COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
The Hon Mr Justice Newman
The Hon Mr Justice Silber
The Hon Mr Justice Richards
London, WC2A 2LL
B e f o r e :
THE MASTER OF THE ROLLS
LORD JUSTICE AULD
| Ala Anufrijeva and Another
|- and -
|London Borough of Southwark
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The Queen on the Application of 'N'
- and -
Secretary of State for the Home Department
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The Queen on the Application of 'M'
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The Secretary of State for the Home Department
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Joshua Swirsky (instructed by Southwark Legal Services) for the Respondent London Borough of Southwark
Mr Richard Clayton, QC and Stephanie Harrison (instructed by TRP) for Respondent ‘N’
Mr Philip Sales and Mr Sean Wilken (instructed by the Treasury Solicitor) for the Appellant Secretary of State for the Home Department
Mr Andrew Nicol, QC and Mr Duran Seddon (instructed by Refugee Legal Centre) for the Appellant ‘M’
Mr Philip Sales and Mr Jason Coppel (instructed by the Treasury Solicitor) for the Respondent Secretary of State for the Home Department
Crown Copyright ©
The Lord Chief Justice:
This is the judgment of the Court
THE SIGNIFICANCE OF THESE APPEALS
i) What is the nature of Article 8 rights?
ii) When does a duty arise under Article 8 to take positive action?
iii) In what circumstances does maladministration constitute breach of Article 8?
iv) When should damages be awarded?
v) On what basis should damages be assessed?
vi) What procedures should be followed to ensure that the costs of obtaining relief are proportionate to that relief?
THE NATURE OF ARTICLE 8 RIGHTS
"Article 8 - Right to Respect for Private and Family Life"
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others."
"Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court's case-law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private life aspect where there are sufficiently adverse effects on physical and moral integrity."
"As the Court has had previous occasion to remark, the concept of "private life" is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of the person. It can sometimes embrace aspects of an individual's physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. Though no previous case has established any such right to self determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees."
WHEN DOES A DUTY ARISE UNDER ARTICLE 8 TO TAKE POSITIVE ACTION?
"The Court recalls that, although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective 'respect' for family life. However, especially as far as these obligations are concerned, the notion of 'respect' is not clear cut: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion's requirements will vary considerably from case to case. Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals. In particular, in the area now under consideration, the extent of a State's obligation to admit in its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved. Moreover, the Court cannot ignore that the present case is concerned not only with family life but also with immigration and that, as a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory."
"The essential object of Article 8 is to protect individuals against arbitrary interference by public authorities. There may however be positive obligations inherent in an effective "respect" for family life. These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals' rights and the implementation, where appropriate, of specific steps. In both the negative and positive contexts, regard must be had to the fair balance which has to be struck between the competing interests of the individual and the community, including other concerned third parties, and the state's margin of appreciation."
"It is important to recall that Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision."
"The Convention does not as such guarantee the right to public assistance either in the form of financial support to maintain a certain standard of living or in the form of supplying day home care places. Nor does the right under Article 8 of the Convention to respect for family life extend so far as to impose on States a general obligation to provide for financial assistance to individuals in order to enable one of two parents to stay at home to take care of children".
Mr Clayton's submissions
Mr Sales' submissions
"The right asserted by Botta, namely the right to gain access to the beach and the sea at a place distant from his normal place of residence during his holidays, concerns interpersonal relations of such broad and indeterminate scope that there can be no conceivable direct link between the measures the State was urged to take in order to make good the omissions of the private bathing establishments and the applicant's private life."
"The Court is of the opinion that Article 8 of the Convention cannot apply as a general rule and whenever the everyday life of the female applicant is concerned, but only in exceptional cases where a lack of access to public buildings and those open to the public would prevent the female applicant from leading her life so that her right to personal development and her right to make and maintain relations with other human beings and the outside world are in question (see the Pretty v. United Kingdom judgment, No. 2346/02, §61, 29 April 2002). In a case like that, a positive obligation for the state could be established to ensure access to the buildings mentioned. Now, in the case in point, the rights invoked are too wide and indeterminate, as the applicants have failed to be specific about the alleged obstacles and to give convincing proof of an attack on their private lives. According to the Court, the female applicant has not managed to demonstrate the special link between the inaccessibility of the institutions mentioned and the particular needs concerned with her private life".
