Claims are made against local authorities when they fail to remove children from their parents’ care (see HXA v Surrey CC) which looked at whether there is a duty of care in such situations. Another strand of cases looks at what happens when things go wrong for children in care. In the recent case of SKX v Manchester City Council (QBD, 31 March 2021) the High Court explored no-fault routes to liability: vicarious liability and non-delegable duty.
John Allen was the Chief Executive of the company running the Bryn Alyn Community, a group of privately-owned children’s homes in North Wales. He was also a predatory paedophile. Between 1976 and 1992 he abused many children living in the homes. He was convicted of numerous sexual offences at 3 major trials and is currently serving a long sentence. A major public inquiry unveiled numerous failings in children’s homes in North Wales – including Bryn Alyn. After publication in February 2000 of the report ‘Lost in Care‘ former Bryn Alyn residents pursued claims for compensation. These claims succeeded (setting a precedent for new approaches to limitation in historical abuse claims, but not all claimants were compensated. Insurers were entitled to avoid paying compensation to those claimants who had been abused by John Allen himself. An exclusion clause for acts of abuse committed by ‘managerial employees’ (like John Allen) meant that insurers did not have to pay out under the insurance policy.
SKX was one such claimant: he was entitled to compensation, but received none due to the exclusion clause. Many years later he brought a claim against Manchester City Council, the local authority which had placed him at Bryn Alyn. In February 2021 the court considered whether his claim could proceed by looking at 3 questions.
- Was Manchester City Council vicariously liable for the actions of John Allen?
The court found that the council was not vicariously liable. The court considered the line of authorities from the Christian Brothers  case to Barclays Bank , via Cox v Ministry of Justice  and Armes v Nottinghamshire County Council . The court found that John Allen was part of the company’s independent business. There was a genuine arms-length relationship of independent contractor between the company and the local authorities that placed children in the Bryn Alyn homes. John Allen was not in a relationship akin to employment with the local authorities and it would not be fair, just or reasonable to impose vicarious liability for John Allen’s actions.
- Did Manchester City Council owe a non-delegable duty of care to the claimant?
The court found that this was not a case of non-delegable duty. The concept of non-delegable duty is based on no fault and applies only in rare cases. The five criteria are set out in Woodland v Swimming Teachers Association . When applied in Armes  – a case which considered whether local authorities owed a non-delegable duty for the actions of foster carers – the Supreme Court found that there was no non-delegable duty. The same reasoning applied here. The question turned on the obligation created by the statutory provision (section 21(1) of the Child Care Act 1980): was it a duty to provide the children with day-to-day care, or only to arrange and pay for it? The answer is it is a duty to arrange and pay for it – which was duly discharged by the council.
- Should the court exercise its discretion to extend time in favour of SKX?
The court decided to reach a conclusion on limitation in case the matter was overturned on appeal. The court found that it was appropriate to extend time to bring the claim because the cogency of the evidence had not been impaired. Manchester City Council was not disadvantaged by the delay in issuing proceedings. Furthermore there were good reasons for the delay, even if it was lengthy.
This case shows the numerous recent legal developments in this area, and the unpredictable nature of such claims for claimants, as well as defendants and their insurers.