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Cite as: [2010] ECHR 1586
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8 October 2010
FOURTH SECTION
Application no.
32666/10
by X, Y & Z
against the United Kingdom
lodged
on 8 June 2010
STATEMENT OF FACTS
THE FACTS
The applicants, Mr X, Ms Y & Ms Z, are British nationals who were born in 1956, 1962 and 1929 respectively. They are represented before the Court by Mr Frances Swaine of Leigh, Day & Co., a lawyer practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The applicants’ circumstances
The first applicant and the second applicant began living together in 1998 and they married in 1999. At all material times they lived in a two-bedroom council flat (“the flat”) with the second applicant’s two children from a previous relationship (“A and B”). A and B were born in 1989 and 1991 respectively. They are engaged in separate proceedings and are therefore not parties to this application.
The first and second applicants both have learning difficulties. The first applicant’s full-scale I.Q. was assessed at 72, placing him in the “borderline-mild range of learning disabilities”. A psychological assessment conducted in June 2001 described him as being at risk of being exploited and abused, this being partly related to his friendly nature, trust of people and some impulsivity. A further assessment conducted in August 2003 indicated that he was 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.
The second applicant was placed within the borderline range of intellectual functioning, with a full-scale I.Q. of 79. However, concerns were raised in 1994 when a sex offender was found staying at her flat. In 1995 her psychiatric nurse described her as “often the victim of people more assertive than herself” and the following year a duty social worker noted that she “appears very childlike and unable to protect herself or her children”. In a letter dated 10 September 2001 her General Practitioner described her as “severely mentally impaired” and she was seen as requiring support in relation to budgeting, hygiene, cleanliness, household duties and management, responding appropriately to correspondence, and what was described as “engagement/socialisation”.
The third applicant is the mother of the first applicant and has acted as a carer and an advocate for both the first and second applicants.
Three local authority departments were engaged with the first and second applicants and their family. The Community Team for People with Learning Disabilities (“CTPLD”) provided adult social care to the first and second applicants, including a social worker for the couple (“TH”) and a psychiatric nurse for the second applicant. The Children and Families section of the Social Services Department provided support for the children, A and B. Finally, the Housing Department was responsible for the family’s housing needs.
2. The events leading up to the weekend of 17 – 19 November 2000
In April 1999 concerns were raised by the CPTLD about the deteriorating condition of the flat, which was becoming increasingly dirty and untidy. As it was located on the ninth floor of a block of flats, there were also concerns that the children were vulnerable when they played outside. The CPTLD contacted the Housing Department, but were told that the first and second applicants had insufficient points under the re-housing scheme to be eligible for a transfer. On 30 April 1999 a social worker for the first applicant wrote to the Housing Department, emphasising the risk to the children, and asked if a catastrophe had to happen before the family were made a priority case.
On 5 August 1999 the third applicant told TH that the first applicant was being harassed and threatened by a group of boys. On 11 August 1999 and 24 August 1999 the social worker visited the flat. On both occasions she noted that it was very untidy and “stank of urine”. On the second occasion she noted that “the floor was covered in dog faeces”.
On 3 September 1999 the third applicant again informed TH that the first applicant was being tormented by a group of local youths and indicated that she felt the family needed sheltered housing.
On 4 October 1999 the CTPLD and the Children and Family section held a family support planning meeting. At the meeting the family was described as “extremely vulnerable and needy” and it was decided that pressure should be applied to the Housing Department in order to have the family re-housed. However, the Housing Department responded by indicating that the family still had insufficient points to qualify for a transfer under the re-housing scheme.
The first and second applicants completed an application for transfer of tenancy form on 2 December 1999. Despite having insufficient points to qualify, a representative from the Housing Department signed the form as “recommended”. However, no further action was taken by the Housing Department to move the family.
On 23 December 1999 the first and second applicants personally informed the Children and Family section of the harassment they were experiencing on the estate.
On or shortly after 23 March 2000 TH and the children’s social worker wrote separately to the Housing Department to stress that the family needed to be re-housed on account of the first and second applicants’ learning difficulties.
