HXA v Surrey County Council: Ambiguity reigns supreme
“The law must be accessible and so far as possible intelligible, clear and predictable” – Lord Bingham
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“Each indecision brings its own delays and days are lost lamenting over lost days… What you can do or think you can do, begin it. For boldness has magic, power, and genius in it” – Goethe
“Nothing is so exhausting as indecision, and nothing is so futile” – Russell
The long-awaited judgment in HXA v Surrey County Council [2022] EWCA Civ 1196 was handed down on 31 August 2022. Sadly, rather than bringing any clarity to either claimants or defendants in claims of this nature (against social services in respect of their child protection functions) the judgment leaves the law in this area clouded in more ambiguity than before. An appeal to the Supreme Court is inevitable.
In HXA, the Court of Appeal upheld appeals against decisions to strike out claims in two unconnected cases (HXA and YXA). The Court of Appeal treated both claims as cases of ‘omission’, or, in the words of Lord Reed in CN v Poole, of a ‘failure to confer a benefit’. In ‘omission’ cases, a duty of care will not arise unless the claim can be said to fall within one of the recognised exceptions to the ‘no duty for omissions’ rule. In both cases, the exception at issue was whether it could be said that the local authority had assumed a responsibility (as a matter of law) to the respective children when carrying out child protection functions such that a duty of care arose, and a claim in negligence could thereby be brought.
CN v Poole Borough Council [2019] UKSC 25 initially brought some much-needed clarity to claims of this nature. Straightforwardly, CN decided that no duty of care arises in respect of social work functions unless ‘something more’ is done which takes the interaction beyond that which the local authority is obliged to do under its statutory functions. The question in HXA was whether there was ‘something more’ and if so, what.
In YXA, the child was accommodated pursuant to a Section 20 Children Act 1989 arrangement for several periods of time. It was hoped that the decision in YXA would clarify whether, as a broad proposition of principle, accommodation pursuant to s20 was sufficient to give rise to an assumption of responsibility, and if so the scope of the duty that ensued.
The Court noted (in accordance with Lord Reed’s observations in CN) that “the operation of a statutory scheme does not automatically generate an assumption of responsibility, but such an assumption may arise out of the local authority’s conduct pursuant to a statutory scheme” [90]. The Court also noted that “an assumption of responsibility may arise out of the local authority’s conduct where it acquires parental responsibility for a child when granted a care order under section 31, as occurred in Barrett v Enfield LBC, or an interim care order under section 38” [91]. However, the Court of Appeal also decided that, as it is not necessary for parental responsibility to have been transferred to a local authority for an assumption of responsibility to arise, the question remained as to in what other circumstances a local authority may assume responsibility for a child.
Pausing there, I have never been convinced that Barrett is an example of an assumption of responsibility taking place at all (despite comments to this effect in CN). In my view, Barrett is an ‘act’ case, not an ‘omission’ case, such that a duty of care arises on normal principles of negligence (i.e. the obligation not to negligently cause foreseeable harm by one’s positive acts – in that case, the removal of the child from their parents). Extending this reasoning could lead to the decision to accommodate pursuant to s20 also being an ‘act’ which would, on normal principles, give rise to an obligation not to cause foreseeable harm caused by the accommodation of the child, but which would not give rise to a further or wider obligation to generally protect the child from harm once the period of accommodation had ended.
To further demonstrate the Court’s siloed thinking only in terms of ‘omissions’ the Court of Appeal, at [95] gave an example of a child who, during a period of s20 accommodation, informed his foster carer that he was being abused at home. In such circumstances the Court opined that it would be “plainly in breach of its statutory duty” to return the child to his home. Leaving aside the difficult and confusing introduction of the concept of ‘breach of statutory duty’ (as opposed to a common law duty in negligence with which the claims were concerned), the decision to return a child to parents in such circumstances could more easily be framed as an ‘act’, rendering the head scratching over whether an assumption of responsibility had taken place, otiose.
