QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BERNARD||(CLAIMANT)|
|LONDON BOROUGH OF ENFIELD||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR H HARROP-GRIFFITHS (instructed by London Borough of Enfield, Legal Services Department) appeared on behalf of the DEFENDANT
Crown Copyright ©
The second claimant, Mrs Bernard, is 48 years old. She is severely disabled following a stroke. She suffers from hemi paralysis and has almost no use of her right arm and leg. She has very limited mobility and is dependent on an electrically operated wheelchair. She is doubly incontinent and also suffers from diabetes. She is cared for by her husband, the first claimant, who also looks after their six children, whose ages now range from between 20 to 3 years old.
"Mrs Bernard had a stroke when she was 6 months old which resulted in right hemiplegia spasticity in right upper and lower limbs; shortening of right lower limb and hypertension. Mrs Bernard uses an electric wheelchair and walking stick for mobility. However she is unable to use wheelchair as the property is inaccessible - she sits in a shower chair most of the day. She is unable to undertake personal care tasks - can manage a little with left hand. She depends totally on her husband to assist with all aspects of personal care and to maintain personal hygiene. Needs assistance to cut up food but independently feeds herself. Owing to frequency and urgency means unable to access toilet; experiences stress incontinence, therefore wears pads. Accommodation inaccessible - remains in lounge area, unable to access first floor. Experiences disturbed nights owing to pain in right side - needs to be turned frequently during the night and husband assists."
The report went on to say:
"Husband is the sole carer - Mr Bernard is happy to continue with above but has requested assistance with childcare commitments."
"1. [Occupational Therapist] to undertake full assessment for appropriate adaptations/equipment to enable Mrs Bernard to function safely/effectively in the home.
2. To take housing issue to Panel requesting housing report for recommendation for suitable accommodation."
The Comprehensive Assessment described the background in a little more detail:
"Mr and Mrs Bernard and 6 children aged between 11 months and 19 years live in temporary accommodation. The property is not suitably adapted to meet the needs of Mrs Bernard and is inaccessible for wheelchair use. As a result, Mrs Bernard is confined to the lounge room where her bed is. The room is shared with her husband and 2 youngest children. The increasing difficulties in meeting Mrs Bernard's care needs in this property is causing stress to all concerned. Mr Bernard has reported the above to the Council and for some time requested more suitable accommodation. Social Services department has been requested to undertake a community care assessment to provide, as identified/agreed appropriate support. Mr Bernard (sole carer) supports his wife with all essential daily living tasks and also manages child care commitment."
Under a heading "Desired Outcome", this is said:
"Mrs Bernard would like to feel safe at home. Currently she cannot answer the front door. She is unable to access outside. Mrs Bernard needs assistance with all essential daily living tasks. Mrs Bernard would like a home suitably adapted for wheelchair use/equipment to enable her to function safely/effectively, which would provide a level of independence and improve quality of life."
Under "Personal Care" it said:
"Mrs Bernard depends totally on her husband to assist/support with all essential daily living tasks. Mr Bernard lifts his wife for all transfers. The bathroom is not easily accessible, have to negotiate steps. Once inside Mrs Bernard sits on the side supported by her husband to swing her legs into the bath for a wash."
Under "Personal Safety":
"Mrs Bernard feels very unsafe at home. Occasionally she is left alone with the two youngest children when her husband has to collect the other children from school. At these times she feels particularly concerned should there be an accident/emergency she could not raise an alarm or help the children. Mrs Bernard has fallen 4 times injuring her breast and thumb. Generally feels very vulnerable in her situation."
Under "Household Tasks":
"Mrs Bernard is unable to carry out any domestic tasks - she is confined to the lounge room. Her husband undertakes all household tasks. The older children provide support occasionally by doing the shopping."
"Terraced 2 storey, 4 bedroom temporary accommodation. The property is inaccessible for wheelchair use. It has no adaptations to meet the needs of a disabled person. Mrs Bernard is confined to the lounge room where her bed is. She is assisted with all daily living tasks in this area. The property is accessed via the front door which opens from a small front area directly into the lounge room. This obviously affords no privacy. The room is cramped and is shared with her husband and the two youngest children ... There are concerns about the safety of children accessing staircase without adequate support."
"Mrs Bernard needs assistance with all transfers. She can stand with support for a short while but becomes very unsteady. Mrs Bernard uses an electric wheelchair for mobility however, she has been unable to use this in her present property. She uses a walking stick to help her to stand. Mrs Bernard sits in a shower chair most of the day. She finds this extremely uncomfortable seating - lower part of her body becomes very sore."
The summary and care plan says this:
"Mrs Bernard and her family need assistance to move to a suitable adapted property where she would be able to resume a level of independence and her care needs would be safely met."
