Anufrijeva (as personal representative of the estate of Kuzjeva) & anor v Southwark London Borough Council (Wednesday 4 December 2002) (unreported) (QBD)

Suitability of accommodation – human rights

The claimants were asylum seekers whose application had eventually been refused.  The LA had provided them with accommodation, pursuant to its statutory powers under the Asylum Support (Interim Provisions) Regulations 1999, comprising a maisonette on two floors connected by a steep flight of stairs, in a block scheduled to be demolished.

The claimants complained about the suitability of the accommodation and, following a number of assessments, several offers of alternative accommodation were made, all of which were refused. The family’s grandmother, who was aged and infirm, had further been offered a placement in a residential home pending exhaustion of rights of appeal, which was also refused. Following the death of the grandmother (K), the claimants issued a claim for damages under HRA 1998, contending that: the property in which they had been housed was unsuitable in that the stairs were too steep for K and that as a result she had been isolated on the top floor of the property; that the LA’s failure to re-house them had adversely affected the health and safety of the claimants and their family; that K’s quality of life was so poor that prompt action ought to have been taken, particularly given her failing health; and that the LA’s inaction contributed to K’s physical and mental decline. The claimants alleged that the LA had failed to respect their right to family and private life and was therefore in breach of art 8 of the Convention.

The Court reiterated the ECtHR’s statement in the case of Marzari v Italy that although art 8 does not guarantee the right to have one’s housing problems resolved by the authorities, a refusal of the authorities to provide assistance in this respect to an individual suffering from a severe disease might in certain circumstances raise an issue under art 8 of the Convention because of the impact of such refusal on the private life of the individual. However, in this case, the central plank of the claim was baseless.  The LA had provided accommodation from the outset and thereafter had endeavoured to meet the family’s wishes.  The LA’s obligations did not extend to creating a set of circumstances in which all the major impediments to the full enjoyment of family life were removed.  All the evidence showed that the LA had possessed itself of the relevant information and, having done so, acted so as to ameliorate the immediate difficulties presented by the property and saw the need for alternative accommodation to be provided if the family’s needs were to be more suitably met. The LA had acted so as to respect the family’s private and family life.

Further it would be rare for an error of judgment, inefficiency or maladministration occurring in the purported performance of a statutory duty to give rise to an infringement of art 8.  For such actions to amount to an infringement, it was likely that the acts of the public authority would have had to have departed so far from the performance of the public authority’s statutory duty so as to amount to a denial or contradiction of the duty to act. Circumstances amounting to an infringement would most likely be confined “to flagrant and deliberate failures to act in the face of obvious and gross circumstances affecting the art 8 rights of an individual” (see Bernard v London Borough of Enfield).

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