Vicarious liability extended to cover local authority foster placements

The Supreme Court has given a judgment today that, for the first time, holds a local authority vicariously liable for abuse by foster carers.

Armes (Appellant) v Nottinghamshire County Council (Respondent) [2017] UKSC 60

The Supreme Court has given a judgment today that, for the first time, holds a local authority vicariously liable for abuse by foster carers. This is the latest in a series of recent court decisions expanding the categories of relationships giving rise to vicarious liability.

Factual background

The claimant, Ms Armes, was in the care of Nottinghamshire County Council (“NCC”). She was placed with foster carers Mr and Mrs Allison from March 1985 to March 1986, and with foster carers Mr and Mrs Blakely from October 1987 to February 1988. Ms Armes suffered physical abuse from Mrs Allison, and sexual abuse from Mr Blakely.

Procedural history

Ms Armes brought a claim for compensation, arguing that there were three grounds for holding NCC liable for the abuse by the foster carers:

  • NCC’s decisions to place Ms Armes with these foster carers were negligent;
  • NCC owed to Ms Armes a non-delegable duty of care which continued while she was placed with foster carers, so that any breach of duty by a foster carer would also be a breach of the local authority’s duty
  • NCC was vicariously liable for abuse by these foster carers

Ms Armes lost all three arguments in the High Court, and abandoned her negligence claim. However she appealed her non-delegable duty and vicarious liability arguments, first to the Court of Appeal (where again she was unsuccessful) and then to the Supreme Court. Today’s judgment reveals that while the non-delegable duty argument has again failed, Ms Armes has succeeded on vicarious liability.

Vicarious liability

The Supreme Court relied heavily on the Christian Brothers case ([2012] UKSC 56), which identified five characteristics of relationships which usually justify imposing vicarious liability. This is the second recent Supreme Court decision to rely on these five characteristics, so they must now be seen as central to any analysis of whether vicarious liability should be imposed:

  1. The defendant is more likely than the perpetrator to have the means to pay compensation;
  2. The wrongful act is committed by the perpetrator as a result of activity on behalf of the defendant
  3. The perpetrator’s activity is part of the business activity of the defendant
  4. The defendant, by engaging the perpetrator, has created the risk of the wrongful act
  5. The defendant, to a greater or lesser degree, controls the perpetrator.

The Supreme Court found all five characteristics to be present in this case. In essence it saw such a close connection between NCC and the foster carers that “it is impossible to draw a sharp line” between them. In stark contrast to the Court of Appeal’s opinion that within a foster placement there was “a complete absence of external control over the imposition or arrangement of day to day family routine”, the Supreme Court decided that NCC’s approval and supervision of the foster carers gave NCC significant control.

Impact of this decision

Undoubtedly this decision paves the way for more claims. The Supreme Court recognised this, and was untroubled – “if there has been such a widespread problem of child abuse by foster carers…there is every reason why the law should expose how this has occurred”. 

The Supreme Court stressed that it focused on the statutory framework in place at the time of the foster placements (1985 to 1988). This framework has since changed with the advent of the Children Act 1989. However the substance of the law remained the same, so it seems likely that the Supreme Court would have reached the same decision had the Children Act 1989 been in force.

One limit of the effect of this judgment - it seems unlikely that this decision could be used to impose vicarious liability for abuse by parents or other relatives, even though local authorities often place looked after children with relatives. The Supreme Court stressed that it saw such placements as significantly different to foster placements.

Chris Webb-Jenkins is a Partner in our Local Government team, if you have any questions, please get in touch (chris.webb-jenkins@weightmans.com).

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