The recommendation is:
"... to take housing issues to Panel and to request housing report for recommendation for suitable accommodation."
"Wheelchair accessible property to enable independent mobilisation within home. To have safe access to bathroom, toilet, kitchen and bedrooms."
Under "Carer's View Of Need" it said "As above".
"Because of the wife's situation there is always a strain on our relationship but somehow we always seem to overcome this. I have to understand the tremendous strain my wife is under from not being able to do things for herself and the children."
He mentioned his back problems and his concerns for his wife and children. If his back pains became worse "who would then look after the wife and children?"
"There is a 4 inch step at the front door, which opens directly into the lounge.
The stairs to the upstairs are open plan to the lounge...
The kitchen is open plan from the other side of the stairs and there is then a door with a 4 inch step which leads out to a lean to porch. This porch leads to the bathroom/toilet.
As stated above, the bathroom and toilet are at the rear of the ground floor of the property and can only be accessed from the sitting room via a series of 5 steps. The porch has a plastic roof which leaks water and caused the floor to be extremely slippery. The shower has a 10 inch step and is totally inaccessible to Mrs Bernard. She has a bathlift in situ but is unable to access the bathroom or bath without her husband's support. She has no privacy and is also often incontinent as she cannot get to the toilet in time.
She tries to reduce her fluid intake in an effort to reduce the amount of times she goes to the toilet but this has poor implications for her diabetes management."
Further points were made, including the fact that the second claimant had no privacy to get changed and no independent access to her clothes.
"Mrs Bernard should be using a powered wheelchair and have equipment that would assist with transfers. The property is totally inaccessible for a wheelchair and too small for any equipment. The wheelchair has been retained by the wheelchair clinic until suitable accommodation is found.
She is therefore totally dependent on her husband for all personal and domestic tasks of daily living. She cannot move without his assistance. Her husband also has to care for their 6 children in addition.
Mrs Bernard is only 47 years old and is incontinent due to the difficulties of getting to a toilet in time, due to the layout of the property and her lack of wheelchair use.
She has no independent access to suitable washing facility.
She is unable to care for or supervise her children as she cannot move about the home...
She is unable to cook for the family as she would like to.
She is unable to go out without considerable difficulties.
She is unable to fulfil her role as mother and carer of her children due to the poor accommodation she is living in."
The conclusion was, perhaps unsurprisingly:
"The present property is totally unsuitable for the needs of Mrs Bernard as a disabled person.
It denies her access to a wheelchair which is her only form of independent and safe mobility.
It denies her, her role as mother in caring for her children.
It denies her access to essential washing and toiletting facilities."
"Because my wife is doubly incontinent and only gets, frequently, less than 1 minute warning of the need to use the toilet, she commonly defecates or urinates before we reach the toilet. The result has been that I have had to persistently clean the carpets, together with her clothes and bedclothes. This is a problem, which arises several times each day. I have to go to the laundrette often twice a day, and because of the layout of the house, I have had to buy adult size nappies for my wife together with disposal pants and wipes...
We only have benefits to live on and the additional cost of going to the laundrette twice a day and having to buy large amounts of floor cleaner and carpet cleaner has left us impoverished. We have not been able to pay the difference between our Housing Benefit and rent because we are so impoverished by these laundrette and cleaning costs.
Additionally, my wife's role in bringing up the children is greatly limited. She cannot access the upper part of the house at all and it is a real struggle for her to leave her bedroom, which is in fact, the family's living room.
She has no privacy. We have six children, and she is in the living room, which is accessed directly from the front, street door.
Understandably my wife finds this state of affairs depressing and demeaning. It is very humiliating for her to constantly defecate or urinate in her clothing, as she is unable to reach the toilet. This happens as a result of the layout of the house and because the house does not have proper adaptations for a disabled person."
By virtue of section 6(1) of the Act it is unlawful for a public authority to act in a way which is incompatible with a Convention right. The claimants contend that the defendant acted incompatibly with their rights under Article 3 and Article 8 of the Convention.
Article 3 provides so far as material that the claimant should not be "subjected to inhuman or degrading treatment." The prohibition in Article 3 is an absolute one, permitting of "no qualification or excuse." It is not in dispute that the claimants were badly treated as a result of the defendant's failure to act on the assessments in September 2000, but:
"Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim."
see A v United Kingdom  27 EHRR 661 at paragraph 20.
"The Court has previously examined cases in which it concluded that there had been treatment which could only be described as torture. However, having regard to the fact that the Convention is a 'living instrument which must be interpreted in the light of present day conditions', the Court considers that certain acts which were classified in the past as 'inhuman and degrading treatment', as opposed to 'torture' could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies."
