X & Anor v London Borough of Hounslow [2008] EWHC 1168 (QB)

[2008] EWHC 1168 (QB)

Case No HQ03X03456

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 23/05/2008

Before

MR JUSTICE MADDISON

Between

X (1)Claimant

Y (2)Claimant

LONDON BOROUGH OF HOUNSLOWDefendant

Elizabeth-Anne Gumbel QC and Henry Witcomb (instructed by Leigh Day & Co.) for Claimant

Andrew Warnock (instructed by Barlow Lyde & Gilbert) for Defendant

Hearing Hearing dates: 4-8 & 12 February 2008

Judgment

Mr Justice Maddison :

INTRODUCTION

[1]The Claimants, X andY, who are both protected parties proceeding by the Litigation Friend, the Official Solicitor, claim damages against the Defendant, the London Borough of Hounslow. The claim arises out of what on any view can probably be described as an ordeal which the Claimants suffered in their own home at the hands of local youths during the weekend of Friday 17th to Sunday 19th November 2000. For convenience, I will refer to this as “the relevant weekend”. Where it is necessary to refer to the Claimants separately, I will do so by using their first names.

[2]The Claimants’ home was 60 Frank Towell Court in Feltham, a two-bedroomed flat to which I will refer either as “No.60”or as “the flat”. The Defendant was the owner and landlord. No. 60 was on the 9th (and top) floor of a block of flats. Y had lived there since 1993, when she signed a tenancy agreement and moved in with her daughters A and B, Y being no longer with the girls’ father. In 1998, Y had met X at a party, and X had moved into No.60 in or about July of that year. On 23rd January, 1999 X and Y were married. By the time of the relevant weekend, X, Y, A and B were 44, 38, 11 and 8 years of age respectively.

[3]X, Y and A all had learning difficulties. Though the family was able to live as a unit in the community, it functioned at a low level in some respects, and was seen as vulnerable, as will appear in more detail later in this judgment. Two sections of the Defendant’s Social Services Department had been engaged with the family prior to the relevant weekend. These were the Community Team for People with Learning Disabilities (“CTPLD”) and the Children and Families section (“C & F”) to both of which I will return in due course.

[4]For a period of time prior to the relevant weekend the Claimants had been befriended and then taken advantage of by a number of youths. It is not known exactly when this began to happen, but the evidence suggests that it probably did so at or about the end of the summer of 2000. As time went by some of these youths would use the Claimants’ flat as a place at which to live, take drugs, engage in sexual activity, leave stolen goods, and generally misbehave. X was assaulted quite seriously in a MacDonald’s restaurant on 11th October 2000 by one of the youths, who believed that X had “grassed” on him in relation to some stolen goods found by the police at No.60 on the previous day.

[5]During the relevant weekend the Claimants were effectively imprisoned in their own home, and repeatedly assaulted and abused, often in the presence of the two children. Both Claimants later made statements to the police, describing their ordeals. What follows is intended only as a brief summary. X said that at one stage the youths confined him and Y to their bedroom, and made them perform sexual acts. They threw many of’X’s and Y’s possessions over the balcony. They forced pepper and fluid into X’s eyes. They locked him in the bathroom for a time, in the dark. They made him drink urine, eat dog biscuits, dog faeces and the faeces of one of the youths, threatening him that he would be stabbed if he did not. They made him put a vibrator up his bottom, and then lick it. They sprayed kitchen cleaner in his mouth, face and hair. They slashed him repeatedly all over his body with a knife or knives. X’s statement was to similar effect, adding that she too was made to put the vibrator in her mouth. The children too were abused, assaulted and locked in their bedroom from time to time. Even the family dog was abused. It is unnecessary to go into further detail, or into the physical and psychological injuries suffered by the Claimants as a result. Damages have been agreed, subject to liability. Liability, however, is hotly in dispute. I will return to the arguments in much more detail later. For introductory purposes I will confine myself to saying that the Claimants submit, amongst other things, that the Defendant, through its Social Services and Housing Departments, should have foreseen that the Claimants were in imminent physical danger at No. 60, and should have arranged for them to be accommodated elsewhere. For this failure, it is said, the Defendant is liable in the tort of negligence, and under sections 6 & 7 of the Human Rights Act, 1998, having acted in a manner incompatible with the Claimants’ rights under Articles 3 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In paragraph 5.3 of the Particulars of Claim it is pleaded that the Defendant is also liable in the tort of nuisance, but that claim is no longer pursued. For its part, the Defendant denies that it owed the Claimants any duty of care. The Defendant points out that in no previous case (as Counsel for the Claimants acknowledged in argument) has a local authority been held to be under a duty of care to protect vulnerable adults from abuse by third parties. Any failings in this regard are justiciable if at all, only within the forum of public law, and not by way of actions for damages of the kind brought here. Still less, says the Defendant, did it breach any such duty of care. What happened during the relevant weekend was caused by third parties, and was not reasonably foreseeable. THE DEFENDANT’S DEPARTMENTS AND STAFF.

[6]Because they will be referred to frequently during this judgment, I propose to deal briefly at this stage with the Defendant’s departments and the roles performed within them by some of the Defendant’s staff, insofar as they are relevant to the case.

[7]I begin with the Social Services Department, which had within it different sections dealing with adults and children. Sue Spurlock became the Assistant Director of Adult Social Services in April 2000. She is now the Acting Director. As will appear, she gave evidence on behalf of the Defendant. However, she had never been directly responsible for the Claimants’ cases, and had never met X.

[8]Within Adult Social Services was a team which dealt specifically with adults with learning disabilities. This was the CTPLD to which I have already referred. Sue Spurlock explained in evidence that this team provided supportive services to such adults, whilst trying to help them to live as independently as possible.

[9]At different times, the CTPLD provided psychiatric nurses and social workers for Y, and a social worker for X. I deal first with Y. From 2nd January 1995 to 18th May 1998 Louise Ellis, a community psychiatric nurse, was appointed to work with Y. Then after a gap of some months, Joe Darrow was appointed in a similar capacity from 30th November 1998 until 23rd July 1999. Neither of these nurses gave evidence. Meanwhile, on 4th February 1998 a student social worker, Terry Murphy, who similarly did not give evidence, was allocated to Y’s case. He was replaced on 20th August 1999 by Tajinder Hayre, a recently qualified social worker who was still allocated to Y’s case at the time of the relevant weekend. Tajinder Hayre did give evidence.

[10]Turning to X, no community psychiatric nurse was ever allocated to his case by the Defendant. Neither was a social worker allocated to him until 23rd March, 2000, when, Tajinder Hayre became his social worker as well as Y’s. It is right to observe that X was independently-minded, and resistant to what he saw as interference by the Social Services Department.

[11]Before leaving the CTPLD for the moment, I add for the sake of completeness that Tajinder Hayre’s immediate supervisor was Joanne Rawles. She was often referred to in the evidence, but did not herself give evidence.

[12]Within the Social Services Department was also a separate Children and Families section (“C & F”). Sue Spurlock gave evidence that this section was responsible for the welfare of children and for assessing whether they were at risk and if so what steps should be taken to address such risk. Sometimes a social worker would be allocated to a particular child, in which case the social worker would visit the child on a weekly or fortnightly basis. Otherwise, the case of a child who was a “client” would be considered by the duty or “backup” team, consisting of social workers working on a rota basis. A social worker would always be available to respond to particular calls in such a case, but there was no continuity of social worker.

[13]From 2nd February 2000 until mid-April 2000 C & F allocated a social worker, Heidi Vogel, to A’s case. Otherwise, neither of the children ever had an allocated social worker, and their cases were dealt with by duty social workers. One such, Karen Wan, took an interest in A’s case in particular from April 1999 when, as will appear, a variety of different concerns were expressed about A. Neither Heidi Vogel nor Karen Wan gave evidence.

[14]I deal finally with the Defendant’s Housing Department, sometimes referred to in the evidence as “Hounslow Homes”. This Department carried out different statutory functions, to some of which I will return in due course. Broadly, the Department was responsible for the provision and allocation of council housing and, where appropriate, for the transfer of tenants from one residence to another. Ljijuna Scully, who did not give evidence, was the Neighbourhood Area Manager of Hounslow Homes at the relevant times. Narinder Padwal, who did give evidence, was a Housing Equalities Officer in 2000. He was responsible, amongst other things, for transfers of the kind just referred to. Neghet Khan was another Equalities Officer. She did not give evidence.

[15]In 2000, the Estate Manager directly responsible for Frank Towell Court was usually Carole Nuamah. However, before the relevant weekend she went on secondment to another position, and her place was taken on a temporary basis by Marie Henderson, an experienced housing officer who came out of retirement to fill the position temporarily. Marie Henderson also gave evidence on behalf of the Defendant. Unsurprisingly, she was unable to recall exactly when she took over from Carole Nuamah but to the best of her recollection it was in late October, 2000. For completeness, I add that Asif Rashid who gave evidence, has been the Defendant’s Re-housing Group Manager since about November 2006. Prior to that, he worked for another local authority.

THE CLAIMANTS’ DISABILITIES

[16]It is convenient at this stage to deal briefly with the evidence relating to the Claimants’ learning disabilities.

[17]I begin with X. The evidence about his early history is comparatively limited, and is drawn from the written and oral evidence of his mother, Z, and a report by Professor Patricia Howlin, a Consultant Psychologist, dated 18th August 2003 which was annexed to Z’s witness statement. Briefly, in childhood X reached all his developmental milestones very late. After 2 years in mainstream education he moved to a specialist boarding school until he was 16. In young adulthood he spent 5 to 6 years in a psychiatric hospital in Epsom. In July, 1998 he was living in a council flat in the London Borough of Wandsworth. Wandsworth Social Services instructed David Cotson, a clinical psychologist, to examine and assess X. Mr Cotson assessed X’s full-scale I.Q. at 72, placing X in the “borderline-mild range of learning disabilities”. His report also stated that X appeared to have a significant dyslexic problem. Mr Cotson’s conclusions included the following:

“(5) The impact of his disabilities are such that he appears essentially able to cope with the demands of everyday living, but requires some help with reading, and tasks requiring an ability to read (reading letters, attending to bills etc.). (6) His lifestyle seems a little chaotic, and it seems possible that he has a mildly impulsive personality that could occasionally get him into trouble. However he has no marked personality difficulties that would require specific help or support. (7) He is clearly keen to maintain his independent lifestyle, and whilst there might be occasional social difficulties in the future, there seems no reason to provide more support to X than he is currently receiving (i.e. occasional social support and help with reading letters (bills etc…..). ”

[18]X was twice further assessed after the relevant weekend. In June 2001 he was assessed by Sarah Sterne a Consultant Clinical Psychologist. He came overall just within the borderline range of intellectual functioning with a full scale I.Q. of 76. He was seen as being at risk of being exploited and abused, this being partly related to his friendly nature, trust of people and some impulsivity.

[19]The next assessment of X was on 7th August, 2003 when he was examined by Professor Patricia Howlin, to whom I have already referred. The tenor of her report was rather more pessimistic than that of Mr Cotson. She described X as socially extremely vulnerable, seemingly unable to recognise the signs that someone was trying to take advantage of him, and unable to protect himself from abuse. On a test of expressive vocabulary his score was around the level of a child aged 9½ to 10 years, and his understanding of language was that of a child aged about 8. He clearly had mild learning disabilities. Professor Howlin also diagnosed autistic spectrum disorder, but it is right to observe that that condition had not been diagnosed when the Defendant was engaged with X.