"The case law has only just begun to grapple with this issue. In general, one would expect a somewhat cautious approach from the Commission and the Court. It seems nevertheless very probable that some welfare benefits come within the scope of Article 8 and possible that minimum welfare provision may now constitute a positive obligation inherent in the effective respect for private and family life by the States."
"The Court must first examine whether the applicant's rights under Article 8 were violated on account of the decision of the authorities to evict him despite his medical condition. It further has to examine whether the applicant's rights were violated on account of the authorities' alleged failure to provide him with adequate accommodation. The Court considers that, although Article 8 does not guarantee the right to have one's housing problem solved by the authorities, a refusal of the authorities to provide assistance in this respect to an individual suffering from a severe disease might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such refusal on the private life of the individual. The Court recalls in this respect that, while the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities, this provision does not merely compel the state to abstain from such interference: in addition, to this negative undertaking, there may be positive obligations inherent in effective respect for private life. A State has obligations of this type where there is a direct and immediate link between the measures sought by the applicant and the latter's private life."
"Article 8 provides that "everyone has a right to respect for his private and family life, his home and his correspondence". Similar considerations apply in relation to this right to those that we have discussed under Article 3. If the denial of support to an asylum seeker impacts sufficiently on the asylum seeker's private and family life, which extends to the individual's physical and mental integrity and autonomy - see X and Y v Netherlands (1985) 8 E.H.R.R 235, the Secretary of State will be in breach of the negative obligation imposed by Article 8, unless he can justify his conduct under Article 8(2) - as to which there was little debate before us. Certainly Article 8 without more does not entitle the applicant to a roof over his head- see Marzari v Italy  28 EHRR CD 175. On the facts of this case, we find it easier to envisage the risk of infringement of Article 3 rights than of Article 8 rights."
"Absent special circumstances which interfere with private or family life, a homeless person cannot rely upon Article 8 of the European Convention on Human Rights in conjunction with Part 7 of the Housing Act 1996 in order to found a damages claim for failure to provide accommodation".
He held that although the defendant's breach of duty had compelled the claimant and her family to live in "grossly overcrowded and unsatisfactory accommodation" for a period of 29 weeks, this did not infringe Article 8.
"I accept the defendant's submission that not every breach of duty under section 21 of the 1948 Act will result in a breach of Article 8. Respect for private and family life does not require the State to provide every one of its citizens with a house: see the decision of Jackson J. in Morris v LB Newham  EWHC Admin 262 at -. However, those entitled to care under Section 21 are a particularly vulnerable group. Positive measures have to be taken (by way of community care facilities) to enable them to enjoy, so far as possible, a normal private and family life. In Morris, Jackson J. was concerned with an unlawful failure to provide accommodation under Part VIII of the Housing Act 1996, but the same approach is equally applicable to provide suitably adapted accommodation under the 1948 Act. Whether the breach of statutory duty has also resulted in an infringement of the claimants' Article 8 rights will depend upon all the circumstances of the case. Just what was the effect of the breach, in practical terms, on the claimants' family and private life?
Following the assessments in September 2000 the defendant was under an obligation not merely to refrain from unwarranted interference in the claimants' family life, but also to take positive steps, including the provision of suitably adapted accommodation, to enable the claimants and their children to lead as normal a family life as possible, bearing in mind the second claimant's severe disabilities. Suitably adapted accommodation would not merely have facilitated the normal incidents of family life, for example the second claimant would have been able to move around her home to some extent and would have been able to play some part, with the second claimant, in looking after their children. It would also have secured her physical and psychological integrity. She would no longer have been housebound, confined to a shower chair for most of the day, lacking privacy in the most undignified of circumstances, but would have been able to operate as part of her family and as a person in her own right, rather than being a burden, wholly dependent upon the rest of her family. In short, it would have restored her dignity as a human being.
