Comments on: X v Hounslow

By: insitelaw

insitelaw — Wed, 15 Oct 2008 19:23:16 +0000

[...] This imported phrase is lazy and dishonest, with overtones of a chippy Other Ranks mentality." Leading housing law blogger, Nearly Legal, has got hold of the case of X v Hounslow – but admits that he is sure what to make of it. [...]

By: Camden Council Rotten Landlord: Housing Director

Camden Council Rotten Landlord: Housing Director — Tue, 19 Aug 2008 18:31:01 +0000

[...] Nearly legal [...]

By: Nearly Legal

Nearly Legal — Fri, 25 Jul 2008 20:58:00 +0000

@Patrick: Not sure what you mean. The liability and the duty falls on the local authority, not the individual officers. That said, if it does anything to promote the effective interaction of different departments, particularly social services and housing, this can only be a good thing. Look at the cases on Children Act/Homeless Unit buck passing for responsibility for 16 and 17 yos. That would surely be a management, training and resource sharing issue for the local authority.

By: Patrick

Patrick — Fri, 25 Jul 2008 20:50:08 +0000

were does it leave the front line professionals who recognise the risks but can’t keep the families safe?

By: J

Sun, 22 Jun 2008 09:19:31 +0000

William – I should pin my colours to the mast. I think that Hussain et al are wrongly decided. I see no reason in principle (or, rather, in policy terms) why local authorities should not be liable in negligence / nuisance in the horrendous facts that one finds in those cases. If Maddison J had sat down and carefully distinguished the earlier cases, I would have been praising him from the rooftops. Indeed, I had rather hoped that it what he had done when I first saw the news reports of this case.

My objection is that this isn’t what he has done. Now, I have no idea whether he simply wasn’t taken to the relevant cases or whether he was taken to them and failed to engage with them. But – whatever the reason – the failure to engage with them renders the judgment of very limited value.

By: William Flack

William Flack — Sun, 22 Jun 2008 07:48:38 +0000

Apologies for suggesting that you are not keen to see this duty upheld. I just felt that you and J were giving the Judge an unnecesssarily hard time with your talk of a mess, weak rhetoric and fundamental flaws rather than praising his humanity and professional courage. He may have set himself up to look stupid once the Court of Appeal have finished with his judgment but he should be praised to the rooftops for not taking the easy option here.

By: Nearly Legal

Nearly Legal — Sat, 21 Jun 2008 22:14:06 +0000

William, I think we actually agree here. I would been very keen to see the duty upheld. My concern with the absence of dealing with housing law precedents and issues is not that the judgment is ‘wrong’ for that reason, but that without dealing with them, it is in a weak position, potentially facing strong and fresh challenges on appeal.

If the judgment had clearly considered the issues, that would be less of a threat. I don’t think that the Court can say there is a duty ‘whatever statutory provision’ was involved with great confidence when those provisions actually involved weren’t addressed in the hearing or the judgment.

Let us hope that the Court of Appeal are prepared to uphold the extension of the duty.

By: William Flack

William Flack — Sat, 21 Jun 2008 18:50:41 +0000

I am going to stick up for the Maddison J here. His judgment is a breath of fresh air after all the judgments I have had to read where local authority failings are excused on grounds that can usually be summarised as “Oh well..stuff happens”. At least here a Judge has stuck his neck out and tried to do the right thing.

To respond to the comments made so far here:

Nearly Legal: By housing law precedents which have been ignored do you mean the Court of Appeal judgment in Mowan v Wandsworth (2000) and the cases referred to it at paragraph 22 that Ms Mowan had no cause of action in negligence? I am not aware of any others since then but that may just be because I don’t get out enough. If there are more please advise.

I agree that it seems very strange the Judge did not mention Mowan or Hussein or indicate why he did not think these were fatal to this claim. I will be interested to see how they are addressed in the Court of Appeal. I would hope that Mowan is not fatal to this claim. It is getting on for ten years old and pre-dates the introduction of the Human Rights Acts and the judgments concerning public body liability for negligence referred to at paragraphs 119 to 124 of the judgment.

