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Duty to protect update 1


Update on this case from Friday 24 May. No judgment available yet that I have seen, but there is a further new story on the Hounslow case at, which gives a few more details.

Specifically, the negligent failure found was that housing did not invoke emergency transfer processes, despite a) social services involvement with the family and b) complaints and warnings from neighbours about the youths’ presence and activities in the claimant’s home. It arose from a found lack of communication between social services and housing and lack of appreciation of the seriousness of the situation and failure to give priority in both departments, despite the evidence.

Damage of £97K, suspended pending appeal.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


  1. J

    This really does look interesting. I wonder how the claimant got past Hussain v Lancaster CC [1999] 2 WLR 1142 and Smith v Scott and others [1973] 1 Ch 314.

  2. J

    If it wasn’t nuisance then it must have been nuisance (and the reference to a ‘duty of care’ in the report points this way). But negligence was expressly rejected in Hussain and Smith – Mowan at [22]…

  3. Nearly Legal

    No, no. I meant that the line of cases concern a landlord’s liability for their tenant’s nuisance. In this case, it doesn’t appear that the youths were tenants of the landlord, or at least it is not mentioned.

    It does appear to be negligence based – although granted negligence is rejected in Mowan et al. But there, negligence is taken as nuisance by another name’, so again, perhaps at least in part distinguishable if one is not making it as a ‘landlord liable for tenant’s nuisance’ claim?

    I can’t figure it out yet, though.

  4. housinganger

    Reading through Mowan at point 28 Sir C Staughton says

    Alternatively there is the possibility of public law proceedings against the Council. I do not believe that such proceedings are necessarily bound to fail, by a long chalk. But that is only a matter of first impression, without the benefit of argument.

    What sort of proceedings would these be?

    Apologies if it’s an obvious answer

  5. Nearly Legal

    Judicial Review – but this would only extend to the lawfulness of any decision by the Council to take, or not take action. See para 40 of Mowan.

    I’ve just noticed that Mowan was a Flack & Co case. Any views on this Hounslow case in relation to Mowan, William?

  6. William Flack

    Sorry to be so slow in responding to your question about Mowan. I have been on holiday all this week. For the two weeks before that I was working flat out to try and get all loose ends tied up before going away. This meant that I did not get to check out your blog which I normally do every couple of days. Thanks to free wi-fi across the road from my hotel I can now make contact again.

    I am still waiting to see a judgment for the Hounslow case before I can comment with any confidence. Mowan sounds like a very different set of facts from this new case. In Mowan we were dealing with the council’s failure to take action to evict or control a nuisance neighbour. That neighbour had mental health problems. The Housing Department would normally have taken action against the neighbour but the Social Services Department who were supporting the neighbour were able to veto these. We were trying to argue that in doing so the council were adopting the nuisance. This argument failed.

    Although they rejected her claim the Judges were sympathetic to the considerable nuisance which Ms Mowan was subjected to by the neighbour. It is all a long time ago now but I think that the public law action concerned the failure of the council to take action to stop the nuisance. There was also the suggestion that an action might lie under the Human Rights Act which had not been in force when the proceedings were issued. Unfortunately after seeing her case go all the way to the House of Lords and fail Ms Mowan could not face any further litigation and so we did not explore these two avenues.

  7. Nearly Legal

    William, above and beyond dedication to be reading this blog while on holiday! A copy of the Hounslow judgment is on its way to you, but as my most recent post sets out, it is negligence only, with no nuisance involvement, and frankly a bit of a mess – J’s comment is worth reading. The Court of Appeal will have to make of it what it can, but I can’t call it from this judgment.

    Mowan is by the by, but your background is interesting. Pity about the adoption argument – I can see the basis for that.



  1. X v Hounslow - [...] helpful sprites). It isn’t up on Bailii yet, though. Previous posts on this one are here and here -…

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