‘Duty of care’ – Not in housing allocation

Darby v Richmond on Thames London Borough Council [2017] EWCA Civ 252

Many of you, I suspect, will be like me – you hear from clients, prospective clients, tenants etc., on a very frequent basis that in making a housing decision, or indeed in not making it, the council or housing association has ‘breached its duty of care’ to them.

There are two things about this.

I don’t know where this general idea has come from, but it is very widespread. It seems to cover a vague and general conception that the council ought to do the right thing by people and ought to be liable if it doesn’t.

The second thing is that, without exception, the cases one has to fall back on to demonstrate that there is no ‘duty of care’ are uniformly tragic and depressing. There was X v Hounslow,and Glasgow City Council v Mitchell.

And then there was Darby (administratrix of the estate of Lee Rabbetts deceased) v Richmond Upon Thames LBC. We noted the strike out of the claim in 2015 here. Now we have the court of appeal’s decision on permission to appeal.

The brief and tragic 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 court of appeal held that the first instance decision was entirely correct. The House of Lords in O’Rourke v Camden LBC [1998] AC 188,  and the court of appeal in X v Hounslow found no duty of care in Part VII and Part VI Housing Act 1996 obligations, or their previous equivalents.

And then Gorringe v Calderdale MBC [2004] UKHL 15 found that where there is no claim for breach of statutory duty and no duty of care arises under the general law, Parliament is taken to have intended that no common law duty of care existed.

And, lastly, there was no voluntary assumption of responsibility sufficient to found a common law duty either.

Further:

I am quite sure, as was the judge (see paragraph 24), that the existence of alternative remedies under the Housing Act is yet another obstacle to the common law duty of care contended for. In my view it is insuperable on the facts of this case. Judicial review is available, as are the ancillary procedures which include the ability to make interim applications and for them to be considered under the ‘urgent cases’ procedure. Recourse may also be had to the Ombudsman. Mr Utley argues that on the facts of this case these remedies would have been of no practical assistance to the claimant. I do not accept that but even if it is correct, as Dyson LJ (as he was then) said in Rowley v Secretary of State for Work and Pensions [2007] 1 WLR 2861 at paragraph 24:

“the efficacy of these alternative remedies (in so far as it is relevant at all) should be judged by what they purport to provide rather than how effectively they work in practice. The existence of a duty of care cannot depend on the vagaries of how effective an alternative remedy may be from time to time.”

And at paragraph 73:

“I accept, of course, that the mere fact that there is an alternative remedy is not necessarily a reason for denying the existence of a common law duty of care. It is important to see how comprehensive a remedy is provided and to consider it in the context of the statutory scheme as a whole. Ultimately, what has to be decided is whether, having regard to the purpose of the legislation, Parliament is to be taken as having intended that there should be a right to damages for negligence. The more comprehensive the remedy provided by Parliament, the less likely it is that Parliament is to be taken as having had that intention.”

The alternative remedies here were comprehensive.

Permission to appeal refused.

Comment

This is not a surprise. However, given that X & Y v UK – the Hounslow case in the European Court of Human Rights – was settled without a hearing, I wonder if a similar ECtHR claim might be in the offing here too? Domestic remedies have now been exhausted. If so, we probably won’t know any result for years, but if there is to be any change, this will likely be the long and slow route to it.

About Giles Peaker

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, and still is Nearly Legal on Google +.

Posted in Allocation, Housing law - All, secure-tenancy and tagged , , .

2 Comments

  1. Whilst I hesitate to defer from the learned judges determinations however much they follow each other in sequential reasoning it is clear to me that there is a statutory duty of care however it is read with the other provision, “alternative arrangements” and judicial reviews appended and for the proper administration of that duty. Is there a general duty of care? Perhaps we should go back to Donaghe v Stevenson HL 1932 and Lord Atkins comments. I see no variance from that.

    It only remains to say that the confirmation or not of a duty of care is by jursiprudence or judge made law- “in the public interest” here and in defence of precidence and establishment?

    • I’m sorry, I can make no sense of this comment. I really can’t tell what you are saying.

      There is no statutory duty of care. And Donoghue has no bearing – the extension of a common law duty to such a situation via voluntary assumption of responsibility, Caparo test, incremental development, is expressly rejected.

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