X (Minors) v Bedfordshire County Council
M (A Minor) v Newham LBC
House of Lords
Citations: [1995] 2 AC 633; [1995] 3 WLR 152; [1995] 3 All ER 353; [1995] 2 FLR 276; [1995] 3 FCR 337; (1995) 7 Admin LR 705; [1995] ELR 404; [1995] Fam Law 537.
Facts
This case was a set of joint appeals by children in two categories of case. The first category was the abuse cases. These children alleged that they suffered harm because local authorities failed to properly investigate reports that they were being abused.
The second category was the education cases. These children alleged that the local authorities had negligently failed to make proper educational arrangements for them. In the Hampshire case, the child had special needs and was struggling at school. Despite this, the school failed to have him assessed. When his parents raised asked for an assessment, the headmaster incorrectly told them there was nothing wrong with the child. In the Dorset case, the local authority negligently assessed the child for special needs and incorrect advised his parents. In the Bromley case, the local authority initially failed to provide the child a school place. Subsequently, they only offered him places at special needs schools even though this was inappropriate.
The children sued the local authorities in negligence. They also alleged breach of statutory duty under the Children Act 1989 (and its predecessors) and the Education Act 1981. The local authority argued that they did not owe the children a duty of care in negligence and that the statutes did not allow a private cause of action. They applied to have the claims struck out.
Issue(s)
- Could the local authorities owe the children a duty of care in negligence?
- Do the statutory duties under the Children and Education Acts give rise to a private cause of action in tort?
Decision
The House of Lords held in favour of the local authorities in the abuse cases. The Children Act provisions did not create a private law action. This was because they were too general. Meanwhile, the Lords held that public policy factors barred the existence of any common law duty of care.
By contrast, the House of Lords held in favour of the claimant in the education cases. The Education Act 1981 provisions did not create a private cause of action, because of their discretionary nature and the availability of judicial review as a remedy. However, the Lords held that the local authorities owed relevant common law duties in negligence.
In Dorset and Hampshire, the local authorities had offered a service by providing psychological advice and assessment. If they chose to provide that service, they owed a duty to exercise due care in doing so. In Bromley, the claimant might establish at trial that someone hired by the local authority owed him a duty. He had merely yet to receive the evidence needed to properly formulate his claim. On this basis, the claim could not be struck out.
This Case is Authority For…
Local authorities do not normally owe duties of care for failing to exercise discretionary powers which depend on policy considerations. For other statutory powers, the only duty is to exercise the power within the bounds of the statute. Accordingly, they will usually only owe a duty where the failure to exercise the power is so unreasonable that no reasonable local authority would act that way. Where a local authority decides to exercise a power, they owe a duty to exercise proper care in doing so.
Notably, Lord Browne-Wilkinson (giving judgement for the House) did not think the abuse cases should fail because they involved the failure to exercise a discretionary power. In principle, the claimants might establish at trial that no reasonable local authority would have failed to exercise their powers. Rather, he thought that separate policy considerations barred the existence of a duty of care. For example, he thought that a duty would cause local authorities to act too cautiously in protecting children.
A statutory duty will only create a private cause of action if it appears that Parliament intended this result. This is unlikely where the statute is concerned with broad matters of social welfare, unless there is very clear statutory language indicating that private claimants can sue for damages. It is also unlikely where claimants can challenge the exercise of a statutory power using judicial review.
Other
This case was subsequently referred to the European Court of Human Rights in Z v United Kingdom [2001] 2 FLR 612. They found the decision to breach of Article 3 and 13 of the European Convention on Human Rights. This was because it deprived the claimants of a remedy for inhuman or degrading treatment.
As a result, the House of Lords in JD v East Berkshire Community NHS Trust and others [2005] UKHL 23 held that X should not be followed insofar as it completely ruled out local authorities owing a duty to children when dealing with care proceedings. The Lords in X also suggested that doctors and social workers did not owe duties of care to children in abuse cases, because there would be a conflict between their duty to the council and their duty to the children. This was also disavowed in JD.
The decision appears to remain good law in relation to the other principles discussed in the case, however. In particular, it appears to be good law in relation to how cases where local authorities have failed to exercise a statutory power should generally be dealt with.
