Whether to award ECHR damages for breach of homelessness duties

Friday 22 June 2018

The claimant, M, was an Irish national with three children. The middle child, T, had spastic quadriplegic cerebral palsy and bilateral hip dislocation and relied on a wheelchair to mobilise.

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R (McDonagh) v Enfield London Borough Council [2018] EWHC 1287 (Admin), 24 May 2018

The claimant, M, was an Irish national with three children. The middle child, T, had spastic quadriplegic cerebral palsy and bilateral hip dislocation and relied on a wheelchair to mobilise. M came to the UK in April 2014, having fled an abusive marriage.

M and her family spent around four-months living in a series of bed and breakfasts, before she managed to obtain an assured shorthold tenancy from a private landlord. However, the property in question – which was a two-storey house with a bathroom and toilet on the first floor – was not suitable as T could not access the first floor with his wheelchair.

In March 2015, M duly made an online application to the defendant, the London Borough of Enfield, for accommodation. In her application she described herself as ‘not homeless’, however she provided information as to T’s disabilities and explained that she needed a property with no stairs inside or out, and wheelchair access.

This notwithstanding, for some considerable time, no effective action was taken on the part of Enfield and the family remained accommodated in their unsuitable private sector accommodation.

Since T could not access the bathroom and toilet upstairs he was not able to have a proper bath and would wash and use a portable commode, in his downstairs bedroom which was not equipped with running water. An experience that was embarrassing for him and placed a strain on M. Hip surgery, which had been planned for T, was postponed twice owing to the unsuitability of the property for his rehabilitation.

In early 2018, Ms McDonagh, who had by now instructed solicitors, sought judicial review of Enfield’s failure to determine her homeless application and to provide her with interim accommodation in the meantime. Shortly after, Enfield accepted the main housing duty toward Ms McDonagh and, around a month later, the family were provided with single level accommodation suitable for a wheelchair user.

Following this, Ms McDonagh amended her grounds of judicial review, so as to seek damages for an alleged breach of Art.8 ECHR arising from Enfield’s failure to properly discharge its statutory functions under Part 7 Housing Act 1996.

Nigel Poole QC, sitting as a Deputy High Court Judge, noted that there was a low threshold for the acceptance of a homeless application under Part 7, Housing Act 1996 and no particular form was required. He noted the observation of Collins J in R (Aweys and others) v Birmingham CC [2007] EWHC 52 (admin), [2007] HLR 27 that ‘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 [to accept an application] will arise’.

Applying these principles Enfield had erred in failing to make inquiries under s184 Housing Act 1996 and had also unlawfully failed to provide suitable interim accommodation under s188(1). The latter failure ran from December 2015, by which time Enfield were in possession of a medical assessment, acknowledging the family’s need for floor level accommodation, as well as further information provided by a social worker setting out the nature of the family’s living conditions. Although the defendant – who sought to argue that no suitable accommodation was available to discharge this duty – had made some efforts to find accommodation, it had not adduced evidence to establish that it had taken ‘all reasonable steps’.

Moving on to the Art.8 ECHR aspect of the case the court accepted in principle that:

‘Article 8 may create positive obligations on public authorities involving the adoption of measures designed to secure respect for private life, and that breaches of duty under Part VII of the Housing Act 1996 may, depending on all the circumstances of a particular case, give rise to a finding that a public authority has acted incompatibly with the positive obligations under Article 8.’

However, on the particular facts of the case, although M ‘had carried a heavy burden over the past few years’ there had been no breach of Art.8. In reaching this conclusion the judge took into account the following factors:

  • Enfield had made some efforts to find suitable accommodation.
  • It was ‘not obvious’ that the provision of interim accommodation ‘would have contributed positively to the development of the personality and integrity of the claimant to a substantially greater extent’.
  • The practical difficulties the defendant would have had in finding suitable accommodation in any event, and the fact that – the judge found – it would not have been possible to secure suitable accommodation from November 2016 onward.
  • The additional burden placed on M, in meeting T’s needs was around 3 hours a day. Although this was a ‘substantial’ burden, she would have had to assist in meeting his care needs and those of her other children in any event, and so could not be said ‘to amount to a denial of her own Article 8 right to physical and psychological integrity or development or her right to family life’.
  • The family had not been divided or made street homeless. Their family life continued throughout, albeit under ‘significant strain’.
  • In Anufrijeva v Southwark LBC [2004] QB 1124, the Court of Appeal found it ‘hard to conceive’ of a situation where there would be a breach of Art.8 by virtue of a failure to provide welfare support, in circumstances where there would not also be a breach of Art.3. The circumstances of the present case were not so severe as to infringe Art.3.

The judge went on to consider the remedy he would have awarded had the breach of Art.8 been established. He took the view that a declaration that Enfield had acted unlawfully would have been sufficient to afford M ‘just satisfaction’, but that if he had been to award damages, a sum of £2,000 would have been appropriate.

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