The Council's failure to act on the September 2000 assessments showed a singular lack of respect for the claimant's private and family life. It condemned the claimants to living conditions which made it virtually impossible for them to have any meaningful private or family life for the purposes of Article 8. Accordingly, I have no doubt that the defendant was not merely in breach of its statutory duty under the 1948 Act. Its failure to act on the September 2000 assessments over a period of 20 months was also incompatible with the claimants' rights under Article 8 of the Convention."
"(1) Although the Strasbourg Court has stated on many occasions that there may be positive obligations inherent in an effective 'respect' for family and private life, the cases have differed. In only two cases have the facts had a marked similarity with the present claim. In both cases, the claims failed (See Botta and Marzari).
(2) The Court only last year in Chapman (after Marzari) adhered to the principle that '… Article 8 does not in terms give a right to be provided with a home.' Adding: 'Nor does any of the jurisprudence of the Court acknowledge such a right. Whilst it is clearly desirable that every human being has a place where he or she can live in … and which he or she can call a home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision'. (para 99)
(3) There may be cases where the circumstances impact upon the private or family life (for example Botta, Guerra and Ostra Lopez), and the principle upheld in Chapman will have little or no bearing. Where the circumstances relied upon are said to impact on family and private life by reason of a failure to act in connection with the provision of a home, the issues are more complex.
(4) The common feature of Chapman and Marzari is that in both cases the Court identified a particular group of people as qualifying for the protection to be afforded by the extended reach of Article 8. In Marzari, '… a refusal of the authorities to provide assistance in this respect to an individual suffering from a severe disease …' and in Chapman, '… the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs.… To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life.'
(5) Since the Strasbourg jurisprudence is premised upon the basis that legislation in the sphere of housing and social welfare is in the 'political sphere' and further that it is primarily the responsibility of national authorities to interpret and apply domestic law, caution is called for on the part of this Court when considering the proper approach to adopt in a case where the extended reach of Article 8 is an issue. One might say, particularly where one consequence will be that where an infringement of the Convention is found, damages will be available where Parliament has decided that a breach of duty under the legislation should not give rise to damages. (O'Rourke)
(6) The positive obligation to which Article 8 may give rise in connection with the provision of a home comprises a duty to act so as to respect home, family and private life, it does not give rise to a requirement to act so as to produce a particular result in connection with it. Article 8 guarantees respect not a particular result.
(7) It will be rare for an error of judgment, inefficiency or maladministration occurring in the purported performance of a statutory duty, having application to the class or category of concept 'private and family life … home…', to give rise to an infringement of Article 8.
(8) For action taken pursuant to statutory powers having such application to constitute an infringement of Article 8, it is likely that the act or acts of the public authority will have so far departed from the performance of the public authority's statutory duty as to amount to a denial or contradiction of the duty to act.
(9) It is likely that the circumstances of the infringement will be confined to flagrant and deliberate failure to act in the face of obvious and gross circumstances affecting the Article 8 rights of an individual. (I take the decision of Sullivan J in Bernard v London Borough of Enfield  EWHC 2282 Admin to be an example.)"
IN WHAT CIRCUMSTANCES DOES MALADMINISTRATION CONSTITUTE BREACH OF ARTICLE 8?
"The Commission recalls that delay in proceedings concerning matters of "family life" may raise issues under Article 8 of the Convention. In the case of H. v. the United Kingdom, the Court found a violation of Article 8 in respect of proceedings concerning the mother's access to her child which lasted two years and seven months. However, the Court had regard in reaching that conclusion that the proceedings concerned a fundamental element of family life (whether a mother would be able to see her child again) and that they had a quality of irreversibility, lying within an area in which delay might lead to a de facto determination of the matter, whereas an effective respect for the mother's family life required that the question be determined solely in the light of all relevant considerations and not by mere effluxion of time."
H, W and a third case were then cited. The Commission continued:
"The Commission finds that the present case is not comparable. The subject-matter of the proceedings concerns the granting of permission to enter the United Kingdom for members of the applicant's family, whom the applicant had not seen for at least six years and with some of whom the nature of his ties has not been specified beyond the fact that, pursuant to Somali tradition, the applicant has on the death of his father become head of the extended family group. Further, it is not apparent that the delay in the proceedings has any prejudicial effect on their eventual determination or that the effect of the passage of time is such as to prevent the proper and fair examination of the merits of the case."
