Vicarious Liability is on the move – again!

The long awaited decision in Natasha Armes (NA) v Nottinghamshire County Council [18.10.2017] UKSC  was handed down today in the Supreme Court by Lord Reed.

The court rejected an argument that the local authority had a non-delegable duty of care but decided (4:1) for the claimant /appellant, Natasha Armes, that the local authority is vicariously liable for physical and sexual abuse suffered by her whilst in foster care and perpetrated by foster carers.

Ms Armes was placed in foster care by Nottinghamshire CC between 1985 and 1988 and alleged that she was physically, emotionally and sexually abused by two separate foster carers during this time.

In determining the vicarious liability point the court applied the principles set out (also by Lord Reed) in the Supreme Court case of Cox v MOJ [2016] UKSC 10:

  • Integration and business activity
  • Creation of risks
  • Element of control
  • Ability to pay damages

Delivering the result in the Supreme Court, Lord Reed made the analogy of a child being in a children’s home where the local authority would clearly be liable for any wrongful or harmful acts by a direct employee and has effectively decided that the claimant should be in no less a disadvantageous position in terms of her rights if she is placed in foster care.  No distinction is made between ‘professional foster carers’ and ‘friends and family carers’.

The court found that there was no evidence to suggest that imposing vicarious liability would discourage local authorities from placing children in care with foster parents rather than increasing numbers in residential homes.

The case provides clarity to the relationship between a local authority and its foster carers but will have significant implications for the future management and supervision of such relationships and insurance arrangements both for LA and foster carers providing a valuable service to society.

The Supreme Court rejected the argument that the local authority was liable on the basis of non-delegable duty of care but this will be small comfort to local authorities in the overall context of the Supreme Court judgment.

In respect of the incidents of abuse, it was found at the first trial before Justice Males that Ms Armes had been physically and sexually abused. Therefore, the claim will now be referred for quantum to be assessed.

It should be noted that the applicable law in this case predates the Children Act 1989.  It is to be anticipated that cases arising post the 1989 act coming into force would be decided on the same basis.

In a separate jurisdiction, the Employment Tribunal in Glasgow last week found that James and Christine Johnston, acting as foster carers for the council, are employees of the city council.

The employment tribunal looked at the mutuality of obligation and a very high degree of control exerted over the foster carers in carrying out their duties.

The days of foster carers being seen as non-employer/worker are over.

The judgment for this case can be found here.


Written by Garry Dover, partner and head of abuse at BLM in Manchester

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