Who holds the Duty of Care?

Local authorities will be relieved at the Supreme Court’s decision in HXA v Surrey CC and YXA v Wolverhampton CC [2023] UKSC52 in the week before Christmas, which ratified the approach in N v Poole Borough Council [2019] UKSC 25, [2020] AC 780. In that case, it was held that defendant local authorities did not owe a duty of care to protect children who had been subjected to verbal and physical abuse by their neighbours. The Supreme Court made clear there that in this type of case, where the issue is whether a local authority has a duty of care to use reasonable care to confer a benefit on the claimant by protecting them from harm by a third party, it is necessary to establish that the local authority has assumed responsibility to protect the claimant from that harm.

Here, the cases concerned two children who had suffered sexual and physical abuse by a parent or parent’s partner. It was held that the local authorities involved did not owe a duty of care to the children as both failed to establish that their local authority had assumed responsibility to use reasonable care to protect them from the abuse. An alleged duty of care is assessed by applying the same principles to the local authority as would be applied to a private individual. The fact that a local authority has statutory duties or powers neither automatically creates nor automatically destroys a potential duty of care. Here, in particular an assumption of responsibility did not arise from the authority's internal decisions to investigate, seek legal advice or undertake keeping safe work. Nor did it arise from the provision of temporary respite provision to protect the child.

Whilst there was no duty of care in this case, and in common with N v Poole, the Supreme Court confirmed it is possible for a local authority to assume responsibility to protect a child from harm, in respect of its social work functions. Such assumptions of responsibility are not restricted to circumstances in which the local authority has obtained a care order. Also, there does not need to be “specific reliance” by a child on something that the local authority said or did in order to establish that the local authority assumed responsibility towards them.