WHEN SHOULD DAMAGES BE AWARDED?
The nature of a claim for damages under the HRA
The relevant provisions of the HRA
"Section 6 - Acts of public authorities
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if-
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section "public authority" includes-
(a) a court or tribunal, and...
(b) any person certain of whose functions are functions of a public nature,…
Section 7 - Proceedings
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6 (1) may-
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings
but only if he is (or would be) a victim of the unlawful act.
(2) In subsection (1)(a) appropriate court or tribunal means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding.
(3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act.
(5) Proceedings under subsection (1)(a) must be brought before the end of -
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.
(6) In subsection (1)(b) 'legal proceedings' includes-
(a) proceedings brought by or at the instigation of a public authority; and
(b) an appeal against the decision of a court or tribunal.
(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act…
Section 8 - Judicial remedies
(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including-
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
(4) In determining-
(a) whether to award damages, or
(b) the amount of an award,
the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.
(5) A public authority against which damages are awarded is to be treated-
(b) for the purposes of the Civil Liability (Contribution) Act 1978 as liable in respect of damage suffered by the person to whom the award is made.
(6) In this section-
'court' includes a tribunal;
'damages' means damages for an unlawful act of a public authority; and
"unlawful" means unlawful under section 6(1)."
Reference should also be made to two articles of the ECHR that are not included in Schedule 1 of the HRA. The first is Article 13 which requires everyone whose rights and freedoms are violated "to have an effective remedy". The second is Article 41 which is referred to in section 8 HRA and requires the ECtHR to afford "just satisfaction" to an injured party if this is not provided by a domestic court.
Features of a claim for compensation under the HRA
a) the award of damages under the HRA is confined to the class of unlawful acts of public authorities identified by section 6(1) - See sections 8(1) and (6).
b) the court has a discretion as to whether to make an award (it must be "just and appropriate" to do so) by contrast to the position in relation to common law claims where there is a right to damages - See section 8(1).
c) the award must be necessary to achieve "just satisfaction"; language that is distinct from the approach at common law where a claimant is invariably entitled, so far as money can achieve this, to be restored in the position he would have been in if he had not suffered the injury of which complaint is made. The concept of damages being "necessary to afford just satisfaction" provides a link with the approach to compensation of the ECtHR under Article 41.
d) the court is required to take into account in determining whether damages are payable and the amount of damages payable the different principles applied by the ECtHR in awarding compensation.
e) exemplary damages are not awarded.
2.6 A public authority which is found to have acted unlawfully by failing to comply with the Convention will not be exposed to criminal penalties. But the court or tribunal will be able to grant the injured person any remedy which is within its normal powers to grant and which it considers appropriate and just in the circumstances. What remedy is appropriate will of course depend both on the facts of the case and on a proper balance between the rights of the individual and the public interest. In some cases, the right course may be for the decision of the public authority in the particular case to be quashed. In other cases, the only appropriate remedy may be an award of damages…" (Emphasis added).
The court has a wide discretion in respect of the award of damages for breach of human rights. Scorey and Eicke in Human Rights Damages do not view this wide discretion as problematic. Instead they consider it to derive from the nature of the new approach created by the HRA: 'Given that it is anticipated that the majority of cases in which civil claims will be brought under the HRA will be by way of judicial review which has always been discretionary, it is appropriate that s 8(1) HRA also has a broad discretionary nature…' Also the language of a 'just and appropriate' remedy is not novel, either to the United Kingdom or to the other human rights instruments" (A4-035). In their analysis of the phrase 'just and appropriate', Scorey and Eicke consider the case-law in respect of similarly phrased statutes in Canada and South Africa and conclude that it would not be surprising if the English Courts took an approach similar to that of those jurisdictions. In essence this involves determining the "appropriate" remedy in the light of the particular circumstances of an individual victim whose rights have been violated, having regard to what would be "just", not only for that individual victim, but also for the wider public who have an interest in the continued funding of a public service (Scorey and Eicke, A4-036). Damages are not an automatic entitlement but, as Scorey and Eicke also indicate, a remedy of "last resort" (A4-040).
