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Public wrongs, private rights - the duty of the local authority

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Local authorities perform many functions that affect us all in our daily lives. The framework within which they act is defined purely by statute, as interpreted from time to time by the courts. When considering what a local authority can and cannot do, the starting point is the relevant legislation, be it the Public Health Act, the Town and Country Planning Act, the Local Government Act, or whatever.

Such legislation distinguishes between what a local authority is required to do, that is, its duties; and what a local author - ity may do, that is, its powers.

If a wronged ratepayer has a complaint against a public body for doing something that it ought not to have done, the remedy is to apply to the Administrative Courts for judicial review of the misguided deci - sion. If successful, the decision, such as refusing to give free travel to same-sex partners of employees of London Underground, is overturned by the courts. This area of law, known as public law, gives rise to a rich vein of work for fairly 'right-on' (or left-wing) lawyers and is certainly the cutting edge of the fashion - able end of the market.

But every now and then a mere individual claims that, when carrying out its duties or exercising its powers, a local authority owes a private law duty to the individual to be careful and not to cause that individual loss or damage.

Here the claimant is not interested in righting policy wrongs: they want compensation.

So when a local authority carries out its legislative functions, such as checking where the public services and sewers run before the piling starts or enforcing plan - ning control, does it owe the individuals concerned, as opposed to the public at large, a common-law duty of care?

After the House of Lords had decided in Anns v Merton (1978) that local authori - ties owed duties to subsequent occupiers of defective buildings to take care when inspecting foundations during construction, the answer was a resounding 'yes'.

For the next decade or so local authorities found themselves defending defects claims. The later decision of Murphy v Bretwood (1991) put an end to all that.

But the question remained in other spheres of local authority life. Did individuals have a private law remedy for compensation if a local authority - how might one put it - cocked up? The question involves something more than mere legal analysis.

If local authorities were potentially liable, they would have to harness additional administrative resources to protect themselves and additional financial burdens if they failed, all at the ratepayer's expense.

This balancing act was described by the House of Lords when giving judgment in X(minors) v Bedfordshire County Council (1995). The case was brought by children who claimed that the local authority had let them down when exercising its statutory duties relating to their education and welfare. Lord BrowneWilkinson explained that claims against local authorities fell into four categories:

lClaims for simple breach of statutory duty. Here the claimant would need to show that the statute intended to protect them and to confer upon them a right of action in the event that the duty was breached.

lClaims for the careless performance of a statutory duty. Mere carelessness was not enough to found a private cause of action.

The claimants would need to establish that the local authority also owed them a common-law duty of care.

lClaims for breach of the common-law duty of care arising from the performance of the statutory duty.

lClaims for misfeasance in public office;

that is, deliberate abuse of power with the intention to injure.

Most complaints against local authorities fall within the second category, that they were careless when they inspected the plans, or whatever. The law lords have made clear, however, that unless you can demonstrate that it would be reasonable for the authority to be liable to you for such carelessness, you have no claim.

And, as any such liability would involve exposing the authority to additional expen - diture in their defence, it is unlikely that the courts would find it reasonable for them to be liable.

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