorities the tests for establishing negligence that apply in the case of private persons, with the proviso, which is hard to take exception to, that there cannot be a duty of care where that would be inconsistent with and excluded by the legislation from which the local authority powers or duties were derived.

But there is in my view something awry in applying the same approach to private persons and local authorities. It seems fair, at first glance, but is it?

To start with, local authorities are not private persons and, in real life, the fact is, contrary to the view of the Supreme Court, some individuals do entirely rely on a particular local authority to discharge its statutory duty to protect them with reasonable care and have no real alternative. That relationship between a person subject to a statutory duty to protect someone’s welfare, and that person not having any other person to turn to, to protect them, is not found between individuals and has a very different character.

Take this case. One is not privy to all the background facts, but all lawyers who practice in this area of law will have come across families like this and this type of case.

This is not the type of case, on the face of it, where Poole was required to make difficult and complex decisions involving professional judgment or resource allocation and, even if it was, that would simply mean that it would become that much more difficult to establish that Poole had acted unlawfully, and therefore in breach of a duty of care, given the margin of judgment the courts would give it.

With that proviso, let me posit an alternative – but, I think, more realistic take, than the Supreme Court’s  – on the same facts:

  • in all probability, Poole housed the GN family because the GN family was unable to obtain accommodation of their own, for a whole raft of reasons that are known about – shortages of housing, shortages of adapted housing, the difficulty of obtaining accommodation that can be adapted and getting adaptation grants, high rents, the inadequacy of housing benefit and so on – and so the GN family was reliant and dependent on the local authority for getting accommodation;
  • it is established that Poole knew both that the GN family was especially vulnerable and that their next-door neighbours were highly anti-social. One suspects that the accommodation provided to the GN family had become quite hard to let and Poole considered itself fortunate to find a family desperate enough, and/or unaware enough of the circumstances, to take it;
  • when the highly foreseeable onslaught of anti-social behaviour ensued, the family would have been entirely dependent in practice on Poole and the police taking reasonable steps to protect them via the legal mechanisms that are in place (given that the GN family did not have its own private army or alternative housing options or, it appears, substantial financial resources or connections) and, when it became clear that those were ineffective, on Poole taking reasonable steps to accommodate the family elsewhere, which obviously it could have done;
  • it was entirely reasonable for the family to rely on Poole. Not only did they have no other option as a matter of practical reality, Poole was under a statutory duty to take reasonable steps to protect them.

If one looks at the facts of the case in the round, from Poole placing the family next to known perpetrators of anti-social behaviour, also tenants of Poole, through to Poole failing to take reasonable steps (on the assumed facts) to remedy the situation it had itself created, a different factual view could have been taken by the Court e.g. that this was akin to the type of case where the local authority has created the source of the danger or, indeed, akin to the type of case where the local authority caused the harm: after all, it placed the GN family in harm’s way. So, if the Court had wanted to do so, if it had been a bit more sympathetic and understanding of the family’s plight, it could have accommodated this case within the framework of law that it had laid down.

Alternatively, the Court could have developed the law a little bit. Isn’t the whole point of having a Supreme Court, that it will develop the law to keep pace with modern life and remedy injustice? Wasn’t what occurred here obviously unjust? Poole placed the family in a situation where it was likely that family members would be seriously injured and then failed to take reasonable steps to bring the injury to an end, for nearly 5 years, in circumstances where, in practice, the family was entirely reliant on Poole and reasonably so given the statutory duty Poole owed to them. The Court could easily have developed the law of negligence so as to cater for this type of case, had it wanted to.

The Court did not wish to develop the law of negligence as suggested above, nor did it wish to recognise the facts of this case as falling with the legal framework it had laid down. At the heart of its reasoning, is the assumption or value judgment that the steps taken by the Council to protect the children ‘did not involve the provision of a service to them on which they or their mother could be expected to rely…. Nor could it be said that the claimants and their mother had entrusted their safety to the council, or that the council had accepted their responsibility’. Seriously? Isn’t this just policy, driven underground by the legal logic of the judgment, re-surfacing as a value judgment equally fatal to what ought to have been a perfectly good claim? Poole was responsible, by virtue of the duties placed on it by the Act. The family’s safety was in Poole’s hands and obviously the family relied entirely on Poole to do its job, and reasonably so. Surely, it is only an un-expressed policy view and unexamined assumptions that led to the contrary conclusion?

