Nearly Legal

I have now got hold of the judgment in X v Hounslow [2008] All ER 337 (May) (thanks to assorted helpful sprites). [Edit 23/06/08 - now up on Bailii]. Previous posts on this one are here and here - this was the case that apparently instituted a potential duty of care for local authorities to protect vulnerable adults from third parties. It could be very significant indeed.

Having read it, I can honestly say I’m not sure what to make of it at all.

First, some clarification. Although nuisance was initially pleaded, a claim in nuisance was not followed through. This therefore has nothing to do with landlord’s liability to the tenant for another tenant’s nuisance. Although there was an alternative claim under the Human Rights Act s.6 and s.7, this was not followed through by the court, as not necessary.

This was, therefore, a claim in negligence only.

Those of us who are housing focussed (to the point of tunnel vision) will be having trouble with the idea of negligence in relation to a local authority housing function (save in relation to disrepair). And I’m still not sure how it is brought about here.

Key, I think, is that there was extensive social services involvement, warnings and requests for a transfer for X, Y and their children, prior to the dreadful events of the weekend. There was also housing department involvement, both in terms of awareness of the dangers and in terms of considering a transfer (although not an emergency transfer). However, it appears to me that the model that the Court followed was precisely that of cases where a duty of care to children was found in relation to social services functions, (e.g J.D & others v East Berkshire NHS Trust & others [2003] Lloyd’s Law Reports 552 or Pierce v Doncaster MBO [2007] EWHC 2968). Housing precedents don’t feature much until the end, and then the argument is confused and confusing.

Here is how the Court reaches the decision on negligence (but shorn of most of the factual evidence).

First, the Court insisted that Hounslow was a single entity and refused to take the knowledge, acts and omissions of each department separately. Each department ought to have informed the other of the situation, and that they failed to do so did not mean that that the different departments could be treated separately.

The Court adopted the test of Caparo Industries Ltd v Dickman [1990] 2 A.C. 605 in establishing duty of care: Was the injury and loss reasonably foreseeable? Was the relationship to the Defendant sufficiently proximate to warrant the imposition of a duty? Would it be just, fair and reasonable to impose a duty.

The foreseeability was clear, at the very least from a week or three before the assaults, going on the Defendant’s social services reports, reports to the housing department by neighbours etc..

That there was a relationship of sufficient proximity was dealt with very briefly. To quote:

[107] The Defendant was the Claimants’ landlord. More importantly, the Defendant, aware of the Claimants’ disabilities, provided social services for them and indeed their children.(…) Representatives of the Social Services and Housing Departments were regularly in contact with the Claimants and visited their home during 2000. Thus there was a close relationship between the parties to this litigation.

The Court found it to be just fair and reasonable to impose the duty on the basis of a limited scope. There was a specific duty to protect in a particular way, to move them out of the flat in response to the ‘unusual but dangerous situation that had developed’. The Court notes the dictum of Brennan J in Sutherland Shire Council v Heyman that novel categories of negligence should be developed incrementally and by analogy with existing categories. The existence of a duty to children was here being developed in such an incremental manner to include vulnerable people who ‘in many ways functioned like children’. In addition, case law ( JD v East Berkshire and Jain v Trent SHA [2007] EWCA Civ 1186 cited) indicates a ‘greater willingness to find the existence of duties of care subsequent to the passing of the Human Rights Act 2000.

Once the duty was imposed, breach of duty was clear. Could the Defendant have moved the Claimants out of the flat prior to the assaults? The Court found that although the Defendant’s main transfer process, its transfer to sheltered accommodation process and the ‘managment transfer’ process would all have been too slow, the ‘emergency system’, under which tenants could be transferred to B&B or temporary accommodation was available and was usually used by the housing department on the basis of information provided by social services.

On the evidence, the emergency transfer system should have been invoked. Either B&B or accommodation with relatives in the very short term were possibilities open to the Defendant.

Causation was clear, failure to move the Claimants had left them in the situation were the assault was likely and indeed took place.

Now, this seems to avoid housing law precedents on the lack of a duty of care by basically ignoring them completely, but matters take an odd turn.

At the hearing both parties apparently accepted that Hounslow’s emergency transfer provisions were governed by s.21 National Assistance Act 1948, specifically s.21(1) ‘….may make arrangments for providing (a) residential accommodation for persons… who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them’.

But after the hearing Hounslow sent a further note, arguing that this did not apply because s.21(8) of the NAA says ‘…Nothing in this section shall authorise or require a local authority to make any provision authorised or required to be made… by or under any enactment not contained in this Part of the Act or authorised or required to be provided under the National Health Service Act 1977″. Hounslow said that provision of emergency accommodation was governed by Part VII (s175-218) of Housing Act 1996, so it was precluded from being under s.21(1) NAA by s.21(8).

