It is amazing but true that the UK courts have consistently held that there is no scope for negligence actions against local authorities arising out of the performance of their statutory duties.
Neither is there a claim for damages for breach of statutory duty, if the breach is poor performance or non-performance.
That this was likely to be the stance of the UK courts became clear in the Clunis case. The claim raised the possibility of damages for want of aftercare provision, but failed on the facts and on principle. Christopher Clunis had failed to attend for aftercare, but no-one had pursued him to see why not, or acted in respect of his known absence from the programme. He ended up in prison for murdering someone, as he deteriorated for want of aftercare. The wording of s117 Mental Health Act 1983 did not give rise to a private law action in damages for breach of statutory duty, nor would it be fair, just and reasonable to impose a common law duty of care on an authority, bearing in mind the scope of the obligations under s117 and the statutory framework. Further, the court would not entertain a claim for damages arising out of a plaintiff~s own criminal or immoral act, where the plaintiff knew that what he was doing was wrong, even if he was acting with diminished responsibility.
The trend was confirmed in the long drawn out X v Bedfordshire County Council litigation in the late 1990s, in which the court held that a breach of statutory duty in the field of child protection did not, by itself, give rise to any private law cause of action, although such a right might arise as a matter of the construction of a particular statute.
The court felt that where a statute conferred a discretion on a public authority, before it is bound to act in a particular way, nothing done or not done by the authority within the ambit of the discretion should be actionable at common law, unless the decision complained of was so unreasonable that it fell completely outside the statutory discretion…
However, where matters were ~justiciable~, (ie familiar to judges used to personal injury types of action, such as did the carer fall below the reasonable standard of care expected when s/he failed to test the temperature of the bath water, or dropped the client?) the ordinary principles of negligence could still apply.
Looking at this stance cynically, it could be said that the front line have to take care not to be negligent, no matter what their working circumstances, but the policy makers whose policies may be the cause of the worker squeezing more and more in to each hour, will not be described as negligence…
However, no sooner had this decision been taken than other cases began to be heard where those courts felt able to restrict the above principle to the most purely discretionary aspects of service provision. In Barrett v Enfield LBC it was held that a claim for negligence in the exercise of a statutory discretion could well be justiciable and acts done pursuant to the lawful exercise of the discretion could well be subject to a duty of care, even if some element of discretion was still involved. While a decision to take a child into care pursuant to a statutory power was not justiciable, it did not follow that, having taken a child into care, a local authority could not be liable for what it or its employees did in relation to the child without it being shown that they had acted completely beyond their powers.
Further, the importance of seeing whether what had been done was an act which was justiciable or whether it was an act done pursuant to the exercise or purported exercise of a statutory discretion which was not justiciable, required, except in the clearest cases, an investigation of the facts, and whether it was just and reasonable to impose a liability for negligence had to be decided on the basis of what was proved. This position militated against striking out of an action which has been formally commenced.
Thus UK courts began to fear that making blanket exceptions for liability in negligence might be contrary to Article 6 of the European Convention on Human Rights, which guarantees a right to a fair trial. Ironically however, the latest ECtHR cases such as Z v UK and TP v UK move away from that concern, suggesting that strike out proceedings are not unlawful because they don~t start out assuming a position of immunity; on the contrary, the facts alleged by the claimant are assumed to be true, before public policy principles are weighed in the balance.
Most recently the cases of S v Gloucestershire County Council; L v Tower Hamlets London Borough Council and Havering London Borough Council have confirmed that local authorities cannot rely on blanket immunity in negligence cases, and child abuse cases are not bound to fail as a class. The failings of a local authority responsible under statutory powers for a person~s care and upbringing, could give rise to a common law negligence claim, if the failings were of a kind which were justiciable. There was an arguable existence of a duty arising from a local authority~s selection of foster parents. When considering whether a discretionary decision was negligent the court will ask itself whether the decision was ~plainly wrong~.
