Brief notes on a couple of cases, both, in different ways, approaching the issue of whether a homeless applicant can claim for damages arising from the bad performance of the local authority’s statutory duties.

McDonagh, R (on the application of) v London Borough of Enfield (2018) EWHC 1287 (Admin)

Ms M was in unsuitable private accommodation – her son relied on a wheelchair for mobility inside and outside the home, and the property had the only bathroom and toilet on the first floor. She applied to Enfield as homeless in March 2015 and a duty was subsequently accepted in July 2017 (after treating her application as a Part VI application, ignoring social workers’ and OTs’ reports and everything up to a pre action protocol letter), but no suitable alternative accommodation was secured for her until early 2018. She had brought a judicial review claim on Enfield’s failure to provide accommodation but by permission stage in February 2018, the accommodation aspect had become academic. The claim proceeded as a claim for damages for contravention of article 8 of the European Convention of Human Rights.

The court accepted that the claim could proceed as a damages claim. So, the questions were:

Had Enfield breached their duty?

Were the Defendant’s actions, which include their failures to act, incompatible with the Claimant’s Article 8 rights?

If so, should the Court make an award of damages under the Human Rights Act 1998?

If so, what is the appropriate quantification of such damages?

Read the judgment for the full (extremely poor) handling of Ms M’s application by Enfield. On the brreach of duty, the court held:

On the evidence provided to me I find that whilst the Defendant did make efforts to find suitable accommodation for the Claimant, it did not take all reasonable steps to meet its s.188(1) statutory duty to secure the availability of suitable accommodation pending a decision as to its duties under the later provisions of Part VII. I am satisfied on the balance of probabilities that the Defendant was in breach of its statutory duty under s.188 from December 2015 until February 2018. That is not to find that a Court would have made mandatory orders against the Defendant during that period. As Collins J said in R v Newham LBC ex parte Begum the court will not unreasonably enforce the duty. Indeed, on the evidence, I am satisfied that from January 2016 there was no suitable housing available from the Defendant’s own stock and from November 2016 there was no suitable interim accommodation available to be secured by any means.

Following Morris v The London Borough of Newham (2002) EWHC 1262 (Admin) and R (Bernard) v Enfield London Borough Council (2002) EWHC 2282 Admin, it was possible for Article 8 rights to be infringed by a failure to fulfil HA 1996 Part VII duties.

However, on the facts of this case, there was no infringement:

Firstly, in considering all the circumstances of the case, it is important to consider not merely the fact of a breach of statutory duty, but also the nature of any breach. In Bernard there was a 20 month delay in acting on the assessment of needs, without any explanation at all of why nothing was done. Here, on my findings, the Defendant was making efforts from January 2016 to find suitable accommodation for the Claimant and her family. It was in breach of statutory duty because it could and should have taken more steps by recognising its duties lay under Part VII, but this is not a case of a flagrant breach where the Claimant’s needs were wholly disregarded. The degree of culpability on the Defendant’s part is not great.

Secondly, it is crucial for the Court to consider whether there is a “direct and immediate link between the measures sought (by the Claimant and her) private and/or family life”: Botta v Italy at 34. The breaches relied upon by the Claimant were under s.188(1) and the measures sought were therefore to secure the availability of interim accommodation on a homelessness application. The measures are designed as a lifeline of last resort. The Claimant and her family had already been through a period of living in a succession of temporary bed and breakfast type accommodation. The accommodation at 45 Aberdeen Road was unsuitable but the Claimant had chosen it over the succession of temporary accommodation she had had whilst in Haringey. Looked at in the round, it is not obvious that the measures sought, if implemented, would have contributed positively to the development of the personality and integrity of the Claimant to a substantially greater extent.

