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Poole Borough Council v GN, and the Piecemeal Dismantling of Local Authorities' Immunity

Document Cited authorities 5 Cited in Related
Vincent
Author
Pages256-262
DOI10.3366/elr.2020.0630
Date01 May 2020
Published date01 May 2020
INTRODUCTION

This note concerns an appeal before the UK Supreme Court, namely Poole Borough Council v GN and Another.1 The main point at issue was whether public authorities can owe duties of care to children arising from the performance of their statutory obligations: a unanimous ruling, delivered by Lord Reed, found that they could, in the same manner as private individuals. In order to provide a focused note, questions of vicarious liability (which were quickly dismissed) will be ignored: liability for the acts of third parties (the law of which was not in dispute) will be treated extensively, but only as a matter of policy.

 PROCEDURAL HISTORY Facts and initial particulars of claim

The claimants – disabled children living in the respondent council's area – suffered repeated physical and psychological injury at the hands of their neighbours.2 The council conducted several care assessments,3 and the claimants were rehoused as soon as a home could be modified to accommodate them.4 Their neighbours were eventually evicted.5 The claimants were in need of state assistance pursuant to section 17(10) of the Children Act 1989 (the “1989 Act”),6 and the council was therefore legally obliged to provide for their safety7 and to seek care or supervisory orders if necessary.8 They omitted to do so.9 The claimants argued, first, that they were owed by the defendant council a common-law duty of care; second, a statutory duty under sections 17 and 47 of the 1989 Act;10 and third, that, in failing to protect or quickly rehouse the children, these duties had been breached.11 The council argued for the claim to be struck out and Master Eastman concluded that, with reference to X v Bedfordshire County Council,12 no duty of care arose under the 1989 Act.13

 <italic toggle="yes">Bedfordshire</italic> and the pre-trial proceedings

The Bedfordshire action was a bundle of five appeals before the House of Lords on alleged negligence by public authorities.14 Lord Browne-Wilkinson, in the leading opinion, determined whether duties of care were present by applying the test of Caparo Industries plc v Dickman,15 which requires that this be fair, just, and reasonable.16 His Lordship constructed a narrow test. Under this, duties of care might arise from statutory functions to limited classes, but only when this is the intention of parliament, or where no other statutory mechanisms of enforcement exist:17 further, any claims arising from intra vires acts of discretion were made non-justiciable.18 Applying this logic, the two “child abuse cases”, which involved direct statutory discretion, were decided in favour of their defendants: while the three “education cases”, which did not, were not. Master Eastman, applying this test at first instance, struck out the claim in Poole as being in point with the “child abuse cases”.19

 Amended arguments

The claimants abandoned their initial contention that a duty of care arose from sections 17 and 47 of the 1989 Act, and instead appealed on the grounds that a promise by the council to investigate and take appropriate measures constituted an assumption of responsibility, which was breached by a failure to take appropriate protective action.20 They also contended that the prohibition on liability in respect of the statutory administrative discretion of public authorities in Bedfordshire had been overturned by D v East Berkshire Community NHS Trust,21 which involved a set of three appeals about unsubstantiated accusations of child abuse against parents.22

Lord Phillips, in a unanimous judgment of the Civil Division in Berkshire QB, recognised that the passage of the Human Rights Act 1998 had opened the litigation floodgates that Bedfordshire had sought to close, such that its policy rationale no longer applied: in this particular case, as a result of the application of the Article 8 right to private and family life.23 Considering the potentially chilling effect that parental claims seeking reparation for false accusations...

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