HXA v Surrey County Council [2023] UKSC 52

Two claimants, HXA and YXA, who suffered childhood abuse by parents or their partners, claimed local authorities owed them a common law duty of care to protect them from harm. The Supreme Court held that applying N v Poole, no assumption of responsibility arose from the authorities' statutory functions, and struck out both claims.

Facts

HXA was born in 1988 and suffered sustained abuse and neglect by her mother and later by her mother’s partner, Mr A, who was convicted of multiple counts of rape against HXA. Surrey County Council was involved with the family from at least 1993, conducting child protection investigations, placing children on the child protection register, and resolving to undertake assessments and seek legal advice regarding care proceedings, but these were not implemented. In January 2000, when HXA reported sexual abuse by Mr A, the authority resolved not to investigate and instead to carry out ‘keeping safe’ work, which was never undertaken.

YXA, born with epilepsy, learning disabilities, and autism, was accommodated under section 20 of the Children Act 1989 by Wolverhampton City Council in a pattern of respite care from April 2008. Concerns about his parents’ care included excessive medication and physical assault. He remained with his parents between respite periods until December 2009 when he was taken into full-time care.

Issues

The central issue was whether the local authorities owed a common law duty of care to protect the claimants from harm caused by third parties (the abusers), and specifically whether the particulars of claim provided a basis from which an assumption of responsibility could be inferred, in accordance with the principles established in N v Poole Borough Council [2019] UKSC 25.

Judgment

The Supreme Court allowed the appeals, holding that the claims were correctly struck out at first instance. Lord Burrows and Lord Stephens (with whom Lord Reed, Lord Briggs, and Lord Sales agreed) delivered the judgment.

Key Reasoning

The Court reaffirmed that public authorities are subject to the same principles as private individuals regarding duty of care. For liability for failing to protect from harm by third parties, an assumption of responsibility must be established.

“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.”

The Court held that investigating and monitoring the claimants’ positions did not involve the provision of a service to them on which they could rely, and no assumption of responsibility arose from the statutory functions exercised. Regarding YXA’s respite care under section 20, the Court accepted an assumption of responsibility existed during the actual accommodation period and the mechanics of return, but this did not extend to a broader duty to initiate care proceedings.

“Providing respite accommodation for YXA did not constitute an assumption of responsibility to use reasonable care to protect YXA from the abuse. The local authority was temporarily taking YXA away, with the consent of his parents, on the basis that he would be returned.”

The Court rejected the Court of Appeal’s characterisation of this as a developing area of law requiring full trials. The principles from N v Poole were clear and these cases were indistinguishable from it.

Implications

This decision clarifies that after N v Poole, the law on assumption of responsibility by local authorities’ social services departments is settled. Local authorities do not assume responsibility to protect children from harm merely by exercising statutory functions such as investigation, monitoring, or providing respite accommodation under section 20. An assumption of responsibility arises where the authority has taken parental responsibility (e.g., through a care order under section 31) or where the child’s safety has been entrusted to and accepted by the authority during actual accommodation periods. The judgment reinforces that strike-out applications are appropriate where pleadings fail to establish a basis for an assumption of responsibility, avoiding unnecessary full trials.

Verdict: Appeals allowed. The claims in both cases were correctly struck out as there was no arguable duty of care owed by the defendant local authorities to the claimants.

Source: HXA v Surrey County Council [2023] UKSC 52