[20]Such lay evidence as throws light on X’s condition supports these assessments in general terms, whilst tending in my judgment towards Professor Howlin’s rather more pessimistic view of X’s condition. As will be seen from the chronology of events later in this judgment, X was repeatedly described by the Defendant’s members of staff as vulnerable, and not well able to judge when people presented threats or danger to him. Much the same was said by Tajinder Hayre during her oral evidence. She added that X presented differently from other people, and that children would call him names. She did, however, also state that X was sometimes able to detect danger, had a few genuine friends and had a good relationship with Y.

[21]It is to Y that I now turn. I have seen no formal assessment of her condition prior to the relevant weekend, though after it in June 2001 she, like X, was assessed by Sarah Sterne. Y came overall within the borderline range of intellectual functioning, with a full scale I.Q. of 79. She was seen as needing support in relation to budgeting, hygiene, cleanliness, household duties and management, responding appropriately to correspondence, and what was described as “engagement/socialisation”.

[22]In August 2001 Y’s general practitioner Dr Sylvia Roberts certified Y as severely mentally impaired as defined by the Local Government Finance Act 1992; and in a letter dated 10th September, 2001 Dr Roberts confirmed that Y had learning difficulties. Indeed, Y is described throughout the papers in the case as having a learning disability. Z described Y as slightly more able than X, which is consistent with other evidence in the case. However, Y’s disability has been sufficient adversely to affect her ability to maintain the family home to a reasonable standard, and her ability to ensure the safety of her children. This will become more apparent in the chronology soon to follow.

[23]It is appropriate to mention at this stage that X’s mother, Z, an articulate and forthright woman who gave written and oral evidence, would often act in effect as an advocate for X, Y and the children, providing information and expressing concerns to the Defendant’s Social Services and Housing Departments which the Claimants themselves were unable or unwilling to provide and express. This too will become apparent from the chronology which now follows.

CHRONOLOGY OF EVENTS

[24]A great deal of evidence concerned events during the 6 years or so preceding the relevant weekend. I propose to summarise much of this evidence, though omitting that which in my view can have no significant bearing on the outcome of this litigation. The summary will be as brief as I can properly make it, but this is important evidence since it shows the factual background against which the events of the relevant weekend will have to be considered. It also helps to determine which if any of the Defendant’s statutory powers and duties were engaged. Further, it shows which of the Defendant various departments knew what about concerns relating to the safety and well-being of the Claimants, A and B which, say the Claimants, mounted during this period and ultimately imposed on the Defendant a duty to take steps which were not taken but would have prevented the events of the relevant weekend. Practically all of this evidence is agreed. Unless otherwise stated, what follows is drawn from the documents in the files of the Defendant’s Social Services and Housing Departments, from Y’s medical records, and from the reports in 2002 by Mr C. A. J. Sheppard and by Ann Tilt to both of which I will return later in this judgment.

[25]I begin with the period from 1993 when Y moved into No. 60 until the time in 1998 when X too began to live there.

[26]During this period, X was living in Wandsworth. The files of Wandsworth Social Services show how they approached X’s case. They recognised that because of his trusting nature and his learning disability he was vulnerable in a number of ways, particularly to financial and emotional abuse, and that there was a risk of his neglecting himself. However, they thought it reasonable to support him in his firm wish to continue living in his own accommodation, notwithstanding his mother Z’s view that he needed a more supportive environment. It was noted that he could use public transport and find his way around London unassisted. Wandsworth Social Services did not provide X with an allocated social worker. They did arrange for Mr Cotson’s psychological assessment to which I have referred, but it was at about this time that X moved to No. 60, and thus into the Defendant’s area.

[27]Meanwhile at No. 60 the effects of Y’s learning disability became apparent quite early during the period presently under consideration. In October 1994 a Schedule 1 sex offender was found staying at the flat, and a C & F social worker noted that “Y has difficulty in saying ‘no’ to people and the child protection message must be enforced.” In 1995 Louise Ellis, the community psychiatric nurse, carried out a community care assessment in which she commented:

“Y is often the victim of people more assertive than herself and finds it difficult to say no. Her domestic skills are at a basic level.”

On 26th July 1996 Karen Wan noted that “Y appears very childlike and unable to protect herself or the children”. On 27th May 1997 Y’s general practitioner noted that she was finding it extremely difficult to cope and that “the C.P.N. is worried about her and feels she is deteriorating”. The general practitioner referred Y to a consultant psychiatrist but, for reasons not explained by the evidence, the community psychiatric nurse cancelled two appointments made for Y.

[28]It also became clear during this period that Y was not finding life at No.60 easy. On 23rd June 1995 she applied to the Defendant to be re-housed. The application form refers to her difficulty in coping with life on the top floor of the block of flats. By 29th May 1996 nothing had happened, and Louise Ellis wrote to the Defendant’s Housing Department expressing concern about reported arson attacks on No. 60, and about Y’s ability to provide some hope for herself and her family should they be trapped inside; and asking that the family be considered for urgent reallocation. Louise Ellis again asked for the allocation of a more suitable property by letter dated 9th August, 1996. In fact by November, 2000 the application for re-housing was still outstanding. Tajinder Hayre said in evidence, and I accept, that this state of affairs indicated how acute was the shortage of social housing in the Hounslow area of London.

[29]I now deal in rather more detail with the period between X’s moving in to No.60 and the relevant weekend. Jo Darrow, appointed in 1998 as Y’s community psychiatric nurse, found her difficult to contact and noted that Y repeatedly cancelled appointments. It can be inferred from this, and from the evidence of Tajinder Hayre, that X’s desire to be independent and his reluctance to engage with social services came to affect Y’s attitude as well. X’s arrival did not allay the concerns that had been previously expressed about Y, indeed, such concerns now came to be expressed about all members of the family. Events in April, 1999 illustrate the point.

[30]On 7th April Jo Darrow wrote to the “duty social worker” expressing concerns about A’s attendance, progress and presentation at school, and about the increasingly dirty and untidy condition of the flat. This was followed up by a professionals’ meeting on 21st April, attended by Jo Darrow and Terry Murphy amongst others. At that meeting it was noted that men had often stayed in Y’s flat, one of whom was a suspected paedophile, though he was no longer “on the scene”; and concerns were expressed about Y’s vulnerability and ability as a parent. The deteriorating condition of the flat was again referred to. When the girls played downstairs away from the flat both were vulnerable, A in particular because of her apparently limited ability to know how to react appropriately to men. The minutes record that “the social work department were urged to pursue the housing angle”, and on 23rd April Terry Murphy did indeed contact the Defendant’s Housing Department, only to be told that the family were very unlikely to be moved in the near future, having insufficient points under the Defendant’s re-housing scheme to be eligible for a move. They needed 70 points and only had 45. Arising out of this conversation Terry Murphy made a written note that “Hounslow are not moving anybody on the transfer list. They have a shortage of council houses and the homeless take priority.”

[31]This prompted Terry Murphy to write on 30th April 1999 to the Defendant’s Director of Housing, emphasising the risk to the children when playing outside the flat and concluding:

“Surely this is justification enough to make them a priority case, or does a catastrophe have to happen first?”

. In the end, it was a catastrophe in the form of the events of the relevant weekend that led to the Claimants and their children leaving No.60, but it is important to note that Terry Murphy had in mind a different sort of catastrophe, in the form of the girls coming to harm whilst playing away from the flat.

[32]Another professionals’ meeting was held on 18th June, 1999 again attended by Jo Darrow and Terry Murphy amongst others. The dirty and unkempt condition of the flat and Y’s reluctance to see the community psychiatric nurse since she married X were amongst the matters discussed. The latter was referred to as heightening concern over the welfare of the children. Such concern was not, it seems, without cause. On 6th July 1999 A’s genitals were observed by a teacher to be swollen and “adult like” when she was taking a shower at school. Then on 5th August 1999 Z informed Tajinder Hayre that a man called Andy, a friend of X, had taken the girls to his one-bedroomed flat in Wandsworth for 4 days before returning them. Y subsequently confirmed that this had happened, saying that Andy had a blow up bed for when the children stayed. Also on 5th August, 1999 Z told Tajinder Hayre that X was being harassed and threatened by a gang of boys, and had on the previous Monday been threatened with a knife. Z was clearly anxious to make the Defendant aware that such harassment had been a recurring feature of X’s life, and on 2nd August had written to the Defendant’s Housing Department informing them that when X had lived in his own flat in Wandsworth he had been continuously abused by people who had pretended to befriend him, and had been attacked 6 or 7 times, once at knifepoint.

[33]On the 11th August 1999 Karen Wan and Tajinder Hayre visited No.60. The flat was very untidy and smelled strongly of animal urine. They spoke to Y about the concerns that had been raised for the safety of the family as a whole and the children in particular. Karen Wan’s notes of the meeting referred to the family as “extremely vulnerable”. Tajinder Hayre made a further visit to No.60 on 24th August. Again the flat stank of urine. The floor was covered in dog faeces, and the flat was very untidy. A was dressed in clothes that were too small for her. The Claimants both said that they could manage without more support.

[34]In September, 1999 Jo Darrow wrote her final report, having ceased working with Y in July, because Y would not accept support and kept cancelling appointments. Jo Darrow wrote: “As a final comment, I feel that if the family were able to be re-housed into a larger, preferably ground floor flat or bungalow, this would have a positive impact on the family”.

[35]On 3rd September, 1999 Z informed Karen Wan, who informed Tajinder Hayre, that X had been tormented by a group of local youths and that she (Z) felt that the family needed sheltered housing. On 24th September the police received a report that Andy had tried to break in to No. 60 using a crowbar and hammer. On 30th September Karen Wan sent to David Brookes, to whom I will return in the next paragraph, a fax message saying that she was extremely concerned about the family, which lacked skills in self-protection, was very trusting, did not always understand and did not ask for help. (Commenting on this message when giving evidence, Sue Spurlock said that she would not disagree with what Karen Wan had said. Social Services believed that the Claimants could manage some areas of their lives, but not all.)

[36]On 4th October, 1999 the Defendant’s Social Services Department held a family support planning meeting. It was chaired by David Brookes, as Planning and Review Officer. Y was amongst those present, but X was not. Z was also amongst those present, with her friend Audrey Beaton, whose written evidence I have read. Audrey Beaton co-ran a therapeutic support group at the Wimbledon Guild, a charitable organisation based in south-west London. She had previously visited No.60 which she regarded as completely unsuitable for children, and had observed what she described as “a sense of chaos”. Karen Wan of C & F was also present, but Tajinder Hayre was sick, and no representative of CTPLD was present. The meeting was directed towards the welfare of A and B rather than that of the Claimants, but many of the concerns referred to earlier in this chronology relating to all the members of the family surfaced again. These included X’s having been harassed in Wandsworth and Hounslow. The family was described as “extremely vulnerable and needy”. The meeting decided that the family should receive continued support from CTPLD and C&F; that pressure should be applied to the Housing Department in relation to the application (now some 4 years old) for re-housing; and that a follow-up meeting should take place on 11th January 2000. (In fact, no such meeting ever took place).

[37]On 5th November, 1999 Tajinder Hayre contacted Carole Nuamah of the Housing Department to be told that the family still only had 50 points, insufficient to qualify for a transfer. On 25th November a meeting was held between Tajinder Hayre, Helen Baker, a duty officer from C & F, a teacher from A’s school, and Mike Crow of MENCAP who became involved at the request of Z. Similar concerns were expressed to those expressed at earlier meetings. Tajinder Hayre said that she had referred Y with her consent to the Link Project (which provided support in relation to independent living skills) but she had not attended. All present agreed to write letters supporting the family’s case for re-housing.

