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NA (Armes) v Nottinghamshire County Council – Supreme Court decision

18 October 2017

To watch our video update on this judgment click here.

The Supreme Court has given its judgment on the liability of local authorities for the wrongful acts of foster carers. In a departure from previous judgments on this issue, the court determined that a local authority should be fixed with vicarious liability. However, the claimant’s case that the local authority owed her a non-delegable duty was rejected on the basis that it would impose too great a burden on local authorities.


The claimant suffered abuse by foster carers with whom she was placed by the local authority. The local authority was not negligent in its recruitment of the foster carers or its supervision and monitoring of the placement. The question was whether, in the absence of fault, the local authority was nonetheless liable to the claimant for the abuse by the foster parents.

The claimant alleged liability on two bases:

  1. that the local authority owed her a non-delegable duty, or alternatively
  2. that the local authority was vicariously liable for the foster parents’ tortious conduct.
The Supreme Court heard her Appeal in February 2017.


The court unanimously decided that a local authority does not owe a child in foster care a non-delegable duty. In so deciding the judges took into account the statutory framework which provides that a local authority discharges its duty to provide accommodation and maintenance by placing a child in foster care, and satisfying other specific duties, such as monitoring the placement. The court considered that a non-delegable duty would be too broad and result in too great a burden on local authorities.

The court then went on to consider whether a local authority should be fixed with vicarious liability. The court determined (with only Lord Hughes dissenting) that a local authority should be fixed with vicarious liability by applying the 5 stage test developed through other recent cases such as Cox v MoJ [2016]. The majority concluded that foster carers were sufficiently integral to the local authority’s “business activity”, and that the local authority had sufficient control over the foster carers, to satisfy the relevant elements of the test. The ability of the local authority to pay the claim, and the fact that foster carers would be unlikely to be able to do so, was also a factor in the court’s reasoning.

Lord Steyn, in Bernard v The Attorney General of Jamaica [2004], considered that “the principle (of vicarious liability) …is not infinitely extendable”. However, Lord Reed acknowledged in Cox that there was a modern theory of vicarious liability and, as this case shows, the courts are willing to further develop and adapt the principles to a range of relationships with similarities to employment. Lord Hughes’ dissenting judgment was concerned in part with “where vicarious liability would take the law”. It appears that he considered the majority finding might lead to further expansion of the application of the doctrine, which he did not favour.

Applicability of the judgment to more recent care legislation

Whilst NA relates to incidents in the 1980s, Lord Hughes commented that although the basis of the care regime has changed, the fundamental elements have remained constant. In SN & VN v London Borough of Brent & VK & AK [2016], which related to alleged abuse by foster parents in the post Children Act 1989 regime, the judge said that, if the allegations were proven, he would have considered himself bound by the NA decision. Therefore, the judgment in NA exposes both the current and historical foster care arrangements of local authorities to a finding of strict liability if foster carers negligently or deliberately injure a child placed with them.


This decision paves the way for the continued expansion of the concept of vicarious liability in other contexts and sectors. Local authorities and other public and private sector organisations need to ensure that, where obligations are performed or services are delivered by individuals, volunteers, contractors or other public sector bodies, they have a clear understanding of the liabilities that are retained and take appropriate steps to mitigate the risk and provide for the potential liabilities.

Read our legal update for more detail on this judgment.

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