Failure To Remove Claim – Appeal Dismissed
12/22/2021
In HXA v Surrey County Council [2021] EWHC 2974 (QB) the High Court upheld a decision to strike out claims against two separate Local Authorities which had been accused of negligently applying their statutory powers. Falling under the categorisation of ‘failure to remove cases’ the decision follows the landmark case of CN v Poole Borough Council where the Supreme Court held that on the facts of the case the Council owed the Claimants no duty of care at common law to take protective measures to remove them from the family home to prevent them suffering the ill-effects of their neighbour’s anti-social behaviour.
The background to the decision
The Claimants, H and Y had brought proceedings against their respective Local Authorities for damages following alleged abuse perpetrated by Y's parents against him, and by H's mother and her mother's partner against her. They claimed that the abuse would not have occurred if the Local Authorities’ social workers had exercised reasonable skill and care regarding H and Y’s wellbeing. H argued that the Local Authority should have applied for a Care Order. Y claimed the Care Order application should have been made sooner.
Both Local Authorities successfully applied to have the claims struck out.
H and Y both appealed because their respective Local Authorities had assumed a responsibility towards them so that a duty of care arguably evolved. H submitted the duty of care arose either when the Local Authority:
(i) Placed her name on the child protection register;
(ii) Undertook a full assessment to initiate care proceedings but failed to do so; or
(iii) Resolved to undertake ‘keeping safe’ work with her and did not follow through.
Y submitted that a duty evolved when he was given intermittent accommodation by the Local Authority away from the family home under the Children Act 1989 s20.
The High Court’s decision
Under r.3.4(2)(a) the Court can strike out a claim where the statement of case disclosed no reasonable grounds for bringing or defending the claim. A strikeout application must not be granted unless the Court is certain that the claim was bound to fail. If the case raises a serious question of fact that can only be determined by the presenting of oral evidence then the claim is deemed unsuitable for striking out. It was also not appropriate to strike out a claim that involved a new or developing area of jurisprudence since such decisions relied on the examination of relevant facts in order to reach a conclusion.
- "investigating and monitoring" a child's position,
- "taking on a task" or exercising its general duty under the Children Act 1989, s 17, or
- placing a child on the Child Protection Register, or investigating under s 47 of the aforementioned Act
The two cases before the Court concerned negligent omissions. When applying Poole, there could be no doubt that a Local Authority
did not mean the Local Authority was providing a service that the child could expect to rely on. The Local Authorities were "merely operating a statutory scheme" which did not create a common law duty of care.
The Court concluded that placing H on the Child Protection Register did not amount to “something more” which would have resulted in a common law duty of care over and above the Local Authority’s statutory operational requirements. Furthermore, the claim that the Local Authority had resolved to undertake ‘keeping safe’ work, the particulars of claim did not suggest that if the ‘keeping safe’ work had been done H would have been able to protect herself. The claim was expressly framed as an omission/failure to confer a benefit by not doing the ‘keeping safe’ work, not an allegation of a positive act that amounted to an assumption of responsibility.
In Y’s case, the Court emphasised the importance of distinguishing between a duty of care that arose after making a Care Order and the completely different position when a child was placed in temporary care under s 20 of the Children Act 1989. In the latter case, the parents retained parental responsibility.
The High Court also rejected Cs’ arguments that the case should not have been struck out on the grounds it involved a developing area of law. The Supreme Court had clarified the approach to be taken to ascertain whether a duty of care was owed in its judgments of Michael v Chief Constable of South Wales [2015] UKSC 2, [2015] A.C. 1732, [2015] 1 WLUK 622, Robinson v Chief Constable of West Yorkshire [2018] UKSC 4, [2018] A.C. 736, [2018] 2 WLUK 189, and of course, Poole.
Comment
The Coronavirus pandemic has put an enormous strain on Local Authorities’ social care teams. This decision, therefore, will undoubtedly come as a relief as it confirms that a common law duty of care does not automatically apply when a Local Authority is merely carrying out its statutory operational functions.
