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No duty of care in allocation decisions


Darby (administratrix of the estate of Lee Rabbetts deceased) v Richmond Upon Thames LBC [2015] EWHC 909 (QB) [Not on Bailii, we’ve seen the judgment].

Can a council’s failure to carry out its responsibilities under its allocation scheme be the subject of a claim in breach of duty of care? This was the hearing of the Defendant’s application to strike out a claim on exactly that issue.

The brief facts were that Mr Rabbetts suffered from acute myeloid leukaemia. In August 2010 he underwent a bone marrow transplant, including immunosuppressant treatment. As a result of this, he was at risk of developing infections which could be fatal.

Mr R was discharged to the Claimant’s home, where his sister and her baby were also living. The presence of others were a risk to Mr R through causing infection. Mr R made an application for housing under Part VI to the Defendant. Mr R’s doctors (GP and consultant) wrote on several occasions to the Defendant setting out the medical risk to Mr R in his present housing. Richmond accepted Mr R on the housing register, but awarded him 50 priority points for medical problems, rather than 200 points for ‘a person whose condition is life threatening and their existing accommodation is undermining their health’.

On 21 December 2010, Mr R’s sister and her baby were diagnosed with an infection. On 3 January 2011, Mr R was admitted to hospital with respiratory sepsis. He remained in hospital until his death from influenza on 23 January 2011.

Ms Darby, as administratrix of his estate brought a claim alleging breach of duty of care in failing to award the 200 points and thus hastening Mr R’s ability to get a property of his own, leading to his death by infection, in circumstances that Richmond had been warned about.

The sole issue on the strike out was whether there was a common law duty of care to Mr R in the Defendant carrying out the operation of a statuary scheme.

The High Court held that much the same considerations as in O’Rourke v Camden LBC [1998] AC 188 (which concerned a private law claim on a then Part III Housing Act 1985 issue) applied. In that case, there were two considerations which made it unlikely that parliament had intended to create private law rights of action. It was a statutory scheme of social welfare, intended to confer benefits at public expense as a matter of policy. Second, the existence of the duty depended on a good deal of judgement on the part of the local authority.

The same applied in the present case. This was a statutory scheme of social welfare, and there was a significant element of judgement by the local authority.

Further, there was an alternative remedy – judicial review – which as per Rowley v SSWP [2007] EWCA Civ 598, meant that a private law remedy would not be available. The exercise of statutory powers and discretions was not akin to contract, or a voluntary assumption of responsibility.

In the present case, there was the right to apply for judicial review, and interim relief, or the right to take a complaint to the housing ombudsman as maladministration. These were a sufficiently comprehensive set of remedies to mean that a private law duty of care would be inconsistent with the statutory scheme.

The  Court noted the Court of Appeal decision in X v Hounslow LBC [our report] as supporting its decision.

The claim was struck out, and/or summary judgment entered for the Defendant.


While this decision is hardly a surprise, one wonders if it may go further. The fact that X v Hounslow was settled by the UK in the European Court of Human Rights suggests that this issue of a private law duty of care in carrying out a statutory duty might yet have some way to run.


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. S

    There will certainly be some cases (and X v UK would almost certainly have been one had it fought) where there is no duty of care / breach of statutory duty but the authority has a positive obligation under Art.8 to re-house.You have to plead Article 8 though and in this case they didn’t do that.

    For that reason I can’t see this going any further.

    • Giles Peaker

      Yes, good point. Though as I recall, Art 8 not pleaded at first instance in X?

  2. S

    No in X they had pleaded it, but it was not decided because they won on the duty of care point. They then didn’t appear to cross appeal when it went to the CA so the CA didn’t decide the point.

    • Giles Peaker

      Ah, I thought it didn’t feature in the CoA judgment.That makes sense.


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