Local Government - May 2009
Vulnerable adults: no additional duty of care
X & Y v London Borough of Hounslow
Court
of Appeal (Sir Anthony Clarke MR, Lord Justice Tuckey and
Lord Justice Goldring)
2
April 2009
This decision will be welcomed by local
authorities in limiting the extent of any duty owed to tenants and
social services clients arising out of the exercise of their
statutory functions and powers. Whilst it will be viewed with
disappointment by service users, a possible new avenue in respect
of claims has been closed off.
The facts
X & Y were a married couple who had learning
difficulties and lived with their children in a flat provided by
Hounslow. They had contact with two sections of Hounslow’s social
services department and they had a social worker assigned to them
to give them advice and assistance in managing their lives.
The social worker became aware in October 2000
that X and Y were being exploited by local youths using the flat
for illicit purposes. She wrote various letters to the housing
department and accompanied X and Y to a meeting with housing in
order to try to expedite X and Y’s longstanding application for
re-housing. Her view was that the accommodation was very unsafe for
X and Y.
There were a number of incidents that
continued through November 2000 as did the
social worker’s liaison with the housing
department. A meeting was fixed with the housing department on 22
November in order to try to resolve the issue, but on the weekend
of 17-19 November, X and Y were subject to a series of appalling
assaults by the local youths who imprisoned them in their home.
The claim
X and Y claimed that it was foreseeable that they
were at risk of imminent physical danger and that Hounslow owed
them a duty to accommodate them elsewhere. There was also a claim
under the HRA, but it was accepted that this did not take the claim
any further than the negligence claim.
Hounslow denied that they owed any duty of
care to X and Y and contended that there had been no previous case
where a local authority had been under a duty to vulnerable adults
to protect them from violent acts by a third party.
The trial judge recognised that he was dealing
with a novel case that would extend the scope of negligence.
However, he considered on analysing the facts of the case that it
was fair, just and reasonable to impose a duty of care on Hounslow.
He had specific regard to the awareness of the worsening situation
for X and Y before the assaults and the powers that existed to
re-house them. Hounslow appealed.
The Court of Appeal decision
The Court of Appeal examined the history of recent
cases where the courts have considered the relationship between
negligence and statutory powers and duties, including the recent
House of Lords decision of Mitchell v Glasgow City
Council. The Court of Appeal took the view that the
question was essentially whether Hounslow had assumed a
responsibility to X and Y which could establish a duty of
care. The case did not fall into one of the established
categories where the local authority has actually done an act or
entered into a relationship or undertaken responsibilities that
give rise to a common law duty of care. The Court of Appeal
identified that this was not a case where Hounslow were in control
of X and Y nor had they done anything to increase or create the
danger to them. It would therefore not be fair, just or reasonable
to impose a duty of care.
It was made clear that a public authority will
not be held to have assumed a common law duty merely by carrying
out its statutory functions, unless a duty is said to have arisen
out of a relationship created as a result of the functions, such as
a child who has been taken into care (Barrett v Enfield
BC). X and Y submitted that because Hounslow had
recognised the danger to them this created an assumption of
responsibility in that Hounslow assumed the task of providing
social support and providing suitable and safe housing. However,
this was rejected by the Court of Appeal who found that Hounslow
social services were simply trying to exercise their statutory
functions and there was no special factor that gave rise to a duty
of care.
Ultimately, X and Y’s complaint was that
Hounslow were not exercising their statutory duties in a proper
manner and this was not sufficient to give rise to a duty of
care. The Court of Appeal went on to comment that the only
person who could have assumed a responsibility to X and Y was the
social worker rather than the housing department. However, they
considered her conduct in this matter and applied the well-known
Bolam test. Her approach was one that any
reasonable social worker would reasonably have taken and she would
not have been in breach of any duty.
Comment
There has been a considerable amount of press
comment on this case, much of it focusing on the fact that X and Y
were deprived of the trial judge’s award of £95,000, particularly
against the backdrop of their appalling ordeal. But the decision is
consistent with the recent decision in Mitchell
where similarly the local authority owed a tenant no duty of care
to warn him about potential violence from a fellow tenant who was
to be threatened with an eviction notice.Bottom of Form
The decision means that a local authority will
not be liable to a vulnerable adult provided it acts within its
statutory obligations and does nothing further to assume any
further protective responsibility. The case may certainly lead to
further calls for legislation to impose a statutory duty to protect
vulnerable adults in the same way as the Children Act 1989 imposed
specific duties of protection for children. Indeed, the Court of
Appeal acknowledged the difference between a case where children
assert a duty of care and this care dealing with adults living in
the community, even if they were vulnerable.
Whilst it is impossible not to have sympathy
with the position of X and Y given the appalling nature of the
assaults, the decision is certainly consistent with previous
authority. It should be remembered that both X and Y do have an
alternative remedy through the CICA, but it will be interesting to
note whether there is any move to appeal the case to the House of
Lords.
Bob Hetherington and David
Hewitt
Weightmans LLP