26 April, 2021
In the case of SKX v Manchester City Council (2021) EWHC 782 (QB) handed down on 31st March 2021 Cavanagh J held that in the absence of fault, a local authority was not liable for sexual assaults committed by an employee of the private residential home known as Bryn Alyn at which it placed the claimant.
The claimant was one of a number of claimants who had been awarded damages in the late 80s as a result of sexual abuse perpetrated by John Allen who was the chief executive of the company that owned and operated Bryn Alyn. However, damages were never paid because the company's insurer relied on a clause which allowed them to exclude liability.
Many years later a number of disappointed claimants issued proceedings against the local authorities who had placed them at Bryn Alyn hoping to recover compensation from this new defendant. SKX was chosen as a test case for trial. Forbes have been defending a claim brought by another Bryn Alyn claimant against a different Council. It was not alleged that any of the local authorities were directly negligent - there was nothing to suggest that it was foreseeably likely that Allen would abuse young residents before they were placed at the home under Section 21 of the Child Care Act 1980. Rather it was alleged that the Local Authority in each case was liable without fault based on vicarious liability and because the duty of care it owed to the claimant was non delegable.
In dismissing the part of the claim based on vicarious liability Cavanagh J considered the caselaw including Christian Brothers(2012) UKSC 56, Cox v Ministry of Defence (2016)UKSC 10 and Armes v Nottingham County Council (2017) UKSC 60 which he accepted extended the type of relationship that could give to vicarious liability to one "akin to employment". However, he found that the relationship between the local authority and the company was "a classic client/independent contractor relationship". Unlike the foster carers in Armes, Allen was running "a recognisably independent business". This was not a borderline case and was clearly not a relationship akin to employment.
Armes was also the chief authority invoked by the judge in considering the question of non delegable duty. In that case the Supreme court had considered whether a Local Authority owed a non delegable duty to ensure reasonable care was taken for the safety of children in care when they were placed in the care and control of foster parents, under s.21 of the 1980 Act. The Supreme Court rejected that argument, holding that the statutory regime did not impose responsibility upon the authority for the day-to-day care of the child whilst in the placement, or a duty to ensure that no harm came to the child.
Lord Reed had said in Armes that "the critical question" was whether the function of providing the child with day-to-day care, in the course of which the abuse occurred, was one which the local authority were themselves under a duty to perform with care for the safety of the child, or was one which they were merely bound to arrange to have performed, subject to a duty to take care in making and supervising those arrangements. That was the critical question in SKX too, which concerned a placement made under the same statutory provision. The answer to that question, for the same reasons as in Armes, was that the authority was not itself under a duty to perform the relevant function. Those reasons were that:
(i) At common law, parental powers and duties (which, when the child was in care, were vested in the local authority by s.10 of the 1980 Act) involved the exercise of reasonable care only; there was no authority supporting the suggestion that parental duties extended to ensuring that reasonable care was taken "by anyone else to whom the safety of the children may be entrusted"; such a duty on the authority would create conflict and give rise to a form of state insurance for wrongdoing.
(ii) The implication to be drawn from the use of the word "discharge" in s.21 of the 1980 Act was that the placement of the child constituted the performance of the local authority's duty to provide accommodation and maintenance. It follows that the local authority did not delegate performance of that duty to the persons with whom the child is placed. The fourth of Lord Sumption's criteria for establishing a non-delegable duty in Woodland-v-Essex County Council  UKSC 66 was therefore not met, and the duty of care was not non-delegable.