The Strasbourg principles
"Perhaps the most striking feature of the Strasbourg case-law, … is the lack of clear principles as to when damages should be awarded and how they should be measured."(para. 3.4)
The Law Commission correctly suggests that part of the explanation for this is the absence of a common approach to damages in the different jurisdictions. It also refers to the views of different commentators, including the statement of Karen Reid (A Practitioner's Guide to the ECHR p.398)
"The emphasis is not on providing a mechanism for enriching successful applicants but on its role in making public and binding findings of applicable human rights standards."
Lester and Pannick comment in Human Rights Law and Practice 1998 Ch. 2:
"The case-law of the ECtHR lacks coherence, and advocates and judges are in danger of spending time attempting to identify principles that do not exist."
"The Court does not routinely award compensation to successful applicants. Between 1972 and 1991 applicants sought non-pecuniary damages in 51 cases where the Court held that the judgment alone gave just satisfaction. It has been suggested that these cases share certain general characteristics:
- the Court was very divided on the merits;
- a large majority of cases concerned individuals who were accused of (or were guilty of) criminal offences; and
- they often involved procedural errors in civil or administrative hearings.
The same pattern continued from 1992 until the new Court was established in November 1998. The Court found its judgment sufficient to meet the moral injury caused in 79 of the cases.
Although section 8(4) requires the court or tribunal to examine Convention principles, analysis of the case law on just satisfaction is likely to be of limited assistance. There are serious concerns about the lack of consistency in the case law (for example, over the treatment of criminal fines as financial loss and the appropriate methodology for valuing property), about the obscure nature of the basis on which the Court makes awards of specified amounts of compensation and about the moral judgments the Court makes when evaluating different types of applicants (such as the claims of convicted criminal and terrorists to just satisfaction)."
"Article 5- Right to liberty and security
5.1 Everyone has a right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(b) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drugs addicts or vagrants;
5.4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5.5 Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation."
"I conclude that there is no "clear and constant jurisprudence" of the European Court on the recoverability of damages for distress under Article 5.5 in the absence of deprivation of liberty. There are two principles applied by the Court: that damages are not recoverable in the absence of deprivation of liberty, and that damages are recoverable for distress which may be inferred from the facts of the case. It follows that this Court must itself determine the principles it is to apply."
"Thus, even in the case of mentally ill claimants, not every feeling of frustration and distress will justify an award of damages. The frustration and distress must be significant: of such intensity that it would in itself justify an award of compensation for non-pecuniary damages. In my judgment, an important touchstone of that intensity in cases such as the present will be that the hospital staff considered it to be sufficiently relevant to the mental state of the patient to warrant its mention in the clinical notes."
This principle has no application to the Article 8 cases which we are considering, for the consequences of delay must amount to more than distress and frustration before Article 8 will even be engaged. This impressive judgment demonstrates, as does the judgment of Sullivan J in Bernard, that, especially at first instance, courts dealing with claims for damages for maladministration should adopt a broad-brush approach. Where there is no pecuniary loss involved, the question whether the other remedies that have been granted to a successful complainant are sufficient to vindicate the right that has been infringed, taking into account the complainant's own responsibility for what has occurred, should be decided without a close examination of the authorities or an extensive and prolonged examination of the facts. In many cases the seriousness of the maladministration and whether there is a need for damages should be capable of being ascertained by an examination of the correspondence and the witness statements.
HOW SHOULD DAMAGES BE ASSESSED?
"If the Court decides to award compensation, then it is guided by the particular circumstances in every case, having regard to what it describes as equitable considerations. The Court has given little guidance about how the discretion should be exercised, the relevant factors appear to be the applicant's conduct and the extent of the breach."