In May 2000 the third applicant became aware that a group of youths had been congregating at the flat, bullying the first applicant and demanding food from him.
In early September 2000 the third applicant visited the flat with a friend. They noted that five or six teenagers were present, that they appeared to be talking advantage of the first and second applicants’ vulnerability, and that the first and second applicants appeared to be intimidated by them and were unable to exclude them. They also noted that “one couple was embracing intimately in the presence of [the second applicant’s] two young girls”. The third applicant’s friend set out her concerns in a letter which was passed to TH.
The police discovered stolen car stereos at the flat on 10 October 2000. The first applicant and two youths (“NC” and “LN”) were arrested, although the first applicant was not charged. Another youth (“RD”) was arrested shortly afterwards. Following their visit, the police notified the Children and Families section that the flat was extremely dirty and that the smell in it was “sickening”. They indicated that although the children did not seem to be in immediate danger, the conditions they were being forced to live in were well below the standards which reasonable people would see fit.
Following the arrest RD and his father assaulted the first applicant, apparently believing that he had informed the police of the stolen goods in the flat. The first applicant suffered a shoulder injury in the assault which required hospital treatment and the subsequent use of a sling. During the assault RD’s father threatened to burn the flat down.
TH. was aware of the assault when she visited the flat on 12 October 2000. She recorded that the first and second applicants were very frightened but did not want to tell the police as RD’s father had told the first applicant not to press charges. Following the visit TH informed the police but they refused to investigate unless the first applicant reported the incident himself.
On 13 October 2000 the third applicant informed TH that “other people” had keys to the flat and that they were using it to dump stolen goods.
On 18 October 2000 TH wrote again to the Housing Department. In the letter she indicated that the first and second applicants were being exploited by youths on the estate and, as they were both very vulnerable, the family was being put at risk
On 23 October 2000 TH visited the property together with a representative from the Housing Department. The first and second applicants explained that they had received offensive phone calls and that the first applicant had been assaulted. The representative from the Housing Department explained the “man.tran.” policy to the first and second applicants (see section on Relevant Domestic Law and Practice).
Between 26 October and 31 October 2000 TH received information from a number of sources indicating that youths truanting from school were using the flat for underage sex and that NC was staying at the flat and had threatened the first applicant. TH and the third applicant contacted the police but the police were unable to act as the first applicant had not made a complaint.
On 2 November 2000 TH wrote to the Duty Social Worker at the Children and Families’ Unit to inform them that the first and second applicants had been befriended by local youths who were using the flat for underage sex and truanting from school. She also indicated that the first applicant had been arrested, following which he was assaulted and threatened by a local youth. She mentioned that NC was staying in the flat and that he had been bullying the family.
The following day TH wrote to the Housing Department, indicating that the first and second applicants were being exploited, threatened and bullied by local youths. As a consequence, she concluded that “their current accommodation is very unsafe”.
On 5 November 2000 the police returned to the flat and arrested two youths for burglary. They informed the Children and Families’ Department that the flat was “disgusting” and “in an unhealthy state”. They further indicated that “local youths are taking advantage of the family with their difficulties and using the flat as a doss house”.
On 6 and 7 November 2000 two other tenants from the same building complained to the Housing Department about the behaviour of the youths living in the flat. They stated that items such as bicycles and metal poles were being thrown from the balcony, that the youths were verbally abusing the neighbours, that a mattress had been set on fire and that a blond boy had been seen urinating in the lift.
On 13 November 2000 the Housing Department sent housing transfer forms to the first and second applicants for a possible “like for like” transfer.
On 14 November 2000 the Housing Department received a petition from 17 residents of the building concerning the activities at the flat. The petition was accompanied by letters from two tenants, which referred to dog faeces being left in front of the flats, abusive language, urinating and using drugs in the lift, urinating from the balcony and hanging a small dog from the balcony. One letter stated that when a tenant had confronted the family about the mess, seven or eight young men had come out of the flat armed with knives and bottles.
