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

Case No CO/549/2018[2018] EWHC 1287 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice Strand, London, WC2A 2LLDate 24 May 2018
Before
NIGEL POOLE QC
Between
THE QUEENClaimanton the application ofClaimantMARTINA MCDONAGHClaimantLONDON BOROUGH OF ENFIELDDefendant
David Carter (instructed by Hodge Jones & Allen LLP) for Claimant Andrew Lane (instructed by Legal Services,London Borough of Enfield) for DefendantHearing Hearing date: 15 May 2018
JUDGMENTNigel Poole QC:Introduction
[1]This is a claim for damages for breach of Article 8 of the European Convention on Human Rights arising out of alleged breaches of statutory duty under Part VII of the Housing Act 1996.[2]The Claimant is a national of the Irish Republic. She left that country to escape an abusive marriage and came to the UK in April 2014 with three of her children: Thomas, born on 25 October 1999, Shamus, born on 19 April 2001, and Chantelle, born on 21 February 2002. Thomas has spastic quadriplegic cerebral palsy. He has bilateral dislocated hips and requires bilateral proximal femoral resection. He relies on a wheelchair for mobilisation inside and outside the home[3]In August 2014 the Claimant and the children moved into 45 Aberdeen Road, London, let to her by a private landlord on an assured shorthold tenancy. This was a two-storey house with two bedrooms and a bathroom with toilet on the first floor, inaccessible to Thomas. The move there followed a period of living for about four months in a series of very short-term bed and breakfast accommodation.[4]The Claimant made an online application to the Defendant for accommodation on 19 March 2015 but no suitable alternative accommodation was allocated or secured for her until early 2018. Therefore, the family remained at 45 Aberdeen Road until they moved into that alternative accommodation, at 5 Lily Way, Palmers Green, London, N13 4EG, on 14 March 2018, almost three years later. This new property is single level and suitable for a wheelchair user such as Thomas.[5]The Claimant brought a claim for judicial review in respect of the Defendant’s failure to determine her application for housing assistance and provide interim accommodation under Part VII of the Housing Act 1996, seeking a mandatory order requiring the Defendant to secure that suitable accommodation was made available for her occupation, and interim relief. On 20 February 2018 the case came before David Casement QC sitting as a Deputy High Court Judge. Upon the Court being informed that the Defendant accepted a duty to the Claimant under s.193 of the Housing Act 1996, he stayed the claim and application for interim relief until 6 March, gave the Claimant permission to file and serve amended grounds and listed the claim for a rolled-up hearing.[6]Having been secured suitable accommodation, the Claimant no longer seeks a mandatory order but by her amended claim she now claims damages for contravention of Article 8 in respect of the period from March 2015 to February 2018, when the Defendant made its decision that it owed her a s.193 duty. Although this claim is listed for a rolled-up hearing, given that it is no longer a claim for judicial review, it seems to me that permission is no longer required. If I am wrong then I do not hesitate to give permission, the Claimant having an arguable case for the relief now sought. The Defendant did not urge on the court any reasons why the case should not proceed to a full hearing of the damages claim save for one matter.[7]Mr Lane, for the Defendant, without great enthusiasm, raised the fact that CPR 54.3(2) provides that a claim for judicial review may include a claim for damages … but may not seek such a remedy alone". By s.31(4) of the Senior Courts Act 1981:
“On an application for judicial review the High Court may award to the applicant damages, restitution or the recovery of a sum due if— (a) the application includes a claim for such an award arising from any matter to which the application relates; and (b) the court is satisfied that such an award would have been made if the claim had been made in an action begun by the applicant at the time of making the application.”
[8]There was no claim for damages in the initial claim for judicial review. When the claim was amended the damages claim was added but the claims for other remedies were withdrawn. Thus, the damages claim now stands alone. In effect Jackson J was in a similar position when he considered a damages claim after claims for a declaration and a mandatory order were no longer pursued, in Morris v The London Borough of Newham [2002] EWHC 1262 (Admin) to which I refer in more detail later in this judgment. It might have been possible for me to remit the damages claim to another court but having regard to the overriding objective I am satisfied that it is appropriate for me, sitting in the Administrative Court, to hear and determine the claim for damages without any continuing claim for other relief.

