Poole BC v GN [2019] UKSC 25

Children suffered prolonged abuse from neighbours, a situation known to the local council. The Supreme Court held the council owed no common law duty of care to protect them, clarifying that exercising statutory child protection functions does not automatically create such a duty.

Facts

The claimants, GN and CN, were two children who, along with their mother, were housed by Poole Borough Council. From 2006, the family was subjected to a sustained campaign of harassment and anti-social behaviour by a neighbouring family. The council, through its social services department, was repeatedly made aware of these problems and their severely detrimental effect on the children, one of whom was severely disabled. Social workers were involved, assessments were carried out, and case conferences were held over several years. Despite being aware that the children were at risk of significant harm, the council did not exercise its statutory powers to remove them from the home under the Children Act 1989. The claimants subsequently brought an action in negligence, arguing that the council had breached a common law duty of care to protect them from the harm caused by their neighbours.

Issues

The central legal issue was whether the defendant council owed the claimant children a common law duty of care to protect them from harm caused by third parties (the neighbours). This involved considering whether the council, by investigating the children’s circumstances and exercising its statutory functions under the Children Act 1989, had assumed a responsibility for their welfare sufficient to give rise to such a duty.

Judgment

The Supreme Court unanimously allowed the council’s appeal, finding that no duty of care was owed. Lord Reed gave the leading judgment.

Principles of Negligence for Public Authorities

Lord Reed began by reaffirming the general principle that public authorities are not in a special position and are typically liable in negligence on the same grounds as private individuals. A duty of care does not ordinarily arise for a mere failure to act (an omission) or to prevent harm caused by a third party.

In the tort of negligence, a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger which A has not created. There are, however, exceptions to that general rule. (para 29)

He noted two principal exceptions where a duty to protect from harm caused by others can arise: (i) where the defendant has a special level of control over the third party who causes the harm, or (ii) where the defendant has assumed a responsibility to protect the claimant from that harm.

Assumption of Responsibility

The claimants’ case rested on the second exception: that the council had assumed a responsibility for their safety. The Court of Appeal had agreed with this, but the Supreme Court overturned that finding. Lord Reed clarified that the ‘assumption of responsibility’ test arises where a defendant has undertaken to protect a claimant from a specific danger, leading the claimant to rely on that undertaking. He held that the council’s actions did not meet this threshold.

The council’s social services had investigated and monitored the family’s situation, but this was in the exercise of their statutory powers, not a voluntary assumption of responsibility for the children’s welfare in a way that would give rise to a private law duty. Merely investigating whether to exercise a statutory power is not the same as undertaking to protect someone from harm.

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 was, rather, the exercise of a power which the council had a statutory duty to consider exercising: a power which, if exercised, could have led to the claimants’ removal from their mother. (para 76)

Revisiting Previous Case Law

Lord Reed took the opportunity to review and clarify the law following previous, sometimes conflicting, authorities like X (Minors) v Bedfordshire County Council [1995] 2 AC 633. He stated that the reasoning in X v Bedfordshire – that it would be inconsistent for a statutory scheme to create both a public law duty and a private common law duty – was flawed and should no longer be followed. However, he concluded that the outcome in X v Bedfordshire (finding no duty of care) was correct on its facts, as is the case here. The existence of statutory powers and duties does not in itself create a common law duty of care, but it does not preclude one either. The question must be determined by applying ordinary negligence principles.

Implications

The judgment provides significant clarity on the liability of public authorities, especially social services, for omissions. It reaffirms that the foundation for liability in such cases is not the existence of statutory powers, but a positive undertaking or ‘assumption of responsibility’ to an individual. By narrowly defining what constitutes an assumption of responsibility, the decision makes it more difficult to establish a common law duty of care against public bodies for failing to protect individuals from harm caused by third parties. The ruling effectively confirms that the day-to-day work of social services in investigating and monitoring at-risk children will not, without more, expose them to negligence claims for failing to prevent harm.

Verdict: The appeal was allowed. The claim in negligence against the council was struck out.

Source: Poole BC v GN [2019] UKSC 25