[38]On the 2nd December 1999 the Claimants completed an “application for Transfer of Tenancy Form”. This presumably superceded the application completed by Y on 23rd June 1995. One might have thought that this new application, like its predecessor, was doomed to failure because of a lack of points. However, this matter was not explored in evidence, and I note that on 8th December 1999 Carole Nuamah signed the application form as “recommended”. Despite this, the application had not succeeded by the time of the relevant weekend. On 23rd December 1999 the Claimants themselves informed C & F of the harassment they were experiencing on the estate, especially in the form of name-calling of X and A. They were advised to keep records of all incidents and to pass these to the Housing Department and the local police. On 30th December 1999 Tajinder Hayre wrote to C & F asking them to allocate a social worker as a matter of urgency.

[39]As previously mentioned, Heidi Vogel was allocated on 2nd February 2000 as the social worker for A and B, though she remained in that position only for some two months. Though the girls’ social worker, Heidi Vogel appears quickly to have formed the same impression of X as had others previously. On 11th February 2000 she wrote to CTPLD saying that X presented as an extremely vulnerable adult. The letter went on:

“he experiences difficulty in areas such as managing family budget, controlling his temper within the household and engaging in healthy sexual relationships. This has direct implications for his ability to ensure the safety of his family.”

On 17th February 2000 Z wrote to the Defendant’s director of Social Services, again explaining the threats and harassment X had received in Wandsworth and Hounslow, and expressing concern about the children. She referred to the meeting she had attended on 4th October, 1999; in effect asked what had happened to the follow-up of the meeting on 11th January 2000 (which, as stated above, never took place); and concluded “I would be grateful if you would send me a copy of your care plan for X and his family”.

[40]On 5th March 2000 Z telephoned Tajinder Hayre to say that X needed to have his own social worker. Tajinder Hayre explained that it was difficult to maintain contact with the family, but promised an assessment of X’s needs. This exchange appears to have prompted a meeting on 17th March attended by X and Z, Mike Crow (MENCAP), Tajinder Hayre and Heidi Vogel, at which Tajinder Hayre agreed to provide her manager with a community care assessment with a view to the allocation of a social worker for X. It was also agreed that “Z will be relieved from her responsibilities on behalf of the family and be in consultation with both Heidi and Tajinder as the need arises to discuss issues regarding the family’s function”. The upshot was that on 23rd March Tajinder Hayre completed a “Comprehensive Needs Assessment” form in relation to X. His assessed needs included motivation to obtain and sustain some part-time employment; a psychological assessment; and continued assistance with budgeting, money management and shopping. Otherwise, he was described as generally competent. The form referred to the harassment X had received from local youths, and described the family’s accommodation as unsuitable.

[41]On or shortly after 23rd March, 2000 Tajinder Hayre was appointed as the social worker for X as well as Y. On 28th March, Tajinder Hayre wrote to Carole Nuamah as follows:

“I am writing with reference to the Family’s current housing situation. They live in a 2-bedroomed 9th floor flat with their 2 daughters A and B. Both X and Y have a learning disability. This impacts extensively on their everyday life. They have difficulty in recognising danger and keeping themselves safe. They do not always manage and there have been concerns about the safety of their children. X and Y are vulnerable adults, and will probably always need monitoring and support. Their eldest daughter A too, has a learning disability. This family relies on support that may break down due to the present accommodation. I am Y’s social worker and feel that the space and environment are not conducive for her to carry out everyday tasks. They are intimidated and harassed by certain residents and youths, and because of this their learning disability makes this difficult to manage. Their learning disability makes them extremely vulnerable. Heidi Vogel social worker from the Children & Families Team in Feltham have been involved with the family and concerns for the children have been raised. I understand they have requested to be re-housed and have asked for a house in the local area. I spoke to you regarding this matter before and was informed that they do not have sufficient points. I strongly feel that they should be re-housed due to their learning disabilities and hope you will consider their situation which differs from other families in similar circumstances. I look forward to hearing from you soon.”

On the same day (28th March) Heidi Vogel wrote to Carole Nuamah in similar terms.

[42]On 20th April, 2000 Carole Nuamah replied to Heidi Vogel, saying that she would refer the matter to the District Manager “to make a decision in regards to awarding the family social points, in which they may be considered for a 3-roomed property. May I also bring to your attention that the family has not reported incidents of harassment to the council”. It was at about the time of this letter that Heidi Vogel ceased to be the allocated C & F social worker for A and B, and no replacement was appointed. I have not seen any reply that Carole Nuamah may have written to Tajinder Hayre’s letter of 28th March.

[43]Z’s witness statement refers to the fact that in May, 2000 she was first made aware, through a friend of X’s called Christian, that a group of youths had been congregating at No. 60, bullying X and demanding food from him. I have no evidence that she passed this information at this time to the Defendant’s Social Services or Housing Departments, though this information, as will appear, did foreshadow later developments of which both the Departments did become aware.

[44]On 4th August 2000 Tajinder Hayre made a home visit to No. 60. Y told her that Carole Nuamah had called and said that they would have to clean and decorate the property and get rid of the dogs if they wanted to be re-housed. They were not interested in attending college or becoming involved with the Link Project. Tajinder Hayre then spoke by telephone on 7th August to Carole Nuamah, who broadly confirmed what Y had said, but added that she had awarded the family more housing points because of their situation.

[45]Early in September, 2000 Jennifer Bowles, who provided written evidence, went with Z to No. 60 to help to deliver a microwave. She was concerned about the general state of the flat, and more particularly over the fact that 5 or 6 teenagers were present, “unashamedly taking advantage of X and Y’s vulnerability……Y and X were….unable to exclude them, as they felt quite intimidated by these youths”. On 5th September she wrote to Z as follows:

“The flat was overcrowded, untidy, dirty and …unhygienic. Both X and Y are obviously unable to recognise this and need all the support and assistance that can be obtained in order to rise above this sorry state of affairs….. On a broader scale, is it considered advisable by the housing authorities to let a family with young children live on the 9th floor of a lower block with no immediate access to safe recreational facilities? A more serious and morally questionable situation is that the flat, while we were visiting, was also being visited by a number of teenagers. One couple was embracing intimately in the presence of Y’s two young girls. I understand that various young people are often visiting – maybe taking advantage of X and Y’s unsophisticated outlook on life. This must put all the family at risk while they live in such close proximity to people who will abuse their situation.”

Z gave unchallenged evidence that she handed that letter to Tajinder Hayre. In my judgment the presence of such youths in the flat marked a significant deterioration in what was already an unsatisfactory state of affairs at No. 60. From now on, things went swiftly and steeply downhill.

[46]On 10th October, 2000 the police went to No.60 and arrested X and two youths, Nicholas Cooper and Lee Newham, for handling stolen car stereo speakers which were found at No.60. All were taken to Hounslow Police Station. While in custody X was asked if he needed any extra support and said “No”, whereas on any fair view he did. He was released on bail to return to the police station on 6th November. Another youth, Robert Davenport, was arrested shortly afterwards in relation to the same matter.

[47]Following their visit to No.60, the police sent to C & F a “Notification of Children or Young Persons Coming to Notice of Police” form, referred to in the evidence for short as a “Form 78”. This stated that “……the flat is extremely dirty…… and the smell in the flat is quite sickening….Both parents have learning difficulties and the step-father, X, was arrested on suspicion of handling stolen goods along with three other young males, two of which are also allowed to stay at the above address. Although the children (A and B) do not seem to be in any immediate danger, the conditions they are being forced to live in are well below the standards which reasonable people would see as fit.” Tajinder Hayre gave evidence that one of the two youths staying at the flat was Nicholas Cooper.

[48]It appears that Robert Davenport formed the view, rightly or wrongly, that X had informed the police of Davenport’s connection with the stolen goods, leading to Davenport’s arrest, and that Davenport then took his revenge. The remainder of this paragraph is taken from a witness statement made by X to the police on 29th November 2000 and from notes made in the Defendant’s records by Tajinder Hayre. On 11th October, X was in Feltham when he was approached by Robert Davenport and his father. His father said:

“you grassed up my son, I know where you live, I’m going to burn your flat down”

. X fled and went into a nearby McDonalds restaurant, taking refuge in the toilets. However he was pursued by Robert Davenport who head butted him causing bruising, and pushed or punched him so hard that he suffered a shoulder injury which required hospital treatment and the subsequent use of a sling. The evidence is unclear as to whether or not the shoulder was actually dislocated. The evidence did not establish that anyone within the Defendant’s employment became aware at this stage of the terms of the threats made by Robert Davenport’s father. However it is clear from Tajinder Hayre’s notes of 12th October that she visited No.60 on that day; that she knew then of the assault; that she also knew that Robert Davenport’s father had “ordered X not to press charges”; and that “both Y and X are very frightened but do not want to inform the police”. She advised the Claimants not to answer the door to anyone, especially Davenport. She noted that she would speak to the police to discuss X’s arrest. Z was also present on this occasion and gave evidence that after Tajinder Hayre had left, X told her that other people had keys to the flat and were using it to store stolen goods. Tajinder Hayre gave evidence that having left No.60 she did tell the police what had happened to X, even though the Claimants had not wanted to do this. The police, however, refused to investigate unless X reported the matter himself.

[49]On 13th October X informed Tajinder Hayre, during a visit to hospital, that Robert Davenport had come to No.60 and apologised, news which Tajinder Hayre said in evidence she treated with caution. On the same day, Z passed on to Tajinder Hayre the information that other people had keys to No. 60 and used it to dump stolen goods. Tajinder Hayre appreciated that this reduced the value of the advice she had given to X not to open the door to anyone.

[50]On 18th October, Tajinder Hayre wrote again to Carole Nuamah. I regard this letter as significant. It read as follows:

“I am writing to you with great concerns about this family. As you are probably aware both X and Y have learning disabilities and are very vulnerable. They have two daughters aged 8 & 10 years old. Recently they have been befriended by a group of local youths on the estate and I feel that they are being exploited by these youths. X has since got into trouble. X was also recently attacked by one of the youths but is too frightened to report this to the Police. X and Y are very vulnerable and they are both at risk. They have been scared to leave their flat. I understand that you have procedures to report harassment but in this case I feel that they are not able to do this due to various reasons. Their level of understanding and comprehension are limited which again highlights their vulnerability. Since the incidents above X and Y have repeatedly asked to move out of the immediate area. They want a new start and I think this will benefit them. I also feel that their children may be at risk too. I understand that they have recently been awarded social points and that they are on the waiting list to move into a larger property. Could you please liaise with me on this matter as I feel this is a sensitive matter. I look forward to hearing from you.”

Tajinder Hayre gave evidence that she wrote that letter because she was worried that the harassment might continue, and that the letter represented a heightening of her concerns. There is no doubt that the letter was received by the Housing Department. It bears their stamp dated 20th October. However, Marie Henderson gave evidence that Carole Nuamah was on leave at this time, and that the letter would have gone to Ljijuna Scully who, it will be recalled, was the Area Housing Manager within the Housing Department. Marie Henderson never saw the letter but said, importantly in my judgment, that had she done so it would have prompted her to set in motion a procedure (to which I will return later in this judgment) for the emergency transfer of the family to alternative accommodation.

[51]On 19th October Rosemary Snell from the Wimbledon Guild to which I have referred previously telephoned Tajinder Hayre to report that Z had told her that X had been befriended by young people in the area who had keys to his flat and used it to have sex. In addition, X had been beaten up.