Issues to Be Determined

[9]The claim for damages under the Human Rights Act is founded on alleged breaches of statutory duty under Part VII of the Housing Act 1996. It is common ground that if, at all times, the Defendant acted lawfully under the Housing Act 1996, then they cannot be found to have contravened Article 8 of the ECHR. On the other hand, breaches of statutory duties under Part VII of the Housing Act 1996 might be capable, if other criteria are met, of founding a claim in damages for contravention of Article 8. Hence, the first issue for the Court is whether the Defendant acted in breach of its duties under Part VII.[10]If I find that the Defendant breached any of its duties under Part VII then the following issues remain to be determined: 1. Were the Defendant’s actions, which include their failures to act, incompatible with the Claimant’s Article 8 rights? 2. If so, should the Court make an award of damages under the Human Rights Act 1998? 3. If so, what is the appropriate quantification of such damages?[11]Due perhaps to the procedural history of this claim, Ms McDonagh is the sole claimant. It was not contended that she was acting in the capacity of a representative of Thomas or other members of her family for the purpose of the damages claim. Thus the Court is invited to consider whether there has been a breach of her Article 8 rights, and if so the appropriate remedy.

The Facts

[12]I have been provided with two witness statements from the Claimant and a statement from Helen Stavrou, Housing Allocations Manager for the Defendant. I allowed a preliminary application by the Claimant for permission to rely on her second statement notwithstanding that it was not served on the Defendant until 10 May. The parties have also produced a bundle of relevant documentation.[13]Ms Stavrou asserts that in 2014 the Claimant made a homelessness application and a decision was made that she was not homeless. This is not mentioned in the Claimant’s evidence but it was accepted on her behalf by Mr Carter that at some point in 2014 the Claimant made a homelessness application to the Defendant, that the decision made was that she was not homeless, and that the decision was not challenged. It is conceded by Mr Lane that she was not thereby precluded from making a further application.[14]It was the Claimant who found, and Haringey Council that paid for the rent deposit for, the property at 45 Aberdeen Road (see email from Vivienne Atter of the Cheviots Centre dated 20 January 2016 at page 48 of the Trial Bundle).[15]On 14 October 2014 Clara Omife made an occupational therapy housing assessment report on Thomas, for the Defendant. She reported that Thomas had spastic quadriplegia and bilateral hip dislocation, and that he was a permanent wheelchair user. The property at 45 Aberdeen Road was reported to be unsuitable for a wheelchair, that Thomas was unable to access the toilet and bathroom upstairs, and he required a hoist for transfers. The property was not suitable for adaptation or a stairlift.[16]The Claimant’s online application form is within the bundle. I was informed that she had some assistance in completing the application from a Social Worker. In it, her situation is reported as “not homeless” and that she had not applied “as Homeless”. Counsel were not able to assist as to whether this was her self-report or a description applied by an officer of the Defendant upon receipt of her application. Having regard to the information entered on the same page of the form (at page 28 of the Trial Bundle) I am satisfied that this was a self-description by the Claimant. In the form the Claimant reported Thomas’s disabilities, his use of a wheelchair and an assessment that he needed “no stairs inside or out and wheelchair access”. The Claimant also reported that Thomas had mental health or learning disabilities, and that his disability or health condition was affected by his accommodation.[17]On 20 July 2015 someone noted on the computer record that the property was unsuitable for Thomas and that the Claimant had reported that she had to take him to McDonalds to wash him as the property was unsuitable.[18]On 12 August 2015 the Defendant received a report from Mr Khan, Consultant Orthopaedic Surgeon, dated 5 August, outlining some of Thomas’s physical disabilities, including that “he spends much of his time in a wheelchair.”[19]On 16 September 2015 a Medical Officer, whose identity is not revealed on the document, completed a Health and Well-Being Outcome Form indicating that Thomas has cerebral palsy, that the officer had seen Mr Khan’s letter and another from the Royal National Orthopaedic Hospital dated 2 September 2015, together with a psychological report from 2011. The Court has not seen those two further documents. The Officer concluded that the “living conditions are unsuitable but their need to move is less urgent and not life threatening but if left unresolved, their quality of life will deteriorate.”[20]In consequence of the Medical Officer’s assessment, on 17 September 2015 the Defendant informed the Claimant that she was not eligible to remain on the Council’s Housing Needs Register as she was considered to be adequately housed in her current home.[21]On 20 September 2015, a Social Worker, Marie Shirley, who was the person who had assisted the Claimant with her on-line application in March, wrote to the Defendant’s Housing Options and Advice Team, setting out in clear terms that Thomas was permanently confined to a wheelchair and unable to use the stairs to the bedrooms, toilets or bathroom facilities which were upstairs. She reported that Thomas used the front room downstairs as his bedroom and “this is where he is washed and uses a portable commode. Thomas and Ms McDonagh have described the difficulties they experience such as Thomas not being able to have a proper bath since moving into the house, the strain on Ms McDonagh when having to wash Thomas in his room with no accessible running water in the room … Thomas expressed the embarrassment he experiences when using the commode in the adjacent room from where people may be watching TV, especially when his siblings bring friends over or family visit…. The family have tried to cope for the time they have live [sic] in the house with the understanding that they would be rehoused into adapted accommodation but the recent decision to remove them from the housing register has left the family in a difficult situation.”[22]A further Medical Officer’s assessment was completed on 3 December 2015. It considered the “OT report”. The only OT report then in existence, on the evidence before me, was the one to which I referred earlier, from October 2014. The recommendation was to place the family in Group 5 with a specialist requirement in relation to floor level. Accordingly, on 4 December 2015 the Defendant wrote to the Claimant seeking further information and documents and, on 27 January 2016, the Defendant notified the Claimant by letter that her housing application had been assessed and she had been placed in Housing Group 5 for “mobility applicants … who need specialist homes with level access throughout because they have difficulty getting about.” Other Groups included “Group 4: Households in Enfield’s Temporary Accommodation”, and Group 3 which includes “a wide variety of applicants who have been assessed as having high care and support needs and need a Council or housing association home.”[23]The letter of 27 January 2016 also advised the Claimant that:
