United Kingdom House of Lords Decisions

O'Rourke v. Mayor Etc of the London Borough of Camden [1997] UKHL 24; [1998] AC 188; [1997] 3 All ER 23; [1997] 3 WLR 86 (12th June, 1997)

LORD GOFF OF CHIEVELEY

My Lords,

     I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hoffmann. For the reasons he gives I would allow the appeal.

LORD MUSTILL

My Lords,

     I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hoffmann. For the reasons he has given I would also allow the appeal.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

     I have had the advantage of reading a draft of the speech of my noble and learned friend, Lord Hoffmann. For the reasons he gives, and with which I agree, I would allow this appeal.

LORD STEYN

My Lords,

     I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hoffmann. For the reasons he has given I would also allow the appeal.

LORD HOFFMANN

My Lords,

     Mr. O'Rourke is suing the London Borough of Camden ("Camden") for damages for breaches of various statutory duties which he says were owed to him under Part III of the Housing Act 1985. His Honour Judge Tibber, sitting in the Central London County Court, struck out all his claims as disclosing no cause of action. But the Court of Appeal reinstated one of them and against that decision Camden appeals to your Lordships' House.

     Mr. O'Rourke says in his particulars of claim that, when he was released from prison in February 1991, he had nowhere to go. He applied to Camden as housing authority for accommodation. By section 62 of the 1985 Act, if the authority:

 ". . . have reason to believe that he may be homeless. . .they shall make such inquiries as are necessary to satisfy themselves as to whether he is homeless. . . ."

By section 63(1), if the authority:

 ". . . have reason to believe that an applicant may be homeless and have a priority need, they shall secure that accommodation is made available for his occupation pending a decision as a result of their inquiries under section 62."

Persons who have a priority need include those who are "vulnerable as a result of . . . physical disability or other special reason" and Mr. O'Rourke says he falls within this category.

     The particulars of claim allege that after an initial refusal, Camden agreed to make inquiries pursuant to section 62 and on 12 April 1991 provided temporary accommodation pursuant to section 63(1) at the Northumberland Hotel. Mr. O'Rourke says that Camden thereby acknowledged that it owed him a duty under section 63(1) to secure that accommodation was made available. But he alleges that, in breach of that duty, on 24 April Camden wrongfully evicted him from the hotel and did not offer him any other accommodation. He claims damages.

     The question is whether section 63(1) creates a duty to Mr. O'Rourke which is actionable in tort. There is no doubt that, like several other provisions in Part III, it creates a duty which is enforceable by proceedings for judicial review. But whether it gives rise to a cause of action sounding in damages depends upon whether the Act shows a legislative intention to create such a remedy. In X (Minors) v. Bedfordshire County Council [1995] 2 AC 633, 731, the principles were analysed by Lord Browne-Wilkinson in a speech with which the other members of the House agreed. He said that although there was no general rule by reference to which it could be decided that a statute created a private right of action, there were a number of "indicators". The indicator upon which Mr. Drabble Q.C., who appeared for Mr. O'Rourke, placed most reliance was the common sense proposition that a statute which appears intended for the protection of a limited class of people but provides no other remedy for breach should ordinarily be construed as intended to create a private right of action. Otherwise, as Lord Simonds said in Cutler v. Wandsworth Stadium Ltd. [1949] A.C. 398, 407, "the statute would be but a pious aspiration".

     Camden, on the other hand, says that although Part III does not expressly enact any remedy for breach, that does not mean that it would be toothless without an action for damages or an injunction in private law. It is enforceable in public law by individual homeless persons who have locus standi to bring proceedings for judicial review. Furthermore, there are certain contra-indications which make it unlikely that Parliament intended to create private law rights of action.

     The first is that the Act is a scheme of social welfare, intended to confer benefits at the public expense on grounds of public policy. Public money is spent on housing the homeless not merely for the private benefit of people who find themselves homeless but on grounds of general public interest: because, for example, proper housing means that people will be less likely to suffer illness, turn to crime or require the attention of other social services. The expenditure interacts with expenditure on other public services such as education, the National Health Service and even the police. It is not simply a private matter between the claimant and the housing authority. Accordingly, the fact that Parliament has provided for the expenditure of public money on benefits in kind such as housing the homeless does not necessarily mean that it intended cash payments to be made by way of damages to persons who, in breach of the housing authority's statutory duty, have unfortunately not received the benefits which they should have done. This was the view forcibly expressed by Geoffrey Lane L.J. in Wyatt v. Hillingdon London Borough Council (1978) 76 L.G.R. 727, 733 when the plaintiff claimed damages from his local authority for failure to provide benefits under the Chronically Sick and Disabled Persons Act 1970:

 "It seems to me that a statute such as this, which is dealing with the distribution of benefits--or, to put it perhaps more accurately, comforts to the sick and disabled--does not in its very nature give rise to an action by the disappointed sick person. It seems to me quite extraordinary that if the local authority, as is alleged here, provided, for example, two hours less home help than the sick person considered herself entitled to, that that can amount to a breach of statutory duty which will permit the sick person to claim a sum of monetary damages by way of breach of statutory duty."

