Supreme Court reviews safeguarding and other negligence based claims against public authorities

Click here to view the judgment in full.

In terms of importance and relevance to the NHS, the increasingly wide scope, ambit and structure of the Social Care and Health landscape draws into sharp focus the possibility (from a negligence and damages perspective) of joint, several and/or contributory negligence for multi-agency partners in respect of acts and omissions as a consequence of safeguarding and other responsibilities.

The claim in Poole was brought by council tenants, seeking damages against the local authority for having allegedly failed to discharge a duty of care to protect them and their children from the excesses of the behaviour of anti-social neighbours on the same estate.

Previous case law, particularly the decisions in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 and D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151 had seen the senior courts restricting any extension of liability on the grounds of public policy.

By the time the Supreme Court considered Poole, judgment had already been delivered in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 where allegations of negligence were upheld by the court in circumstances where a member of the public had been injured by two police officers, during the arrest of a suspect, on a shopping street in Huddersfield.

In terms of the claim brought in Poole, ultimately the Supreme Court found that the local authority did not owe a duty of care to re-house the children in question, despite the fact they were subject to abuse from their neighbours.

Key issues

However, the decision in Poole did not preclude the possibility of future claims against public authorities and the Supreme Court provided clarity on the following issues:

• It was no longer justifiable for public authorities to seek to defend claims citing a public policy justification. The X case was no longer to be considered good law;
• Claims could still be brought and would be judged on a case by case basis;
• Public authorities could assume responsibility for individuals arising from the provision of medical, educational services, or the custody of prisoners
• The issue of vicarious liability was also considered in Poole where the court found that there were no facts on which it could base a finding that the local authority via its social workers assumed a responsibility towards the claimants to perform their functions with reasonable care. This is interesting given the earlier decision in Armes v Notts County Council [2017] UKSC 60 where a local authority was found vicariously
  liable for the actions of its foster carers in a case involving the abuse of children.

No doubt there will have been the semblance of a sigh of relief from Chief Executives and insurers alike that the floodgates have not been opened, especially given the current constraints on the public finances.

However, the door has not been closed on the spectre of future potential litigation in this area. For the Health sector in particular, where the future direction of travel in terms of service provision and delivery lies in the Social Care and Health sector, ongoing robust risk assessment of multi-agency responsibilities, policies and procedures will need to continue.

For more information or to discuss this matter further, please get in touch.