“Applicants in Group 5 will be housed in date order. Because you have a special housing need, the Council will match you to a suitable home and make you an offer. We have a severe shortage of homes becoming available for letting each year. In 2013/14 we estimated that 622 homes would become available for letting to all applicants in Groups 1 to 5 and a further 110 homes for older people in Group 6.”
[24]At this stage, and since receipt of the online application form in March 2015, the Defendant treated the Claimant as making a Part VI Housing Act application for allocation of accommodation, not as a homeless applicant under Part VII.[25]The unsuitability of the property at Aberdeen Road was underlined by further representations from Vivienne Atter of the Cheviots Centre, a Children’s Disability Service, by email dated 29 January 2016; Dr Bolland, a Consultant Community Paediatrician, by letter to Enfield Social Services dated 23 May 2016; and Kirstie Simpson a Paediatric Physiotherapist who detailed her multiple concerns in a report dated 27 June 2016. The letter from Dr Bolland was written to Enfield Social Services and states:
“The therapists have visited the house and feel that it is totally inadequate for [Thomas] to maintain his health and wellbeing … He is functionally deteriorating, has no privacy and we feel this is impacting on his mental health. His personal hygiene is very poor which is highly likely to impact on his self-esteem … I feel very strongly that his housing is a safeguarding issue. He is unable to undergo orthopaedic surgery as it would not be possible for him to rehabilitate in the current housing.”
[26]On 6 January 2017 Hodge Jones & Allen solicitors wrote to the Defendant on the Claimant’s behalf explaining that Thomas’s planned hip surgery had twice been postponed due to the unsuitability of the property for his rehabilitation. They also reiterated Thomas’ inability to access the toilet upstairs. “As a result”, they wrote “our client seeks to make a homelessness application with your Council under Part 7 of the Housing Act 1996 rather than continue under Part 6, which appears to be the case”. Chasing emails were sent and it appears that the Claimant’s solicitor made a telephone call to the Ettien Community Housing Call Centre on 24 February 2017 and was advised to make a homelessness application online. This proved difficult and eventually on 4 July 2017 the Claimant’s solicitors wrote a Judicial Review Letter Before Claim.[27]By letter dated 31 July 2017 the Defendant wrote that they could find no trace of the letters in January 2017. It accepted the letter before claim as a homelessness application and recognised that the s188(1) duty “is likely to have been met” but that it was “extremely unlikely we will be able to make an immediate offer of temporary accommodation that will improve your client’s current situation.” By “met” the author clearly meant that the duty had arisen rather than that it had been performed.[28]By further Letter Before Claim on 20 November 2017 the Claimant’s solicitors complained of the Defendant’s failure to provide suitable interim accommodation or to make enquiries as required under Part VII. This prompted email responses from Mr Riding of the Defendant Council. On 28 November 2017 he wrote:
“At present the Council does not have accommodation that is any better than the current accommodation. We are in contact with procurement as they source properties but we are also looking into your client’s position on the housing register in terms of her position and further information on when it might be anticipated she could receive an offer of permanent housing.”
On 30 November he wrote:
“Your client requires a 3 bedroom property, adapted for wheelchair access with bathroom facilities on the same level as at least one bedroom/area that could be used as a sleeping area. The bathroom needs to have a wet room or level access shower. We are instructed a bath with an overhead shower will not work as Thomas cannot stand and is totally reliant on a wheelchair. Allocations and the procurement team have confirmed LBE has not had a 3 bedroom adapted property available. I have been assured not in the previous 12 months but likely longer. If necessary officers can check the historical records but they are sure about 12 months at the very minimum. The majority of interim accommodation is nightly paid…flats of this nature do not exist … even houses used as interim accommodation do not have the above requirements. As for the s.184 decision, I am instructed a decision will be made in 21 days.”
[29]In fact, no decision was communicated to the Claimant within that timescale. On 8 February 2018 she Claimant brought the claim for judicial review, which has been subsequently amended as already described.[30]On 19 February 2018 the Defendant notified the Claimant that they had determined that they owed the Claimant a full s.193 duty to provide accommodation and would make an offer shortly. This was recorded in the consent order of David Casement QC of 20 February 2018. It was confirmed in a letter of 22 February 2018. The Defendant stated in that letter that they intended to discharge its duty under s.193 by offering a tenancy in the private rented sector. Notification that 5 Lily Way had become available was given by letter of 5 March 2018 and the family accepted it and moved in on 14 March 2018.[31]Mr Lane, for the Defendant, told the Court, and it was not contested, that the accommodation on Lily Way was not found as a result of the Judicial Review claim having been brought, but that it would have become available at that point whether or not the claim had been made.

