X v Hounslow London Borough Council
| Jurisdiction | England & Wales |
| Judge | Sir Anthony Clarke MR |
| Judgment Date | 02 April 2009 |
| Neutral Citation | [2009] EWCA Civ 286 |
| Docket Number | Case No: B3/2008/1572 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 April 2009 |
[2009] EWCA Civ 286
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon Mr Justice Maddison
HQ03X03456
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Anthony Clarke Mr
Lord Justice Tuckey
and
Lord Justice Goldring
Case No: B3/2008/1572
Elizabeth-Anne Gumbel QC, Henry Witcomb and Duncan Fairgrieve (instructed by Leigh Day & Co) for the Claimants
Edward Faulks QC and Andrew Warnock (instructed by Barlow Lyde & Gilbert for the Defendant
This is the judgment of the court.
Introduction
1. This appeal arises out of the events of the weekend of 17 to 19 November 2000 (‘the relevant weekend’), when the respondents were subjected to degrading sexual and physical assaults in their home by four local youths whom they had allowed into their flat. It is an appeal by the defendant, the London Borough of Hounslow (‘the Council’), from an order dated 23 May 2008 made by Maddison J (‘the judge’) in which, among other things, he gave judgment for the claimants against the Council and awarded damages in the agreed sum of £97,000 with costs. He also made an order that the names of the claimants should not be disclosed. This appeal is against the judgment on liability and is brought with the permission of the judge. The essential questions raised by the appeal are (a) whether the Council owed a duty of care to the claimants to protect them from the criminal acts of others and (b) if it did, whether it was in breach of that duty. The judge answered both questions in the affirmative. The Council submits that they should both have been answered in the negative.
The essential facts
2. The respondents lived in a Council flat, no 60 Towell Court (‘the flat’), with the second respondent's children from another relationship. The second respondent (‘Y’) was a tenant of the Council and had lived in the flat with her daughters (‘A’ and ‘B’) since 1993, whereas the first respondent (‘X’) married Y and moved into the flat in January 1999. The respondents have mild learning difficulties. Their IQs have been assessed at various times as being in the 70s, with Y being more able than X. Since the relevant events, X has been assessed as being on the autistic spectrum. However, both X and Y were capable of consenting to marriage and both were assessed as not requiring supported living accommodation, which in any event they did not want. They both continue to live independently in the community today. They are and have since 14 January 2008 been protected parties, although their expert psychiatrist, Dr Rix, had previously taken the view that they were both capable of giving instructions to their lawyers themselves. As we see it, the respondents were both vulnerable adults who needed support in the community.
3. At the time of the attacks X, Y, A and B were 44, 38, 11 and 8 years of age respectively. In the course of the summer of 2000 the respondents had befriended the youths and it appears that they had allowed them (or some of them) to use the flat as a place where they could take drugs, engage in under-age sexual activity, store stolen goods and, as the judge put it at [4], generally misbehave. One of the youths had been staying at the flat. On 11 October X was assaulted quite seriously in a McDonald's restaurant by one of the youths, who believed that X had grassed on him in relation to goods found by the police at the flat the previous day.
4. The judge summarised the events during the relevant weekend at [5] of his judgment, broadly in this way. X and Y were effectively imprisoned in their own home, and repeatedly assaulted and abused, often in the presence of the two children. At one stage the youths confined X and Y to their bedroom, and made them perform sexual acts. They threw many of their possessions over the balcony. They forced pepper and fluid into X's eyes; they locked him in the bathroom for a time, in the dark; they made him drink urine, eat dog biscuits, dog faeces and the faeces of one of the youths, threatening him that he would be stabbed if he did not; they made him put a vibrator up his bottom and then lick it; they sprayed kitchen cleaner in his mouth, face and hair; and they slashed him repeatedly all over his body with a knife or knives. Y too was made to put the vibrator in her mouth. As for the children, they were abused, assaulted and locked in their bedroom from time to time. Even the family dog was abused.
5. Two sections of the Council's Social Services Department had been engaged with the family for some considerable time before the relevant weekend. They were the Community Team for People with Learning Difficulties (‘CTPLD’) and the Children and Families Section (‘C&F’), which dealt with child protection concerns. X and Y had a social worker from the CTPLD assigned to them called Tajinder Hayre. She had become Y's social worker in 1999 and X's in March 2000. Her role was to give them advice and assistance in managing their lives. She visited them regularly and accompanied them to appointments.
6. During October 2000 she became aware that X and Y were being exploited by local youths using the flat for illicit activities. On 12 October she became aware of the assault referred to above. On 31 October she learned that another youth was staying in the flat. She reported these matters to the police, who declined to take action unless X and Y made complaints themselves. She also contacted the C&F, who made arrangements for a child protection meeting to take place on 24 November. In the meantime she wrote letters dated 18 October and 3 November to the Council's Housing Department asking that X and Y's long-standing application for rehousing be considered urgently and on 23 October she accompanied X and Y to a meeting with the Housing Department's harassment officer. On 14 November she arranged a further meeting with the Council's housing officers to take place on 22 November. This meeting was arranged because, since the letter of 3 November, the Housing Department had received complaints about X and Y from their neighbours.
7. We will return to the facts in more detail below. We should however note at this stage that Miss Hayre did not ask the Housing Department to place X and Y in emergency temporary accommodation in the interim before the meeting of 22 November because she did not foresee that they might be assaulted in their own flat in the way that occurred over the relevant weekend of 17 to 19 November.
The issues before the judge
8. It is important to note that at the trial it was conceded on behalf of X and Y that Miss Hayre had not acted negligently. It was also conceded that no action for breach of statutory duty lay against the Council.
9. The case for X and Y at the trial can be summarised in this way. The Council, through its Social Services and Housing Departments, should have foreseen that X and Y were in imminent physical danger at the flat and should have arranged for them to be accommodated elsewhere. It was said that the Council's failure to do so was a breach of a duty of care owed to X and Y and that the events of the weekend were caused by that breach. It was said that the Council was liable in the tort of negligence, and under sections 6 and 7 of the Human Rights Act 1998 (‘the HRA’), having acted in a manner incompatible with the claimants’ rights under articles 3 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’). A pleaded claim in nuisance was abandoned.
10. The Council denied that it owed X and Y any duty of care. It relied upon the fact (as was conceded on behalf of X and Y) that in no previous case had a local authority been held to be under a duty of care to protect vulnerable adults from abuse by third parties. The Council asserted that any failings of the kind alleged were justiciable, if at all, only in public law and not by way of private law actions for damages for negligence. It further asserted that, if it owed a duty of care to X and Y, it was not in breach of that duty because neither it nor its servants or agents acted negligently and, in any event, what happened during the relevant weekend was caused by third parties and was not reasonably foreseeable.
DUTY OF CARE
The statutory framework
11. We begin with the statutory framework because the Council is a creature of statute so that the question whether it owes a duty of care in any particular circumstances must be judged against the relevant statutory background. As Lord Browne-Wilkinson put it in X (Minors) v Bedfordshire [1995] 2 AC 633 at 739C, the question whether there is a duty of care at common law must be profoundly influenced by the statutory framework within which the acts complained of were done. The same must be true of any omissions complained of. The most important statutes for present purposes are the National Assistance Act 1948 (‘the 1948 Act’) and the Housing Act 1996 (‘the 1996 Act’).
12. By section 21(1)(a) of the 1948 Act local authorities may (and, in so far as directed by the Secretary of State, must) make arrangements for providing residential accommodation for persons who, by reason of age, illness, disability or other circumstances are in need of care and attention not otherwise available to them. In Appendix 1 to Department of Health Circular LAC (93)10 the...
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