The scope of local authorities' duties in historic abuse claims - SKX v Manchester City Council [2021] EWHC 782 (QB)

In SKX v Manchester City Council [2021] EWHC 782 (QB) the extent of a local authority's duties to children abused in care was considered.

The claimant suffered childhood sexual abuse in a privately-run children's home. He sought damages from the local authority who placed him in the home, not on the basis that the local authority was directly at fault for the abuse, but on the basis that they were either vicariously liable for the acts of the chief executive of the home, or the local authority had a non-delegable duty to the claimant, such that they were strictly liable.

The claimant alleged that the local authority was vicariously liable for the abuse carried out by the abuser, even though he was an employee of the company which ran the care home, rather than an employee of the local authority.

In Armes v Nottinghamshire County Council [2018] A.C. 355 the Supreme Court held that a local authority was vicariously liable for acts of abuse carried out by a foster parent against a child. Here, the claimant argued that the local authority should also be vicariously liable when it has placed a child in a privately run care home.

The court examined the authorities and noted that there has been an incremental change in the scope of vicarious liability. However, the limits of the extension of vicarious liability were made clear by the Supreme Court in Various Claimants v Barclays Bank [2020] A.C. 973. The court was satisfied that based on those principles the local authority was not vicariously liable for the abuse. The abuser was not in a relationship akin to employment with the local authority. Instead, he was carrying out an independent business on behalf of a third party, the company that operated the home. There was a classic client/independent contractor relationship between the local authority and the company. The company was no doubt liable for the action of the abuser, but the local authority was not.

The court considered that the circumstances were readily distinguished from those in Armes. In Armes the foster parents had a relationship with the local authority which was akin to employment. In this case the company came between the local authority and the abuser.

The court then considered the second arm of the claimant's case, that the local authority owed the claimant a non-delegable duty of care. The court again considered that the reasoning in Armes applied. As in Armes, the central question was whether the local authority had a statutory duty to provide children with day-to-day care, or only to arrange, supervise and pay for it. It was therefore necessary to consider the terms of the statutory duty.

The duties were set out in the Child Care Act 1980 at the relevant time. That Act stated that the local authority's duties were the same as those of a parent or guardian. The court in Armes was satisfied that parental duties should not be construed as imposing a tortious duty to ensure that care is taken for safety of a child, as opposed to ensuring that the child is cared for.  

By placing the claimant in care the local authority had discharged its duty under the Act. The local authority could be liable for negligence if it failed to take reasonable steps to monitor the safety of the claimant whilst he was in the home, but it did not have strict liability for any breaches of duty perpetrated by the person or organisation to whom care for the claimant had passed.

In light of the authorities, the court was clear that a non-delegable duty to protect the claimant did not exist.

The court was sympathetic to the fact that the claimant had been left uncompensated because he faced the 'perfect storm' of an abuser without funds, his employer being a liquidated company, the abuse not being covered by the employer's insurance policy, and there being no basis to allege that the local authority was at fault. However, the fact that a claimant has been unable to obtain damages from those primarily responsible for the abuse did not mean that the court must find someone else to make liable.

This case is a clear statement of the limits of liability in historic abuse cases. The existence of a non-delegable duty will turn on in the wording of the relevant statute. Close consideration of the statutory regime for local authorities will be required if a claimant seeks to take the same course in future cases.