Statutory Provisions and Article 8

[32]Part VII of the Housing Act 1996 makes provision for local housing authorities to give housing assistance to homeless persons. Homelessness is defined under s.175. By s.175(1), “A person is homeless if he has no accommodation available for his occupation in the United Kingdom or elsewhere” which he has an entitlement, licence or right to occupy.”[33]A person may be without any home, sometimes referred to as “roofless” or “street homeless”, or they may be amongst the so-called “homeless at home”. By s.175(3), “A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.”[34]By s.176, “Accommodation shall be regarded as available for a person’s occupation only if it is available for occupation by him together with … (a) any other person who normally resides with him as a member of his family.”[35]By s.183(1) certain provisions under part VII apply, “… where a person applies to a local housing authority [in England] for accommodation, or for assistance in obtaining accommodation, and the authority have reason to believe that he is or may be homeless or threatened with homelessness.” Those provisions include: By s.184, a duty on the authority to “make such inquiries as are necessary to satisfy themselves – whether he is eligible for assistance, and if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.” By s.188(1), “If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part.” And by s.193, where “(1)… the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally …” (2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.” Under s.206:
“A local housing authority may discharge their housing functions under this Part only in the following ways – by securing that suitable accommodation provided by them is available, by securing that he obtains suitable accommodation from some other person, or by giving him such advice and assistance as will secure that suitable accommodation is available from some other person.”
[36]Under s.206(2) the authority may require a person in relation to whom they are discharging such functions to pay reasonable charges or amounts as they may determine for the accommodation.[37]If a person is a victim of acts by a public authority, including failures to act, which are incompatible with the European Convention on Human Rights, they may claim damages under The Human Rights Act 1998. S.6 provides that:
“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
Under s.7:
“A person who claims that a public authority has acted … in a way which is made unlawful by section 6(1) may – bring proceedings against the authority under this Act….”
By s.8:
“(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. “(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.” (3) No award of damages is to be made unless, taking account of all the circumstances of the case, including— (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. (4) In determining— (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.”
[38]Article 8 of the ECHR provides:
“Right to respect for private and family life 1 Everyone has the right to respect for his private and family life, his home and his correspondence. 2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Breaches of Part VII Housing Act 1996

