Stephen Simblet of Garden Court Chambers comments on GN and CN v Poole Borough Council  UKSC 25.
The Supreme Court finally (and belatedly: it heard the case on 16-17 July 2018) gave judgment in this case on 6th June 2019. Essentially, the case turned into a useful review by Lord Reed, with whom the other members of the court agreed, of the case law on the liability of public authorities. What it did not do, however, was to expand the circumstances in which claims can be brought in negligence against public authorities. In large part, that was because the claimants simply did not have a case.
The claimants’ contentions were very imprecisely set out in their Particulars of Claim. Essentially, the argument was that because the claimants were housed by the council, that the council owed a duty of care to the tenant and her children to protect them from neighbours’ abuse and anti-social behaviour, which duty extended to rehousing them. It was also alleged that the existence of a statutory framework for the protection of children, and in particular the provisions of section 17 and section 47 of the Children Act 1989, imposed a duty of care on the council to protect the tenant’s children from harm by permitting them to continue living on the estate.
It should be said that the Court of Appeal had, some 20 years ago in the case of Hussain v Lancaster City Council  QB 1, held that a local authority is not liable in nuisance or negligence to other occupiers. That case does not feature in the Supreme Court’s judgment, though was referred to in the Court of Appeal’s judgment from which GN and CN were appealing, and is considered in Mitchell v City of Glasgow  UKHL 11,  1 AC 874. This may of itself be revealing. Since Hussain had established that public authorities have no additional liability for the wrongful behaviour of third parties, it was difficult to see how by starting from the a different, position, namely that the fact that the claimants themselves were the recipients of housing in pursuance of statutory functions and that there were children potentially capable of engaging statutory duties under the Children Act 1989 would mean that a duty of care was owed to them. Indeed, so inconsistent and difficult was the claimants’ position that they had to contend that the local authority was liable for not removing the children from their mother’s care, even though there were no failures of care by her. These fundamental problems remained in the case throughout, culminating in paragraph 91 of Lord Reed’s judgment:
“The particulars of claim in these proceedings do not disclose any recognisable basis for a cause of action. The complaint is that the council or its employees failed to fulfil a common law duty to protect the claimants from harm inflicted by their neighbours by exercising certain statutory powers. The relevant provisions do not themselves create a cause of action. Reliance is placed on an assumption of responsibility arising from the relationship between the claimants and the council or its employees, but there is nothing to suggest that those relationships possessed the necessary characteristics for an assumption of responsibility to arise. Furthermore, it is clear that the alleged breach of duty, namely a failure to remove the claimants from the care of their mother, has no possible basis.”
This resulted in the case being struck out.
What the case does do is analyse the circumstances in which particular features of a local authority’s functions may result in liability. None of the previously decided cases were over-ruled (although at paragraph 74, it was said that the public policy reasons for holding that there was no possibility of a duty of care being owed as a result of statutory duties are no longer valid), and Lord Reed explained how in each of them, the particular factual situation either resulted in (or, in the case of strike out cases, might arguably) liability or led to there being no duty owed. At paragraph 65, he set out those circumstances:
“65. 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.”
Lord Reed then went on to consider the circumstances in which an assumption of responsibility might arise. He rejected an argument that mere operation of a statutory scheme could never result in an assumption of responsibility: see paragraphs 70- 72. He pointed out that a duty of care normally ordinarily is generated by something which the defendant has decided to do. Taking action under a statutory scheme might, in certain circumstances, as examined in Robinson v Chief Constable of West Yorkshire Police  UKSC 4,  AC 736, lead to a duty of care. In most cases, the court would have to consider whether the case is one in which the defendant is alleged to have harmed the claimant, or one in which the defendant is alleged to have failed to provide a benefit to the claimant, such as protecting him from harm (see paragraph 74).
Further, since the council had not done anything to prevent another from protecting the claimant, nor had any sort of special control, nor had the claimants any particular special status, it could only be said that a duty of care would arise if a special relationship existed. The claimants pleaded that the council had conducted an investigation and this created a special relationship. Lord Reed rejected that, since although it was reasonably foreseeable that the claimant would be anxious about how the council might protect them from neighbours, the investigation was not the provision of a service to them on which the claimants could be expected to rely. It was different, for example, from the situation in which a patient relies on admission to hospital and the hospital thereby comes under a duty of care (see 80-81). Further there was no basis upon which the claimants could rely on the council’s vicarious liability for its employees.
The comparison with situations where a private individual would be liable is important. Too often in the sorts of cases that Garden Court barristers are involved in, one sees lawyers for public authorities arguing for some form of immunity, or some special treatment on grounds that the defendant is a public authority. Robinson and GN show that this is a flawed approach. It is also important to consider the important basis of liability, namely where a public authority defendant makes things worse, or creates a situation of danger. This may be more common than is sometimes realised.
In a case that I conducted in the High Court last year, W v Leicester City Council and Chief Constable of Leicestershire, the claimant had been resident in a local authority children’s home. The Probation Service/MAPPA, which due to its multi-agency nature had both police and local authority members on it, persuaded the local authority to over-ride its normal housing priorities and to house a released sex offender (T) in premises a stone’s throw from the children’s home. This was done at the behest of the police, with the police officer failing to conduct any inquiries about the location of the premises, or taking into account its proximity to the children’s home. T had a well-known offending profile in which he purported to befriend and groom young teenage boys, using drink and drugs to gain their company before abusing them. This is exactly what T then did to W, upon whom he perpetrated some serious sexual offences. The judge, HHJ Hampton (sitting as a High Court judge) found both the police and the council to be liable, in both negligence and for a breach of Article 3 ECHR: her judgment is here. The Court of Appeal has recently refused the defendants permission to appeal, with Haddon- Cave LJ’s reasons being that the judge had been right to find that the failures in this case were serious and a clear situation of danger was created.
Stephen Simblet is a member of the Garden Court Chambers Claims Against the Police and Public Authorities team.