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Will the Supreme Court extend local authorities' liability for the actions of third parties?

In February, the Supreme Court heard the case of NA v Nottinghamshire County Council relating to abuse by foster parents and whether a local authority can be liable for this. Whilst the case relates specifically to the issue of foster parents, the decision will potentially have wider ramifications. David Weir looks at the issues and potential outcome ahead of the imminent judgment.

A liability for the acts of a third party already attaches to local authorities in certain situations, even where they have not been negligent, where a vicarious liability or non-delegable duty is deemed to exist. The former requires a relationship of/akin to employer/employee and the latter the delegation of a duty owed to a claimant by the local authority to a third party which is then negligent.

The requirements for the latter were set out in the case of Woodland v Essex County Council [2013], where swimming lessons were contracted out to a third party:

  • The claimant is vulnerable e.g. patient or child and dependent on the protection of the defendant;

  • There is an antecedent relationship between the claimant and defendant, the claimant is in the custody/care/control of the defendant and the defendant has assumed a positive duty to protect the claimant;

  • The claimant has no control over whether the defendant performs the obligations itself or through a third party;

  • The defendant has delegated/the third party is performing a function which is an integral part of the defendant's positive duty and the defendant's custody/charge/control;

  • There has been negligence by the third party in the performance of the very function delegated to it.

The Claimant in NA was physically and sexually abused by foster parents. The Court of Appeal found that there had been no negligence on the part of the local authority and that the local authority did not owe a non-delegable duty in respect of foster parents. The judges gave different reasons for the latter conclusion - public policy considerations; placing a child with foster parents discharged the local authority's duty; accommodation within a family unit was not something a local authority could provide/part of its activity; the anomaly of a situation where a child is placed with its parents/family – and LJ Burnett reiterated that negligence is a prerequisite for a breach of non-delegable duty. Collectively, they rejected the idea that a local authority who places a child with foster parents should be liable for abuse perpetrated by them.

The Supreme Court's decision on the matter is awaited. It is considering arguments both as to vicarious liability and non-delegable duty. Our observer at the hearing in February felt that the judges appeared 'acquiescent'  to the Claimant's submissions and 'unsympathetic'  and 'resistant' to the local authority's and we are concerned that the court's decision will mark a further expansion/extension of these doctrines and local authorities' liabilities in respect of the acts of third parties.

Making local authorities who have not been negligent liable for the actions of foster parents would be a dramatic development with potentially far reaching consequences, not just in respect of compensation claims but also in the delivery of social care, with risks of defensive social working, an unwillingness to make foster placements and a break down in fostering.   

Whilst the case relates specifically to the issue of foster parents, the decision will also potentially have wider ramifications, in relation to children placed in schools or residential homes by local authorities for example. In a situation where a child has been placed by the local authority in a home run by a third party and is abused by a member of staff in the home, as matters currently stand the placing local authority would only be liable if the third party had been negligent. An extension of vicarious liability or an abandonment of the requirement for negligence by the third party in a non-delegable duty situation could, however, result in what would effectively be a strict liability attaching to the placing local authority for the acts of the abuser.   

We will issue a further bulletin when the Supreme Court's decision is handed down.    

For further information please contact David Weir, Director on +44 (0)20 7645 4185 or at david.weir@dwf.law 

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.