This was an unreserved judgment and I think that on reflection Lord Lane would have been willing to substitute "was" for "considered herself". With that amendment, I would associate myself with these remarks. In X (Minors) v. Bedfordshire County Council [1995] 2 AC 633, 731-732, Lord Browne-Wilkinson likewise said:

 "Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general."

     A second contra-indication is that Part III of the 1985 Act makes the existence of the duty to provide accommodation dependent upon a good deal of judgment on the part of the housing authority. The duty to inquire under section 62(1) arises if the housing authority "have reason to believe" that the applicant may be homeless and the inquiries must be such as are "necessary to satisfy themselves" as to whether he is homeless, whether he has a priority need and whether he became homeless intentionally. When the investigations are complete, the various duties under section 65 arise only if the authority are "satisfied" that the applicant is homeless and the extent of those duties depends upon whether or not they are "satisfied" as to two other matters, namely that he has a priority need and that he became homeless intentionally. If a duty does arise, the authority has a wide discretion in deciding how to provide accommodation and what kind of accommodation it will provide. The existence of all these discretions makes it unlikely that Parliament intended errors of judgment to give rise to an obligation to make financial reparation. Control by public law remedies would appear much more appropriate: see Lord Browne-Wilkinson in X (Minors) v. Bedfordshire County Council [1995] 2 AC 633, at pp. 747-748.

     Mr. Drabble Q.C. said that the question of whether Parliament could have contemplated enforcement of the Part III duties by judicial review rather than private action should be considered in the light of the state of public law in 1977, when the provisions of Part III were first enacted as the Housing (Homeless Persons) Act 1977. Part III is no more than a consolidation of that Act and should not be treated as either restricting or enlarging the rights which the original legislation conferred. The history of judicial review is examined in some detail by Lord Diplock in his speech in O'Reilly v. Mackman [1983] 2 AC 237. After referring to some of the landmark cases on substantive administrative law such as Ridge v. Baldwin [1964] AC 40, Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997 and Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 AC 147, Lord Diplock said, at p. 279, that by 1977 England had "a developed system of administrative law". The procedural rules had however lagged behind and an applicant for judicial review remained handicapped, in particular by the absence of discovery and cross-examination. These defects were removed by the new Order 53 of the Rules of the Supreme Court, which were made by the Rules of the Supreme Court (Amendment No. 3) 1977 (S.I. 1977 No. 1955 (L. 30)) on 21 November 1977, some four months after the Act of 1977 was passed on 29 July 1977.

     There was some discussion before your Lordships as to whether the Act of 1977 should be construed against the background of public law as it stood on the date when it was passed or whether the remedies which it conferred should be regarded as ambulatory, fashioned according to the law as it stood from time to time. I would not dispute that the latter construction may in certain cases be appropriate: see Cross on Statutory Interpretation (3rd ed. 1995) at p. 51. The question is one of statutory construction like any other. But for the purposes of this case, I do not think that it is necessary to look further than the date on which the Act of 1977 was passed. Not only was the substantive law by that time reasonably well developed but the procedural changes which soon afterwards came into force had been recommended by the Law Commission in a Report on Remedies in Administrative Law (Cmnd. 6407) published in March 1976. Even the existing procedure was in most cases adequate to provide a swift remedy for a homeless person complaining of breach of duty: Lord Diplock said in O'Reilly v. Mackman [1983] 2 AC 237, 281 that:

 "As [the old] Order 53 was applied in practice, as soon as the application for leave had been made it provided a very speedy means, available in urgent cases within a matter of days rather than months, for determining whether a disputed decision was valid in law or not."

Accordingly there is in my view no reason to construe the 1977 Act on the assumption that in the absence of a remedy in damages, it would at the time it was enacted have been no more than a "pious aspiration". The machinery for enforcing it was in place.

     The question of the appropriate remedy for breach of the duties owed under the 1977 Act was considered by this House in Cocks v. Thanet District Council [1983] 2 AC 286, which was decided on the same day as O'Reilly v. Mackman [1983] 2 AC 237. Mr. Cocks brought an action in the Thanet County Court, alleging that he was homeless and in priority need but that in breach of duty, the housing authority, Thanet District Council, had refused to house him. He claimed a declaration that the council was in breach of duty, a mandatory injunction and damages. The action was transferred to the Queen's Bench Division and a preliminary issue ordered as to "whether the proceedings were properly brought by action or could only be brought by application for judicial review." In his judgment, Lord Bridge of Harwich described this as a:

 ". . . procedural issue . . . which . . . will naturally fall for decision in the light of the principles expounded in the speech of my noble and learned friend, Lord Diplock, in O'Reilly v. Mackman [1983] 2 AC 237."

