Bernard & another v Enfield London Borough Council (25 October 2002) (Unreported) (Admin Court)

S21 National Assistance Act 1948 – suitable accommodation – human rights

The claimants were a severely disabled woman (B), who was restricted to an electric wheelchair, and her husband (C), who cared for her. They had six children. Following a build-up of mortgage arrears, the family was forced to move from its fully adapted house, and was eventually re-housed by the LA in property which a social services assessment indicated was unsuitable and totally unmodified for disabled use. In particular, the toilet was inaccessible in a wheelchair, which led to frequent bouts of incontinence for B, and B was restricted to living in a single room due to the layout of the property. Both claimants slept in the living room, with their two youngest children.

The housing department failed to act, despite the social services assessment, an independent occupational therapist’s report concluding that the property was not adaptable, and correspondence from the claimants’ solicitors reminding the LA of its duties under s21 National Assistance Act 1948. A judicial review of that failure determined that the LA should find them a property capable of modification, within three months. The LA failed to meet the timetable set by the court and was forced to apply for an extension of time. In total, it took the LA over two years to suitably house the claimants and their family.

The claimants brought a claim for damages under section 8 the Human Rights Act 1998, alleging that the LA had breached arts 3 and 8 of the European Convention on Human Rights.  The judge found that, in this case, the treatment in question had not crossed the minimum level of severity required to demonstrate a breach of art 3. Although not conclusive, the fact that there was no intention to humiliate or debase the claimants was an important consideration.

The judge did, however, find a breach of article 8 of the Convention. Following the social services assessments, the LA had been under an obligation to take positive steps to enable the claimants and their children to lead as normal a family life as possible, which would have secured B’s physical and psychological integrity and restored her dignity as a human being.  Instead, the claimants had ‘fallen into an administrative void’ between the social services and housing departments. There had been a complete failure to act on the LA’s part, coupled with a singular lack of respect for the claimants’ private and family life. That complete failure to act, for which no tenable explanation had been provided, meant that an award of damages was necessary to give just satisfaction.

The judge reasoned that an award of damages made under HRA 1998 should neither be minimal, nor on the low side, since that would undermine the respect for any breach of the Convention. Further, it was difficult to see any reason why awards should be set at a lower level than those made in tort, notwithstanding the need to take account of the consequences of an award upon the public and the local authority, since the larger the award, the less the authority would have to spend upon other projects, including caring for others in need. In this case, the judge had regard to awards made by the local ombudsman as a useful comparator, as this was, in essence, a case of maladministration. Bearing in mind the lack of any explanation or apology by the LA and that the claimants’ difficulties had been compounded by the LA’s conduct, the appropriate award was £10,000 (£8,000 awarded to B and £2,000 to C).

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