3. The weekend of 17 – 19 November 2000
During the weekend of 17 – 19 November 2000, the first and second applicants and their family were physically and sexually abused by three youths (RD, NC and another teenager, WM). The High Court Judge described the incident as follows:
“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. [The first applicant] said that at one stage the youths confined him and [the second applicant] to their bedroom, and made them perform sexual acts. They threw many of [the first and second applicant’s] possessions over the balcony. They forced pepper and fluid into [the first applicant’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. [The second applicant’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.
4. Subsequent events
Following these events the first and second applicants went to stay with the third applicant, before being moved first to bed and breakfast accommodation and later to a new flat. The second applicant’s children were cared for by her parents.
RD, NC and WM were prosecuted for the criminal offences that they had committed.
On 10 September 2001 the third applicant submitted a number of formal complaints against the local authority. As a consequence, two independent investigations were launched (“the Tilt report” and “the Sheppard report”). The Tilt report concluded that the family was under-supported when it needed help most. Seven reasons were given for this. First, those working with the family immediately prior to the November 2000 events did not sufficiently read and interpret the signs of the impending events and showed an inability to string together all the amounting evidence. Secondly, the role and strategies of management in Social Services were insufficiently robust and supportive of staff. Consequently, there was a lack of goal setting, analysis of risk and assessment of need. Thirdly, meetings conducted over several years, none of which included the Housing Department, did not effect change. Fourthly, there was a lack of close and regular collaboration between CTPLD and the Children and Families’ Department. Fifthly, staff were too focused on their own “patch” with no-one seeing the whole picture. Sixthly, over time the case was dealt with by a succession of different workers. Finally, despite numerous warnings the concerns of the third applicant were insufficiently addressed. The report noted, however, that the first and second applicants had to take some responsibility for the events which occurred as they “wanted to do their own thing” after they married and did not always co-operate readily with Social Services.
The Sheppard report agreed that the inability to organise an effective response to the first and second applicants’ needs could be attributed mainly to inefficient co-ordination between the CTPLD and the Children and Families’ Department. As a consequence, sensible decisions were not followed up while other decisions were described as “inexplicable”. The report also noted that care problems were exacerbated by a not insignificant turnover of staff during the relevant period.
Following receipt of the reports, the third applicant’s complaints were considered by the Social Services Complaint Review Panel at a hearing on 2 March 2003. The Panel upheld the complaint that there had been a failure to heed warnings and agreed that more priority should have been given to allocating a Children and Families’ social worker in recognition of the risks to A and B.
5. Judgment of the High Court
The first and second applicants claimed damages against the local authority under the common law tort of negligence and under section 7 of the Human Rights Act 1998. The human rights claim was argued on the basis that the first and second applicants’ rights under Articles 3 and 8 of the Convention had been breached.
Prior to the hearing, damages of GBP 97,000 were agreed subject to liability.
The High Court Judge first considered whether the local authority owed a duty of care to the first and second applicants. He found that it did because it should have been reasonably foreseeable from 20 October 2000 at the earliest, and from 7 November 2000 at the latest, that the first and second applicants would suffer a physical attack from local youths in the flat; the first and second applicants’ relationship with the local authority was sufficiently proximate to warrant the imposition of a duty of care; and it was fair, just and reasonable to impose such a duty. The Judge further found that the local authority had breached its duty of care to the first and second applicants because it should have invoked an emergency transfer system to move them from the flat as a matter of urgency before the weekend of 17 – 19 November 2000.
The Judge observed that the first and second applicants’ claim under the Human Rights Act 1998 was out of time but he indicated that, had it been necessary to determine the claim, he would have granted the necessary extension under section 7 (5) of the Act. However, he did not consider it necessary to determine this claim because, inter alia, he had taken the impact of the Human Rights Act 1998 into account in deciding whether the local authority owed the first and second applicants a duty of care. He also noted that in the course of the proceedings the parties had agreed that in the circumstances of the case it was difficult to see how the human rights claim could succeed if the claim based on the tort of negligence failed.