[39]On behalf of the Claimant, Mr Carter submits that the Defendant authority were in breach of statutory duty: 1. By failing to accept a Part VII application and secure interim accommodation between March 2015 and July 2017; 2. By failing to secure interim accommodation between July 2017 and February 2018. The Claimant has not made her claim on the basis that there was a breach of s.193 of the Act giving rise to a contravention of Art. 8.[40]The Claimant applied to the Defendant for accommodation by making an online application on 19 March 2015. If the Defendant had reason to believe that she was or may be homeless or threatened with homelessness, then s.183(1) of the Housing Act 1996 triggered duties as set out in Part VII of the Act.[41]I bear in mind that many applicants, and even Social Workers advising them, may well not be familiar with the detailed provisions of Part VII of the Housing Act 1996. It is the substance of the information provided, rather than the form of any application, that should be taken into account by an authority. Just because an application is ostensibly by a “not homeless” applicant, and therefore might be regarded as being made under Part VI of the Act, it does not follow that it cannot constitute an application for the purposes of Part VII – R v Islington London Borough Council Ex p B (1997) 30 HLR 706 at page 710. The words “reason to believe that an applicant may be homeless” suggest a low threshold for the duties under Part VII to arise. In R (Aweys and others) v Birmingham CC [2007] EWHC 52 (admin); [2007] HLR 27 QBD, Collins J said at [8]:
“… in the vast majority of cases, the making of the application will mean that it is difficult if not impossible for the Council not to believe that the applicant may be homeless or threatened with homelessness. … If it is apparent from what is said by an applicant (for there is no requirement that an application be in writing) or from anything in writing that he may be homeless or threatened with homelessness, the duty is triggered. Thus if a person complains to a council that the conditions in his existing accommodation are so bad that he wants a transfer or needs to find somewhere else, it is likely that the duty will arise because of s. 175(3) even if there is no application based specifically on homelessness.”
[42]Here the Claimant specifically stated in the application that she was not homeless but under s.175(3) of the Act a person is homeless, even if they have a roof over their heads, if their home is not accommodation which it would be reasonable for them to continue to occupy. On the face of the Claimant’s application, the house was unsuitable for her son Thomas because he was a wheelchair user and needed “no stairs inside or out and wheelchair access.” [29P of the Trial Bundle]. The Defendant also had information from the OT assessment in October 2014 that Thomas could not access the toilet or bathroom which were upstairs, and that the property was not capable of suitable adaptation.[43]Accommodation that is unsuitable is not necessarily accommodation which it would not be reasonable for the Claimant to continue to occupy. However, given the “low threshold”, I find that in March 2015 the Claimant had applied to the Defendant for accommodation, and that on receipt of the March 2015 application, given that the authority already had the OT assessment from October 2014, the authority had reason to believe that she may be homeless as defined by s.175(3). Accordingly, s.183(1) of the Act was made out and so the later provisions of Part VII applied.[44]It follows that under s.184(1), the Defendant should have made such inquiries as were necessary to satisfy themselves whether the Claimant was eligible for assistance and if so, whether any duty, and if so what duty, was owed to her under Part VII. The Defendant does not dispute that at all relevant times the Claimant was eligible for assistance [s.185 of the Act] and was a priority applicant [s.189]. Mr Lane for the Defendant did not suggest that the Claimant was intentionally homeless at any time after March 2015. Accordingly, if the authority had continued to have reason to believe that the Claimant may be homeless, the interim duty to accommodate under s.188(1) arose.[45]The Defendant did not make a s.184 inquiry, but since the Court is being invited to find that the Claimant’s Art 8 rights were infringed (by breach of s.188(1)), it is important to consider what was done, and what difference a s.184 inquiry would have made. Although the Defendant did not treat the Claimant as having made a Part VII application, it did carry out some inquiry and obtained an assessment from a medical officer who concluded on 16 September 2015 that the living conditions for the family were “unsuitable” but the need for a move was not urgent. Arguably therefore, on receipt of that assessment, allied to the fact that previously the Defendant had made an unchallenged assessment that the Claimant was not homeless and her own description of not being homeless, the authority no longer had reason to believe that the Claimant may be in accommodation that it was not reasonable for her to continue to occupy, at least in the short term. Accordingly, at that time it might reasonably have concluded that it did not owe a duty to the Claimant under Part VII. The Authority was at least making some inquiry in response to the Claimant’s application.[46]Nevertheless, following receipt of further evidence by way of Ms Shirley’s letter of 29 September 2015, and the further assessment by a Medical Officer on 3 December 2015, there can be little doubt that the Defendant did have reason to believe that the Claimant may be homeless, and given the other requirements were met, the s.188(1) interim duty applied, under which the Defendant had a duty to secure that accommodation was available for the Claimant’s occupation pending a decision as to the duty owed to her under the later provisions of Part VII.[47]The s. 188(1) duty is not a duty to make suitable accommodation available within a reasonable time. The duty is not qualified and cannot be deferred. Nevertheless the Court will not enforce the duty unreasonably: R v Newham LBC ex parte Begum [2000] 2 All ER 72.[48]Mr Lane, for the Defendant, conceded that they had been in breach of statutory duty under s.188(1) from 31 July 2017 when they expressly acknowledged acceptance of a homelessness application and that s. 188(1) “is likely to have been met”. They did not secure interim accommodation after that date but the duty ceased in February 2018 when the authority made a decision that it owed a s.193 duty. On my findings, the Defendant’s s.188 duty to secure interim accommodation arose much earlier, in the first week of December 2015.[49]Did the Defendant breach its statutory duty under s.188(1)? In the present case the Court has to consider not just the question of breach of duty, but also infringement of Article 8. I shall address Article 8 later in this judgment, but consideration of whether there were breaches of the s.188(1) statutory duty are also relevant to the question of infringement of Article 8. I bear in mind the following matters: a The accommodation which the Defendant had a duty to secure as available had to be “suitable” accommodation [s.206]. The suitability of accommodation secured under Part VII must be judged in the context of homelessness, whereas accommodation made available under Part VI does not. The securing of accommodation under Part VII, and its predecessor provisions, has been referred to “a lifeline of last resort” – Pulhofer v Hillingdon LBC (1986) 1 AC 484 at 517 per Lord Brightman. b Any accommodation secured under s.188(1) would be on an interim basis. What is “suitable” for interim accommodation may not be “suitable” as permanent housing and vice versa. c When the Defendant did accept it had a s.188(1) duty, Mr Riding wrote to the Claimant’s solicitors (his email of 30 November 2017) that no suitable property had been available “for the previous 12 months but likely longer”. I have no direct evidence as to whether suitable interim accommodation might have been available from December 2015, but I accept that it would always have been difficult to secure the availability of suitable accommodation for the Claimant and her family. d The Defendant also relies on the witness evidence of Helen Stavrou but it is of limited use. She does speak to the “strenuous efforts” the Defendant has made to locate and source a property that would be suitable for the Claimant and her household over the 12 months prior to her statement (therefore from February 2017). She does not speak to any efforts made prior to February 2017 and she does not produce any documentary evidence to substantiate her claim that such strenuous efforts had been made after that date. The Defendant has a duty of candour and were there documents showing the efforts made to find suitable properties, I would have expected to see them. e The evidence shows that from January 2016 the Defendant had been seeking to secure suitable accommodation but as an allocation of housing under Part VI of the Act, not on an interim basis under s.188(1). The Claimant had been put in the Group 5 category, but no accommodation with level access throughout had become available. The Claimant had been warned of the difficulty there might be in finding suitable accommodation as a Group 5 applicant. As I understand it however, this allocation would have been from the Defendant’s own housing stock, whereas interim accommodation under a s.188 duty might be secured from the private sector. The pool of housing from which suitable accommodation could have been secured might therefore have been greater had the s.188 duty been recognised from the end of 2015. It might also have allowed for interim housing to be secured which did not provide level access throughout but did improve the living conditions and access to toilet and bathroom facilities for Thomas.[50]This is now a damages claim and the burden of proof lies on the Claimant to prove infringement of her Article 8 rights. The alleged breaches of statutory duty form the basis of the claim but I am satisfied that the Defendant has the burden of establishing that it complied with the s.188(1) duty from December 2015. I have found that the statutory duty under s.188(1) arose in December 2015 and it is accepted that no accommodation was in fact secured until that duty ended in February 2018. Only the Defendant would be able to produce evidence of the availability of accommodation and the steps taken to secure it. There is a duty of candour on the Defendant and it has not disclosed any evidence of specific steps taken to secure interim accommodation, or that, from December 2015 to November 2016, it would not have been possible to secure suitable interim accommodation even if steps had been taken. Mr Lane accepted in submissions that there was a burden on the Defendant to demonstrate that it had taken reasonable steps to comply with its duties. 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.

