In NA v Nottinghamshire County Council the Supreme Court ruled today that whilst local authorities do not owe a child in foster care a non-delegable duty, a local authority can be held vicariously liable for the wrongful actions of foster parents to a child in foster care. This means that local authorities are liable, even though they are not themselves at fault, for injuries to foster children caused by the negligence or deliberate acts of foster parents.
The financial implications of the Judgment for local authorities, who are already subject to significant budgetary constraints, are likely to be wide-ranging and may include:
- A significant increase in claims, relating to both current and historical foster placements, and
- Having to meet the argument that foster parents should be classed as “workers” with attendant employment rights such as holiday pay and sick pay etc.
Ceri-Siân Williams and Nick Parsons from Browne Jacobson’s social care team acted for the local authority. Ceri-Siân Williams said:
“Abuse of children is never acceptable and it is only right that the perpetrators of abuse and those who negligently allow it to happen should be held to account. But what this case was about was whether, when a foster child is abused without any negligence or fault on the part of a local authority, that local authority should nonetheless be liable for the abuse.
Social workers have a very demanding role and it is reassuring that, in this case, the Judge at first instance found that the social workers had not been negligent in the social work they undertook with Ms Armes or her family, and had not been negligent in the assessment, approval, monitoring, or supervision of the foster placements.
We will now seek to work closely with Ms Armes’ representatives to resolve the outstanding issues in the case as quickly as possible”.
The claimant, NA, was placed with two sets of foster parents: Mr and Mrs A between March 1985 and March 1986 and Mr and Mrs B between October 1987 and February 1988.
At first instance the judge allowed the claim to proceed out of time and found that the claimant had been physically and sexually abused by her foster parents. However, her claim in negligence, and her allegations that the local authority owed her a non-delegable duty, or should be fixed with vicarious liability failed.
The claimant appealed the non-delegable duty and vicarious liability allegations. Those allegations were dismissed by the Court of Appeal and were appealed to the Supreme Court. The hearing took place in February 2017.
The Supreme Court unanimously agreed with the Court of Appeal on the non-delegable duty allegation. Lord Reed, giving the leading judgment, concluded that “the proposition that a local authority is under a duty to ensure that reasonable care is taken for the safety of children in care, while they are in the care and control of foster parents, is too broad, and that the responsibility with which it fixes local authorities is too demanding”.
However, by a majority of four to one the Supreme Court ruled that the local authority was vicariously liable because the doctrine of vicarious liability has moved on and “a more fine grained approach” has been adopted. The Court held that because:
- The local authority had the means to pay compensation;
- The torts were committed as a result of an activity undertaken on its behalf;
- Fostering was an integral part of the local authority “business”;
- The local authority had created the risk by placing the Claimant in foster care, and
- A high degree of control was not necessary for vicarious liability to be imposed,
the local authority should be vicariously liable.
If you wish to contact Browne Jacobson to discuss this story further, please contact Ceri-Siân.Williams@brownejacobson.com, 0115 976 6563.