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X and Y, the Claimants (aged 44 and 38) were married and lived together in a council flat provided by the Defendant Council. The second Claimant’s two children also lived with them. Both Claimants had mild learning difficulties although, with support, they were able to live independently within the community. During the summer of 2000, the Claimants had befriended a group of youths whom they allowed to use the flat to take drugs, engage in under-age sexual activity, store stolen goods and, as described by Mr Justice Maddison at first instance, "generally misbehave". 

 

A social worker was assigned to Y in 1999 and then to X in March 2000 in order to provide advice and assistance in managing their lives. During October 2000 the social worker became aware that X and Y were being exploited by the youths and further that one of the youths had assaulted X earlier in the month. She reported matters to the police, who declined to take action unless the couple made a complaint. The social worker also wrote to the Council’s Housing Department asking that X and Y’s long-standing application for rehousing be considered urgently. The social worker did not ask the Housing Department to place X and Y in emergency temporary accommodation. 

 

Over the weekend of 17th to 19th November 2000 X and Y were effectively imprisoned in their home and repeatedly assaulted and abused, often in the presence of the two children. The youths responsible were convicted of various criminal offences and received custodial sentences.

 

The Claimants subsequently brought proceedings against the Defendant council alleging that the Defendant was liable in the tort of negligence, and under sections 6 and 7 of the Human Rights Act 1998, having acted in a manner incompatible with the Claimants' rights under articles 3 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. X and Y contended that the Defendant Council, through its social services and housing departments, should have foreseen that the Claimants were in imminent physical danger at the flat and should have arranged for them to be accommodated elsewhere. The failure of the Defendant to act was a breach of its duty of care owed to the Claimants and the events of the weekend of 17th to 19th November were partly caused by that breach. The Claimants conceded that the social worker had not acted negligently and further, that no action for breach of statutory duty lay against the Defendant. 

 

The Defendant denied that it owed the Claimants a duty of care. It relied upon the fact that in no previous case had a local authority been held to be under a duty to protect vulnerable adults from abuse by third parties. Further, the Defendant asserted that any failings of the kind alleged were actionable, if at all, only in public law and not by way of a private law action for damages for negligence. It finally asserted that, if it owed a duty of care to X and Y, it was not in breach of that duty because neither it nor its servants or agents acted negligently. 

 

Mr Justice Maddison found that Defendant owed a duty of care to the Claimants and that it had been in breach of that duty. He held that it ought to have moved them to temporary bed and breakfast accommodation. He felt it unnecessary to consider the position of each of the Defendant’s departments, or the individuals in them. The Defendant was in breach of duty and liable to X and Y, largely because of a failure of communication between departments. He held that the injury and loss were reasonably foreseeable and that there was a relationship of sufficient proximity between the Defendant and the Claimants to make it just to impose the duty in accordance with Caparo v Dickman. Maddison J felt it appropriate to impose upon the Defendant a narrowly-defined duty to move the Claimants out of the flat in response to the unusual but dangerous situation which had developed. The Defendant appealed.

 

The Court of Appeal observed that the question of whether a duty of care was owed at common law was profoundly influenced by the statutory framework within which the acts complained of were carried out, and the same must be true of any omissions complained of. Reference was made to the National Assistance Act 1948 which provided that local authorities may, or must if so directed by the Secretary of State, make arrangements for providing residential accommodation for persons who, by reason of age, illness, disability or other circumstances, are in need of care and attention not otherwise available to them (section 21). The Court of Appeal noted that the foregoing provisions do not apply where the Housing Act 1996 does apply. Part VI of the latter Act provides for the allocation of social housing and confirms that local authorities must have a scheme for determining priorities and procedures that are to be followed in allocating housing accommodation. Further, Part VII of the 1996 Act imposes duties on local authorities to assist the homeless, which includes those who have accommodation that it is no longer reasonable for them to continue to occupy. 

 

Sir Anthony Clarke MR observed that he did not think that it was of any real significance whether, in removing the Claimants from their flat and placing them into temporary emergency accommodation, the Defendant would have been acting under Part VII of the 1996 Act or under section 21 of the 1948 Act. Such issues were not of great assistance when determining whether the Defendant owed the Respondents a duty of care at common law to remove them from the flat into such accommodation. It was not disputed in this case that the Council owed the duties under both provisions as well as the power to provide emergency accommodation. 

 

The Court of Appeal subsequently reflected upon the relationship between the tort of negligence and statutory powers or duties. In doing so, regard was had to the House of Lords decision in Gorringe v Calderdale MBC [2004] UKHL 15, [2004] 1 WLR 1057when Lord Hoffmann noted that where the existence of statutory powers is the only basis upon which a common law duty is claimed to exist, it is relevant to ask whether, in conferring such powers, Parliament could be taken to have intended to create such a duty. If a statute actually imposes a duty, it is well settled that the question of whether it was intended to give rise to a private right of action depends upon the construction of the statute. However, if the statute does not create a private right of action, it would be, to say the least, unusual if the mere existence of the statutory duty could generate a common law duty of care. 

 

Further, the Court of Appeal referred to Mitchell v Glasgow City Council [2009] UKHL 11 in which Lord Hope identified three key points on the issue of establishing a duty; first, foreseeability of harm is not of itself enough for the imposition of a duty of care; secondly, the common law does not normally impose a positive duty on a person to protect others and thirdly the law does not impose a duty to prevent a person from being harmed by the criminal act of another based simply on foreseeability. It was noted that following this case, if the Defendant is to be held responsible in such circumstances it must be because the situation is one where it is readily understandable that the law should regard the Defendant as under a responsibility to take care to protect the claimant from the risk.

 

The Court of Appeal observed that the principal difficulty facing the Claimants in this case was that their essential complaint was that the Defendant was not exercising its statutory duties and powers properly, which was not sufficient to give rise to a duty of care. Something more is required. The Court of Appeal was not persuaded by the Claimants’ argument that there had been an assumption of responsibility in that the Council had assumed the task of providing social support for both X and Y and the children and of providing suitable and safe housing for them.

 

The Court of Appeal concluded that a public authority will not be held to have assumed a common law duty merely by doing that which a statute requires or that which it has power to do under a statute, at any rate unless the duty arises out of the relationship created as a result. Both the Social Services Department and the Housing Department were seeking to carry out their statutory functions and no more. There was, for example, no-one within the Defendant who created the danger faced by the Claimants or who assumed specific responsibility for the Claimants' safety. If, contrary to that view, there was anyone who assumed a responsibility to the Claimants, it was the social worker. The Court could not say that the Housing Department or anyone in it did so. However, the Claimants, correctly in the Court’s opinion, conceded that that the social worker was not in breach of any duty of care, if such existed. In the absence of any blame being attached to the social worker, the Court saw no basis upon which it could be properly be said that some other unidentified employee of the Defendant (or the Defendant itself) could be held to be in breach of a duty of care owed to the Claimants.

 

As to the Human Rights Act, while the Court acknowledged that it may well be relevant in some circumstances, it was held not to have any real relevance to the existence or otherwise of a duty of care on the facts of this case. 

 

Accordingly, it is clear that in order for a common law duty to be owed by a public authority it must be doing more than simply carrying out its responsibilities as set out by statute. As a result, the situations which would arguably create such a duty appear to be where the Defendant creates the source of the danger, where the third party who causes the damage is under the supervision or control of the Defendant or where the Defendant has assumed a special responsibility to the Claimant which lies within the scope of the duty which is alleged.