22 June 2018, by Connor Johnston
The claimant, X, was a Ghanaian national who had been internally trafficked within Ghana where she had been physically and sexually exploited and placed in domestic servitude. She later came to the UK where she was forced into sex work. As a result of her experiences, she was referred into the National Referral Mechanism and placed in safe house accommodation, following which she was recognised conclusively as a victim of human trafficking and granted leave to remain.
After she left the safe house accommodation, X applied to the defendant, Hammersmith and Fulham LBC, as homeless. X was then placed in interim accommodation, under s188(1) Housing Act 1996, at Rose Lodge in Wembley. This was shared, mixed-sex accommodation in which a number of male residents were living. X stayed there for the best part of a month, during which time an incident occurred where one of the male residents grabbed her pyjamas. This incident was reported and X was moved to self-contained accommodation in Tottenham.
X reported that, on the day of the move to Tottenham, she was accosted by a woman who ‘started calling her by the name she had used when working in prostitution’ and who asked if she was living at the address. She saw the woman again several hours later, when she went to the shops, at which point she panicked and quickly got on a bus. X contacted the police the next day and was moved to an address in Shepherd’s Bush.
X later brought a claim against Hammersmith and Fulham, arising from the sexual assault she had suffered, and the risk of re-trafficking she had been exposed to (among other things), as a result of being placed in two placements of unsuitable accommodation. She sought damages for breaches of the EU Trafficking Directive 2011/36/EU and declarations that Hammersmith and Fulham had breached their duties under the Trafficking Directive, Human Rights Act 1998 and the Housing Act 1996 as well as their common law duty of care.
Langstaff J dismissed X’s claim.
On the facts of the case, the judge took the view that – if X had been owed a duty such as might give rise to a claim for damages – there would have been no breach. The incident at Rose Lodge, he accepted, had taken place. But it was not reasonably foreseeable. In relation to the incidents in Tottenham, he had difficulties in accepting elements of X’s evidence, and he did not accept that the incidents had taken place. In any event, Hammersmith and Fulham had reacted promptly in moving X the next day.
On the law, the judge held that, in any event, there was no basis for a private law claim for damages. O’Rourke v Camden LBC  AC 188 was binding authority for the proposition that s188(1) did not create a private law duty for which damages could be claimed. Likewise, there was no basis for a common law claim in negligence, and reliance on Art.4 ECHR (which encompasses trafficking) and Art.8 did not assist X on this issue: the House of Lords and Supreme Court had, in two cases involving the ECHR, shied away from imposing liability in negligence on local authorities for the acts of third parties for whom the authority had no control.
In relation to the Trafficking Directive, X sought to rely on Art.11, which provides for assistance and support for victims of trafficking. The judge held that although the assistance referred to in Art.11 was not time limited, it was not unconditional or sufficiently precise so as to have direct effect in domestic law. And while it was possible that the Trafficking Directive could have an indirect effect, as there is an obligation to construe legislation ‘purposively to achieve the objects envisaged by that Directive’, and that this could be relevant to the suitability of accommodation provided under Part 7 Housing Act 1996, ‘this interpretative approach does not enable the claimant to claim that a trafficked person has a right to claim damages for any failure by a housing authority to provide it’.
For housing lawyers dealing with the immediate problem of trying to ensure that their homeless client is suitably accommodated, the most important part of this judgment is probably para 41 on indirect effect:
‘Part 7 of the Housing Act 1996 speaks of “suitable” accommodation. Though this word may doubtless be adapted to the particular circumstances of the individual seeking assistance and accommodation under the Act, when it comes to those in respect of whom there has been a conclusive grounds decision that they have been trafficked, it may be taken to equate to “safe and appropriate”. There is, in my view, therefore an obligation under the Act resting on a housing authority considering the case of a trafficked person to provide such accommodation.’
‘Safe’ in this context means ‘safe from the risks of re-trafficking’. See paras 30 and 39.
The upshot of this is that for accommodation to be suitable for a victim of trafficking – as one might have suspected – it needs to be sufficient to keep them safe from the risk of re-trafficking. This approach is entirely consistent with the new code of guidance (which was not in force at the time X applied as homeless in 2013) which advises local housing authorities to consider the risk of re-trafficking (para 25.21), any need for gender-specific accommodation (para 25.21) and the possibility of further exploitation (para 25.22), when assessing suitability.