QUEEN'S BENCH DIVISION
B e f o r e :
| THE QUEEN
on the application of
| - and -
| LONDON BOROUGH OF ENFIELD
London Borough of Enfield) for the Defendant
Hearing date: 15 May 2018
Crown Copyright ©
Nigel Poole QC:
"On an application for judicial review the High Court may award to the applicant damages, restitution or the recovery of a sum due if—
(a) the application includes a claim for such an award arising from any matter to which the application relates; and
(b) the court is satisfied that such an award would have been made if the claim had been made in an action begun by the applicant at the time of making the application."
Issues to Be Determined
1. Were the Defendant's actions, which include their failures to act, incompatible with the Claimant's Article 8 rights?
2. If so, should the Court make an award of damages under the Human Rights Act 1998?
3. If so, what is the appropriate quantification of such damages?
her self-report or a description applied by an officer of the Defendant upon receipt of her application. Having regard to the information entered on the same page of the form (at page 28 of the Trial Bundle) I am satisfied that this was a self-description by the Claimant. In the form the Claimant reported Thomas's disabilities, his use of a wheelchair and an assessment that he needed "no stairs inside or out and wheelchair access". The Claimant also reported that Thomas had mental health or learning disabilities, and that his disability or health condition was affected by his accommodation.
"this is where he is washed and uses a portable commode. Thomas and Ms McDonagh have described the difficulties they experience such as Thomas not being able to have a proper bath since moving into the house, the strain on Ms McDonagh when having to wash Thomas in his room with no accessible running water in the room … Thomas expressed the embarrassment he experiences when using the commode in the adjacent room from where people may be watching TV, especially when his siblings bring friends over or family visit…. The family have tried to cope for the time they have live [sic] in the house with the understanding that they would be rehoused into adapted accommodation but the recent decision to remove them from the housing register has left the family in a difficult situation."
"Applicants in Group 5 will be housed in date order. Because you have a special housing need, the Council will match you to a suitable home and make you an offer. We have a severe shortage of homes becoming available for letting each year. In 2013/14 we estimated that 622 homes would become available for letting to all applicants in Groups 1 to 5 and a further 110 homes for older people in Group 6."
Community Paediatrician, by letter to Enfield Social Services dated 23 May 2016; and Kirstie Simpson a Paediatric Physiotherapist who detailed her multiple concerns in a report dated 27 June 2016. The letter from Dr Bolland was written to Enfield Social Services and states:
"The therapists have visited the house and feel that it is totally inadequate for [Thomas] to maintain his health and wellbeing … He is functionally deteriorating, has no privacy and we feel this is impacting on his mental health. His personal hygiene is very poor which is highly likely to impact on his self-esteem … I feel very strongly that his housing is a safeguarding issue. He is unable to undergo orthopaedic surgery as it would not be possible for him to rehabilitate in the current housing."
They also reiterated Thomas' inability to access the toilet upstairs. "As a result", they wrote "our client seeks to make a homelessness application with your Council under Part 7 of the Housing Act 1996 rather than continue under Part 6, which appears to be the case". Chasing emails were sent and it appears that the Claimant's solicitor made a telephone call to the Ettien Community Housing Call Centre on 24 February 2017 and was advised to make a homelessness application online. This proved difficult and eventually on 4 July 2017 the Claimant's solicitors wrote a Judicial Review Letter Before Claim.
"At present the Council does not have accommodation that is any better than the current accommodation. We are in contact with procurement as they source properties but we are also looking into your client's position on the housing register in terms of her position and further information on when it might be anticipated she could receive an offer of permanent housing." On 30 November he wrote:
"Your client requires a 3 bedroom property, adapted for wheelchair access with bathroom facilities on the same level as at least one bedroom/area that could be used as a sleeping area. The bathroom needs to have a wet room or level access shower. We are instructed a bath with an overhead shower will not work as Thomas cannot stand and is totally reliant on a wheelchair.