"... in the present case, the fact remains that the competent authorities have taken no steps to improve the objectively unacceptable conditions of the applicant's detention. In the Court's view, this omission denotes lack of respect for the applicant. The Court takes particularly into account that, for at least two months, the applicant had to spend a considerable part of each 24-hour period practically confined to his bed in a cell with no ventilation and no window which would at times become unbearably hot. He also had to use the toilet in the presence of another inmate and be present while the toilet was being used by his cellmate. The Court is not convinced by the Government's allegation that these conditions have not affected the applicant in a manner incompatible with Article 3. On the contrary, the Court is of the opinion that the prison conditions complained of diminished the applicant's human dignity and arose in him feelings of anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical or moral resistance. In sum, the Court considers that the conditions of the applicant's detention in the segregation unit of the Delta wing of the Koridallos prison amounted to degrading treatment within the meaning of Article 3 of the Convention."
In Price a severely disabled woman had been imprisoned for three nights for contempt of court. In paragraph 30 of its judgment, the court said:
"There is no evidence in this case of any positive intention to humiliate or debase the applicant. However, the Court considers that to detain a severely disabled person in conditions where she is dangerously cold, risks developing sores because her bed is too hard or unreachable, and is unable to go to the toilet or keep clean without the greatest of difficulty, constitutes degrading treatment contrary to Article 3."
It should be noted that in that case male officers had been required to assist in lifting the applicant on to and off the toilet, and that "by the time of her release the applicant had to be catheterised because of the lack of fluid intake, and problems in getting to the toilet had caused her to retain urine": see paragraphs 28 and 29 of the court's judgment. Reference was also made to two other prison cases: Dougoz v Greece  10 BHRC 306 and Kalashnikov v Russia, judgment dated 15th July 2002.
By contrast the case under Article 8 is not finely balanced. Under Article 8 the claimants are entitled to respect for their "private and family life." While the main thrust of Article 8 is to prevent arbitrary interference by public authorities with an individual's private and family life, the European Court of Human Rights has recognised that Article 8 may require public authorities to take positive measures to secure respect for private or family life: see Markcx v Belgium  2 EHRR 330, at paragraph 31. In Botta v Italy  26 EHRR 241, the court said this in paragraphs 32 to 34:
"32. Private life, in the Court's view, includes a person's physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings.
33. In the instant case the applicant complained in substance not of action but of a lack of action by the State. While the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities, it 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 or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. However, the concept of respect is not precisely defined. In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, while the State has, in any event, a margin of appreciation.
34. The Court has held that a State has obligations of this type where it has found a direct and immediate link between the measures sought by an applicant and the latter's private and/or family life."
It is unnecessary to attempt to define "family life" since it is not in dispute that "the fundamental element of family life is the right to live together so that family relations can develop naturally and that members of a family can enjoy one another's company": see paragraph 13.90 of Clayton & Tomlinson's Law of Human Rights.
Section 8(3) of the Act
It does not follow that the claimants are entitled to an award of damages. Under section 8(1) the court "may grant such relief or remedy or make such order within its powers as it considers just and appropriate." Section 8(3) provides:
"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."
"In practice, the discretion given to the domestic courts under the [Human Rights Act] appears to be no less broad than that of the Strasbourg Court under Article 41."
Paragraph 4.44 says:
"We have seen that the Strasbourg Court, in deciding whether just satisfaction requires an award of damages, takes into account a wide range of matters which are not referred to in section 8 of the [Human Rights Act]. Thus it may refuse damages altogether, or grant them on a more or less generous basis. Such cases are never expressly identified by the Court as departures from the principle of restitutio in integrum; usually the reasons are simply not articulated. In Part III we attempted to identify the factors which the case-law suggests are taken into account by the Strasbourg court when it assesses damages:
(1) A finding of a violation may constitute just satisfaction.
(2) The degree of loss suffered must be sufficient to justify an award of damages.
(3) The seriousness of the violation will be taken into account.
(4) The conduct of the respondent will be taken into account. This may include both the conduct giving rise to the application, and a record of previous violations by the State.
(5) The conduct of the applicant will be taken into account."
Quantum of Damages - Discussion
The guiding principle is restitutio in integrum, a principle which is, for obvious reasons, much easier to apply where there has been pecuniary rather than, as in the present case, non-pecuniary loss. The additional laundry and cleaning costs mentioned by the first claimant in his witness statement have not been quantified. No "tariff" can be derived from decisions made by either the domestic courts or the European Court of Human Rights. In the case of the former there are, as yet, no reported decisions that might be of any assistance and, in the case of the latter, there is a marked lack of consistency in the court's many awards. A selection of those awards is helpfully analysed, article by article, in section B of the Law Commission's report.
"(2) The court should not award exemplary or aggravated damages...
(4) The quantum of the award should be 'moderate', and 'normally on the low side by comparison to tortious awards.'"