So what is the litmus test for an ‘assumption of responsibility’ in this context? That is left rather vague. The general statements, well-known, in Hedley Byrne and Spring are clearly capable of embracing the situation in which the GN family found itself. But they were not accepted as doing so, for the – in my view – mistaken reasons set out above. The odd thing is that the Court had no difficulty in accepting that, if Poole had taken the children into care, or – presumably – agreed to look after them under section 20 of the Act, then Poole would have assumed responsibility for their welfare and would have owed them a duty of care. It can be seen therefore that the Court attributed great significance to the difference in status between a looked-after child and a child in need, but why? It makes no sense to me because serious and hugely important duties are owed to both categories of children and the level of importance of the duty depends on the facts of the case, not the category into which the children fall; as this case very sadly illustrates.

What about the point that none of this really matters because the family could have, and other families can, litigate properly under the 1998 Act, and seek redress properly that way? In my view, these considerations are not a very good excuse for not developing the law of negligence, nor are they some kind of comforting factor. The UK may at some point cease to be an ECHR state, at which point we will be left with Poole and nothing to redeem the situation. Compensation under the 1998 Act is very low and well below the level required properly to remedy the type of injury suffered in this case. The ECHR is directed at a different kind of wrong than negligence. Finally, it is a bit pathetic if our own law, the law of this country, poised as this country may be on the brink of proud national self-sufficiency, cannot provide adequate redress to vulnerable children under its own laws, when those children have suffered injury as a result of a local authority so badly discharging its statutory duty to protect them, as to have acted unlawfully.

What about the statutory complaints process/LGSCO?  This is of course an extremely valuable domestic remedy but it has a shorter limitation period, compensation is usually somewhat lower, the remedy is in legislation which can be amended, the maladministration jurisdiction is aiming at something different than negligence and, ultimately, it’s existence just isn’t a good reason for not developing the common law properly, by which I mean, in a way that takes proper account of the situation in real life of vulnerable children and their families.

So, why bother to write about the negligence aspect of the case at all? The Supreme Court has spoken, so perhaps every sensible person ought to hold their silence. Well, firstly, the case is of considerable interest and importance and every lawyer, no matter how relatively lowly, is entitled to his or her opinion about it. Second, Lord Reed did make it clear, at the end of his judgment, that ‘the existence of an assumption of responsibility can be highly dependent on the facts of a particular case’. It may be that, somehow, in some way, the considerations I’ve identified may assist in marshalling facts in another, different case, in a way that does bring the case within that rubric, in the Court’s opinion. Third, the Court, like the Court of Appeal, disposed very robustly of the subsidiary point made by the family, that Poole was in breach of duty to take care proceedings. I don’t think the Court can be faulted on that.

As a final thought, one further odd thing, perhaps, is that the family didn’t put this aspect of its case on the basis that Poole was in breach of duty to offer to accommodate the children under section 20 of the Act (i.e. because the mother was ‘prevented (whether or not permanently, and for whatever reason) from providing [them] with suitable accommodation….’).  Insofar as the Court seemed open to the argument that a failure by Poole to enter into a closer, caring relationship with the children may have been relevant to whether it ought to treat Poole as being under a duty of care, then, it may be, where appropriate, reliance can be placed on breach of section 20, in a future case.

Of course, the judgment in Poole is legally brilliant and it could be understood as being subtly progressive; indeed, clearly it is progressive in some ways. Does it though go far enough? Does it, even, base its conclusions on a fair understanding of the situation in real life of families such as the GN family? In my view, the answer to both questions is a resounding ‘no’.

Stephen Knafler QC is the author of Adult Social Care Law (2nd edn, 2019) and Children’s Social Care Law (2018) and editor of Community Care Law Reports (all LAG)

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