HUGHES v Liverpool City Council, [2005]

An important case on human rights in the context of adult social care – carers, look to the effect of your continuing to be willing to shoulder that which the council would otherwise have to meet –

What happened

KH has severe mental and physical disabilities. They were summarised in his mother’s witness statement … as follows:

“Cerebral palsy; severe learning difficulties; poorly controlled epilepsy; an extremely erratic sleep pattern; Ataxia with poor co-ordination and fluctuating muscle tone with stiffness on the right side of the body; decreasing mobility over the last 4 years or so; double incontinence; no speech.”

He had been looked after by his mother since birth with some help from outside agencies. He lived with his mother in a 3 bedroom semi-detached house which is and had been for some time acknowledged to be unsuitable for his needs. His mother on his behalf had sought assistance from Liverpool City Council to assess his needs for accommodation and welfare services. She claimed that Liverpool’s response has been so inadequate as to be unlawful and/or has put the authority in breach of its statutory duties owed to him which on his behalf she can seek to have enforced by judicial review.

The judge held as follows:

“The duty [to provide care and accommodation that is suitable to his needs] had been owed to the claimant under section 21 since 6th April 2003. It will not be discharged at the earliest until August 2005. It should have been discharged long before… By failing to remedy what [was] identified as “a crisis situation” before now, Liverpool, despite their honest efforts, have in fact been in breach of the duty today owed to the claimant under section 21, and I so declare.”

He then made an order for some urgent respite under the precursor provisions for welfare services and home care before the Care Act was the law.

Human Rights

The judge said this, because damages were claimed.

I now turn to the claim for damages made by the claimant under section 8 of the Human Rights Act. The claim is said to be for infringement of his rights under article 8 of the European Convention of Human Rights. Article 8 provides:

“Right to respect the private and family life.

“(1). Everyone has the right to respect for his private and family life, his home and his correspondence.

“(2). There shall be no interference by a public authority with the exercise of this right except such

as is in accordance with the law

and is necessary in a democratic society in the interests of

national security,

public safety or the economic well-being of the country,

for the prevention of disorder or crime,

for the protection of health or morals, or

for the protection of the rights and freedoms of others.”

Accepting, without deciding, that Article 8 imposed on Liverpool a positive duty to promote the claimant’s private and family life, I am not satisfied that it has acted so as to be in breach of that right.

The claimant’s private and family life have been protected and promoted by the efforts principally of his mother but supplemented by carers paid for by Liverpool. Subject to the limitations necessarily imposed upon the claimant by his disabilities, he has been able to enjoy his private and family life. It is true that his mother has identified respects in which protection of his dignity and personal integrity would be improved were suitable accommodation to be provided. But in all other respects, as far as I can tell from the documents that I have read and the submissions that have been made to me, the limitations imposed upon his enjoyment of private and family life stem from his own condition.

The burden imposed on his mother has been very great, even intolerable.

But it is not she who is the claimant.

As a result of her efforts, the impact upon the claimant’s private and family life of Liverpool’s shortcomings in fulfilment of its statutory duties has been reduced to a level at which his rights have not been infringed.

In any event, I am not satisfied that the high threshold identified by Lord Woolf LCJ in R (Anufrijeva) v Southwark LBC [2004] QB 1124 at paragraph 43 has been crossed. Nor do I think it is necessary to achieve just satisfaction of the claimant’s claim that damages should be awarded. I refer to Lord Woolf’s analysis of the circumstances in which damages may be awarded in paragraph 55 of that decision.

It is possible that in the future matters may be different if despite this judgment Liverpool do not fulfil its duties under sections 21 and 29 of the 1948 Act so that the claimant’s rights under Article 8 become infringed. This may well be so if for example his mother is unable to continue to provide the care that she does owing to her own difficulties, and her efforts are not adequately substituted by Liverpool. But that is a matter for the future if and when it arises.

For those reasons, the application for judicial review succeeds to the extent that I have indicated. The claim for damages for breach of Article 8 fails. I will hear counsel on the detail of any consequential orders.