The appeal of the cases of HXA v Surrey County Council and YXA v Wolverhampton City Council has been handed down. The appeals were heard jointly on 7 July 2021 and were handed down on 8 November 2021. The High Court did not overturn the first instance decisions so both cases remain good law: claims for failure to remove can be struck out without the need for a full trial. This decision will be welcomed by defendants.
At appeal the claimants in both cases attempted to prove that the local authority did assume a responsibility for the claimants and specified at what point this occurred. The questions also asked were whether it was wrong to strike out the claims of negligence given that the area of law was developing and also, whether it was appropriate to strike out the negligence claims on the basis that elements of each claim would remain even if the negligence claims were struck out.
Stacey J presiding, concluded that it was ‘abundantly clear’ that the allegations made were an ‘omission’ rather than an ‘act’ and that ‘the attempt to carve out positive acts from a case which is principally about a failure to confer a benefit is to fail to identify correctly the underlying complaint’.
Helpfully, Stacey J specified the following tasks which would not lead to an assumption of responsibility and that ‘something more’ was required to establish the assumption;
- Investigating and monitoring
- Taking on a task
- Placing a child on the child protection register
- Investigating under s.47.
Also of assistance to lawyers acting in this area of law, Stacey J commented that the failure to carry out work was an omission and that differed to the work being carried out and being done incompetently.
The case of YXA was the first case post CN and GN v Poole BC to comment on s.20 CA 1989 (voluntary accommodation). The type of s.20 accommodation in YXA was respite care which was temporary and occurred sporadically. There were no allegations of mistreatment of the claimant during these periods and Stacey J agreed with the first instance decision that this type of case was ‘entirely different’ to when the local authority had parental responsibility (albeit shared). Stacey J concluded that YXA was distinguishable from the decision in Barrett v Enfield LBC.
In relation to the claimant’s suggestion that the case was developing law, Stacey J said that the cases were so similar to recent Supreme Court cases and also now DFX that they could not be referred to as developing.
In relation to the claimants’ final argument of whether it was wrong to strike out the claims on the basis of negligence Stacey J commented that some arguments were not attacked and this was a case management decision and these arguments could not be challenged.