WHAT PROCEDURES SHOULD BE FOLLOWED TO ENSURE THAT THE COSTS OF OBTAINING RELIEF ARE PROPORTIONATE TO THAT RELIEF?
i) The courts should look critically at any attempt to recover damages under the HRA for maladministration by any procedure other than judicial review in the Administrative Court.
ii) A claim for damages alone cannot be brought by judicial review (Part 54. 3(2)) but in this case the proceedings should still be brought in the Administrative Court by an ordinary claim.
iii) Before giving permission to apply for judicial review, the Administrative Court judge should require the claimant to explain why it would not be more appropriate to use any available internal complaint procedure or proceed by making a claim to the PCA or LGO at least in the first instance. The complaint procedures of the PCA and the LGO are designed to deal economically (the claimant pays no costs and does not require a lawyer) and expeditiously with claims for compensation for maladministration. (From inquiries the court has made it is apparent that the time scale of resolving complaints compares favourably with that of litigation.)
iv) If there is a legitimate claim for other relief, permission should if appropriate be limited to that relief and consideration given to deferring permission for the damages claim, adjourning or staying that claim until use has been made of ADR, whether by a reference to a mediator or an ombudsman or otherwise, or remitting that claim to a district judge or master if it cannot be dismissed summarily on grounds that in any event an award of damages is not required to achieve just satisfaction.
v) It is hoped that with the assistance of this judgment, in future claims that have to be determined by the courts can be determined by the appropriate level of judge in a summary manner by the judge reading the relevant evidence. The citing of more than three authorities should be justified and the hearing should be limited to half a day except in exceptional circumstances.
vi) There are no doubt other ways in which the proportionate resolution of this type of claim for damages can be achieved. We encourage their use and do not intend to be prescriptive. What we want to avoid is any repetition of what has happened in the court below in relation to each of these appeals and before us, when we have been deluged with extensive written and oral arguments and citation from numerous lever arch files crammed to overflowing with authorities. The exercise that has taken place may be justifiable on one occasion but it will be difficult to justify again.
THE FACTS AND OUR CONCLUSIONS AS TO EACH APPEAL
The first appeal: Ala Anufrijeva (suing as the personal representative of Matriona Kuzjeva deceased) and another v the Mayor and Burgesses of the London Borough of Southwark ('Southwark')
"In the course of the year since the members of the family arrived in the United Kingdom the defendant housed them, responded to a request for a section 47 assessment, offered alternative accommodation, provided equipment for greater safety and mobility within the property, offered equipment for greater mobility outside the property, provided assistance to access outside amenities, assessed the day to day caring needs of Mrs K and concluded they were adequately met by the family and referred the family's accommodation needs for consideration on grounds of medical re-housing."
"In summary, in the 12 months to the end of August 2000 (2 years from the date of arrival) the defendant was, as a matter of law, discharged from a duty under the HA, under a duty pursuant to the Asylum Support (Interim Provisions) Regulations 1999 and arguably subject to a duty under section 21 National Assistance Act 1948. Further it was required, if requested, to carry out an assessment under NHSCCA 1990. In the period in question the defendant decided on eligibility, carried out a section 47 assessment, reconsidered its eligibility decision and at all material times held itself out as willing to provide accommodation in accordance with the Asylum Support (Interim Provisions) Regulations."
"In summary, between September 2000 and September 2001 the following occurred. The defendant, through its asylum team, offered the family accommodation. It offered Mrs K a residential home placement. It sought possession of Elkstone Court. It responded to an application for an assessment. It produced a care plan. It responded to judicial review proceedings, stating that it would not evict Mrs K. It responded to each court hearing thereafter. It offered 49 Gordon Road as alternative accommodation and various properties thereafter. It gave instructions for a variety of assessments to be made and Mrs K was assessed."
a) that Southwark from the outset provided a home and endeavoured to meet the wishes of the family
b) it was not for the court in this claim to determine whether 36 Comus House was suitable; it was certainly not manifestly unsuitable since the only objection related to the size of the bathroom;
c) the accommodation at Elkstone Court was believed by the social worker, Liz Duncan, to be dry, warm and to meet the essential needs of Mrs K;
d) the delay in responding to the family's needs was not excessive;
e) allegations of bad faith and deliberate misconduct, which had been made, were rejected in their entirety.