Thirdly, the Court should take into account the fair balance that has to be struck between the general interest and the interests of the individual. In this case that balance involves taking account of the practical difficulties the Defendant did have in finding suitable accommodation, and would have had even if, as they should, they had managed the Claimant’s accommodation application under Part VII from December 2015. These practical difficulties existed throughout the period of the breaches of statutory duty and were such that, as I have found, it would not have been possible to secure suitable interim accommodation from about November 2016 onwards. These difficulties were related to decisions the State has made about resource allocation and the Strasbourg court recognises the margin of appreciation involved in such issues. Even if it is not viewed as a question of competing interests, the limited availability of suitable alternative housing must be relevant when considering the likely practical impact of the breaches on the Claimant.

Fourthly, this claim is brought by Ms McDonagh and therefore it is her right to privacy or family life that must be considered. In Bernard, damages were awarded to Mr Bernard as well as to Mrs Bernard, who was the wheelchair user, albeit at a much lower level. However, it appears from the judgment that, had they been housed more suitably, Mrs Bernard would have been able to assist with looking after their six children and would not have been dependant on care and assistance from Mr Bernard. As it was, the entire burden of care fell on him, thereby affecting his own Article 8 rights. I do not wish to underestimate the burdens on Ms McDonagh, but the fact is that Thomas would have been dependent to an extent on her in any event. She would have had to look after the two other children in the same way, absent the breaches of duty. She estimates that she has spent an additional three hours a day caring for Thomas as a result of the unsuitable accommodation. If that is right it is a substantial additional burden which no-one would wish to bear, but it does not, in my judgment, amount to a denial of her own Article 8 right to physical and psychological integrity or development or her right to family life.

Fifthly, although not determinative, it is relevant that the Claimant’s family has not been divided, they have not been made “street homeless”, and at all times they have lived, four of them, in what can be described as a three-bedroom house. Family life did continue although under significant strain as I have recognised.

Sixthly, I take into account the Court of Appeal’s observation in Anufrijeva, in the context of the positive obligation, that they found it hard to conceive of a situation in which the predicament of an individual will be such that article 8 requires her to be provided with welfare support, where her predicament is not sufficiently severe to engage article 3. Understandably contravention of Article 3 is not argued by the Claimant in the present case. Whilst the Court of Appeal accepted that Article 8 may more readily be engaged where a family unit is involved, their observation points to the rarity of the circumstances in which the Courts are likely to find a breach of the Article 8 positive obligation in cases where, as here, the circumstances are not so severe as to constitute an Article 3 infringement.

As there was no infringement, no assessment of damages was required.

XPQ v The London Borough of Hammersmith and Fulham (2018) EWHC 1391 (QB)

This was a claim for damages arising out of two allegedly unsuitable temporary accommodation placements. The factual background is complex and was highly contested, but XPQ was undoubtedly a survivor of human trafficking, determined as such by the Home Office, and a refuge with leave to remain. She had, for some period, been forced into prostitution. Following determination of her trafficked status, she was accepted as owed the homeless duty by Hammersmith & Fulham.

H&F first placed her in a room in ‘Rose Lodge’. This was mixed accommodation. The claimant’s evidence was that there were six men and her and the lock on the shared bathroom was broken. The defendant’s evidence was that the claimant was never the sole woman resident and the lock on the bathroom was not broken.

XPQ alleged that a male resident had harassed her, assaulted her and walked in on her in the bathroom. The complaint was that a) she had been placed in accommodation with 6 men, and b) that following the harassment and touching incident, she had not been moved quickly to suitable accommodation (she was moved some 8 days later).

She also alleged that outside the new temporary accommodation, on arrival, she had been recognised by someone involved with her traffickers. She was offered another property very shortly afterwards.

I’m not going to go into detail – read the judgment for more on both law and the facts as found – but, XPQ claimed under the Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings, Human Rights Act 1998, the Housing Act 1996 and common law duties of care.

There was no claim for damages under Housing Act 1996.

In O’Rourke v Camden LBC (1998) AC 188, the House of Lords held that what was then Section 63(1) of the Housing Act 1985 did not create a private law duty for which damages could be claimed. Section 63(1) of the 1985 Act was the precursor to Section 188 of the 1996 Act. The terms of the latter section are materially the same. Nicholas Grundy QC for the Defendant submits, and I accept, that this is authority binding upon me: accordingly, Section 63(1) (therefore now Section 188 of the 1996 Act) does not give rise to a cause of action sounding in damages.

