Human rights — right to respect for private and family life — duty to take positive action — maladministration
Each of the claimants in these three conjoined appeals, all of whom were asylum seekers, alleged that they had failed to receive benefits and advantages to which they argued they were entitled by virtue of art 8 of the European Convention on Human Rights and claimed that that failure was due to maladministration. The first appeal related to Mr and Mrs A who contended that the local authority failed to discharge its duty to provide them with accommodation that met the needs of their family, in particular that of Mrs A’s mother, K (see Anufrijeva (as personal representative of the estate of Kuzjeva) & anor v Southwark London Borough Council). A’s claim was for failure to provide them with the facilities to enjoy a satisfactory quality of family life.
The second appeal related to N who arrived in the UK in February 2000 and was granted refugee status in May 2002. N contended that between December 2000 and May 2002 maladministration caused delays during which he received inadequate financial support, which caused him stress and psychiatric injury. N’s claim was for failure to provide the support necessary to achieve a basic quality of personal life and for stress resulting in psychiatric injury. The High Court judge held that the Secretary of State was liable to N for his psychiatric injury. The Secretary of State appealed that decision.
The third appeal related to M, an asylum seeker from Angola, whose right to remain as a refugee was recognised in January 2001. M’s family were only given permission to enter in November 2002 and M contended that the delay was attributable to maladministration. M’s claim was based upon the delay in permitting the sharing of family life. The key issues before the court were: (a) the nature of art 8 rights; (b) when a duty arose under art 8 to take positive action; (c) the circumstances in which maladministration constituted a breach of art 8; (d) when damages should be awarded; (e) on what basis damages should be assessed; and (f) what procedures should be followed to ensure that the costs of obtaining relief were proportionate to that relief.
The Court of Appeal held that whilst article 8 was capable of imposing a positive obligation to provide support, the nature and extent of that positive obligation would vary from case to case. A positive obligation under art 8 was most likely to arise when the welfare of children was at stake or family life was seriously inhibited. Maladministration would only infringe art 8 where the consequence was serious. Damages under the Human Rights Act 1998 were not recoverable as of right and should only be awarded when it was “just and appropriate” and “necessary” to achieve “just satisfaction”. In cases of maladministration, awards should be moderate but not minimal, as this would undermine the respect for Convention rights. The court gave guidance for the procedures to be followed to ensure that the costs of obtaining relief were proportionate to that relief, in relation to proceedings which included a claim for damages for maladministration under the 1998 Act.
In the case of A, the appeal was dismissed on the basis that the local authority had made reasonable efforts to meet the requirements of K and her family. The accommodation provided fell far short of placing the family in the type of conditions that would impose a positive obligation under art 8 to install them in superior accommodation. In the case of N, the Secretary of State’s appeal was allowed. Where a public authority committed acts which it knew were likely to cause psychiatric harm to an individual, those acts were capable of constituting an infringement of art 8. Maladministration would not, however, infringe art 8 simply because it caused stress that caused psychiatric harm to a particularly susceptible individual in circumstances where that was not reasonably to be anticipated. The High Court judge had therefore erred in holding that art 8 was infringed in N’s case.
In the case of M, the court could find no fault with the judge’s reasoning in rejecting M’s claim. Although there had been administrative failings that had delayed the reunion between M and his family, there had been no lack of respect for M’s family life and, accordingly, no infringement of art 8.