I think that you may be taking a tunnel vision housing law approach here. I would suggest that for the purposes of finding that the council acted negligently it is not necessary to have a debate about whether the action which the council could or should have taken was pursuant to Part 6 or Part 7 of the Housing Act 1996, the National Assistance Act 1948 or any of the many other Acts that might have provided powers to assist. The bottom line was that the council could have taken steps to remove the family from danger using any of these provisions but failed to do so. It is this failure to take any effective action that the judge is considering in relation to negligence. As such the Judge’s reference to “whatever statutory provisions” seems to be to be appropriate and not just weak rhetoric as you suggest.

J: I would respond to your points as:-

a.I don’t think that a duty to rehouse is being extracted from the discretion given to Local Housing Authorities under Part 6 of the Housing Act 1996. No duty to rehouse in terms of allocating a new tenancy is mentioned by the Judge. What he deals with are the ways in which the council might have protected the family and prevented them from undergoing a horrifying ordeal. The Judge states at the end of paragraph 134 that even short term accommodation might have been provided. I do not think that this should be treated as rehousing in the broader and more long term sense which I think you mean.

b.The Court was primarily concerned with the protection of this family rather than the allocation of alternative accommodation to them. I do not therefore find the lack of discussion of Part 6 to be so worrying. It is just one of the statutory provisions which might have been relied upon by the council had they taken effective action to protect the family

c.I would too have liked to see some discussion of why the judgments in Mowan and Hussein did not prevent this claim succeeding. I think we can assume though that had these cases been discussed the Judge would have held that they were not fatal to this claim for the reasons set out in at paragraphs 119 to 124 of this judgment. That is to say statutory law and case law have moved on since Mowan was decided to the point where this claim can now succeed.

d.I agree that the focus on the National Assistance Act does not help much. Again though regardless of which statute empowered or obliged the council to assist this family the issue here is that action was not taken such that they suffered injury and loss giving rise to the negligence claim.

I would not go so far as to say that the decision is fundamentally flawed but I suspect that the Court of Appeal will.

By: Nearly Legal

Nearly Legal — Wed, 11 Jun 2008 18:13:04 +0000

J, I think I have to agree with everything you say here. While the facts are crying out for a duty, the absence of any discussion of Part 6, as I noted, would be enough to cause real problems for the judgment, let alone the failure to address the actual integration (or not) of social services transfer requests with allocation policy, and of course housing precedents on negligence.

It is a mess for the Court of Appeal to pick up.

I’m surprised that Hounslow put such a dodgy argument (NAA!) in court and then put an equally dodgy further argument in after the hearing. But I suppose all concerned were primarily PI/negligence specialists. Everybody needs a good housing lawyer to hand, at all times.

By: J

Wed, 11 Jun 2008 15:44:09 +0000

Well, what to make of this. My first impression upon reading the jugment (and one that has remained with me since) is that this shows the importance of having a housing lawyer involved in this case. The facts are awful and – if there was ever a case in which one would want to find a duty of care – it was this case. However:
(a) I don’t see how you can extract a duty to re-house out of the broad discretion given to Local Housing Authorities under Part 6 HA 1996;
(b) indeed, the absence of any discussion of Part 6 is very worrying;
(c) having cited Brennan J in Sutherland for the proposition that negligence should develop incrimentally and with refernce to established categories, to fail to deal at all with Lancaster CC v Hussein et al (see your earlier post and comments) is wholly inadequate;
(d) the focus on s.21 NAA 1948 is entirely misconceived.

Sadly, these matters are not just mere oversight but make the decision fundamentally flawed. Even if the result is upheld in the Court of Appeal, the actual reasoning will plainly have to be changed.

This is very frustrating. The facts scream out for a remedy (and something more than a mere complaint to the Local Government Ombudsman) but the decision is entirely per incuriam.