The Court of Appeal decided in the case of YXA that “a local authority accommodating a child under section 20 is capable of amounting to “something more” so as to give rise to an assumption of responsibility by the local authority” [102]. This conclusion is difficult to understand given that nothing more than the carrying out of statutory functions (i.e. the child was accommodated under s20 with the same carers under a regular programme of short breaks or respite care) was identified by the Court. How then can this possibly amount to ‘something more’?
In HXA, the child was never accommodated under section 20. But the local authority was involved with the family for a number of years, exercising its statutory powers and duties. The Court of Appeal stated that, “[t]he fact that the statutory powers and duties under consideration were substantially the same as were under consideration in Poole is, by itself, no answer to the claim” [103]. The Court of Appeal then baldly found that the following acts/omissions amounted to an arguable assumption of responsibility:
- The failure to seek legal advice with a view to initiating care proceedings and to carry out a full assessment, once a decision had been reached to do the same.
- Arranging for ‘keeping safe’ work to be carried out in response to two allegations of sexually inappropriate conduct on behalf of the mother’s partner.
I struggle to understand how the above amount to arguable assumptions of responsibility given the clear parallels with decisions made by the social worker in X v Hounslow London Borough Council [2009] EWCA Civ 286. The role of precedent seems to have been entirely nullified.
In both YXA and HXA the Court decided that it was therefore arguable that an assumption of responsibility was owed. It is noticeable that the Court appears to have reached these decisions without any consideration of the application of the principles of the doctrine of assumption of responsibility itself, which is founded in the law of contract. As Lord Reed noted in CN at [73]”
“Clearly the operation of a statutory scheme does not automatically generate an assumption of responsibility, but it may have that effect if the defendant’s conduct pursuant to the scheme meets the criteria set out in such cases as Hedley Byrne and Spring v Guardian Assurance plc.”
It is surprising, therefore, that the Court of Appeal did not engage at all with whether the ‘criteria’ in Hedley Byrne or Spring were met on the pleaded facts or attempt to conduct any comparison with the more factually comparable claims of X v Hounslow or CN itself; I expect these omissions to provide fruitful argument on appeal.
It is highly relevant to keep in mind that the appeals were against strike out applications. The decision of the Court of Appeal does not decide, in either case, that an assumption of responsibility took place or that a duty of care was owed. The Court of Appeal nimbly ducked this question in its entirety by deciding instead that “[w]hether a duty arises will always depend on the specific facts of the case” and as “…this is still an evolving area of the law…it will only be through careful and incremental development of principles through decisions reached after full trials on the evidence that it will become clear where precisely the line is to be drawn between those cases where there has been an assumption of responsibility and those where there has not”. That being the case, “[i]n many such cases, it may not be possible without a full examination of the facts to establish whether or not a duty of care arose or, if it did, whether it was breached. In those circumstances, it is plainly wrong to strike out the claims” [106]. The reader is left to assume that the cases under appeal are two of the identified ‘many’ cases, albeit we are not told why.
In particular, I disagree that this is an ‘evolving area of law’. The interaction between statutory and tortious obligations has been discussed, at length, in numerous cases at the highest level of legal authority over the past decade. The same cases have made it clear that there is nothing ‘special’ about claims against social services such that a distinct body of law needs to develop as a subset of the law of negligence in order to create a separate line of precedent in this area. First and foremost, these cases are tortious claims where the law of negligence applies; they are not ‘social services claims’.
It would have been preferable for the Court to come to a clear decision, either way. Cases of this nature are invariably incredibly stressful for claimants, and underfunded defendant local authorities need proper guidance from the Courts about whether they are legally responsible for the matters alleged in order to deal with claims in a proportionate way. Legal representatives will struggle to advise reliably on such claims in the absence of any guiding principles and the judiciary will struggle to decide them. Failing to provide any guidance at all leaves all those involved in such claims in a worse position than before.
Katie Ayres, Barrister.
