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Local authorities do not have a non-delegable duty of care to children in foster placements

Court of Appeal finds that local authority is not vicariously liable to claimant

The Court of Appeal has handed down its judgment in NA v Nottinghamshire County Council [2015] EWCA Civ 1139, a seminal case in the field of Social Services claims.

The case concerned an appeal by the claimant, NA, and a cross-appeal by the local authority, Nottinghamshire County Council, against the first instance decision of Males J. Males J found that the claimant's foster carers had physically and sexually assaulted her but held that there was no negligence on the part of her social workers. More importantly for the purposes of clarification on the law, Males J also rejected the claimant's arguments that the local authority was vicariously liable for foster parents and that it owed a non-delegable duty of care to children in foster placements. Males J had found that it would be contrary to public policy to impose such a non-delegable duty, despite Lord Sumption's five criteria from Woodland v Essex County Council [2013] UKSC 66 being made out.

Lady Justice Black and Lord Justices Tomlinson and Burnett unanimously rejected the claimant's argument that a local authority can be held to be vicariously liable for foster parents. Lord Justice Tomlinson found that a local authority has insufficient control over or proximity to foster parents for the relationship properly to be described as akin to employment. Indeed, in the author's view, for a local authority to control precisely how a foster parent provided family life to a child would be to undermine the very purpose of foster care.

Tomlinson LJ went further, finding that Lord Sumption fourth criterion was not met. That criterion demands that the delegated duty is an integral function of the positive duty assumed towards the claimant. Tomlinson LJ's reasoning seems to be that, although a local authority has a positive duty to care for children, given that it cannot fulfil that function itself, it is one which can only be met by delegating it to others. It is only by delegating the care of children to be fostered that the local authority can discharge its duty.

Burnett LJ came to his decision via a slightly different route, instead allowing the cross-appeal of Nottinghamshire County Council in finding that the physical and sexual assault of the claimant did not constitute a breach of a non-delegable duty of care. Non-delegable duties are imposed to cover negligent acts, whereas an assault or similar criminal act would be dealt with through vicarious liability.

Burnett LJ found that no non-delegable duty of care existed in this case. Burnett LJ appears to have found that, if an assault were capable of breaching a non-delegable duty of care, this would widen the duty to such an extent as to impose strict liability on local authorities.

Lady Justice Black took a different tack altogether, agreeing with Males J in his first instance decision, that the imposition of a non-delegable duty in this case would be contrary to public policy.

Black LJ's findings appear to correlate most strongly with the author's own sentiments on the matter, agreeing with Males J that if a local authority were not able to delegate its duty to children to foster carers, then neither could they delegate it by placing them with relatives or even their parents.

This is a welcome decision for local authorities, clarifying the law on both vicarious liability and non-delegable duties and limiting liability for breach of a non-delegable duty of care to negligent acts, not assaults nor other criminal acts.

The judgment is here.

Kella Bowers, partner, Forbes Solicitors