Breach of Article 8 – Case Law

[51]As was accepted by Counsel, breaches of statutory duty under Part VII of the Housing Act 1996 do not, by themselves, constitute a contravention of Art. 8.[52]In Morris v The London Borough of Newham [2002] EWHC 1262 (Admin) Jackson J had to determine a claim for damages under the Human Rights Act for contravention of Art 8 following breaches of duty under Part VII of the 1996 Act. He noted at [37] that it is not possible to claim damages in tort for negligence or breach of statutory duty against a local housing authority which has failed to provide accommodation as required by the Housing Act – O’Rourke v Camden London Borough Council [1998] AC 188.[53]He reviewed authorities from the European Court of Human Rights and at [59] extracted the following propositions of law:
“1. Article 8 of the European Convention of Human rights does not impose on a public authority a duty to provide a home to a homeless person. 2. The fact of homelessness may be relied upon as one element of a claim that a person’s rights under Article 8 to private or family life have been breached. However, homelessness by itself cannot found such a claim. 3. A homeless person has no right in tort to recover damages against a local authority for failure to provide accommodation, in accordance with duties imposed by Part 7 of the Housing Act 1996. 4. Absent special circumstances which interfere with private or family life, a homeless person cannot rely upon Article 8 of the European Convention on Human Rights in conjunction with Part 7 of the Housing Act 1996 in order to found a damages claim for failure to provide accommodation.”
[54]In applying those principles to the case before him, Jackson J noted at [61] that the claimant had not been evicted from existing accommodation by the defendant, the claimant and her family had been forced to live in grossly overcrowded and unsatisfactory accommodation for 29 weeks, the non-performance of statutory duty had not caused separation of the claimant from her children and the claimant’s health problems were not so great that failure to provide suitable accommodation had given rise to a breach of her right to private life. In the circumstances he concluded that the claimant had not established a breach of her right to private or family life.[55]In R (Bernard) v Enfield London Borough Council [2002] EWHC 2282 Admin; [2003] HLR 27, Sullivan J gave judgment in a damages claim following a failure to provide residential accommodation under s.21 of the National Assistance Act 1948. Although that case concerned the provision of suitable accommodation under a different statutory framework from Pt VII of the Housing Act 1996, Mr Lane accepts that the principles were effectively the same as in the present case. Mrs Bernard, the Second Claimant, had suffered a stroke as a child leaving her with right hemiplegia with spasticity in the right upper and lower limbs, shortening of her right lower limb and hypertension. She was a wheelchair user but unable to access much of the house in which she resided with her husband, the First Claimant, and their six children. An assessment had found her to be “confined to the lounge room where her bed is. The room is shared with her husband and two youngest children.” She sat in a shower chair for most of the day. Mr Bernard had to lift his wife into the bathroom for washing and toileting facilities. He had to care for their children without her help because of the restrictions imposed by the accommodation. Mrs Bernard had no privacy. The front door opened onto the room to which she was confined.[56]A recommendation for suitable accommodation had been made in September 2000, following the assessment but “for some unexplained reason the recommendation of the defendant’s social services department was not acted upon by the defendant’s housing department” [11]. Indeed, in February 2002 a notice of an intention to evict had been served on the Claimants. The Court had no evidence or explanation at all of the failure to act on the assessment and recommendation, to answer correspondence and representations over subsequent months and to provide suitable accommodation until the commencement of judicial review proceedings. The family was accommodated in a suitable home in October 2002.[57]Sullivan J did not accept that the Defendant’s breaches of duty amounted to a contravention of Art. 3 of the Convention. In relation to Art 8 he held at [31]:
“Under Article 8 the claimants are entitled to respect for their “private and family life”
. While the main thrust of Article 8 is to prevent arbitrary interference by public authorities with an individual’s private and family life, the European Court of Human Rights has recognised that Article 8 may require public authorities to take positive measures to secure respect for private and family life”[58]He then referred to Botta v Italy [1998] 26 EHRR 241, in which the Court said at [32] to [34]:
“[32] Private life: in the Court’s view, includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. [33] …there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. However the concept of respect is not precisely defined. In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, while the State has, in any event, a margin of appreciation … [34] The Court has held that a State has obligations of this type where it has found a direct and immediate link between the measures sought by an applicant and the latter’s private and/or family life.”