This was, if I may say so with respect, a correct description of the way in which the issue was presented to this House. But concealed within it was a substantive question which was not present in O'Reilly v. Mackman, namely, whether the relief sought in the action could be claimed at all. In O'Reilly v. Mackman all that was claimed was a declaration that an act, undoubtedly operating solely in public law, namely the adjudication of prison visitors, was invalid. The only question was therefore whether such relief could be claimed in an action begun by writ. In Cocks v. Thanet District Council, on the other hand, the plaintiff claimed a declaration, injunction and damages on the basis that he was owed a private law duty. The first question was therefore whether such a duty existed. If it did, there could be no objection to the plaintiff pursuing a tortious cause of action by writ. On the other hand, if he did not, then the O'Reilly v. Mackman question of the procedure by which he could pursue a public law remedy would arise.

     Lord Bridge (with whom the other members of the House agreed) decided that no duty in private law could arise until the housing authority had made its inquiries and decided whether or not it was satisfied as to the various matters upon which the existence of the duty depended. Until the authority had declared itself so satisfied, its decision could be challenged only by judicial review. This was sufficient to dispose of the appeal. The House made a declaration that the plaintiff was not entitled to continue his proceedings "otherwise than by application for judicial review".

     Lord Bridge went on, however, to say that a duty in private law would arise once the housing authority had made a decision in the applicant's favour. He said:

 "On the other hand, the housing authority are charged with executive functions. Once a decision has been reached by the housing authority which gives rise to the temporary, the limited or the full housing duty, rights and obligations are immediately created in the field of private law. Each of the duties referred to, once established, is capable of being enforced by injunction and the breach of it will give rise to a liability in damages. But it is inherent in the scheme of the Act that an appropriate public law decision of the housing authority is a condition precedent to the establishment of the private law duty."

My Lords, I must say with all respect that I cannot accept this reasoning. There is no examination of the legislative intent, the various considerations which I have discussed earlier as indicating whether or not a statute was intended to create a duty in private law sounding in damages. The fact that the housing authority is "charged with executive functions" is treated as sufficient to establish a private law duty. No doubt because the question did not have to be decided, Lord Bridge did not undertake a careful examination of the statutory intent such as he afterwards made in Reg. v. Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 AC 58, pp. 157-161. I feel sure that if he had, he would have expressed a different opinion.

     The concept of a duty in private law which arises only when it has been acknowledged to exist is anomalous. It means that a housing authority which accepts that it has a duty to house the applicant but does so inadequately will be liable in damages but an authority which perversely refuses to accept that it has any such duty will not. This seems to me wrong. Of course a private law relationship may arise from the implementation of the housing authority's duty. The applicant may become the authority's tenant or licensee and so brought into a contractual relationship. But there seems to me no need to interpose a statutory duty actionable in tort merely to bridge the gap between the acknowledgement of the duty and its implementation.

     In his speech in Cocks v. Thanet District Council [1983] 2 AC 286, 294, Lord Bridge cited a passage from his own earlier judgment in De Falco v. Crawley Borough Council [1980] Q.B. 460, 480:

 "If an ordinary action lies in respect of an alleged breach of duty, it must follow, it seems to me, that in such an action the plaintiff as well as claiming damages or an injunction as his remedy for the breach of duty can claim any declaration necessary to establish that there was a relevant breach of duty, and, in particular, a declaration that a local authority's decision adverse to him under the Act was not validly made."

On reflection, Lord Bridge said that he thought that passage was a non sequitur. It seems to me, however, that the conclusion necessarily follows from the premise. The decision of the House that the plaintiff could not claim a declaration that the local authority's decision was not validly made means that the premise must be wrong and that the plaintiff has no private law action for breach of duty at all. It follows that in my view Thornton v. Kirklees M.B.C. [1979] Q.B. 626, which held that he did have such a cause of action, was wrongly decided.

 Mr. Drabble Q.C. did not attempt to support the proposition that a private law duty which had not previously existed could arise when the housing authority had made a decision in the applicant's favour. He accepted Cocks v. Thanet District Council as authority for the proposition that the Part III duties which depended upon the housing authority being satisfied or not being satisfied as to various matters gave rise to no private cause of action in tort. But he said that the temporary duty under section 63(1) was different. It did not depend upon the authority being subjectively satisfied. It was framed in objective terms and arose if the authority "had reason to believe" that the applicant was homeless and had a priority need.

     My Lords, I recognise the difference in language, although I would observe that despite its objective form, the nature of the subject-matter might incline a court to allow a housing authority some latitude in deciding whether it has "reason to believe" the facts giving rise to the duty. The question of what kind of accommodation should be provided also involves a considerable degree of discretion. But the main difficulty I have with this argument is that it requires the court to suppose that, in an Act imposing a number of important duties which are accepted as enforceable only in public law, Parliament intended to embed one temporary duty enforceable by a private action in tort. There seems to me no rational explanation for such a scheme.

     Both in principle and on the authority of the actual decision of this House in Cocks v. Thanet District Council [1983] 2 AC 286 I would therefore hold that the breach of statutory duty of which the plaintiff complains gives rise to no cause of action in private law and I would allow the appeal and restore the order of Judge Tibber striking out the action.