‘Failure to remove’ claims: HXA v Surrey CC and YXA v Wolverhampton CC in the Court of Appeal

In a judgment handed down today, the Court of Appeal has allowed the appeals of the claimants in the joined appeals in HXA v Surrey CC; YXA v Wolverhampton CC [2022] EWCA Civ 1196.

Stacey J had upheld the striking out of negligence claims against the defendant local authorities by Deputy Master Bagot QC in the HXA case and Master Dagnall in the YXA case. Links to articles on those decisions, in which the factual background to the cases and analyses of the decision are set out, are given below.

• ‘Failure to Remove’ Claims in the High Court: the Appeals in HXA v Surrey County Council and YXA v Wolverhampton City Council
• Failure to Remove Claims and Section 20 Accommodation: YXA v Wolverhampton City Council
• ‘Failure to Remove’ Claims – the Decision in HXA v Surrey County Council, and an Update

The lead judgment of the Court of Appeal was given by Baker LJ, with whom Elisabeth Laing and Lewis LJJ agreed. His reasoning in favour of allowing the appeals is to be found at paras 90-108 of his judgment.  He analysed the statutory scheme in the YXA case as giving rise to a particular statutory duty to safeguard a looked after child. His view was that it was arguable that the provision of accommodation under s20 of the Children Act involved an assumption of responsibility not just to take reasonable steps to ensure that the accommodation was safe, but also more widely to ensure the welfare of the child by not returning it to an unsafe environment at home.

In the HXA case, the claimant relied on only two allegations of the fifty or so pleaded allegations of fault as giving rise to an assumption of responsibility.  It was alleged that the council had resolved to take care proceedings and, much later, to carry out ‘keeping safe’ work with the claimant and had not done so. Baker LJ held that both resolutions arguably created a duty of care.

The judgment relies heavily on the principle that claims should not be struck out in an area of law that is “developing”. Baker LJ decided that in the absence of a body of decisions decided after a full trial, it was not possible to say where the line should be drawn between situations giving rise to an assumption of responsibility and situations which do not. Pending the development of a body of case law, it was not appropriate to strike claims out. Rather ironically, he doubted some of the conclusions reached by Lambert J following a full trial in DFX v Coventry CC [2021] EWHC 1382 (QB), [2022] PIQR P18 as to the existence of a duty of care in that case, without reaching any firm conclusion as to whether she was right.

An even greater irony is that the claimants’ stated aim in bringing the appeals was to seek clarity in the circumstances in which a duty of care could be owed. Baker LJ refused to come to any firm conclusions as to that vexed question, instead leaving it to trial judges to resolve the issue. It is regrettable for all that courts of first instance and those advising claimants and local authorities in this area are left without firm guidance as to when claims are viable.

If the Court of Appeal’s judgment stands, it will be difficult or impossible to strike out any claim of this type.

The defendants have sought permission to appeal to the Supreme Court.

The defendants were represented by Lord Edward Faulks QC and Paul Stagg, on the instructions of DWF in the HXA appeal and Browne Jacobson in the YXA case.

Read the full Judgment here.