[52]On 23rd October, Narinder Padwal of the Housing Department visited No.60 with Tajinder Hayre. It is reasonable to infer this visit was prompted by Tajinder Hayre’s letter of 18th October. Both the CTPLD and the Housing Department files contain notes of this meeting. What follows is a summary of both. The Claimants explained to Mr Padwal that they had received offensive phone calls and that X had been attacked by a local youth in McDonalds, Feltham two weeks previously. They confirmed that they wished to be moved. They were not prepared to name the youth who had assaulted X until they were moved. Mr Padwal told them that they may be offered alternative accommodation on a “like for like” basis to get them out of the immediate area, and that he would go back and speak to his line manager. On the same day Mr Padwal completed a “Harassment Investigation Form”. This stated:

“Approximately 2 weeks ago X was attacked in the W.C. of McDonalds in Feltham. He was taken to St. Peters Hospital with dislocated shoulder and bleeding nose. Victim has not contacted police through fear of reprisals but will report to police after transfer. X and Y have also received threatening phone call ‘you cunt, dog, slut’. Children have not been harassed.”

The form went on to say that the victims requested a transfer and that Mr Padwal had explained the “man.tran.” policy to them. I will return to and explain the “man.tran.” system later in this judgment, but it was not the emergency system that had been spoken of by Marie Henderson.

[53]On 26th October, Rosemary Snell of the Wimbledon Guild again contacted Tajinder Hayre, this time by letter. She relayed Z’s concerns that the flat might be being used by youngsters truanting from school and using the flat for under-age sex. She continued:

“I think that maybe if this is happening X and his wife are not aware of the seriousness of the situation, and they appear to have let a number of people have spare keys to let themselves in and out.”

Then on 27th October Sue, X’s sister-in-law, telephoned Tajinder Hayre expressing concern about the state of the flat and X’s vulnerability. On 31st October, Z telephoned Tajinder Hayre saying that X had been threatened by Nick, a boy who was staying with them (this being a reference to Nicholas Cooper). She was concerned about X’s safety. Tajinder Hayre telephoned the police who said that they too had heard from Z but could not act until X made a complaint. Tajinder Hayre telephoned X telling him to inform the police should Nick threaten him.

[54]Also on 31st October, Z wrote to the Social Services Inspectorate. Her letter included the following passages:

“…over the past 20 years…X has persistently been abused, mainly by children, and youths, who have occupied his flat for their own purposes, exploiting him, taking his money, made him buy them cigarettes, taking girlfriends and behaving inappropriately in front of the children. The latest episode, the current youths blamed X to the police about a stolen car, which X vigorously denies any knowledge of… The present danger is that Robert, one of the youths, head butted X twice, dislocating his shoulder. I have now learned that Robert has head butted X before. Robert and his father have threatened X to set alight his flat and kill him if X grasses on Robert to the police about the head butting…. Robert has ingratiated himself back into X’s flat and, in my opinion, is staying close to X in order to prevent X from telling the truth. X and the youths are charged to appear at Hounslow Police Station on 6th November. X is terrified of going to jail, but even more, he is terrified of Robert and his father. As a matter of great urgency X and his family must be in a place of safety. Many, many mistakes have been made by Social Services.”

[55]In her written evidence Z said that on 1st November X telephoned her saying that Nick (Cooper) had been sleeping on the sofa at No. 60 for some weeks and was refusing to leave. Nick had shouted at Y and A and threatened to hit them. Z advised X to lock the front door and contact the police if Nick returned. Several hours later however, X phoned again to say that Nick had returned, Y having let him in under duress. At this stage, Nick grabbed the telephone and shouted verbal abuse at Z. Z telephoned the police immediately. They said they could take no action unless X reported the incident himself. Z rang Tajinder Hayre to pass all this on, and it is apparent from a letter written by Tajinder Hayre on the following day that she then spoke to X.

[56]It is to that letter that I now turn. On 2nd November Tajinder Hayre wrote to the “Duty Social Worker” at C & F informing them that the Claimants had been befriended by local youths who Z had reported had been using the flat for underage sex and truanting from school; and that X had been arrested, following which he had been attacked by a local youth and threatened. The letter continued:

“I spoke to X yesterday and apparently they have a friend called Nick staying over and that he is homeless. Nick has been bullying X, Y and the children…….Nick has several friends in the area and the family have been harassed and taken advantage of. I have reported the incidents to Housing and they are dealing with it and I am writing a social work report to support their move. I have explained to X and Y that they need to keep the children safe and call the police. Both X’s mother Z and X’s sister-in-law has (sic) expressed concerns about the children and I feel it necessary to report these concerns. Could you please liaise with me on this matter?”

The records of C & F for the same day refer to “under age sex and truanting, threats and assaults and harassments to the family” and state that there would be a home visit on 20th November and a professionals’ meeting on the 24th November. Also on 2nd November Neghet Khan sent a housing transfer form (another one) to the Claimants. This arose from the home visit made by Narinder Padwal and Tajinder Hayre on 23rd October, 2000, referred to above.

[57]On 3rd November 2000, X told Tajinder Hayre, during a hospital visit, that Nick would be leaving the flat on 6th November. On the same day, Tajinder Hayre wrote again to Carole Nuamah of the Housing Department and as follows:

“I wrote earlier on 18th October outlining the recent line of events involving X and Y being befriended by a group of youths in their local estate. They have been visiting X and Y in their flat and I feel they have been exploited by the youths. X has since got into trouble. They have been threatened and bullied and are too frightened to report this to the police. Narinder took down the recent incidents of harassment and said it would be discussed with his manager, we are still wafting to hear from him….X and Y both have learning disabilities. This means that they have limited understanding and comprehension. They need support in managing independently and taking care of their children. They will probably need support and monitoring for the rest of their lives. As their social worker I need to take action to minimise risks where appropriate and I strongly feel that they need a new start. The environment can have a huge impact on the quality of their lives and of their children. I understand that there is not a place that is 100% safe but their current accommodation is very unsafe.”

[58]On 5th November the police went to No.60 again. On this occasion they arrested two youths for burglary at a nearby premises. Property from the burglary was found at No.60. Following this search the police sent another Form 78 to C & F. This stated:

“The flat was in a disgusting and unhealthy state….On speaking to X and Y it became clear to me that both of them possibly suffered from learning difficulties and had problems understanding the implications. It may also be the case that local youths are taking advantage of the family with their difficulties and using the flat as a doss house.”

[59]On 6th November Tajinder Hayre went to No. 60 to find X on his way out with Nick. Later she accompanied X to the police station and explained to the police about his learning disabilities. The result was that X was not charged in relation to the events of 10th October described in paragraph 46 above.

[60]Also on 6th November, the tenant of No.19 Frank Towell Court telephoned Marie Henderson complaining that items such as bicycles and metal poles were being thrown apparently from the balcony of No.60.

[61]On 7th November the tenant of 39, Frank Towell Court wrote to the Defendant’s Housing Department with “a list of things I have seen myself of people at No. 60 FTC”. These included throwing empty or half empty cans of drink over the veranda; the use of most foul language from the veranda to people opposite; and setting alight a mattress. The tenant also referred to “the blond boy” urinating in the lift in the early hours of the morning.

[62]On 9th November a representative of C & F (apparently named Anna Harvey) visited No. 60 following receipt of the most recent police Form 78. Although the hallway and bathroom had recently been cleaned the rest of the flat was dirty, untidy and unhygienic. X and Y’s appearance was dishevelled though the children were quite presentable. Nick was still staying with them. Anna Harvey noted that “the family appear to be in need of social services support…..they are vulnerable to exploitation.”

[63]Also on 9th November, the Social Services Directorate sent by fax to Susannah White, then the Defendant’s Director of Social Services, Z’s letter of 31st October referred to in paragraph 54 above. Giving evidence, Sue Spurlock said that she would have seen this document, and after an investigation would have replied to the SSD (though no such reply was adduced in evidence). Tajinder Hayre said that she too would probably have seen the letter, though she did not now remember doing so.

[64]On 13th November the Defendant’s Housing Department sent housing transfer forms to the Claimants for a possible “like for like” transfer.

[65]On 14th November, the Defendant’s Housing Department received a petition from 17 residents of Frank Towell Court about activities at No.60. This was accompanied by letters from two of the tenants. These letters referred to dog faeces being left in front of the flats; spitting; loud music and shouting, keeping residents awake; abusive language; graffiti; litter-droppings; smashing bottles; throwing bottles and cans, car batteries, push bikes and on one occasion a flaming litter bin from the flat balcony; breaking the lift; urinating and using drugs in the lifts; urinating from the balcony by “the man and his friends”; and hanging a small dog from the balcony. One letter stated that “……asking them to turn the music down is impossible as you are responded to by a torrent of abuse and the threat of violence, by the residents and their visitors.” The other letter said that when the writer’s boyfriend had said something to the family about the mess, “7/8 young men came out of the flat with knives and bottles.”

[66]14th November was a busy day for Tajinder Hayre. She spoke to X, who informed her that Nick had not left the flat. She also spoke to Marie Henderson of the Housing Department and to Adam Bear of C & F, and arranged meetings with them on 22nd and 24th November respectively. In addition, she wrote a detailed memorandum of the current situation concerning the family. It referred, amongst other things, to the various developments that had occurred and all the concerns that had been expressed since 10th October. I am satisfied that she was asked to do this so that a reply could be drafted from Social Services Department to the Social Services Directorate, and that her memorandum was sent to Sue Spurlock on either 14th or 15th November.

[67]Also on 14th November, Marie Henderson sent an e-mail to Ljijuna Scully, saying that she had decided not to go to a “man.tran.” panel on 15th November as originally planned, because of the receipt of the residents’ petition. She referred to the meeting with Tajinder Hayre that had been arranged for 22nd November. When giving evidence, Marie Henderson said that she did not know on what basis the case was due to go to the “man.tran.” panel.

[68]On 15th November, Ljijuna Scully replied to Marie Henderson as follows: “OK. I have only suggested that a man.tran be submitted in due course. According to the Soc. Worker the anti-social visitors invite themselves to the family’s house and take advantage of them. Moving this family out would remove the problem in Frank Towell Court but will take it elsewhere if Social Workers do not undertake to have more import. I am leaving this to you to decide what to do next as the problem has been going on for a while…..”.

[69]Also on 15th November, Y telephoned Tajinder Hayre to say that Nick had left voluntarily. The following day, however, Y called again to say “boys not left”. Tajinder Hayre saw the Claimants at No. 60 again on 16th November, following which she noted:

“Y and X both resistant to any external help. Both feel threatened and want to move out.”

[70]So things stood when the Claimants underwent their ordeal during the weekend of 17th to 19th November. Those primarily responsible for what happened to the Claimants were Nick Cooper and Robert Davenport (to whom frequent references appear earlier in this judgment) and a youth named Wayne Marsh. All three were subsequently convicted of criminal offences and received custodial sentences.

[71]In the immediate aftermath of the weekend’s events, A and B went to stay at the home of their maternal grandparents, and the Claimants went to stay with Z. There they were seen by Z’s friend Tracey Lockwood, who has provided a statement by way of written evidence. Marie Henderson gave evidence that the Defendant’s Housing and Social Services Departments liaised to arrange the transfer of the Claimants to bed and breakfast accommodation. By 24th November, A and B were with foster parents, and on 1st December the Claimants moved to a bed and breakfast hotel in West Drayton. On 4th December X, foolishly on any fair view, met Naomi Whitelaw who was the girlfriend or former girlfriend of Robert Davenport at the hotel and gave her his mobile telephone number. On 13th December a “man.tran.” approved the transfer of the claimants to alternative accommodation on a “like for like” basis noting, however, that the transfer would take weeks or months.

