Armes v Nottinghamshire County Council: what does this judgment mean for local authorities?

Ceri-Sian Williams, Browne Jacobson

The case

The Appellant had been abused by foster parents but the abuse was not as a result of any negligence on the part of the local authority.

The Supreme Court was asked to adjudicate on whether the local authority should nonetheless be obliged to compensate the Appellant for the abuse?

The Appellant’s case was that the local authority was liable because it owed her a non-delegable duty of care and/or because it was vicariously liable for the foster parents’ deliberate wrongful acts.

Non-delegable duty

The court unanimously found that a non-delegable duty did not exist because:

  1. Parents are not under a duty to ensure that reasonable care is taken by everyone to whom they entrust the safety of their child
  2. There would be a risk of conflict between a local authority’s duty to give first consideration to the need to safeguard and promote the welfare of the child and a local authority’s interest in avoiding liability if a child was placed with its family and friends and there was a want of care by that child’s family and friends
  3. If a duty existed it would make a local authority strictly liable for tortious acts by the child’s parents or relatives if the child was living with them
  4. If such a duty was found it would mean that the duties imposed on a local authority by the Boarding-Out Regulations did not materially add to the local authority’s obligations
  5. A local authority discharges its obligation to provide accommodation and maintenance by the placement of the child – and does not delegate that duty to the persons with whom the child is placed.

The finding in this case that a local authority discharges and does not delegate its duty by the placement of looked after children should be an answer to claims for non-delegable duty with regard to children in care from this point on.

Lord Reed said that “I cannot agree that a non-delegable duty cannot be breached by a deliberate wrong” so it is still open to individuals to argue that a non-delegable duty arises in other situations where a deliberate assault is alleged.

Vicarious liability

It seems that part of the rationale for resisting a non-delegable duty of care was to avoid a conflict between the best interests of a local authority and the best interests of a child but that same rationale was dismissed when considering whether the local authority should be found vicariously liable. The majority of the court found that vicarious liability did arise because:

  1. The local authority exercised sufficient control over the foster parents. It recruited, selected and trained them
  2. The burden of the risk borne in the general interest should be shared rather than being borne solely by the victims
  3. The local authority had the means/insurance to pay claims
  4. It was not accepted that the finding of vicarious liability would discourage foster placements
  5. If abuse is widespread, its exposure might encourage more adequate vetting and supervision
  6. There is a cost to society if vulnerable children are not protected (calls on the criminal justice and mental health systems)
  7. However, the majority also confirmed that vicarious liability would not apply if the abuse had been perpetrated by the child’s parents in the event that the child had been placed with them (the local authority would not have recruited, selected or trained the parents).

What does this judgment mean for local authorities?

It may take some time for the consequences of the judgment to take effect. Possible consequences could be:

  1. Support for the argument made by foster parents that they are ‘workers’ entitled to all the employment rights that come with worker status. If such a finding was made in the English employment tribunal, a local authority will not only have to find resources to pay foster parents but also resources to then compensate those abused by them.
  2. An influx of claims alleging vicarious liability for abuse by foster parents. However, many of these claims would have been brought in negligence anyway. As there will now be a narrower factual enquiry to prove a claim, subject to any limitation argument available to a local authority, any increase in the number of claims will be offset by a costs saving.
  3. Claims being advanced for vicarious liability for kinship foster placements where family members have been assessed and approved as foster parents by a local authority to enable them to access financial support to care for their relative but who are not ‘classic’ local authority foster parents.
  4. Local authorities may take a greater interest in making a recovery against foster parents in circumstances where abuse is proven, and they have assets to reimburse a local authority’s outlay.
  5. Local authorities and their insurers will need to consider the details of arrangements with private fostering agencies to understand where the potential liabilities for abuse by those foster parents retained by the private agency would lie.

Lord Hughes, dissenting, considered that “the extension of strict liability needs careful justification”. But the doctrine of vicarious liability has seen significant movement over the past decade or so and the courts have been willing to incrementally extend the principle from a traditional employer/employee relationship to one which was ‘akin to employment’ or which had similarities to employment. To date this has included religious organisations, lay preachers, the prison service, banks, and now foster parents. With evolving workforce models in many sectors, it appears that the trend of expansion within the law of vicarious liability is set to continue.