X v LB Hounslow [2009] EWCA Civ 286.

When news of X first reached the NL team, the near unanimous response was one of pleasure at the result. Once we obtained a transcript and saw the reasoning of the trial judge, it became clear not only that an appeal would be pursued but that it would be successful. Those feelings were only strengthened by the decision of the House of Lords in Glasgow CC v Mitchell. And we’re been proved right.

The facts of X are truly awful. X and Y are, on any view, vulnerable adults. They both have learning difficulties and have low IQs. In these proceedings, they were protected parties represented by the Official Solicitor. They were married and had two children, aged 11 and 8. They were also secure tenants of LB Hounslow.

Local youths began to befriend X and Y, with a view to taking over their flat and using it as a place to take drugs, have sex, store stolen goods etc. These problems came to a head when the youths detained X, Y and their children in the flat for the weekend and repeatedly assaulted and abused them all. X and Y were forced to perform a variety of sexual acts. X was forced to drink urine and eat dog faeces. He was slashed with a knife and had kitchen cleaner sprayed in his mouth. The family’s possessions were thrown over the balcony. The children were assaulted and abused, as was the family dog.

The social services department had been aware of the problem of local youths exploiting X and Y and had taken some steps to ameliorate the problem but had not requested any emergency re-housing because, at that stage, an assault of this nature was unforeseeable.

X and Y issued proceedings against Hounslow, initially in nuisance and negligence but, at trial, only sought to argue that Hounslow owed a duty of care (and, hence, had breached that duty so as to give rise to liability in negligence) by failing to move X and Y prior to the assault. A claim under Articles 3 and 8 of the ECHR was also raised. The trial judge – in a rather confused judgment – allowed the claim. An appeal was inevitable.

The first question for the Court of Appeal was whether, taking into account the relevant statutory background, Hounslow owed any duty of care. After surveying a range of statutes, (rather like a student who just writes everything they know about a topic without ever actually answering the question) the Court noted that the trial Judge had not actually ever found that there had been any breach of statutory duty, nor had he found any individual in Hounslow to owe a duty of care. Rather, he had jumped straight to the “fair, just and reasonable” test in Caparo v Dickman [1990] 2 AC 605 and had concluded that it was indeed fair, just and reasonable to impost a duty of care.

For the Court of Appeal, the failure to find a breach of any statutory duty was crucial. It was difficult to see how a duty of care could exist merely because of a public law failure to carry out a duty or exercise a power. This was particularly so where, as here, what was actually said was that the failure to exercise a public law duty/power had given a third party an opportunity to cause harm to X and Y.

Following Glasgow CC v Mitchell, in order for X and Y to succeed, they would have to show that the law already regarded Hounslow as being under a specific responsibility to protect them from an identified risk or that Hounslow had entered into a relationship or undertaken responsibilities which gave rise to a duty of care. The relationship here – as in Mitchell – was contractual and there was noting in the tenancy agreement which suggested any duty of care or any assumption of responsibility. In particular, much of what Hounslow had done was in an attempt to discharge their statutory functions and, plainly, that could not give rise to an assumption of responsibility.

Whilst the focus of the judgment had been on the social services department, it was clear that, for similar reasons, no duty could be owed by the housing department. Hussain v Lancaster CC approved.

So – between X and Mitchell, that looks like the end of the road. In order for a landlord to be responsible in negligence for the acts of third parties (even if those third parties are tenants) there will need to be something quite extraordinary. Or an express statement in the tenancy agreement.