[72]On 12th January 2001 the claimants, again foolishly, allowed Naomi Whitelaw and Lee Newham, a youth who had frequented No.60 in the period leading up to the relevant weekend, to stay at their bed and breakfast hotel.

[73]On 1st February, 2001 the Claimants were removed to another bed and breakfast hotel, this time in Acton, because Robert Davenport’s father had found out where they were staying. On 8th March 2001 the Claimants went to live in Epsom, where they still are, though not at the address to which they originally moved.

[74]On 10th September 2001, Z submitted a number of formal complaints against the Defendant, not all of which are relevant to the matters in issue in the present proceedings. I heard undisputed evidence that the investigation of such complaints could involve up to three stages. The first stage would normally be the consideration of the complaint by the Defendant’s Complaints Officer, then Peter Coward. It appears, however, that he decided to move straight to stage two, and to appoint two independent investigators. These were Mr C.A.J. Sheppard O.B.E., Q.P.M., C.P.M., who was appointed to investigate the case from Z’s perspective and whose report is dated 24th June 2002; and Ann Tilt, who was appointed to investigate the case from the Claimants’ perspective, and whose report is dated August, 2002.

[75]In summary, Mr Sheppard’s report drew attention to a lack of co-ordination between CTPLD and C & F; and to poor priority case allocation in both. He expressed the view that the matters raised in the meeting on 21st April, 1999 referred to in paragraph 30 above were not sufficiently followed up; and he drew attention to the fact that after the meeting of 4th October 1999, referred to in paragraph 36 above, the proposed follow-up meeting of 11th January 2000 never took place. He criticised the poor way which the CTPLD and C & F maintained their files, making it difficult for any new case worker to research background information; and the absence of an up-to-date chronology, indeed of any chronology, in the files, which would have drawn attention to the full urgency of the Claimants’ needs.

[76]Following receipt of this report, Sue Spurlock wrote a letter dated 3rd October 2002 to Z. She acknowledged that the two branches of social services could learn from the case and improve co-ordination. She set out Mr Sheppard’s recommendations. She said that she would be reviewing priority case allocation, though in evidence she explained that she must have assumed when writing the letter that there had been no allocated social worker, whereas she now appreciated that Tajinder Hayre had been allocated to both Claimants. She accepted that the failure to follow up the meeting of 4th October 1999 was “very regrettable”. The relevant section of Sue Spurlock’s letter to Z concluded:

“I agree with Mr Sheppard that there were significant failings as outlined above and I therefore uphold this aspect of your complaint. I am very sorry that the work of the Department was not of a standard you should be able to expect. On behalf of the Council I apologise for this.”

[77]When giving evidence in the present proceedings, Sue Spurlock was asked about this letter. She said that she and Cecilia Hitchen then the Assistant Director of C & F, had decided after discussion that it would be appropriate not to adopt a defensive position, but to move on, though without accepting responsibility for the assault. She had not looked at the Social Services files before writing the letter, and had no reason to doubt the contents of the Sheppard report. She had not appreciated that there had been any allocated social worker at all. Having now seen the files, she thought that the report had not given Tajinder Hayre sufficient credit for the work she had done, and that it had not reflected the extent to which communication had in fact taken place between CTPLD, C & F and the Housing Department. Had she examined the files, she would not have written the letter in the terms that she did. In particular, she now resiled from the passage cited at the end of paragraph 76 above.

[78]I turn to the Tilt report. This was much more detailed than the Sheppard report. What follows is intended only as a brief summary. Ann Tilt observed that professionals working with the Claimants over the years had seen both as vulnerable, with inadequate life skills and difficulties in keeping themselves and the girls safe and in managing domestic and financial matters. It was surprising, given the recurring suspicions that one or both of the girls were being sexually abused, that they did not have a continuously allocated C & F social worker. Ann Tilt also made the points (as had Mr Sheppard) that the departmental files had not been maintained in a form which would make them easily available to those with a need to know; and that there had been insufficient communication and co-operation between the Social Services and Housing Departments. Having summarised the concerns that been expressed about the family up to the end of May, 2000 she examined the events of the period from May until November 2000, and what became known to the Defendant’s different departments during that period. She found that although the files gave a picture of mounting activity and concern there was very little communication between the different social services teams and the Housing Department until very near to the relevant weekend. Z’s warnings should have been taken more seriously, and the two Forms 78 from the police were not acted on with the required speed. The CTPLD should have been put on guard by the Claimants’ being too frightened to name the perpetrators to the police, the unwanted presence of Nick in the flat and the Claimants’ inability to get him out. She stated:

“In the view of the investigator there was sufficient evidence to hand by early November of a unique and concerning nature for the Team to have taken decisive action. The social workers’ referral letter of 2nd November 2000 to Children and Families should have been sent before that date. It was a somewhat understated account of the acute situation.”

However, observed Ann Tilt, Tajinder Hayre had had too little supervision, support and guidance from senior staff. Ann Tilt concluded the relevant section of her report as follows:

“Summary and conclusions to the allegation: ‘Why didn’t they help us?’ The local agencies showed an inability to string all the mounting evidence together before the November events. They also appeared to draw insufficiently on other significant evidence from the past history of the case or from other sources of the Authority and other local agencies. Warnings should have been seen as cumulative. The two Social Service sections should have continued to pool their information and resources as they had done in October 1999 and a key worker should have been appointed. To a considerable extent the whole situation fell between the two sections. Hounslow Homes should have shared their vital information and if they had not, they should have been asked if they had any current information of the family. In the view of the Investigator there was enough evidence available for this to have been done. As a result of this, local social welfare agencies simply did not help Y and X enough. The allegation made by Y and X: ‘why didn’t they help us?’, [and the parallel allegation of Z regarding the inaction on the part of council officers despite her warnings] are both upheld.”

[79]Following the receipt of the Tilt report, Cecilia Hitchen wrote to the Claimants on 10th October, 2002. The letter contained the following passages:

“I have discussed this letter with Sue Spurlock, who is the Assistant Director of community care………’Why didn’t they help us?’……Ms. Tilt upholds this complaint. I agree with Ms. Tilt….I agree that there should have been more communication between all the people that were working with you to make sure they could help you better……. I am very sorry that we did not do enough to help you to cope with the problems you were having keeping yourselves and your family safe in your flat.”

[80]Asked about that letter in the present proceedings Sue Spurlock said that neither she nor Cecilia Hitchen had in fact been particularly happy with some aspects of the Tilt Report. For example, they considered some of its language to have been emotive. Again, however, they had decided that it was best not to be defensive but to move on. They therefore decided to accept the report’s conclusions. As with the Sheppard Report, Sue Spurlock had not looked at the social services files at this time. Having now done so, she thought that the Social Services Department had in fact provided sufficient help for the Claimants. The files, she said, gave a better impression than the Tilt report of degree of support that had been provided, detailed though the Tilt Report was.

[81]The complaint procedure proceeded to stage 3, under which the complaints made by Z were further considered by the Social Services Complaint Review Panel at a hearing on 3rd March 2003. Sue Spurlock gave evidence at that hearing. The record of proceedings includes the following passage:

“The Panel listened to Sue Spurlock who stated that on reviewing the complaint investigation she agreed that the Department had not served X and Y well. There had been a disjointed approach between the children’s and learning difficulties sections of the department. There had been poor communication and workers had to some extent lost sight of X and Y’s needs. She had not been in the department at the time under investigation but she would have viewed it as a high priority to allocate a Children & Families worker in X and Y’s case despite the high level of vacancies which the department was carrying.”

Strictly the Children and Families worker would have been allocated to A and B rather than X and Y, but the sense is clear. Sue Spurlock agreed that she had given such evidence, but again emphasised that she had not read the social services files when she did so.

[82]In the event, the Review Panel came to the same essential conclusion that had the Tilt and Sheppard Reports. To quote again from the record of the Panel’s proceedings:

“Finding Concerning the Failure to Heed Warnings………..The Panel agreed with the decision at Stage 2 of the Complaints Procedure to uphold this part of the complaint and endorse the action which the Department was undertaking as a result of the lessons learned. They also felt that more priority should have been given to allocating a Children & Families Social Worker in recognition of the risks to X and Y’s children.”

[83]The outcome of the Review Panel hearing was communicated by letter to X Gilks, the Defendant’s Chief Executive, in March 2003. On 6th June, 2003 he wrote to Z, accepting the findings of the Review Panel, and in particular “……..that more priority should have been given to allocating a Children & Families worker in recognition of the risks to X and Y’s children.”

THE LAW

[84]The liability of local authorities in negligence and under Human Rights Act 1998 and the European Convention on Human Rights is a complex and developing area of the law. It is perhaps for this reason that I have been referred by Counsel to well over 40 authorities. I have found some helpful, but by no means all. In one of them, Midland Bank Trust Co. Ltd and Another v Hett Stubbs & Kemp (a firm) [1979]1Ch. 384 at 405B Oliver J. said “I have been lead by counsel through a bewildering complex of authorities many of which are not easily reconciled with the principles established in subsequent cases in superior courts or, in some case, with one another. The task of a judge of the first instance faced with this situation is not an easy one.” That observation, with which I sympathise, has provided some relief and comfort during my trawl of the authorities cited to me. Otherwise, I have not found the Midland Bank case helpful.

THE TEST TO BE APPLIED

[85]I first consider the test that should be applied to determine whether or not the Defendant owed the Claimants a duty of care. I have been taken to authorities in which it has been observed that the courts may be prepared to find that a duty of care exists more readily in cases involving injury or damage to person or property than in those involving only economic loss. (See e.g. Caparo Industries Ltd v Dickman [1990] 2 A.C. 605 at page 618, per Lord Bridge.) I have also been referred to authorities illustrating that important if not determinative factors in deciding whether or not a duty of care exists may be the assumption by the defendant concerned of responsibility toward the claimant concerned (see e.g. Hedley Byrne v. Heller & Partners [1964] A.C. 465) or the degree of proximity between the parties (see e.g. Perrett v. Collins [1998]2 Lloyd’s Rep. 255 at page 261 per Hobhouse L.J.). In the event, I do not need to consider such authorities in any detail because, at the conclusion of the oral argument, counsel appeared to accept that the proper test to apply in this case was the familiar tri-partite test deriving from the Caparo case referred to above. I agree with this approach. Given that I am dealing, as stated above, with a difficult and developing area of the law, and given that no previous case has established that a local authority owes a duty of care to adults in circumstances such as those arising in this case, I think it right that I should find that a duty of care existed only if I am satisfied that the injury and loss suffered by the Claimants was reasonably foreseeable; that their relationship with the Defendant was sufficiently proximate to warrant the imposition of the duty of care; and that it would be just, fair and reasonable to impose such a duty.

THE DEFENDANT: A SINGLE ENTITY?

[86]Before considering each of these three requirements, it will be convenient at this stage to deal with a preliminary matter raised in the course of argument. It arises out of the fact that two of the Defendant’s departments, the Housing and Social Services Departments, and two sections of the latter Department, namely CPTLD and C&F , had dealings with the Claimants. Are the knowledge, acts and omissions of each of these departments or sections to be considered separately, or is it the knowledge, acts and omissions of the Defendant taken as a whole that are relevant?

[87]On behalf of the Defendant, Mr Warnock contends for the former proposition, and points out that the Housing and Social Services Departments had factually and legally distinct roles. Moreover, he observes, the Housing Department was involved both in administering a scheme of social housing, and as the landlord of the Claimants.

