X and Y (by their Litigation Friend the Official Solicitor) v LB of Hounslow (2009) EWCA Civ 286

The appellant Local Authority (H) sought to challenge an earlier ruling that they had negligently failed to protect the respondents (X and Y) from a sexual and physical attack by local youths. X and Y, a married couple with mild learning disabilities, lived with their children in local authority accommodation and were in receipt of support from both the children and families department and community team for people with learning difficulties [‘CTPLD’]. The couple had allowed a group of young people from the area to use their flat to store stolen goods, engage in under-age sex, take drugs and “generally misbehave”. One of the local youths also resided at the flat. On one occasion prior to the attack that lead to the instigation of these proceedings X had been seriously assaulted by one of the youths and the couple’s social worker from the CTPLD had become aware of the situation. She had alerted both the police and the children and families department and made a request to the local housing department that an earlier application by Y to be rehoused should now be considered urgently as they were both vulnerable. In addition other residents of the block where the couple lived had also notified the housing department, though via a complaint, of the activities taking place at the house.

On the weekend of the 17 to 19 November 2000 the couple were effectively imprisoned by 4 young people in the house and subjected to serious abuse, physical and sexual assaults. The children witnessed the assaults and were subjected to abuse, as was the family dog. All four youths were convicted and given custodial sentences for the attack.

X and Y conceded that their social worker from the CTPLD had not acted negligently and that there had been no breach of statutory duty on behalf of H. However their case centred on the fact that H, through either its housing department or social services department, should have recognised the imminent risk of harm to X and Y and their children and acted to protect them from foreseeable harm. The couple believed that the Local Authority’s failure to re-house them was a breach of the duty of care owed to them, and the harm suffered during that weekend was a direct result of this breach. They therefore sought damages in private law terms for the tort of negligence and also under sections 6 and 7 of the Human Rights Act 1998 (‘the HRA’), claiming that the Local Authority had acted in a manner incompatible with their rights under articles 3 and 8 of the European Convention for Human Rights. H challenged this position highlighting that there was no precedent for a local authority having been held to have a duty of care to protect vulnerable adults from a third party. They also submitted that any legal action the couple had in respect of the alleged failings of the appellants was justicable only in public law rather than through the private law action they were seeking. Finally H sought to argue that, even if they were to have owed a duty to care to X and Y, they could not be deemed to be in breach of this duty as H (nor any of its staff) had acted negligently and, in any event, what happened during the relevant weekend was caused by third parties and was not reasonably foreseeable.

The Court of Appeal reviewed the statutory duties owed towards the couple and, having been satisfied that H was not in breach of its duty to protect X and Y’s children from harm under the Children Act 1989 concluded that the Local Authority were obliged only to carry out the functions as set out in the National Assistance Act 1948 and the Housing Act 1996. The Court of Appeal found that H had done so and, as was conceded by the respondents, there had been no breach of statutory duty. The exercise by the Local Authority of their statutory duty could not therefore give rise to a duty of care which was actionable in private law negligence terms.

Previously the Judge at the High Court had not considered it necessary to look at the duties of specific departments within the Local Authority. He had noted the fact that the appellant had an emergency housing transfer policy, but that it had failed to enact this policy to the benefit of X and Y in time to prevent the attacks and, despite a finding that no individual working for the appellants owed X and Y a duty of care (Caparo Industries Limited v Dickman [1990] 2 AC 605 applied), he had concluded that there was a duty of care because the injury and loss were reasonably foreseeable and there was a relationship of sufficient proximity between the Local Authority and X and Y. The Court of Appeal, when reviewing the findings of facts within his judgment, highlighted that the judge had not considered whether the Local Authority had assumed responsibility for X and Y. They noted that “there was no-one within the Council who created the danger faced by the respondents or who assumed specific responsibility for the respondents’ safety” so no duty of care had arisen, nor had the judge put forward any other special reason why such a duty of care should have arisen and therefore no such duty existed.  Gorringe v Calderdale MBC [2004] UKHL 15 and Trent Strategic Health Authority v Jain) [2009] UKHL 4 applied.

The Court of Appeal considered, in the alternative, whether the social worker for the CTPLD had, by her actions, assumed responsibility. They concluded that no such assumption of responsibility could be placed on the housing department as they had carried out the functions required of it under the Housing Act 1996. The Court of Appeal also considered the many potential conflicts of interests the housing department managed as, being both the supplier of housing and landlord, meant it would not be fair, just or reasonable to impose a duty of care on the housing department in the manner the respondents had proposed. As such, only the CTPLD social worker could have been deemed to have accepted responsibility on behalf of H, but as the Court of Appeal commented “the respondents, in our judgment correctly, conceded before the judge and concede before us that she was not in breach of any duty of care, if it otherwise existed. In our opinion, she behaved impeccably throughout. The facts …demonstrate that to be the case.” That the respondents had not criticised their social worker for making a recommendation that they would be better off waiting for a suitable property than moving in an emergency to an unsuitable one was an indication to the Court of Appeal that the respondents accepted that the social worker had acted as a reasonable social worker would have and had not foreseen the incident that occured. They therefore concluded that if (contrary to their own view) she had assumed a responsibility to the respondents at common law and owed a duty of care to them, she was not in breach of that duty. Bolam v Frien Hospital Management Committee (1957) applied.

Leave a Reply

Your email address will not be published.