R. (on the application of Bernard) v Enfield LBC: The Case of the Unaccomdating Housing

R. (on the application of Bernard) v Enfield LBC
[2003] H.R.L.R. 4
Queen's Bench Division (Administrative Court)

Brief Summary:

The claimants sued after the Social Services Department failed for two years to provide appropriate housing to accommodate the second claimant's physical disability.  The court held that the failure to provide adequate accommodations for the second claimant, who was wheel-chair bound, was not a violation of Article 3 of the European Convention on Human Rights (inhuman and degrading treatment), but was a violation of Article 8 (right to private and family life).  The claimants were awarded damages of GBP 10,000.

 

The Facts:

The second claimant was severely disabled following a stroke, had very limited mobility and was dependant on an electronically operated wheelchair. She was doubly incontinent and suffered from diabetes. She was cared for by her husband, the first claimant, who also looked after their six children, aged between 3 and 20 years old.

On June 13, 2000 the defendant's Housing Department accommodated the family at a home and defendant's Social Services Department undertook a number of assessments of the claimants' needs. These assessments indicated that the property was unsuitable for the second claimant because, among other things, the second claimant was unable to use her wheelchair in the property and was confined to the lounge room. The Social Services Department recommended that suitable accommodation be provided for the second claimant. At the hearing the defendant accepted that, it the light of those assessments, it had been under a duty to make arrangements for, among other things, the provision of suitably adapted accommodation for the second claimant under s.21(1)(a) of the National Assistance Act 1948.

The recommendation of the Social Services Department was not acted on by the defendant's Housing Department. The defendant also failed to act and respond to a series of letters from the claimants' solicitors, who also sent the defendant an independent report confirming the defendant's own assessment. It was only at a hearing on March 21, 2002 that the defendant first conceded that it did owe a duty to the claimants under s.21 . Eventually, the claimants were offered and accepted appropriate accommodation into which they moved on October 14, 2002, more than two years after the September 2000 assessments.

The Holding:

First, there was no breach of the claimants' Art.3 rights (right to be free from inhuman and degrading treatment). Although deplorable, the conditions in the house did not cross the necessary threshold of severity so as to amount to a breach of Article 3.  The fact that there was no intention to humiliate or debase the claimants was an important consideration. Instead, the claimants' suffering was due to a failure to act, namely the defendant's corporate neglect, and not to a positive decision by the defendant that the claimants should be subjected to such conditions.

On the other hand, there was a breach of Article 8 (right to private family life).  The court first noted that the European Court of Human Rights has recognised that Art.8 may require public authorities to take positive measures to secure respect for private or family life.  However, not every breach of duty under s.21 of the National Assistance Act 1948 would result in a breach of Art.8: the state was not required to provide every one of its citizens with a house. Instead, whether Art.8 rights were infringed would depend on all the circumstances of the case.

According to the court, following the assessments in September 2000, it was clear that the provision of suitable accommodation was necessary not merely to facilitate the normal incidents of family life, but to secure the physical and psychological integrity of the second claimant. The defendant's failure to act on those assessments was incompatible with Art.8 as it condemned the claimants to living conditions which made it virtually impossible for them to have any meaningful private or family life.

Finally, the claimants were entitled to damages because the defendant had committed a serious breach of the claimants' rights under Art.8. They and their family had had to live in deplorable conditions, wholly inimical to any normal family life, and to the physical and psychological integrity of the second claimant for a considerable period of time. Further, the defendant had repeatedly ignored requests by the claimants' solicitors for it to take action, not acknowledged that it was in error or provided any explanation or apology, and done nothing to indicate that its procedures had been improved so as to avoid the same kind of mistake in the future.

To determine damages, the court looked at the awards recommended by the Local Government Ombudsman for various failures by public bodies in the field of social services.  The appropriate figure was £10,000, with £8,000 apportioned to the second claimant and £2,000 to the first claimant.

 

Villain?

A disabled woman, her husband, and children seeking housing that accommodates the woman's disability?  An easy case of non-villains.