03/06/2020

Delays and duties and human rights

Idolo, R (on the application of) v London Borough of Bromley (2020) EWHC 860 (Admin)

I’m a bit late to this one (ironically, as it turns out), it has been an open browser tab for ages, sorry. It is a judicial review on the overlap of Care Act 2014 duties and Housing Act 1996 Part VI allocation duties, with a bit of a human rights claim thrown in. It all turns on delay.

Mr I, his wife and child had been given the tenancy of a two bedroom flat on the eight floor of a block of flats in discharge of the council’s homeless duty to them in September 2017. In November 2017 Mr I was suddenly paralysed from the waist down. He could not leave his bedroom and a wheelchair could not be used in the flat. The council carried out Care Act 2014 assessments, which acknowledged that he had a clear need to move to a suitable property, ground floor with 3 bedrooms and in which a wheelchair could be used.

In May 2018, Mr I applied to Bromley’s allocation scheme. There was then a five month delay to October 2018 when the application was accepted. Mr I was given second highest band priority. Despite weeky bidding for the next three months, Mr I was not successful. In February 2019, after representations from Mr I’s solicitors, he was moved to the highest priority band (there was only one person with higher priority for a three bed property). However, no suitable property was identified before Mr I issued the present judicial review claim in August 2019. Very shortly afterwards a suitable property was offered, accepted and Mr I moved in in October 2019.

Mr I maintained the judicial review claim, seeking a declaration of breach of duty and Human Rights Act damages for what he had endured from January 2018 to October 2019. He argued that the council had failed in its obligations under Care Act 2014 to secure suitable accommodation for him and that, in breach of HRA 1998 Schedule 1 article 8, there had been an unlawful interference with his rights to private and family life.

The High Court held:

While his situation was “indisputably grim”, Mr I had made no complaints about the care support he had been provided with over the period, in fact quite the reverse. His only complaint was the need to move to a suitable property.

On delays, until spring 2018, Mr I’s prospects of recovery were unclear. The council admitted that from his application to the allocation scheme in May 2018 to acceptance in October 2018 was an administrative delay, with the explanation that it was due to difficulties in obtaining Mr I’s medical records from the NHS.

Looking at this period as a whole, then, a fair conclusion might be that the council’s social services department supported Mr Idolo in leaving hospital and adapting to a daily rhythm of meeting his basic needs, kept Mr Idolo’s day-to-day care package under review, listened to the family’s desire for a move, advised them how to take that forward with the housing department and liaised with the housing department over it; the housing department then duly actioned the application, albeit with a delay which was significant in its impact but may have been beyond their control. On the face of it, this not a narrative of obvious Care Act deficiency. However, Mr Cragg, leading counsel for Mr Idolo, says that it was not enough. He says the council went wrong, including making an error of law, in passing the housing issue into the housing department system rather than pursuing it as a social care solution in its own right. He says that the general duties under the Care Act required expedition of the housing issue above and beyond what the housing scheme would achieve.

On this, section 23 of the Care Act 2014 expressly “excludes from the ambit of the council’s Care Act responses anything which it is required to do under the Housing Act. On the face of it, if the council was already required under the Housing Act to rehouse Mr Idolo it had neither the duty, nor any power, to meet his care and support needs in that way; and the only obvious way to determine what it was required to do under the Housing Act was to apply its housing priority scheme.”

The council had a duty under Part VI Housing Act 1996 to have a statutory housing allocation scheme which recognised categories of housing need. That was not cut across by the Care Act duty because of s.23.

Finding and providing homes of a particular description is what housing departments do. It is always, and quintessentially, a matter of prioritising competing demands. The legislative scheme therefore seems to envisage that where Housing Act duties are engaged, they are to be met within the housing priority allocation scheme, without prejudice of course to the possibility that further Care Act duties may be engaged in addition. Fulfilling the Care Act duties depend on fulfilling the Housing Act duties first.

The Care Act duty was for the identification of housing needs, not the meeting of them, where that would fall under Part VI Housing Act 1996.

The HA 1996 duty had been properly applied, and priority escalated (and further care assessment arranged) when it became clear that the need for the move was increasingly urgent in February 2019. Short term interim solutions had been proposed by the council but turned down (understandably) by Mr I. It was hard to see what else the council could have done in this period.

On the human rights act claim, unlike R oao Bernard v Enfield LBC (2002) EWHC 2282, this was:

a case in which the housing he had been provided with became unsuitable because of what happened to him. In the initial phase, the point at which it became unsuitable was a matter of judgment and evaluation. As soon as it was formally assessed as unsuitable, by both the social services and housing departments, it appears that they co-operated to try and discharge what they agreed was the council’s duty. Mr Cragg says that what went wrong was that they should have tried harder. The council says that what went wrong was that it does not have enough housing resources to meet the needs of even its top priority tenants any faster.

No basis could be found for an additional element of lack of respect or culpability on the facts of this case.

Overall, while it was “utterly regrettable” that Mr I should have been stuck in the situation he was for such a length of time, the delays were not unlawful, and if there was no unlawful breach of those duties, then the article 8 claim could not survive.

Neither Anufrijeva nor Bernard is authority for the proposition that a compensatable breach of Art.8 through delay may be found unless the delay is attributable to a breach of legal duty with an element of culpability involved. For the reasons given, I have not found breaches of the council’s Care Act or Housing Act duties on the materials before me. However, even if it were possible to regard the totality of the delay in this case as nevertheless prima facie indicating maladministration – and even if, taking the cumulative impact on Mr Idolo into account and taking a broad-brush approach, it could be argued that it raised a prima facie case of breach of statutory or more general public law duties – I do not find a basis in the authorities for simply inferring lack of respect for fundamental rights, or culpability, from the fact of delay. More is needed.

I do not have a basis for finding this additional element of lack of respect or culpability on the facts of this case. On the contrary, the narrative before me is one in which the correspondence, the conduct of the council officers involved, and the co-operation between the departments have the appearance of demonstrating a degree of empathy, attentiveness to Mr Idolo’s plight, respect for his needs and acknowledgment of the council’s duty to help him. That does not take away from the delay in doing so. But nor does it colour the delay with culpability. If, behind the scenes in the council offices, there were culpable deficiencies – poor practice, opportunities missed or failures to expedite – they are not before me. That leads me to some procedural observations about the conduct of this case.

The High Court concludes with a reminder of the Court of Appeal guidance on human rights claims arising out of alleged maladministration in Anufrijeva v Southwark LBC (200)] EWCA Civ 1406

a claimant should expect to have to explain at the permission stage why it would not be more appropriate to pursue internal complaint procedures, or proceed via the Parliamentary Commissioner for Administration or Local Government Ombudsman – systems designed to deal economically and expeditiously with compensation for maladministration.

The guidance was “clear about this to the point of pungency”.

Claim dismissed.

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.

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