Allocations and the procurement team have confirmed LBE has not had a 3 bedroom adapted property available. I have been assured not in the previous 12 months but likely longer. If necessary officers can check the historical records but they are sure about 12 months at the very minimum.
The majority of interim accommodation is nightly paid…flats of this nature do not exist … even houses used as interim accommodation do not have the above requirements. As for the s.184 decision, I am instructed a decision will be made in 21 days."
Statutory Provisions and Article 8
"A person is homeless if he has no accommodation available for his occupation in the United Kingdom or elsewhere" which he has an entitlement, licence or right to occupy."
"A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy."
"Accommodation shall be regarded as available for a person's occupation only if it is available for occupation by him together with … (a) any other person who normally resides with him as a member of his family."
"… where a person applies to a local housing authority [in England] for accommodation, or for assistance in obtaining accommodation, and the authority have reason to believe that he is or may be homeless or threatened with homelessness." Those provisions include:
By s.184, a duty on the authority to
"make such inquiries as are necessary to satisfy themselves – whether he is eligible for assistance, and
if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part."
"If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part."
And by s.193, where
"(1)… the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally …"
(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant." Under s.206:
"A local housing authority may discharge their housing functions under this Part only in the following ways –
by securing that suitable accommodation provided by them is available,
by securing that he obtains suitable accommodation from some other person, or by giving him such advice and assistance as will secure that suitable accommodation is available from some other person."
"It is unlawful for a public authority to act in a way which is incompatible with a Convention right." Under s.7:
"A person who claims that a public authority has acted … in a way which is made unlawful by section 6(1) may – bring proceedings against the authority under this Act…." By s.8:
"(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
"(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings."
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including—
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
(4) In determining—
(a) whether to award damages, or
(b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention."
38. Article 8 of the ECHR provides:
"Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Breaches of Part VII Housing Act 1996
1. By failing to accept a Part VII application and secure interim accommodation between March 2015 and July 2017;
2. By failing to secure interim accommodation between July 2017 and
The Claimant has not made her claim on the basis that there was a breach of
s.193 of the Act giving rise to a contravention of Art. 8.
said at :
"… in the vast majority of cases, the making of the application will mean that it is difficult if not impossible for the Council not to believe that the applicant may be homeless or threatened with homelessness.
… If it is apparent from what is said by an applicant (for there is no requirement that an application be in writing) or from anything in writing that he may be homeless or threatened with homelessness, the duty is triggered. Thus if a person complains to a council that the conditions in his existing accommodation are so bad that he wants a transfer or needs to find somewhere else, it is likely that the duty will arise because of s. 175(3) even if there is no application based specifically on homelessness."
Claimant's occupation pending a decision as to the duty owed to her under the later provisions of Part VII.
Nevertheless the Court will not enforce the duty unreasonably: R v Newham LBC ex parte Begum  2 All ER 72.
a The accommodation which the Defendant had a duty to secure as available had to be "suitable" accommodation [s.206]. The suitability of accommodation secured under Part VII must be judged in the context of homelessness, whereas accommodation made available under Part VI does not. The securing of accommodation under Part VII, and its predecessor provisions, has been referred to "a lifeline of last resort" – Pulhofer v Hillingdon LBC (1986) 1 AC 484 at 517 per Lord Brightman.
b Any accommodation secured under s.188(1) would be on an interim basis. What is "suitable" for interim accommodation may not be "suitable" as permanent housing and vice versa.
c When the Defendant did accept it had a s.188(1) duty, Mr Riding wrote to the Claimant's solicitors (his email of 30 November 2017) that no suitable property had been available "for the previous 12 months but likely longer". I have no direct evidence as to whether suitable interim accommodation might have been available from December 2015, but I accept that it would always have been difficult to secure the availability of suitable accommodation for the Claimant and her family.