Hounslow argued that decisions on provision of social housing can only be challenged by way of judicial review, citing O’Rourke v Camden LBC [1998] A.C. 188, in which the House of Lords struck out a claim for damages for a failure to accommodate as homeless pursuant to s.63(1) Housing Act 1985. A scheme for provision of social housing for the benefit of society as a whole created no private law duty.

As HA 1996 substantially re-eacted the relevant parts of HA 1985, there was  no entitlement to a private law damages claim on the part of X & Y, just Judicial Review.

The Court was not persuaded by this. Firstly as no evidence was given at the hearing. Secondly because it is not clear that s.21(8) did exclude s.21(1) in this instance. The persons referred to in s.21(1) do not include homeless people and the ‘provision’ referred to is arguably the provision of accommodation referred to in s.21(1). (This makes sense, as I read it s.21(8) is a limiting clause on the authority/requirements of s.21 - ‘just this and no more’).

Thirdly, since the Claimants were occupying the flat pursuant to a tenancy agreement, s.175(1) HA 1996 would not apply to the Claimants and nor would s.175(2). Using s.175(3) ‘not reasonable to occupy’ would mean the Defendant was conceding that it was not reasonable for the Claimants to be in the flat, due to the circumstances of the threat and assault. But the Defendant submits that for this reason it had no duty:

[148] …Standing back and looking at the facts of the case I would regard that as a surprising conclusion… The present case is distinguishable [from O'Rourke]. The Claimants were well established tenants of the Defendant. The Defendant had already exercised its powers as to social housing in relation to the Claimants. Their claim is that they should have been moved from that accommodation, and not necessarily into furthe Council accommodation. Their claim is not based on narrow considerations of housing policy… Their claim involves both the Housing and Social Services Departments, the interaction between them; and the manner in which they reacted (or failed to react)…

I am really unsure about this, of which more below. For good measure, the Court adds:

[149] …the reality of this case is that, by virtue of whatever statutory provisions, the Defendant actually had in place an emergency transfer procedure which it could have used before the relevant weekend, and which it did in fact use though only after that weekend.

[150] I therefore regard the Claimants as having a valid cause of action.

What on earth to make of this? For starters, surely the emergency rehousing would be effected under Part VI Housing Act 1996 not Part VII. Unless Hounslow had done something odd, emergency transfer provisions would be under the allocation policy (unless I’m really missing something about the position in 2000), not homelessness.

But this would lend support to Hounslow’s position based on O’Rourke. Although the Court distinguishes it on the basis that O’Rourke concerned what became Part VII, the broader point of ‘a scheme for the provision of social housing’ would be still clearer for a Part VI transfer.

I’m not sure about the Court’s argument that the move would not necessarily be to ‘Council accommodation’, either. It would be accommodation arranged by the Council to effect a move, and as short term, would be interim before moving to a new secure tenancy.

The Court’s conclusion, dismissing the statutory provision as ‘whatever’, is weak rhetoric, I think.

But that said, an extension of a duty of care to vulnerable adults as well as children in respect of the social services function seems less controversial. In fact, incremental. Which presents an odd position - if one accepts a duty of care by social services, the failure to move the Claimants was arguably down to the Housing Dept. Should social services be excused a breach of duty because the housing dept can’t have a private law duty of care and social services had no statutory power to effect a transfer themselves? The Court’s refusal to take the Defendant as separate entities (social services/housing), which is surely right, is irreconcilable with that conclusion.

Is there not an argument that, even if the emergency transfer powers are governed by Part VI (or even Part VII) HA, this is merely an enabling power and that the exercise of discretion - which is always necessarily in relation to specific circumstances - does attract a potential duty of care, precisely because it is not a ‘policy’ decision, but based on the particular danger to the tenant - i.e. the decision is (or should be) made on the basis of the tenant’s safety.

In the end, as far as I can tell, this is what the Court is putting forward in this case. At least, I think it is. I may well change my take on this case when I have had time to digest it.

This is going to the Court of Appeal, of course, and it is going to be a very difficult argument, on both sides.

Congratulations to Leigh Day & Co. and Counsels Elizabeth-Anne Gumbel QC & Henry Witcomb on bringing this one.

A case is reported in the Guardian which apparently extends local authorities’ duty to protect tenants from third parties to include vulnerable adults, not only children.

A couple, both with learning difficulties, were terrorised in their flat by a group of youths over two days, during which they were assaulted and abused. Hounslow Council had failed to rehouse the couple, although the threat of attack ‘was foreseeable’.

At the High Court, Hounslow argued there was no duty of care, but Mr Justice Maddison held otherwise. The failure to rehouse was negligent. Damages of £100,000 were awarded. Hounslow were given permission to appeal.

I’m looking forward to seeing the judgment on this one.