Where the issue is justiciable, the passage of time will not always provide a defence. In (1) Bryn Alyn Community Homes Ltd (14 claims arising out of physical and sexual abuse in children~s homes in North Wales between 1973 and 1991), the defendant council had breached its direct duty of care to the children to take all reasonable steps to provide a safe home for them; and although the claims were statute barred, (the victims were well over 21 years of age when they commenced the actions) the Court would exercise its discretion under s33 Limitation Act 1980 to allow the claims to proceed.
Another way around the public policy argument was revealed by Phelps v Hillingdon LBC; Anderton v Clwyd County Council; Re G (a minor); Jarvis v Hampshire County Council. Here it was established that even if local authorities weren~t able to be made primarily liable for failings in the course of assessment of special needs, the actual educational psychologists, teachers and education officers working for the authority also owed a duty of care to the pupils, and a local authority could be vicariously liable for their employees~ negligent acts or omissions which resulted in loss, damage or injury. Thus, a failure by an educational psychologist to diagnose a congenital condition and to take appropriate action was damage for the purpose of the common law and although questions of causation and quantum might be very difficult, there was no reason in principle to rule out such claims.
We think that this principle might be applied to care management; but it is arguable that since there is no equivalent in private law relationships, to the care management and client relationship, the principle might not be able to be extended. It has always been the fact that therapists, doctors, clinicians, etc, can be liable in common law towards their clients that has left such professionals, and their employing public bodies at risk of legal action; but where the role in question has no non-statutory equivalent, then the law is not currently clear.
Continuing with vicarious liability, Lister and Others v Hesley Hall Limited has also terrified authorities because it has overturned a line of precedent and established that as a matter of legal principle, the employers of the warden of a school boarding house who sexually abused boys in his care could be vicariously liable for the torts of their employee, if there was a sufficiently close connection between the torts and the employment. The ~he was outside the course of his employment at the time~ argument, beloved of insurers, will no longer provide a defence if the abuse and job remit were closely connected.
Significantly, in the Z case mentioned above, it has now also been established in the ECtHR that the local authority~s failure to protect children from neglect and abuse in X v Bedfordshire did amount to a failure to protect against inhuman and degrading treatment in violation of article 3 of the European Convention on Human Rights. The test for that court was not whether the council was negligent. We think that in effect an authority would have to prove that it was not negligent, if it wished to avoid a Human Rights Act liability for failure to protect, in respect of an appalling outcome. Whether this is the same as saying that the omission would have to be so unreasonable that no reasonable authority could have acted likewise is a matter of debate.
On the other hand the ECtHR court refused to find that the striking out provisions in UK courts were a violation of article 6 as the complaints had been properly and fairly examined in light of the applicable domestic legal principles concerning the existence of a duty of care under the tort of negligence.
The ECtHR cases of (1) TP (2) KM v UK have explored the extent to which lack of care leading to over-zealousness, rather than inadequate reaction or response, can result not just in a damages claim but also to a claim for damages for a breach of human rights. The failure of the local authority to allow the mother of a child removed into care by the authority to view a videotaped interview with the child was a breach of article 8. The tape would have clarified that the allegations of abuse had been understood by the authorities to have been made against someone with the same name as the mother~s boyfriend. The removal of the child into care was a proportionate and justified interference with the article 8 right to respect for family life, as was the use of the emergency procedure, given the allegations. But notwithstanding that the initial measure was justified, the positive obligation on Contracting States to protect the interests of the family required that video material be made available to the parent concerned, even in the absence of any request by the parent. If there were doubts as to whether this posed a risk to the welfare of the child, the matter should have been submitted to the court by the local authority at the earliest possible stage in the proceedings. The authority~s failure to submit the issue to the court for determination deprived the applicant of an adequate involvement in the decision-making process concerning the care of her child and, in this respect, amounted to a breach of article 8 of the Convention.