O'Rourke v Camden London Borough Council

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD GOFF OF CHIEVELEY,LORD MUSTILL,LORD NICHOLLS OF BIRKENHEAD,LORD STEYN,LORD HOFFMANN
Judgment Date12 Jun 1997
Judgment citation (vLex)[1997] UKHL J0612-3

[1997] UKHL J0612-3

HOUSE OF LORDS

Lord Goff of Chieveley

Lord Mustill

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hoffmann

O'Rourke (A.P.)
(Respondent)
and
Mayor Etc. of the London Borough of Camden
(Appellants)
LORD GOFF OF CHIEVELEY

My Lords,

1

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hoffmann. For the reasons he gives I would allow the appeal.

LORD MUSTILL

My Lords,

2

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hoffmann. For the reasons he has given I would also allow the appeal.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

3

I have had the advantage of reading a draft of the speech of my noble and learned friend, Lord Hoffmann. For the reasons he gives, and with which I agree, I would allow this appeal.

LORD STEYN

My Lords,

4

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hoffmann. For the reasons he has given I would also allow the appeal.

LORD HOFFMANN

My Lords,

5

Mr. O'Rourke is suing the London Borough of Camden ("Camden") for damages for breaches of various statutory duties which he says were owed to him under Part III of the Housing Act 1985. His Honour Judge Tibber, sitting in the Central London County Court, struck out all his claims as disclosing no cause of action. But the Court of Appeal reinstated one of them and against that decision Camden appeals to your Lordships' House.

6

Mr. O'Rourke says in his particulars of claim that, when he was released from prison in February 1991, he had nowhere to go. He applied to Camden as housing authority for accommodation. By section 62 of the 1985 Act, if the authority:

"… have reason to believe that he may be homeless…they shall make such inquiries as are necessary to satisfy themselves as to whether he is homeless…."

7

By section 63(1), if the authority:

"… have reason to believe that an applicant may be homeless and have a priority need, they shall secure that accommodation is made available for his occupation pending a decision as a result of their inquiries under section 62."

8

Persons who have a priority need include those who are "vulnerable as a result of … physical disability or other special reason" and Mr. O'Rourke says he falls within this category.

9

The particulars of claim allege that after an initial refusal, Camden agreed to make inquiries pursuant to section 62 and on 12 April 1991 provided temporary accommodation pursuant to section 63(1) at the Northumberland Hotel. Mr. O'Rourke says that Camden thereby acknowledged that it owed him a duty under section 63(1) to secure that accommodation was made available. But he alleges that, in breach of that duty, on 24 April Camden wrongfully evicted him from the hotel and did not offer him any other accommodation. He claims damages.

10

The question is whether section 63(1) creates a duty to Mr. O'Rourke which is actionable in tort. There is no doubt that, like several other provisions in Part III, it creates a duty which is enforceable by proceedings for judicial review. But whether it gives rise to a cause of action sounding in damages depends upon whether the Act shows a legislative intention to create such a remedy. In X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633, 731, the principles were analysed by Lord Browne-Wilkinson in a speech with which the other members of the House agreed. He said that although there was no general rule by reference to which it could be decided that a statute created a private right of action, there were a number of "indicators". The indicator upon which Mr. Drabble Q.C., who appeared for Mr. O'Rourke, placed most reliance was the common sense proposition that a statute which appears intended for the protection of a limited class of people but provides no other remedy for breach should ordinarily be construed as intended to create a private right of action. Otherwise, as Lord Simonds said in Cutler v. Wandsworth Stadium Ltd. [1949] A.C. 398, 407, "the statute would be but a pious aspiration".

11

Camden, on the other hand, says that although Part III does not expressly enact any remedy for breach, that does not mean that it would be toothless without an action for damages or an injunction in private law. It is enforceable in public law by individual homeless persons who have locus standi to bring proceedings for judicial review. Furthermore, there are certain contra-indications which make it unlikely that Parliament intended to create private law rights of action.

12

The first is that the Act is a scheme of social welfare, intended to confer benefits at the public expense on grounds of public policy. Public money is spent on housing the homeless not merely for the private benefit of people who find themselves homeless but on grounds of general public interest: because, for example, proper housing means that people will be less likely to suffer illness, turn to crime or require the attention of other social services. The expenditure interacts with expenditure on other public services such as education, the National Health Service and even the police. It is not simply a private matter between the claimant and the housing authority. Accordingly, the fact that Parliament has provided for the expenditure of public money on benefits in kind such as housing the homeless does not necessarily mean that it intended cash payments to be made by way of damages to persons who, in breach of the housing authority's statutory duty, have unfortunately not received the benefits which they should have done. This was the view forcibly expressed by Geoffrey Lane L.J. in Wyatt v. Hillingdon London Borough Council (1978) 76 L.G.R. 727, 733 when the plaintiff claimed damages from his local authority for failure to provide benefits under the Chronically Sick and Disabled Persons Act 1970:

"It seems to me that a statute such as this, which is dealing with the distribution of benefits—or, to put it perhaps more accurately, comforts to the sick and disabled—does not in its very nature give rise to an action by the disappointed sick person. It seems to me quite extraordinary that if the local authority, as is alleged here, provided, for example, two hours less home help than the sick person considered herself entitled to, that that can amount to a breach of statutory duty which will permit the sick person to claim a sum of monetary damages by way of breach of statutory duty."

13

This was an unreserved judgment and I think that on reflection Lord Lane would have been willing to substitute "was" for "considered herself". With that amendment, I would associate myself with these remarks. In X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633, 731–732, Lord Browne-Wilkinson likewise said:

"Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general."

14

A second contra-indication is that Part III of the 1985 Act makes the existence of the duty to provide accommodation dependent upon a good deal of judgment on the part of the housing authority. The duty to inquire under section 62(1) arises if the housing authority "have reason to believe" that the applicant may be homeless and the inquiries must be such as are "necessary to satisfy themselves" as to whether he is homeless, whether he has a priority need and whether he became homeless intentionally. When the investigations are complete, the various duties under section 65 arise only if the authority are "satisfied" that the applicant is homeless and the extent of those duties depends upon whether or not they are "satisfied" as to two other matters, namely that he has a priority need and that he became homeless intentionally. If a duty does arise, the authority has a wide discretion in deciding how to provide accommodation and what kind of accommodation it will provide. The existence of all these discretions makes it unlikely that Parliament intended errors of judgment to give rise to an obligation to make financial reparation. Control by public law remedies would appear much more appropriate: see Lord Browne-Wilkinson in X (Minors) v....

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