The Appellants' costs for the judicial review stage and the Queen's Bench stage (excluding the appeal) are roughly £52,000, split between the judicial review proceedings (£13,000) and the Queen's Bench proceedings (39,000).
Southwark's costs for the judicial review stage and the Queen's Bench stage (excluding the appeal) are:
roughly £60,000, split between the judicial review proceedings (£10,000) and the Queen's Bench proceedings (£50,000).
To that figure have to be added the costs of this appeal.
We recognise that the appellants had some success on interim applications but the problem with litigation over housing issues in the High Court is that every application in the course of proceedings can be expensive. In the event, the figure for total cost of £100,000 admittedly "plucked out of the ether" proves to have been roughly accurate for the costs of both sides in this case.
The second appeal: R (on the application of N) v The Secretary of State for the Home Department ('the Home Office')
"…the claimant had 'symptoms of major depressive disorder using the DSM4 Diagnostic Criteria Code 296. He had 'depressive moods most of the time' and had 'lost pleasure in all day-to-day activities'. Dr. Yasin noted that the claimant, who had poor concentration, considered himself worthless and was thinking about suicide. It was pointed out by Dr. Yasin that the claimant had no previously psychiatric history and nor had any of his family and that the symptoms which Dr. Yasin found were precipitated by his fear for his life and being deported.
Dr Yasin thought that the claimant ought to increase the number of anti-depressants he was receiving from his general practitioner and that he ought to receive counselling. He did not believe that medication alone was going to alleviate all the claimant's problems. He believed that if the claimant was deported, his conditions would get worse as the claimant perceives that his life would be in danger, but if his case is looked at favourably, Dr Yasin did believe that his condition would improve but not suddenly. The view of Dr Yasin was that on the balance of probabilities, the claimant's depression was most likely to be precipitated by the events, which occurred following the decision of the Secretary of the State not to grant him a visa. He thought that the risk of the claimant harming himself remained significant due to the severity of his depression and his loss of self-confidence, the claimant does not see any future and he felt that he has lost more than a year of his life, as he was unable to study or do anything.
It was considered significant by Dr Yasin that the claimant became depressed when the Home Office notified him that his visa would not be extended and on hearing that he was to be deported, he became frightened for his life. Those feelings were, according to Dr Yasin, compounded by what he perceived as lack of support and his benefits stopped."
"The position of the claimant was not the same or very similar to that of a person who has been expelled and who knows that he will definitely have to leave the country and return to Libya where he will be subject to the Libyan regime for seriously mistreating failed asylum seekers. In sharp contrast, the claimant merely had the worry that he might suffer this fate. This concern must have been greatly alleviated by the prospect that the result of the refusal of the claimant's application for asylum might be overturned in one of the three ways that I have outlined.
To my mind, it was a very regrettable error of the Home Office to refuse the claimant's application and I do not belittle the claimant's worry and concern. Dr Yasin considers that his depression was most likely precipitated by the events triggered off by the refusal letter and the claimant summarises his claim in paragraph 11 of his witness statement by saying that:-
'My whole life is on hold at the moment because of the decision to refuse my asylum application and the fact that I cannot do anything about my appeal'.
In addition, there is the additional and justifiable complaint about the failure of the Home Office to process the appeal. There is clearly a world of difference between, on the one hand, the position of a person who has been refused asylum and whose appeal is being dealt with expeditiously and, on the other hand, the position of somebody like the claimant, whose appeal was lodged in February 2001 and in respect of which nothing had happened until 11 months later especially with no acceptable explanation or justification being put forward by the defendant. I have already explained in paragraph 2 that the claimant's solicitors of 25 June 2001 shows that they were told about why this delay had occurred and that shows serious errors by the Home Office. To my mind, this delay was bound to cause the claimant excessive anxiety, especially when it is combined with the lack of financial help so that, in the words of Dr. Yasin the claimant's 'whole life is on hold at the moment…'"
"Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity…the preservation of mental stability that is in that context an indispensable condition to effective enjoyment of the right to respect for private life"
"Article 8 is expressed in terms of effect on the citizen and it refers to "respect for his private and family life…" and so when considering a breach of this Article has occurred, it is necessary at that stage to focus substantially on the effects on the claimant. As I have explained, the claimant stated that after he had received the letter of refusal from the Home Office on about 14 February 2001, his life changed noticeably and radically because thereafter he suffered from depression and from anxiety which led to him being unable to eat or sleep properly.