[88]However, I accept the submission of Miss Gumbel QC for the Claimants that the correct approach in this case is to consider the Defendant as a single entity. In my judgment, each of the sections and departments referred to above was under a duty to communicate to the others, and amongst its own relevant members of staff, information received which suggested that the Claimants and their family were, or might be in danger.

[89]I have come to these conclusions for a number of reasons. To begin with, the Defendant is in law a single entity, and is sued as such. Moreover, each relevant department and section knew that the others were involved with the Claimants and/or their children, and, as has been seen, the sections and departments did in practice communicate and meet with each other from time to time in relation to them. Further, if it were to become appropriate to move the Claimants from their flat, the decision to move them and the move itself might require input from both the Housing and Social Services Departments. Indeed, after the relevant weekend, these two departments did cooperate to move the Claimants into bed and breakfast accommodation (see paragraph 71 above).

[90]I would add that it was a recurring theme of the Tilt and Sheppard Reports, commissioned by the Defendant, and of the findings of the Social Services Review Panel, and of the letters of apology written on behalf of the Defendant following its receipt of these reports and findings, that the Defendant’s departments had failed properly to cooperate and communicate with each other in relation to the Claimants and their children.

[91]Although Sue Spurlock said in evidence that her review of the files had led her to conclude that communications between the departments had been better than that suggested by the Tilt and Sheppard Report, she nevertheless accepted that the Departments should have communicated and cooperated with each other effectively. I should add that Suzanne Culling, the expert witness called on behalf of the Defendant, accepted in cross-examination that in a situation of developing danger, the Housing Department should have been aware of the information of which the Social Services Department was aware.

[92]In all these circumstances, I cannot accept that the Defendant is to be regarded as a collection of distinct departments or sections, whose knowledge, acts and omissions are to be judged independently of those of the others.

WAS THE INJURY AND LOSS REASONABLY FORESEEABLE?

[93]I therefore turn to consider whether the Defendant should reasonably have foreseen the injury and loss which the Claimants suffered. The authorities cited to me establish that the Claimants must show that it was reasonably foreseeable that they would suffer an assault by local youths at their home of the general kind that actually happened; but need not show that the Defendant should have envisaged “the precise concatenation of circumstances” which led up to the incident (see Hughes v. Lord Advocate [1963] A.C. 837 at p.853 per Lord Morris) or the precise form the assault would take (see by way of analogy Jolley v London Borough of Sutton [2000] 1 W.L.R. 1082). The fact that the injury and loss resulted from the acts of third parties would not by itself prevent that injury and loss from being foreseeable but it would be reasonable to expect someone to foresee such third party intervention only if it was highly likely or probable (see e.g. Smith v. Littlewoods Organisation Ltd [1987] 1 A.C. 241 at p.261 E to G per Lord Mackay of Clashfern).

[94]The chronology of events which I have set out above seems to me to point a picture of gradually mounting concern about the welfare and safety of the Claimants and their family. It is true that in some respects the Claimants could lead normal lives. It is also true that they were anxious to preserve their independence, to the extent that they sometimes resented and resisted the efforts of the Defendant’s Social Services Department to help them. However, the repeated concerns, expressed by Z and the Defendant’s own Social Services Department about the Claimants’ vulnerability, their ability to keep themselves and their children safe, the unsuitability of their home and the condition in which they kept it, the way in which the children were being looked after, and the suspicion that the children had been sexually abused by others, tell their own story. In addition, there was information from Z that X had been attacked from time to time both in Wandsworth and Hounslow; and although there may have been times when the Defendant regarded Z as a thorn in its side, I see no reason why the information she provided should have been seen as unreliable.

[95]In my judgment, these mounting concerns made it reasonably foreseeable from an early stage that the Claimants and/or the children might in some manner come to some sort of harm. However, despite the number and variety of different concerns and the frequency with which they were expressed, they would not in my judgment be sufficient to satisfy the first of the three Caparo conditions as explained in paragraph 86 above. What needs to be asked is whether, and if so when, events gathered pace to the extent that the harm that was reasonably foreseeable changed from harm of a general ill-defined nature to harm resulting from an attack of the kind that happened during the relevant weekend. In my judgment, this development did indeed take place, and the events that made critical difference began early in September 2000. They took the form of the infiltration and ultimately the taking-over of the Claimants’ flat by local youths; the development of a state of disorder and then of chaos or near-chaos at the flat; the assault on X at McDonalds; the making of threats to the Claimants; the obtaining of keys to the flat by youths who did not live there; and the reluctance of the Claimants through fear to complain about what was happening to them. That is not to say that the events occurring before September 2000 are irrelevant. Though insufficient by themselves in my view to establish the required degree of foreseeability, they did provide the background against which the events occurring in and after September 2000 could and should have been considered and assessed. Although some repetition will be involved, I propose briefly to re-examine the developments in and after September 2000 and the extent to which the Defendant knew about them.

[96]They begin early in September 2000 when several teenagers were seen at the Claimants’ flat by Z and her friend Jennifer Bowles, behaving in a sexually inappropriate way in the presence of the children, and evidently taking advantage to the Claimants and, in the view of the two observers, putting the family at risk. Z made this known to Tajinder Hayre by giving her the letter from Jennifer Bowles dated 5th September 2000 referred to in paragraph 45 above the chronology. There is no evidence that this information was passed on at that stage to the Defendant’s Housing Department.

[97]Then on 10th October, stolen goods were found at X’s flat. He, Nicholas Cooper and Lee Newham were arrested at the flat. Cooper and Newham were being allowed to stay at the flat. (Cooper was one of those later responsible for the attack during the relevant weekend). The police informed the C & F section of the Defendant’s Social Services Department of the circumstances, and Tajinder Hayre also got to hear of them.

[98]On 11th October, X was seriously assaulted by Robert Davenport (another of those later responsible for the attack over the relevant weekend). It was a revenge attack. He also received threats from Davenport’s father. The threats included one to burn the flat down. These events did not take place in the flat, but they were related to the earlier finding of stolen goods in the flat. Tajinder Hayre quickly became aware of the assault, and, if not the precise terms of the threats, that Davenport’s father had “ordered X not to press charges”. Sensibly, she told the police about this, even though the Claimants, through fear, did not want her to do so.

[99]On 13th October, Z informed Tajinder Hayre that other people had keys to the flat and used it to dump stolen goods.

[100]By her letter of 18th October, Tajinder Hayre, again sensibly, informed the Housing Department of these developments, as a result of which “X and Y have repeatedly asked to move out of the immediate area”. I need not repeat the terms of this letter in any further detail.

[101]During the visit to the flat on 23rd October by Tajinder Hayre and Narinder Padwal of the Housing Department, reference was made not only to the earlier attack on X but also to abusive and threatening phone calls which X and Y had been receiving.

[102]On 26th October, Rosemary Snell informed Tajinder Hayre of the use of the flat by truanting youngsters and for underage sex, and that a number of people had keys to the flat.

[103]On 31st October and 1st November Z informed Tajinder Hayre that X and Y had been threatened by Cooper, who was still staying at the flat and refusing to leave. Tajinder Hayre informed the C & F section of these developments by letter date 2nd November, and on 3rd November wrote to Ms. Nuamah saying that the Claimants’ accommodation “is very unsafe”.

[104]On 5th November the police informed C & F of further arrests and the finding of further stolen goods at the flat, and of their impression that local youths were taking advantage of the Claimants and using their flat as a doss-house. On 6th November the Defendant’s Housing Department learned of bicycles and metal poles being thrown from the balcony of the flat and on 7th November learned of a variety of circumstances indicating that the Claimants’ flat was now out of control.

[105]On 9th November C & F noted that Cooper was still staying at the flat. On the same day, the Defendant’s Social Services Department received Z’s earlier letter referring among other things to threats made by Davenport and his father to set alight the flat and kill X if he informed the police of Davenport’s assault on him (X). On 14th November the Housing Department received the petition and the letters referred to in paragraph 65 above in my view further pointing clearly to the state of chaos prevailing at the flat.

[106]In these circumstances it was in my judgment reasonably, indeed clearly foreseeable that either or both of the Claimants would suffer a serious physical attack from local youths in their flat. In my judgment the danger of this happening should have been foreseen at the very latest by 7th November when, to the Defendant’s knowledge, the prior assaults, threats, infiltration of the Claimants’ home, dumping of stolen goods and arrests had been followed by the variety of complaints from neighbours referred to above. However, in my judgment it could and should reasonably have been foreseen by 20th October when Tajinder Hayre’s letter of 18th October was received by the Defendant’s Housing Department, given what was already known to the Defendant by then.

WAS THERE A RELATIONSHIP OF SUFFICIENT PROXIMITY?

[107]The Claimants having thus cleared the first hurdle, as it were, I consider whether they and the Defendant were in a relationship sufficiently proximate to warrant the imposition of the duty of care. In my judgment they were, for reasons that can be explained comparatively briefly. The Defendant was the Claimants’ landlord. More importantly, the Defendant, aware of the Claimants’ disabilities, provided social services for them and indeed for their children. As has been seen, they provided community psychriatric nurses for Y from January 1995 until July 1999, albeit with a 6-month gap in 1998; allocated a social worker to her case from February 1999 onwards; and allocated a social worker to X’s case from March 2000 onwards. The C & F Section also took a continuing interest in the children, albeit that there was only an allocated social worker for a very short time. Representatives of the Social Services and Housing Departments were regularly in contact with the Claimants and visited their home during 2000. Thus there was a close relationship between the parties to this litigation.

JUST, FAIR AND REASONABLE

[108]I therefore turn to consider whether it would be just fair and reasonable to impose a duty of care on the Defendant. It is convenient to begin by considering the scope of the duty contended for. The more widely based this is, the more difficult it might be to argue that it would be just, fair and reasonable to impose it.

[109]Vulnerable though they were, the Claimants do not suggest that the Defendant was under a general duty to protect them from harm. They were living independent lives in the community, and life is not free from risk and danger. The Defendant did not purport to provide policing or security services. It would plainly not be fair, just and reasonable to impose such a broadly-based duty on the Defendant.

[110]However the Claimants do contend in essence that the Defendant became under a duty to protect them in a particular way, namely by moving them out of their flat and into some form of alternative accommodation at some stage before the relevant weekend. All parties accept that in practical terms there was nothing else the Defendant could have done to prevent the Claimants from being assaulted and abused as they were during the relevant weekend.

[111]When do the Claimants say that the Defendant should have moved them out? Supported by the evidence of their expert witness Stewart Sinclair, the first submission made on their behalf is that they should have been moved long before the relevant weekend. Indeed at one stage in his evidence Mr. Sinclair suggested that Y should have been moved from the flat as long ago as 1996, following the letter from Louis Ellis dated 29th May 1996 and referred to paragraph 28 above. This, of course, was long before Y met X.

[112]There are three principal reasons for which it is said that the Claimants should have been moved from their flat long before the relevant weekend. The first is that they should have been moved because their flat was generally unsuitable. I reject that submission. I agree with the Defendant’s expert witness Suzanne Culling that there was nothing inherently wrong with the accommodation provided by the flat. It had enough bedrooms, a security system and a residential caretaker. It was not ideal that the family should have been housed on the 9th floor of a block of flats, but I accept the evidence of Suzanne Culling, and of Sue Spurlock and Tajinder Hayre that there was a severe shortage of available council accommodation in West London at the relevant time. I also accept Suzanne Culling’s evidence that as a result of this shortage many other families were housed in similar circumstances. For these reasons I do not consider that the Defendant’s failure to move the family simply because of the nature of their accommodation could be seen as negligent, if indeed such a failure would give rise to a cause of action for damages in the tort of negligence.