6. Judgment of the Court of Appeal
The Court of Appeal allowed the local authority’s appeal. Following the recent judgments of the House of Lords in Gorringe (by her litigation friend June Elizabeth Todd)) v. Calderdale Metropolitan Borough Council [2004] UKHL 15 and Mitchell v Glasgow City Council [2009] UKHL 11, the Court of Appeal found that in cases which arose from another’s deliberate wrongdoing, a duty of care could not be founded simply on the degree of foreseeability. In such cases it would only be fair, just and reasonable to impose a common law duty of care if the public authority had done acts, entered into relationships or undertaken responsibilities which gave rise to a common law duty of care. A public authority would not be held to have assumed a common law duty merely by doing what a statute permitted or required.
In the present case the Court of Appeal found that there was no assumption of responsibility by the local authority or any other special factor which could give rise to the imposition of a duty of care. The relevant departments were simply trying to exercise their statutory functions, no more and no less. Consequently, the Court of Appeal found that the local authority did not owe a duty of care to the first and second applicants.
In any case, even if it had found that a duty of care existed, the Court of Appeal would not have accepted the High Court Judge’s finding that there had been a breach of that duty of care.
On 9 December 2009 the applicants’ petition to appeal to the House of Lords was dismissed.
B. Relevant domestic law and practice
1. The common law duty of care
Under common law, a threefold test is usually applied in determining whether a duty of care exists (Caparo Industries plc v Dickman [1990] 2 AC 605). First, the risk of harm must be a reasonably foreseeable result of the defendant’s conduct. Secondly, there must be a relationship of proximity between the claimant and the defendant. Thirdly, the situation must be one in which the court considers that it is fair, just and reasonable to impose a duty of care. However, it is a well-established feature of the common law that liability in negligence was generally not imposed for a “mere omission”.
In the case of Gorringe (by her litigation friend June Elizabeth Todd)) v. Calderdale Metropolitan Borough Council [2004] UKHL 15 the House of Lords indicated that the mere existence of a statutory duty would not in itself create a common law duty of care.
In Mitchell v Glasgow City Council [2009] UKHL 11 the claimants were the widow and daughter of a local authority tenant who died following an attack by another local authority tenant who had been threatening the deceased for a number of years. On the day of the attack the local authority had met with the attacker. During the meeting he had lost his tempter and become abusive. The deceased’s widow and daughter claimed that the local authority should have warned the deceased of the meeting and of the attacker’s frame of mind. They claimed damages from the local authority in negligence under the common law.
The House of Lords did not consider that it would be fair, just and reasonable to impose a duty of care in such a case. In particular, they noted that where the risk of harm had been caused by the criminal act of a third party, it would only be fair, just and reasonable to impose a duty of care if the person said to be under such a duty had by words or conduct assumed responsibility for the person said to be at risk.
2. Local authority procedures for transferring tenants
The High Court Judge identified four separate procedures whereby tenants in local authority accommodation could be transferred. He described them as follows:
“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.
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.
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.
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”
COMPLAINTS
The first and second applicants complain under Article 3 of the Convention that the local authority knew or ought to have known that they were at risk of serious harm and was therefore in breach of its positive obligation to take the measures necessary to prevent such harm occurring. The third applicant also complains under Article 3 of the Convention that the local authority’s failure to prevent the treatment inflicted on the first and second applicants also constituted inhuman treatment in relation to her.
The first and second applicants also complain under Article 6 § 1 of the Convention that the domestic court’s failure to consider their claim under the Human Rights Act 1998 violated their right to a fair trial.
The first and second applicants further complain that contrary to Article 8 of the Convention the local authority’s failure to take reasonably available measures which could have prevented or mitigated the harm that they suffered amounted to a grave interference with their moral and physical integrity and/or with their right to respect for their home.
Finally, the applicants complain under Article 13 of the Convention that in finding that the local authority did not owe them a duty of care, the domestic courts deprived them of an effective remedy within the national legal system for the violations of Articles 3 and 8 which they had suffered.
QUESTIONS TO THE PARTIES
Has there been a violation of the first and second applicants’ rights under Article 3 of the Convention?
Has there been a violation of the first and second applicants’ rights under Article 8 of the Convention?
Did the first and second applicants have at their disposal an effective domestic remedy for their Convention complaints under Articles 3 and 8 as required by Article 13 of the Convention?