The Supreme Court handed down judgment today in the joint appeal of HXA v Surrey CC and YXA v Wolverhampton CC [2023] UKSC 52. It confirmed that claims in negligence for failure to remove will usually fail as there is no duty of care. But local authorities owe a duty of care to children in their care and children for whom they provide accommodation.

Background

The claimants in HXA and YXA suffered harm within the family home. They were both known to social services for many years. They allege that their local authority failed to remove them soon enough and bring claims in negligence. A key issue to be determined in both cases is whether a common law duty of care was owed to each child.

Based on the reasoning in CN & GN v Poole Borough Council [2019] UKSC 25, local authorities do not generally owe a common law duty of care to children living in their area even if they have statutory duties under various acts including the Children Act 1989. This is because of the general principle that no duty arises from a failure to confer benefit (i.e. ‘not making things better’). But there are exceptions to this principle for instance where there is an assumption of responsibility towards the child and/or family. In that situation the local authority will owe a common law duty of care to the child.

In both HXA and YXA the claimants argued that their local authority had assumed responsibility towards them. In HXA’s case this took the form of carrying out child protection investigations and “keeping safe” work. In YXA’s case this included providing voluntary accommodation (respite care) on a regular basis pursuant to section 20 of the Children Act 1989 such as to create a duty outside of the periods of respite care. In both cases the defendant local authorities argued that these steps did not amount to an assumption of responsibility and there was no arguable duty of care. They applied to strike the claims out.

Both cases were struck out at first instance by Deputy Master Bagot QC in February 2021 (HXA) and by Master Dagnall in May 2021 (YXA). These decisions were upheld by a High Court judge (Stacey J) on appeal in November 2021. However the Court of Appeal reversed the decision of the High Court on 31 August 2022. Baker LJ, who gave the leading judgment, commented that both claims indicated the potential for an ‘assumption of responsibility’ or ‘something more’ which should be tested at trial.

The defendants appealed and their case was heard before the Supreme Court in October 2023. The judgment was handed down on 20 December 2023. Lord Burrows and Lord Stephens gave the judgment with which Lord Reed, Lord Briggs and Lord Sales agreed. 

Judgment

The Supreme Court found there was no assumption of responsibility and no duty of care. The existence of a statutory duty did not amount to an assumption of responsibility. Neither the investigation of child protection concerns, nor arranging a legal planning meeting, or carrying out “keeping safe” work amount to an assumption of responsibility. There was no evidence that the local authority had accepted responsibility for a child entrusting their safety to them. Even the provision of occasional respite care did not amount to a general assumption of responsibility. 

HXA and YXA are not distinguishable from CN & GN. This not a developing or uncertain area of the law, which is why a strike-out is appropriate.

The Supreme Court clarified in what case an assumption of responsibility is made out: 

1. when a care order has been made for a child, and 
2. when a child is accommodated under section 20 of the Children Act 1989 (but only for the duration of this accommodation or the mechanics of their return). 

The Supreme Court made it clear that it was not appropriate to insist on specific reliance. It did not discard the possibility that an assumption of responsibility might arise in other situations. 

Conclusion

This decision provides clarity but not absolute clarity.

Claims for failure to remove will usually fail and can be struck out. Claimants whose care is entrusted to a local authority – by a formal care order or a voluntary agreement under section 20 of the Children Act 1989 – can still pursue claims in negligence.

Claims testing the limits of assumption of responsibility should now be few and far between. Instead we expect to see more claims under the Human Rights Act 1998.