Article 8 of the Convention is primarily intended to ensure the

[59]Sullivan J accepted that not every breach of duty under s.21 of the 1948 Act will result in a breach of Article 8, but, at [32] “…those entitled to care under section 21 are a particularly vulnerable group. Positive measures have to be taken (by way of community care facilities) to enable them to enjoy, so far as possible, a normal private and family life. In Morris, Jackson J was concerned with an unlawful failure to provide accommodation under Part VII of the Housing Act 1996, but the same approach is equally applicable to the duty to provide suitably adapted accommodation under the 1948 Act. Whether the breach of statutory duty has also resulted in an infringement of the claimants’ Article 8 rights will depend upon all the circumstances of the case. Just what was the effect of the breach in practical terms on the claimants’ family and private life?”[60]Sullivan J found that suitably adapted accommodation would have secured Mrs Bernard her physical and psychological integrity, allowing her to function as a carer for her children, to have allowed her to operate as a person in her own right rather than as a burden, wholly dependent on the rest of her family. It would have restored her dignity as a human being – see [33]. The Council’s failure had, he found, condemned the claimant to living conditions which made it virtually impossible for them to have any meaningful private or family life for the purposes of Article 8. Accordingly, he found that the failure by the Defendant in that case to act on assessments of need for a period of 20 months was incompatible with the Claimants’ rights under Article 8 – [34]. Both Mr and Mrs Bernard’s Article 8 rights were infringed.[61]On reviewing this decision in Anufrijeva v Southwark LBC [2004] QB 1124, the Court of Appeal held at [43]:
“Our conclusion is that Sullivan J was correct to accept that article 8 is capable of imposing on a state a positive obligation to provide support. We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage article 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, article 8 may require the provision of welfare support in a manner which enables family life to continue… Family life was seriously inhibited by the hideous conditions prevailing in the claimants’ home in Bernard and we consider that it was open to Sullivan J to find that article 8 was infringed on the facts of that case.”
[62]The Court of Appeal went on at [45] to note that before inaction can amount to a contravention of Art 8, there must be some ground for criticising the failure to act, an element of culpability and, at the very least knowledge that the claimant’s private and family life were at risk.[63]At [46] the Court of Appeal noted that:
“Where the complaint is that there has been culpable delay in the administrative process necessary to determine and to give effect to an article 8 right, the approach of both the Strasbourg court and the commission has been not to find an infringement of article 8 unless substantial prejudice has been caused to the applicant.”
[64]And at [47]:
“The Strasbourg court has rightly emphasised the need to have regard to resources when considering the obligations imposed on a state by article 8. The demands on resources would be significantly increased if states were to be faced with claims for breaches of article 8 simply on the ground of administrative delays.”
[65]In R(Aweys) v Birmingham CC [2007] EWHC 52 (Admin); [2007] HLR 27, Collins J was concerned with a local authority’s duties under the Housing Act 1996 in relation to six claims raising common issues. In two of the claims, damages had been claimed for infringement of Art 8. The Court was not asked to determine those Art 8 damages claims but only whether they could be pursued. He allowed the Art 8 damages claims to continue. Having referred to both Morris and Bernard, he noted that the situations in the two claims were “not as bad” as that which applied in Bernard, but that “Much will depend on the court’s view of the effect of the failure to provide suitable accommodation on the claimants and their families. There has been no physical break up of the family: they have remained together. But that is not determinative; as Bernard shows, there may nonetheless be an interference.”[66]Neither Counsel before me could point to any judgment awarding damages for contravention of Art 8 following breaches of Part VII of the Housing Act 1996. Nor have I been directed to any recent decision of the Strasbourg court in which the positive obligations to protect private life under Article 8 have resulted in a damages award.