[113]The second reason advanced is, in essence, that had C and F had proper regard for the welfare and safety of the children and properly investigated the suspicions that A was being sexually abused, they would have seen to it that the children would have been moved from the flat to a place of greater safety, an indirect consequence of which would have been that the Claimants too would have moved. During his evidence, Mr. Sinclair referred to a number of different statutory routes by which this outcome might have been achieved. However, I have several difficulties with this submission. The first is that it is for the Claimants to establish the breach of a duty of care to them rather than their children. The second is that in the absence (for understandable reasons) of any detailed evidence about or consideration of this matter, I would be unable to find that the Defendant was in breach of any duty of care to either or both of the children in failing to move them from no. 60. The third is that had I been able to find that the Defendant should have intervened more in the interests of the children, it would not have followed that such an intervention would have led to the Claimants’ leaving the flat. Perhaps they would. It is equally possible, however, that the family would have remained at the flat as an entire unit, or that one or both of the children would have been removed, leaving the Claimants in the flat.

[114]The third reason advanced is that the Claimants’ parenting skills were so poor that the Defendant should have sought to place them in a residential parenting skills assessment centre. In my judgment, however, the Claimants would probably have refused to go. As has been noted, they were anxious to preserve their independence, and resistant to what they saw as interference in their lives by authority. I doubt if a “charm offensive” of the kind referred to by Mr. Sinclair would have worked. In addition, the Claimants would presumably have been told (as was the case) that should they go to such a centre, and should their parenting skills be found to be irreparably poor, the children might be taken from them. Had they been told this, it would certainly have increased their unwillingness to attend. In any event, Mr. Sinclair explained that such placements are only temporary, being typically of about three months’ duration.

[115]The final reason advanced is that the Claimants and their children were collectively so vulnerable that they should all have been placed in some sort of supported or sheltered accommodation at some stage. However, given their desire to lead independent lives, I again doubt if the Claimants would have agreed to such a move. Having heard Sue Spurlock’s evidence, I also doubt whether the Claimants would have qualified for such accommodation. This was in very limited supply. The Claimant’s learning disabilities were real, but assessed as mild, and the point was well made that in Wandsworth, Hounslow and Epsom where X now lives, all the local authorities thought it sensible to support him in his wish to live independently.

[116]I therefore turn to the alternative submission of Miss Gumbel Q. C. on the Claimants behalf that if it was not the Defendant’s duty to move the Claimants out of the flat long before the relevant weekend, it certainly became their duty to protect them by doing so in response to the developing crisis towards the end of 2000. I accept that submission. I return to my earlier findings that by about 20th October 2000 an attack of the kind that the Claimants suffered during the relevant weekend was reasonably foreseeable, and that the Defendant had the power and the procedures in place to move the Claimants on an emergency basis. Subject to the further discussion below, in those circumstances I would regard it as fair, just and reasonable to impose upon the Defendant a narrowly-defined duty to move the Claimants out of the flat in response to the unusual but dangerous situation which had developed.

[117]I now consider whether there are any other features of the case which would suggest that it would or would not be fair, just and reasonable to impose a duty of care. I have borne in mind the absence of any previous decided case establishing liability in similar circumstances. That is not of course determinative of the present case. However, regard must be had to the following dictum of Brennan J. in Sutherland Shire Council v Heyman (1985) A.L.R 1, at p.44:- “It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable considerations which ought to negative or to reduce or to limit the scope of the duty or the class of persons to whom it is owed.”

[118]This dictum has often been cited with approval in the courts of England and Wales, for example by Lord Bridge in the Caparo case at p. 618.

[119]It is well-established that local authorities may, in certain circumstances, owe a duty of care to children, for example in relation to the investigation of suspected child abuse and the initiation and pursuit of care proceedings (see J.D. and others v. East Berkshire N.H.S. Trust and Others

[2003] Lloyd’s Law Reports 552

) and in relation to the return of children previously placed in foster care to their natural parents (see Pierce v Doncaster M.B.C

[2007] EWHC 2968

). In the present case the Claimants, thought adults, both functioned in many ways like children. No adult of normal intellect and understanding was living in their household. The Defendant knew this, and had allocated a social worker to both their cases. In my judgment, the extension of a duty of care to the Claimants would involve a small step rather than a giant leap forward, and would not offend the “incremental” principle enunciated by Brennan J. This is so particularly since, for the reasons explained above, the duty to be imposed, if any, would be of a very narrow and case-specific nature, and as such would not open the gates to a flood of future claims that would not otherwise have been brought.

[120]I have not overlooked the fact that in the J.D case it was held by the Court of Appeal (and indeed by the House of Lords on a further appeal) that no separate duty of care was owed to the adult parents of the children concerned; and that a similar conclusion was reached by the Court of Appeal in Lawrence v. Pembrokeshire County Council [2007] 1W.LR. 2991. However, the position of the Claimants is in my judgment much closer akin to that of the children concerned in those cases than to that of their parents; and this case does not involve any conflict of interest between parent and child that prompted the refusal of the parents’ claims in the cases just cited.

[121]Does the fact that the direct cause of the Claimants’ injury and loss was the actions of third parties over whom the Defendant had no control mean that it would be unjust, unfair or unreasonable to impose a duty of care? In my view, it does not. It is clear from the Littlewoods case referred to in paragraph 93 above that the actions of such third parties are capable of founding an action in the tort of negligence. The Defendant is protected by the principle that a high degree of foresight is required in such cases.

[122]A further factor which it seems to me can properly be taken into account, though by itself it is not determinative of the issue, is the advent of the Human Rights Act 2000 and its incorporation of the European Convention on Human Rights into domestic law. The authorities appear to show a greater willingness to find the existence of duties of care subsequent to the passing of the Act.

[123]I propose to refer to two cases by way of example. The first is the J.D. case referred to above, in which the court considered the decision of the House of Lords in X v Bedfordshire County Council and M v. Newham London Borough Council [1995] 2 A.C.633. The House of Lords had held in that case, amongst other things, that it would not be just, fair and reasonable to impose a duty of care on local authorities or individual social workers in relation to the protection of children. In the J. D. case the Court of Appeal held that that decision could not survive the Human Rights Act, importing as it did a duty on the part of local authorities to respect a child’s Convention rights, in particular under Articles 3 and 8. Lord Phillips of Worth Matravers M.R. observed, at paragraph 83 of the judgement of the Court, that those asserting (as in the present case) that wrongful acts or omissions occurred before October 2000 (when the Act came into force) would have no claim under the Act. He continued, however, as follows:- “This cannot, however, constitute a valid reason of policy for preserving a limitation on the common law duty of care which is not otherwise justified. On the contrary, the absence of an alternative remedy for children who were victims of abuse before October 2000 militates in favour of the recognition of a common law duty of care once the public policy reasons against this have lost their force”

[124]The second example is Jain v Trent Strategic Health Authority

[2007] EWCA Civ 1186

. The facts of that case were far removed from those of the present case, but at paragraph 64 of her judgment, Arden L.J. made the following observation:- “The fifth point which I draw from the authorities summarised above” [which included the J.D. case] “is that the 1998 Act has also had a perceptible impact in this field. As a result of that Act giving further protection in domestic law to Convention rights, the courts are now more conscious that the denial of a duty of care may result in a violation of Convention rights”.

[125]I have also considered whether the fact that in the aftermath of the relevant weekend the Defendant repeatedly apologised to the Claimants is something to be taken into account when deciding whether it would be just, fair and reasonable to impose a duty of care. Perhaps over-cautious I have concluded that this should not be taken into account, given in particular Sue Spurlock’s evidence that the apologies were made on what she described as a false understanding of the true position.

[126]Accordingly, I find that it would be just, fair and reasonable to impose on the Defendant a duty of care of the kind contended for.

BREACH OF DUTY

[127]The next question to be considered is whether or not the Defendant was in breach of its duty of care to the Claimants. In the context of this case, the question becomes whether or not the Defendant could and should have moved the Claimants out of their flat before the relevant weekend.

[128]When considering whether the Defendant could have done this, it is necessary to review the evidence about the Defendant’s procedures in this regard. The evidence came principally from Marie Henderson and Narinder Padwal, to both of whom I have already referred. Between them, they described four procedures.

[129]One was based on a points system. A tenant wishing to transfer from one residence to another would have to accumulate 70 points awarded by reference to such factors as the size and general suitability of the present property and the length of time for which the tenant had lived there (5 points being awarded for each year of residence). Having accumulated 70 points, the tenant would be put on a waiting list, where he or she might remain for a substantial period of time. As has been seen, the Claimants did not qualify for a transfer under this scheme, and in any event this scheme was not designed for or responsive to emergencies.

[130]A second scheme involved a transfer to protected or sheltered accommodation for tenants in need of such accommodation, usually effected by the Social Service’s Department rather than by the Housing Department. Marie Henderson pointed out, however, that such accommodation was in very short supply and in any event such a transfer was not intended as a swift response to an emergency.

[131]A third scheme involved the “man.tran.” panel to which reference has already been made, “man.tran.” being an abbreviation of “management transfer”. This scheme differed from the points system in three respects. The first was that it was triggered by particular concerns relating to the tenants concerned. The system might be triggered by a reference from the police, social services or the tenants themselves. It could be used, for example, if a tenant wanted a transfer on medical grounds but did not have enough qualifying points; had fallen out with or was being harassed by neighbours; had been the victim of domestic violence; or due to the birth of a child needing push-chair access which the present accommodation did not provide. A second difference from the points system was that the man.tran. system offered accommodation only on a “like for like” basis. The third difference was that the man.tran. system was quicker than the points system. A successful applicant would go to the top of the waiting list. However, the applicant would then have to wait for an offer for “like for like” accommodation. The man.tran. system was not therefore responsive to emergencies, as indeed the man.tran. panel’s decision of 13th December 2000 to which I will return, demonstrates.

[132]The fourth and final system was an emergency system by which tenants could be transferred to temporary accommodation such as bed and breakfast accommodation. Such transfers would usually be on the basis of information provided to the Housing Department by the Social Services Department and would only be considered in extreme cases, involving severe violence or harassment. Given my earlier conclusion (which some might see as generous to the Defendant) that an assault of the kind that occurred during the relevant weekend first became reasonably foreseeable on or about 20th October 2000, in my judgment this emergency system was the only one available to the Defendant which could have been deployed to move the Claimants out of their flat before the relevant weekend.

[133]I therefore turn to consider whether the Defendant should have invoked the emergency transfer system to move the Claimants from their flat. In my judgment, it should. The situation presented by the Claimants involved severe violence and harassment, and therefore satisfied the Defendant’s own test. Marie Henderson, called as a witness by the Defendant but approaching the case, it seems to me, entirely objectively, said during her evidence that the facts that before 20th October X had already been assaulted in a revenge attack, that others had keys to the flat and that X and Y were frightened to leave the flat, were or should have been factors relevant to a decision whether or not to invoke the emergency procedure. Further, as has been seen, she said that had she seen Tajinder Hayre’s letter of 18th October, it would have prompted her to set in motion the emergency procedure. The evidence of another of the Defendant’s witnesses is also significant in this connection. It will be recalled that Suzanne Culling, the Defendant’s expert witness, alleged that the Housing Department should have been aware of the information of which the Social Services Department were aware. She then added that had the Housing Department been thus aware, it should have treated this situation as an emergency warranting the moving of the Claimants from their flat.