It was at issue whether the 2011 Directive had direct or indirect effect.

The court’s finding on direct effect and what this meant for the defendant’s duty was

In resolving whether the Directive is in its relevant respects binding on the Defendant, I start with what is in issue here. There are two questions to be answered: first, is Article 11 of the Directive of direct effect, and second, if so, has the Defendant Council failed to fulfil such of its obligations as are of direct effect? As to both of these questions, the language is broad: what is to be provided to victims by Article 11(1), (2) and (3) are “assistance and support”, without specifying what form this should take except within 11(5). This again is silent as to the precise measures to be adopted, though clear that the result must “ensure victims’ subsistence”. I would be prepared, without deciding it, to hold that a broad view is to be taken of “subsistence”, as indicated by the words which follow which relate not just to physical matters such as “accommodation” but also to measures such as “psychological assistance, counselling and information”. However, the definition of what accommodation is “appropriate” is not further defined, and it is plainly related to “subsistence” which even in its broader sense gives rise to considerable discretion. It is common ground before me that “safe” means safe from the risks of re-trafficking. Though I do not exclude parts of the Directive (which do not fall for more detailed consideration here) being sufficiently precise and unconditional for those parts to have direct effect, in Article 11(1) there is a very great degree of choice given to the Member State. It is for that State to decide what is appropriate, and what is appropriate may vary between Member States across the Union such that it is not sensible to think that what is “appropriate” has an autonomous meaning for the purposes of E.U. law. So far as accommodation in the UK is concerned, what is appropriate is for the local housing authority to determine: the legal boundaries to any such determination are set by whether it is perverse to cross them (see e.g. per Dyson J. in R v Newham LBC ex parte Sacupima (2001) 33 HLR 1 at paragraph 23 for an expression of this concept). Accordingly, I accept the thrust of Mr Grundy’s submissions on the first question.

On indirect effect

If not of direct effect, the Directive may nonetheless have an indirect effect, for there is an obligation to interpret legislation purposively to achieve the objects envisaged by that Directive, set in its proper context. The recitals to a Directive reliably indicate that context. Part 7 of the Housing Act 1996 speaks of “suitable” accommodation. Though this word may doubtless be adapted to the particular circumstances of the individual seeking assistance and accommodation under the Act, when it comes to those in respect of whom there has been a conclusive grounds decision that they have been trafficked, it may be taken to equate to “safe and appropriate”. There is, in my view, therefore an obligation under the Act resting on a housing authority considering the case of a trafficked person to provide such accommodation. However, this interpretative approach does not enable the Claimant to claim that a trafficked person has a right to claim damages for any failure by a housing authority to provide it, for on this approach the right remains one conferred by the Housing Act, in respect of which the decision in O’Rourke is binding as noted above.

The claim under the Human Rights Act and on an extension of common law duty failed in view of Mitchell & Another v Glasgow City Council (2009) UKHL 11 and Mitchell v Chief Constable of South Wales (2015) UKSC 2

On the facts, it was accepted that the harassment incident had happened. It was not accepted that the approach by the traffickers at the second property had happened. (There were considerable issues with the claimant’s evidence.)

The claim was dismissed.

Comment

While XPQ rules out a particular line of claim, the McDonagh case actually confirms the possibility of HRA damages claims where there has been a substantial failure of HA 1996 duty. One might argue with the specific findings in the case, but the principle holds. Considering HRA damages claims where people have been left in unreasonable or unsuitable accommodation for sustained and unjustifiable periods might be worthwhile. Clearly the court will need convincing on, or made to understand, that the duty to secure suitable accommodation extends beyond ‘waiting for something to come along’ (which, in McDonagh as in a recent case of mine, miraculously happens after issue but before permission).