Breach of Art 8 – Application to the Facts

[67]Ms McDonagh has carried a heavy burden over the past few years. She has left her home in the Republic of Ireland to escape domestic violence, and brought her three children to London. She has had to look after Thomas and her other children in extremely difficult circumstances and it is a testament to her devotion and character that she has managed to do so. Thomas has needs for care and assistance whatever the state of his accommodation. I have seen both Ms McDonagh and Thomas in Court. He is a well-built young man. It must have been particularly difficult, physically as well as emotionally, for his mother to look after him for the years when they were at Aberdeen Road. Of course, the primary impact of the unsuitable accommodation was on him but I must consider his mother’s claim for damages.[68]There are some close similarities between the effect of unsuitable accommodation on the Second Claimant in Bernard, and on Thomas in the present case. I accept that the Article 8 right to a private life includes a person’s right to physical and psychological integrity which might be infringed if they are unable, for example, to access a toilet or washing facilities at home for a prolonged period or, potentially, if their private and family life is grossly undermined by having to look after a family member because they do not have such access. There are also close comparisons between the statutory obligations under s.21 of the National Assistance Act 1948 and Part VII of the Housing Act 1996. I accept that that Article 8 may create positive obligations on public authorities involving the adoption of measures designed to secure respect for private life, and that breaches of duty under Part VII of the Housing Act 1996 may, depending on all the circumstances of a particular case, give rise to a finding that a public authority has acted incompatibly with the positive obligations under Article 8. However, having considered all the circumstances of the present case, in my judgment the defendant has not acted incompatibly with Article 8 and the Claimant is not entitled to damages under the Human Rights Act. A number of matters have led me to that conclusion.[69]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.[70]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.[71]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.[72]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.[73]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.[74]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.

Remedy

[75]Having found that there has been no infringement of the Claimant’s Article 8 rights, I shall deal only briefly with the questions of remedy and the quantum of damages. These would only have arisen for more detailed consideration had I found there to have been an infringement.[76]Contravention of Article 8 would have allowed the Court to award damages under the Human Rights Act, but s.8(3) provides that no award of damages is to be made unless in all the circumstances of the case the court is satisfied that the award is necessary to afford just satisfaction. The Court has not made any substantive orders in the judicial review claim, given the Defendant’s decision to accept the full duty under s 193 of the 1996 Act in February 2018. The Defendant has not made any apology. There is no other remedy available to the Claimant for the breaches and infringement.[77]I take into account that the Claimant has now been secured suitable accommodation which, it is clear from her second witness statement, has brought about significant improvements in Thomas’s quality of life. For the reasons given above, the breaches by the Defendant were not in my judgment egregious. They did take steps to find accommodation There is no evidence of any pecuniary losses save for a claim that the Claimant has spent about £90 on paint due to scuffing damage caused by Thomas’s wheelchair. I am not persuaded that that was expenditure attributable to any breach of duty by the Defendant. Any damages would therefore be purely non-pecuniary. Damages are not compensatory, they are not akin to a personal injury award for pain suffering and loss of amenity, but rather the Court must have regard to the principles applied by the European Court of Human Rights, where relatively modest awards have been made.[78]In my view it would not have been necessary to afford just satisfaction to award damages to the Claimant. Damages would only mark the infringement and would not compensate the Claimant. In all the circumstances it would afford just satisfaction for the Court to make a declaration that the Defendant had acted incompatibly with the Claimant’s Article 8 rights but not to award damages.[79]If I had awarded damages I would have done so in the sum of £2,000. That is the sum awarded to Mr Bernard. Although that was some time ago and adjustment for inflation should be allowed for, I do not believe that the seriousness of the breaches in this case match those in his case. I reject the Claimant’s submission that this would be a suitable case for aggravated damages – this is not an exceptional case of the kind which might justify such an award.

Conclusion

[80]I find that the Defendant was in breach of its statutory duty under s.188 of the Housing Act 1996 from December 2015 to February 2018 but in all the circumstances of the case it did not act incompatibly with the Claimant’s Article 8 rights. I therefore dismiss the Claimant’s claim for damages under the Human Rights Act.

Cited in 5 later judgments