d The Defendant also relies on the witness evidence of Helen Stavrou but it is of limited use. She does speak to the "strenuous efforts" the Defendant has made to locate and source a property that would be suitable for the Claimant and her household over the 12 months prior to her statement (therefore from February 2017). She does not speak to any efforts made prior to February 2017 and she does not produce any documentary evidence to substantiate her claim that such strenuous efforts had been made after that date. The Defendant has a duty of candour and were there documents showing the efforts made to find suitable properties, I would have expected to see them.
e The evidence shows that from January 2016 the Defendant had been seeking to secure suitable accommodation but as an allocation of housing under Part VI of the Act, not on an interim basis under s.188(1). The Claimant had been put in the Group 5 category, but no accommodation with level access throughout had become available. The Claimant had been warned of the difficulty there might be in finding suitable accommodation as a Group 5 applicant. As I understand it however, this allocation would have been from the Defendant's own housing stock, whereas interim accommodation under a s.188 duty might be secured from the private sector. The pool of housing from which suitable accommodation could have been secured might therefore have been greater had the s.188 duty been recognised from the end of 2015. It might also have allowed for interim housing to be secured which did not provide level access throughout but did improve the living conditions and access to toilet and bathroom facilities for Thomas.
Breach of Article 8 – Case Law
"1. Article 8 of the European Convention of Human rights does not impose on a public authority a duty to provide a home to a homeless person.
2. The fact of homelessness may be relied upon as one element of a claim that a person's rights under Article 8 to private or family life have been breached. However, homelessness by itself cannot found such a claim.
3. A homeless person has no right in tort to recover damages against a local authority for failure to provide accommodation, in accordance with duties imposed by Part 7 of the Housing Act 1996.
4. Absent special circumstances which interfere with private or family life, a homeless person cannot rely upon Article 8 of the European Convention on Human Rights in conjunction with Part 7 of the Housing Act 1996 in order to found a damages claim for failure to provide accommodation."
"Under Article 8 the claimants are entitled to respect for their
"private and family life". While the main thrust of Article 8 is to prevent arbitrary interference by public authorities with an individual's private and family life, the European Court of Human Rights has recognised that Article 8 may require public authorities to take positive measures to secure respect for private and family life"
" 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.
 …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 …
 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."
"…those entitled to care under section 21 are a particularly vulnerable group. Positive measures have to be taken (by way of community care facilities) to enable them to enjoy, so far as possible, a normal private and family life. In Morris, Jackson J was concerned with an unlawful failure to provide accommodation under Part VII of the Housing Act 1996, but the same approach is equally applicable to the duty to provide suitably adapted accommodation under the 1948 Act. Whether the breach of statutory duty has also resulted in an infringement of the claimants' Article 8 rights will depend upon all the circumstances of the case. Just what was the effect of the breach in practical terms on the claimants' family and private life?"
"Our conclusion is that Sullivan J was correct to accept that article 8 is capable of imposing on a state a positive obligation to provide support. We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage article 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, article 8 may require the provision of welfare support in a manner which enables family life to continue… Family life was seriously inhibited by the hideous conditions prevailing in the claimants' home in Bernard and we consider that it was open to Sullivan J to find that article 8 was infringed on the facts of that case."
"Where the complaint is that there has been culpable delay in the administrative process necessary to determine and to give effect to an article 8 right, the approach of both the Strasbourg court and the commission has been not to find an infringement of article 8 unless substantial prejudice has been caused to the applicant."
"The Strasbourg court has rightly emphasised the need to have regard to resources when considering the obligations imposed on a state by article 8. The demands on resources would be significantly increased if states were to be faced with claims for breaches of article 8 simply on the ground of administrative delays."
"Much will depend on the court's view of the effect of the failure to provide suitable accommodation on the claimants and their families. There has been no physical break up of the family: they have remained together. But that is not determinative; as Bernard shows, there may nonetheless be an interference."
Breach of Art 8 – Application to the Facts
Defendant has not made any apology. There is no other remedy available to the Claimant for the breaches and infringement.