Supreme Court decision could see councils liable for foster care abuse

Posted by Malcolm Johnson on

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A “dramatic” decision made by the UK’s Supreme Court could see local authorities being held liable for abuse carried out by independent foster carers.

Councils have often previously avoided being subject to compensation claims in cases of abuse or injury by foster carers because they are able to argue that they had delegated their duty of care.

But our clinical negligence solicitor Malcolm Johnson says a recent case involving a local education authority could open them up to negligence claims even where an independent carer, contractor or third party is involved.

The case involved a girl, then 10, who suffered serious injuries during a swimming lesson at a pool in Basildon, Essex.

She attended the lesson with her school, but the sessions had been provided by others contracted by Essex County Council in its role as the education authority.

A court had previously ruled that the education authority could not be liable for damages because it had contracted out the service.

After an appeal against that the decision, the United Kingdom Supreme Court has now handed down judgment and made a landmark ruling that the local authority could be held liable if it were found that it breached its duty of care.

The ruling paves the way for the appellant, now in her 20s, to sue Essex County Council for damages.

Malcolm says the ruling could have far-reaching implications for councils which use independent foster carers and for charities, schools, churches and any organisations which use contractors or independent carers to look after children or adults.

Malcolm said: “This is a truly dramatic development in the law for local authorities.

“Previously a person injured by the negligence of an independent contractor, who was hired out by a local authority to look after children, might well have no compensation claim.

“This decision may be indicative of the direction in which the Courts are moving and could have significant implications for charities, schools, churches and diocesan authorities that provide care and support for children and adults.

“The significance of this change in the law is that local authorities may now be directly liable for abuse perpetrated by foster carers, even though those carers are often described as ‘independent’ of the local authority.”

In his judgment on the Essex County Council case, one of the law lords, Lord Sumption said: "In my opinion.....the education authority assumed a duty to ensure that the Appellant's swimming lessons were carefully conducted and supervised, by whomever they might get to perform these functions.

“The Appellant was entrusted to the school for certain essential purposes, which included teaching and supervision. The swimming lessons were an integral part of the school's teaching function.”

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About the Author

Malcolm is an Senior Associate in our London office, with nearly twenty years' experience.

Malcolm Johnson
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