The claimants do not suggest that I should award them exemplary or aggravated damages.
"Lord Woolf's suggestion that awards should be 'on the low [side] in comparison to tortious claims' would seem to require a departure from the principle of restitutio in integrum applied by the Strasbourg Court. As we have noted, like awards in tort, Strasbourg awards are designed to reflect the full amount of the loss."
Having noted in paragraph 4.63:
"... that the Strasbourg Court's awards for non-pecuniary losses cover a wide range of intangible injuries. The categories of loss which have been compensated under this heading include pain, suffering and psychological harm, distress, frustration, inconvenience, humiliation and anxiety."
The Commission say this in paragraphs 4.66 to 4.68:
"4.66 It may be reasonable to expect awards for non-pecuniary loss under the [Human Rights Act] to be kept to 'moderate' levels, to use Lord Woolf's term. This proposal is consistent with the general experience that the Strasbourg Court 'has not proved unduly generous' in awarding compensation. In Heil v Rankin, the Court drew attention to the observations of the Canadian Supreme Court in relation to the assessment of non-pecuniary loss:
This is the area where the social burden of large awards deserves considerable weight. The sheer fact is that there is no objective yardstick for translating non-pecuniary losses, such as pain and suffering and loss of amenities, into monetary terms. This area is open to widely extravagant claims...
4.67 This caution was echoed by the Court of Appeal:
The compensation must remain fair, reasonable and just. Fair compensation for the injured person. The level must also not result in injustice to the defendant, and it must not be out of accord with what society as a whole would perceive as being reasonable.
Awards must be proportionate and take into account the consequences of increases in the awards of damages on defendants as a group and society as a whole.
This required the court to have regard to factors such as the fact:
that our decision will have a significant effect on the public at large, both in the form of higher insurance premiums and as a result of less resources being available for the NHS.
4.68 Similar considerations will apply under [the Human Rights Act]. However, in this context, as in that of pecuniary loss, it is hard to see why awards under [the Human Rights Act] should be 'on the low side by comparison with tortious awards.' In those cases where there is a close common law analogy, for example wrongful detention, the tariffs established in cases such as Thompson v The Commission of Police and Metropolis, would appear equally applicable, subject of course to account being taken of the facts of particular cases. But there is no reason to think that the courts will find any difficulty in developing appropriate tariffs for standard types of case."
To this trial judge, the final sentence of paragraph 4.68 appears somewhat over optimistic, but in a footnote (number 127) the Commission does refer to two potentially valuable sources of information in relation to awards of damages or compensation in circumstances which are more closely comparable with the facts of the present case. Damages for discomfort, inconvenience and injury to health arising out of breaches of repairing covenants in residential tenancies; and recommendations by Local Commissioners for Administration (Local Government Ombudsman) that local authorities pay compensation when claimants have suffered as a result of maladministration.
"This needs to have regard to all the circumstances including the severity of the distress, the length of time involved, and the number of people affected (for example, members of the complainant's family as well as the complainant).
31. This element may be a moderate sum of no more than a few hundred pounds or less but in cases where the distress has been severe and/or prolonged, a more substantial sum may be justified."
"In these cases a virtually full recovery will have been made within one or two years and only minor symptoms will persist over any longer period."
In Kemp and Kemp the awards for "minor injuries" defined as "cases of complete or almost complete recovery where damages are principally for pain and suffering and shock" ranged between a few hundred pounds to around £6,000 at 2002 values.
"Awards must be proportionate and take into account the consequences of increases in the awards of damages on defendants as a group and society as a whole. The considerations are ones which the court cannot ignore. They are the background against which the fair, reasonable and just figure has to be determined."
Claimants are entitled to damages for personal injury as of right if liability is established. There are numerous such claimants, and any general increase in the quantum of personal injury damages is bound to have far-reaching effects. By contrast, the award of damages under section 8(3) is in the court's discretion, an award does not follow merely because there has been a breach of a Convention right.
"Award should not be minimal, because this would tend to trivalise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained."
In their skeleton arguments the parties had not put forward any figures: the claimants arguing for a "substantial" award; the defendants for a "moderate" one if damages were considered appropriate, which was not accepted.
Conclusions on Quantum
The award to the claimants should not be minimal, that would undermine for the policy underlying the Act that Convention rights should be respected by all public authorities. As with damages for Personal Injuries the court must not ignore the consequences of awards under section 8(3) for public authorities generally and society as a whole. On a simplistic view of local authority accounting, the larger the award to the claimants under section 8 the less there will be for the London Borough of Enfield to spend on providing social service facilities for the many others in need of care within the borough. Even if the money does not come out of the social services budget, it will have to come from some other service's budget and/or from Council taxpayers.