Even assuming that the Home Office is entitled to a wide margin of appreciation then nevertheless in the light of the extended meaning given to Article 8 so that it covers mental health, I consider that the claimant's rights under Article 8 have been contravened as is evidenced by the serious damage to his mental health."
"…officials at the Home Office were well aware by October 2000 that if the claimant was returned to Libya, he would have been subject according to the CIPU Bulletin to "serious human rights violations, including torture." They must also have appreciated that by refusing his asylum application and by serving a removal direction on him, this would, or at least could, have had a very serious effect on the claimant who would be at risk of damage to his mental health. This is so especially as the claimant was in a particularly vulnerable position as he had explained with supporting information why he believed in his statement to the Home Office of 16 October 2000 "that I have no doubt that if I return to Libya I will be killed by the authorities".
The Home Office officials must have realised that the claimant would have been seriously and adversely affected by the removal directions and by the refusal of his asylum application as until they were reversed, he could at very short notice have been returned to Libya in circumstances in which a claim under Article 3 was, in the words of the CIPU Bulletin, "likely to succeed". In this case, the claimant was not removed but the very imminent threat of such return which could take place in the words of the removal direction at a time and place to be determined showed that the claimant was at risk of treatment which could constitute infringement of his Convention rights. Dr. Yasin points out that the claimant on hearing that he was to be deported, he became very frightened for his life.
The defendant's officials must have known that without housing benefits, council tax refund and subsistence payments, the claimant would have experienced very great difficulties in surviving as he could not afford to pay for accommodation or for food and any other of the necessities of life without any assistance from his friends and colleagues in his community and they did not know that he was to receive this. Further he would not have been in a position to repay the benefits that were being claimed as a result of the refusal of the claimant's asylum application. In those circumstances, the defendant's officials must have known or ought to have known that the claimant was at least at risk of mental anguish or of degrading and humiliating treatment in which no action was being taken to process his appeal or to reconsider his application in the light of the cogent material supplied by him. Thus, I find that there was an obligation imposed on the defendant to protect the claimant from degrading or humiliating treatment and from mental illness of the kind necessary to engage Article 8, because for the reasons that I have stated in the words of E the defendant knew or ought to have been aware that 'the [claimant] was suffering or at risk of [degrading or humiliating treatment of the kind necessary to engage Article 8]'."
The Secretary of State's costs up to and including the first instance judgment are:
£19,800 (of these £8,700 are solicitor's fees and £11,000 are counsel's fees). N's costs have been given a provisional estimate of £11,742.44. Of these £6,042.44 are counsel's fees and £4,700 are solicitor's fees.
The third appeal: M v Secretary of State for the Home Department
The first period of delay
Events following the issue of the status letter. The second period of delay
"I think it better to go back to the language of Article 8(1) and to the interests that it seeks to protect, and to ask myself in simple terms whether what happened in this case can fairly be said to have involved a lack of effective respect for the claimant's family life.
My answer to that question is 'no'. There were enormous administrative failings; everything took much longer than it should have done; and some, but far from all, of the delay was the responsibility of the authorities. But in January 2001, at the very beginning of the period on which the case has focused, the Presenting Officer showed himself to be sympathetic to the claimant's wish to be reunited with his family and requested details with a view to speeding things up once the IAT's determination was promulgated. The general picture thereafter is not of people obstructing the applications by the claimant or his family (the September visit to the British embassy in Kinshasa being the low point in that respect) but of people trying, albeit often inadequately, to provide responses and to move things along when the matter came to their attention. Then at the end of the period, in November 2002, a discretion was exercised in the family's favour so as to enable them to be reunited without further delay. Looking at what had happened over the period as a whole, in my judgment it did not involve any lack of respect for the claimant's family life".
M's costs up to and including the hearing in the Administrative Court were £29,138. The costs of the Home Office are estimated at £21,200.