[134]Having concluded that the Defendant could and should have moved the Claimants from their flat, I consider where they might have gone. It was clear from the evidence to which I have just referred that the Defendant could have moved the Claimants into bed and breakfast accommodation. Given the variable quality of such accommodation, an alternative (preferred by Suzanne Culling) would have been to enquire of the families of X and / or Y whether they would be able to accommodate them and the children in the short term. It will be recalled that in the event the Claimants went, following the relevant weekend, to stay with Z, while the children went to stay with Y’s parents; following which, the Claimants transferred to bed and breakfast accommodation. I am satisfied that had the Defendant moved the Claimants from their flat before the relevant weekend, as I have decided they should, a place would have been found for them to go, even if it provided only short-term accommodation.

[135]In fact, the Defendant did not consider the use of the emergency transfer procedure at all. Repeated applications for a transfer under the points system were unsuccessful. Following receipt of Tanjinder Hayre’s letter of 18th October, Narinder Padwal explained the man.tran. system to the Claimants, and completed a “Harassment Investigation Form” on 23rd October; Neghet Khan sent the Claimants a housing transfer form on 2nd November; and another similar form was sent on 13th November, (though why this was necessary is unclear); and thought had apparently been given to referring the Claimants’ case to a man.tran. panel. But the emergency transfer procedure was neither invoked nor, it seems, contemplated.

[136]As has been seen, on 14th November Marie Henderson referred in an e-mail to the possibility of a man.tran. panel, and to the cancellation of any such panel because of the receipt of the residents’ petition on 14th November. The cancellation on those grounds is something which Mr Warnock for the Defendant relied, as showing that steps had been taken to assist the Claimants but that these were overtaken by events. I regret that in my judgment that argument carries no weight, for different reasons. The first is that, assuming that a man.tran. panel was to be held on 15th November it was on a date after, as I have found, the Claimants should already have been moved from their flat. The second is that it is not at all clear from the exchange of e-mails referred to at paragraphs 67 and 68 above that a man.tran. panel had in fact been arranged for 15th November. The third is that a man.tran. panel was not in any event the right method by which to deal with the Claimants’ predicament in my judgment. It was far too slow. As appears from paragraph 71 above, when a man.tran. panel was convened on 13th December 2000 (after the relevant weekend) and did approve the Claimants’ transfer to alternative “like for like” accommodation, it noted that the transfer would take weeks or months.

[137]Having regard to the dates referred to in paragraph 99 above, I find that the Defendant should have invoked its emergency procedure to remove the claimants from their flat on or very shortly after 20th October, 2000 but at the very latest on or very shortly after 7th November. The fact that this did not happen in my judgment pointed to and resulted from a lack of proper cooperation and communication between the Social Services and Housing Departments; a failure within those Departments sufficiently to appreciate the gravity and urgency of the situation which the Claimants faced (to which both Z and Tajinder Hayre were doing their best to draw attention); and a failure to give the Claimants’ case the priority it deserved.

[138]Accordingly, I find that the Defendant was in breach of its duty of care to the Claimants.

CAUSATION

[139]Finally, in the context of the tort of negligence I have to consider whether the Defendant’s breach of its duty of care caused the injury and loss in respect of which this claim is brought. I can come clearly to the conclusion that it did. Self-evidently, had the Claimants left their flat before the relevant weekend, the assault of which they complain would not have happened. However, the Defendant has advanced two arguments in this regard.

[140]One is that if the Defendant had tried to move the Claimants from their home, the Claimants would have refused to leave, particularly had they known that the alternative accommodation on offer was in a bed and breakfast establishment. In my judgment, however, the Claimants would probably have left their flat had any alternative accommodation been offered to them. As Tajinder Hayre had made clear in her letter of 18th October, the Claimants were by that date frightened and repeatedly asking to move out of the immediate area. That attitude on their part did not change.

[141]The second argument is that even had they moved to alternative accommodation, the Claimants might well have been assaulted in any event. In this connection, attention is drawn on to the fact that on 4th December 2000 X made contact with Naomi Whitelaw and that on 12th January, 2001 the Claimants allowed Naomi Whitelaw and Lee Newham to stay at their hotel (see paragraphs 71 and 72 above). Thus it is argued that had they been moved before the relevant weekend they would have made contact with those who assaulted them, and could well have been assaulted anyway, albeit in a different location. I reject that argument also. It seems to me inherently unlikely that, frightened as they were, the Claimants would have made contact with the youths who had frightened them or let such youths know where they were staying. Foolish though the Claimants were in making contact with Naomi Whitelaw and Lee Newham, neither of these young people had assaulted the Claimants, and those who had done so were by then in custody. In any event, I accept the Claimants’ submission that, by analogy with BHP Billiton Petroleum Ltd v Dalmine SpA

[2003] EWCA Civ. 170

it is for the Defendant to prove on the balance of probabilities that the Claimants would have been assaulted even had they moved before the relevant weekend; and that the Defendant has failed to do so.

DO THE CLAIMANTS HAVE A RIGHT OF ACTION AT ALL?

[142]I have thus far assumed that the Claimants do in fact have a right of action for damages based on the tort of negligence. The Defendant submits, however that the Claimants do not. Though it may appear strange to leave this matter until this stage of the judgment, I have done so because it needs to be considered against the background of the matters already dealt with.

[143]Ultimately, it is said on behalf of the Defendant, the Claimants are complaining about the failure of the Defendant to re-house them; and decisions taken by local authorities in relation to the provision of social housing can be challenged only by way of an application for judicial review. In this connection, reliance is placed on the case of O’Rourke v Camden London Borough Council [1998] A.C. 188, in which the House of Lords held that the Plaintiff’s claim for damages, arising out of the Council’s failure to accommodate him as a homeless person pursuant to section 63(1) of the Housing Act 1985, should be struck out. Section 63(1) was part of a scheme involving the provision of social housing for the benefit of society in general, and created no private law duty sounding in damages, but was enforceable solely by way of judicial review.

[144]Having regards to my finding that of the Defendant’s transfer procedures, the emergency procedure was the one that should have been used, it is the statutory provisions governing that procedure which fall to be considered. It is unfortunate that an element of uncertainty remains as to what those provisions were. In their closing submissions, I had understood Counsel to agree that the emergency procedure must have been operated pursuant to section 21 of the National Assistance Act 1948. Section 21(1) provides that “... a local authority may …. make arrangements for providing (a) residential accommodation for persons … who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them …”.

[145]After the hearing, however, I received a corrective note from Mr Warnock on behalf of the Defendant, stating that he was in error. Section 21 of the 1948 Act did not apply because by section 21(8) “…. Nothing in this section shall authorise or require a local authority to make any provision authorised or required to be made … by or under any enactment not contained in this Part of this Act or authorised or required to be provided under the National Health Service Act 1977.” In fact, it is submitted, the provision of emergency accommodation would have been governed by the provisions of Part VII (sections 175 to 218) of the Housing Act 1996. Thus section 21(8) excluded the operation of section 21 in the Claimants’ case: and since Part VII of the Housing Act 1996 substantially re-enacted the provisions of the Housing Act, 1985 considered by the House of Lords in the O’Rourke case referred to above, the Claimants are not entitled to claim damages in the private law forum.

[146]I am not persuaded by these arguments, for a variety of reasons. First, they are unsupported by any evidence as to the statutory powers under which the Defendant actually operated its various transfer schemes. None of the Defendant’s witnesses dealt with the matter at all.

[147]Secondly, I am not at all sure that section 21(8) does exclude the application of section 21(1) to this case assuming, as it was during the hearing, that section 21(1) would otherwise have been applicable. It seems to me to be at least arguable that the “provision” to which section 21(8) refers means the provision of accommodation for the persons referred to in section 21(1), who do not include homeless persons. Such an interpretation would be consistent with the inclusion in section 21(8) of a specific reference to the National Health Service Act 1977.

[148]Thirdly, since the Claimants were occupying the flat pursuant to a tenancy agreement, subsection 1 of section 175 of the Housing Act, 1996 (which defines “homelessness”) would not apply to the Claimants. Neither by its terms would section 175(2). The Defendant would therefore have to rely on section 175(3) to show that the Claimants were homeless. This provides that “a person should not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy”. The Defendant would therefore appear to be conceding that it was unreasonable for the Claimants to occupy the flat which the Defendant had provided under a tenancy agreement. What can have rendered it unreasonable? It can only have been the combination of circumstances referred to in detail in the chronology above, of most if not all of which the Defendant was aware, and over which the Claimants had no real control. Yet, the Defendant submits it owed no duty of care to the Claimants, whose remedy was limited to an application for a judicial review. Standing back, and looking at the general merits of this case, I would regard that as a surprising conclusion. Neither do I think that the O’Rourke case would compel that conclusion, if it were indeed the case that Part VII of the Housing Act, 1996 was the only relevant statutory provision. Mr O’Rourke was homeless in the literal sense. He had been temporarily accommodated by the Council but had then been evicted and was claiming damages in respect of the Council’s failure to provide him with further temporary accommodation. The present case is distinguishable. The Claimants were well-established tenants of the Defendant. The Defendant had already exercised its powers as to social housing in relation to the Claimants. Their claim is that they should have been moved from that accommodation, and not necessarily into further Council accommodation. Their claim is not based on narrow considerations of housing policy. There is, for example, no complaint that, being literally homeless, the Claimants were wrongly denied housing; or, being already housed by the Defendant, were wrongly placed in a transfer list below competing candidates. Their claim involves both the Housing and Social Services Departments; the interaction between them; and the manner in which these departments together reacted (or failed to react) to information they received about the Claimants’ predicament.

[149]Finally, the evidence in and the reality of this case is that, by virtue of whatever statutory provisions, the Defendant actually had in place an emergency transfer procedure which it could have used before the relevant weekend, and which it did in fact use though only after that weekend.

[150]I therefore regard the Claimants as having a valid cause of action.

THE CLAIM UNDER THE HUMAN RIGHTS ACT, 1998

[151]In addition to their claim based on the tort of negligence, the Claimants claim damages under the Human Rights Act, 1998 sections 6 and 7. This is on the basis that, in the circumstances already discussed, the Defendant failed to protect them from inhuman and degrading treatment, and to maintain the integrity of their private and family life, thus breaching Articles 3 and 8 respectively of the European Convention on Human Rights.

[152]This claim is out of time (see section 28 of the 1998 Act) but had it been necessary for me to determine the claim, I would have granted the necessary extension of time under section 7(5) of the Act.

[153]However, I do not think that it is necessary for me to determine the claim, for several reasons. The first is that I have already found the Defendant liable in the tort of negligence. In doing so, incidentally, I have taken into account the impact of the Human Rights Act, albeit amongst many other factors when deciding that the Defendants owed a duty of care to the Claimants. The second reason is that in the course of argument the parties agreed (as do I) that in the circumstances of this case it is difficult to see how the claim under the Human Rights Act might succeed if that based on the tort of negligence failed. If the negligence claim failed, so would the Human Rights Act claim fail. Not having heard full argument on the point, however, it occurs to me that the converse may not necessarily apply. I have in mind that the 1998 Act came into force of the 2nd October, 2000 so that, on my earlier findings, the Claimants could rely on it only in relation to the period beginning on that date and ending on or about 20th October or, at the latest 7th November, 2000. Since I have found that the significant deterioration in the Claimants situation began in September, 2000 and that developments after that month should have been assessed against the background of what had gone before, the claim in relation to the Human Rights Act is not without its complications. However, for the reasons I have given, I do not think it is necessary to extend any further what is already a lengthy judgment by detailed consideration of this claim.

CONCLUSION

[154]I therefore give judgment for the Claimants on the question of liability. Damages have been almost entirely agreed, any remaining issues can be resolved when the court convenes for the handing down of this judgment.