UK: Social Service Claims - A Handy Guide

Last Updated: 15 September 2009
Article by John Goodman

You probably have all manner of discount and loyalty cards in your wallet or purse. Here is another sheet to put with them: a ready reckoner of the key issues in the fast changing area of social service and abuse cases, which includes the latest case on limitation, decided by the Court of Appeal in July 2009 (AB v Nugent).

Vicarious liability

Defendants have the basic problem of Lister v Hesley Hall, House of Lords (2001): the test is now whether the employment is so closely connected to the tort that it would be fair to impose vicarious liability on the employer.

In Lister, the abuser was the warden at a children's home and the House of Lords found there was indeed a sufficient connection between his role and the abuse of the boys at the home. To say the least, this test runs counter to common sense but the justification is that if there is such a connection then this is one of the risks the employer has to bear when carrying out its business.

  • RECENT DEVELOPMENT - Maga v Trustees of Birmingham Archdiocese of the Roman Catholic Church, High Court (2009): this welcome case chips away at the wide interpretation of the Lister principle. The church was held not vicariously liable for the activities of a priest who was abusing a local boy who was not a churchgoer. It was held that the employment merely created the opportunity for the priest to meet the boy. Job related opportunity is not sufficient. There must be a close connection between the actual job itself and the tort.


Following A v Hoare, House of Lords (2008), claimants bringing very stale abuse claims will rarely be able to rely on the date of knowledge provision under the Limitation Act 1980. Instead, these cases will turn on the general discretion of the court under Section 33 to disapply the limitation period. The question whether the claimant, taking into account his psychological state, could reasonably have been expected to institute proceedings, is now dealt with as part of the Section 33 discretion, rather than being a discrete "date of knowledge" question.

So now the Section 33 cases turn essentially on a balancing test between assessing the reasons for the claimant's delay and how excusable/understandable it was on the one hand, and the prejudice to the defendant caused by the delay on the other. The prejudice will be much harder to establish if it is a vicarious liability case since the only breach of duty issue is whether the claimant was indeed abused. So it is irrelevant that the claimant no longer has records or witnesses available to show it had a reasonable system of monitoring.

  • RECENT DEVELOPMENT - this approach has recently been upheld in the case of AB & Ors v Nugent Care Society and GR v Wirral MBC, Court of Appeal (2009). The Court refused to interfere with the decision of the first instance judges with regard to any of the claimants. All but one had been allowed to proceed with their claim despite delays after expiry of the limitation period which ranged from 16 to 27 years. It is notable that the only claimant who was not granted the Section 33 discretion in his favour was alleging far less serious abuse than the others. This case illustrates the profound effect of the two key recent developments in this area: that limitation in vicarious liability claims is now dealt with on the same basis as direct liability cases and that the key test is now the Section 33 discretion and not the Section 14 date of knowledge issue. The Court also stressed in this case that an oral hearing may well be required in many cases to enable the court to undertake the Section 33 balancing test.
  • RECENT DEVELOPMENT - All hope is not lost. In Albonetti v Wirral MBC, High Court (2009), a delay of almost 40 years where the defendants no longer had access to any documents or witnesses was considered too long to allow the claim to proceed. But in Raggett v Preston Catholic College, High Court (2009), the claim was allowed despite the delay being more than 30 years. This is a developing area and expect more cases from the Appellate Courts.

Foster parents

A local authority is still not vicariously liable for the negligence of foster parents following S v Walsall MBC (1986).

  • RECENT DEVELOPMENT - This principle is under attack by the claimant's solicitors. Expect a case on this point in the near future.

Claims for mere neglect

  • RECENT DEVELOPMENT - Pierce v Doncaster MBC, Court of Appeal (2008), received massive publicity at the end of last year for no apparent reason. The case did at least confirm that there is no problem with the claimant suing for a social worker's negligent failure to remove him from a situation of neglectful parenting with no hint of sexual abuse.

This case also highlights the crucial importance of defendants having available at trial the social worker(s) who dealt with the case at the time, rather than seeking to rely merely on the social service records to defend the claim.

Parents suing for shock

Children can sue for a social worker's failure to take them into care, or for being taken into care unjustifiably. But parents of those children cannot sue for their own mental harm. The fundamental reason for this (where it is the parents themselves who were under suspicion) is because it would be wrong to expect a local authority to owe a duty of care both to the child and to the parent where there was a such a clear conflict of interest. But what about claims by parents who were never under any suspicion? Can they claim for psychiatric injuries sustained on learning about the abuse suffered by their child which the Council allegedly failed to prevent? This remains an open question and subject to further legal development.

Can you be liable as a Housing Authority for failing to prevent violence on your estate?

The courts are unimpressed with this new breed of claim. In Mitchell v Glasgow City Council, House of Lords (2009), a tenant was attacked by his neighbour and killed. The neighbour had a history of antisocial behaviour. The court rejected the argument that the Council, as social landlord, owed the deceased a duty to warn him of the danger from the neighbour.

This reluctance to extend the duty of care to the criminal acts of third parties can be seen in our recent case of X and Y v LB Hounslow, Court of Appeal (2009) which we have reported to you recently.

It is important to note, however, that claimants could still have a right of action under the Human Rights Act if there was a "real and immediate risk" to the life of the deceased.

  • RECENT DEVELOPMENT - the claimants in X and Y are petitioning the House of Lords for leave to appeal - although you may have heard that the House of Lords is no more and our highest tribunal is now the Supreme Court!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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