A recent case provides an important discussion of the positive duties of the state under Article 8 ECHR – and specifically, the issue of when an Article 8 breach may arise in the absence of any failure of a local authority to carry out its statutory duties, writes Arianna Kelly.
The case of of R(Idolo) v London Borough of Bromley  EWHC 860 (Admin) also provides a notable counterpoint to R(CP) v North East Lincolnshire Council on the appropriateness of using judicial review proceedings to recover damages for a breach of a person’s human rights.
This application related to a challenge by Mr Idolo to the refusal of Bromley Council to provide him with what he considered to be appropriate housing and social care.
Mr Idolo was in his sixties, and lived with his wife and daughter in an eighth-floor council flat. While recovering from a medical emergency in hospital, he became unable to use his legs, and for the relevant period, he was unable to leave his bedroom or use his bathroom, relying on others to help him to get in and out of bed, dress, prepare meals and use the toilet. He was assessed as having eligible needs for care and support under the Care Act 2014.
He was discharged from hospital to his home, where he was given an adapted bed, chair, hoist and commode, and a care package of four care calls daily was provided. He was unable to use a wheelchair because the doorways and corridors of the flat were too narrow, and he was effectively unable to leave his bedroom. A needs assessment recorded Mr Idolo stating that he was depressed and had ‘no quality of life.’
His family sought to be rehoused on medical and disability grounds, and Mr Idolo was assessed as needing a move to a new home, with requirements that it be on a ground floor, wheelchair accessible, and allow for other adaptations to enable his mobility and care needs to be met. Though he had a very high priority on the housing register, a new property meeting these requirements was only found after a considerable period of time. Mr Idolo he did not have concerns about the care being provided to him, but as a result of his housing situation, he was essentially confined to his bedroom for nearly two years.
Mr Idolo brought a judicial review seeking declaratory relief and compensation for the period during which he submitted that the council had failed to fulfil its legal duties to him under the Housing Act and Care Act, and as a result, his Article 8 rights had been breached. While he was content with the housing and care he had at the time of the hearing, he argued that there had been an unlawful delay in providing it.
The court noted that any such inquiry is ‘highly fact-specific.’ The court and all parties accepted that during the relevant period, Mr Idolo’s life had been ‘indisputably grim’ and ‘his well-being was in a thoroughly poor state.’ There were no specific complaints regarding the care provided to him, and the change which he had wished to effect was in relation to his housing.
Statutory duties under the Housing Act and Care Act
The issue of the appropriateness of Mr Idolo’s housing had been live since he was admitted to hospital, though the action required of the council depended on the extent of his recovery. The court did not fault the council for taking a phased approach in assessing Mr Idolo’s condition and housing needs following his discharge from hospital, as it was anticipated that he would make some improvements in his mobility.
Mr Idolo sought to argue that that the local authority made ‘an error of law in passing the housing issue into the housing department system rather than pursuing it as a social care solution in its own right….the general duties under the Care Act required expedition of the housing issue above and beyond what the housing scheme would achieve.’ Mr Idolo argued that where appropriate adaptation of an existing home is not possible, ‘a move to an adapted, or at least adaptable, home can also be an appropriate way to meet needs’ under the Care Act.
The court rejected this argument on the basis of s.23 Care Act, which forbids a local authority from meeting care and support needs ‘by doing anything which it...is required to do under the Housing Act 1996.’ The court offered discussion of the meaning of this provision, noting that ‘It is clear that there is an intention in s.23 to give a measure of priority to the general scheme of the Housing Act over the specific scheme of the Care Act…the law appears to provide is that (re)housing needs, even if identified through the Care Act route, cannot shortcut the detailed system of balanced priorities within Housing Act schemes, but must find their proper place within those schemes.’ While the court found that ‘duties under the Care Act as to the identification of needs should be read as extending to the identification (as opposed to the meeting) of housing needs’, it declined to read in a duty under the Care Act to rehouse Mr Idolo – these duties ‘fell squarely within the purview of s.166A(3)(d) of the Housing Act. He needed to move to a new home because he had become disabled.’ The court found the local authority had acted appropriately in its assessment of Mr Idolo’s housing needs, and the process of rehoming him was lawful.
Despite the finding of the court that Bromley was not in breach of its statutory obligations to him, Mr Idolo also pursued the point that his living in inappropriate housing for an extended period of time had resulted in a breach of the council’s positive duties under Article 8. It was argued that ‘if a man with properly assessed adult social care needs for a new home ends up stuck in the conditions endured by Mr Idolo for as long as he did, something has gone wrong.’
The court considered the scope of the positive duties which flow from Article 8 ECHR. It noted that it had not been taken to any case ‘which suggests that absent such failures in compliance, a local authority has other free-standing housing and care duties derivable directly from the Convention or from more general public law duties. It is, moreover, not every such failure and breach which will sound in damages – a degree of demonstrable culpability is required also.’
The claimant relied on R(Bernard) v Enfield  EWHC 2282 in support of his claim. Bernard related to a claimant with significant care needs who had been limited to living in one room of the family’s home due to being inappropriately housed. The local authority conceded that there had been a breach of statutory duty to provide the claimant with suitably adapted accommodation under the National Assistance Act. The court considered Mr Idolo’s case was not comparable to R(Bernard) v Enfield despite the ‘factual and circumstantial similarities’ between the two, noting the finding of breach of statutory duty which was not found in the present case. The court found that ‘Mr Idolo's case does not disclose the same sort of category of legal failure, error and insult by the local authority. It is instead a case in which the housing he had been provided with became unsuitable because of what happened to him. In the initial phase, the point at which it became unsuitable was a matter of judgment and evaluation. As soon as it was formally assessed as unsuitable, by both the social services and housing departments, it appears that they co-operated to try and discharge what they agreed was the council's duty.’
The court went on to consider Anufrijeva v Southwark, which considered the circumstances in which ‘maladministration constitute[s] breach of Article 8…It held that it is the failure by a public body, in breach of duty, to provide an individual with a benefit or advantage to which he is entitled under public law which is capable of breaching his human rights.’ Further, delay ‘is capable of infringing Art.8 where substantial prejudice has been caused to someone. It directs that in considering whether there has been a breach of Art.8 "it is necessary to have regard both to the extent of the culpability of the failure to act and to the severity of the consequence. Clearly, where one is considering whether there has been a lack of respect for article 8 rights, the more glaring the deficiency in the behaviour of the public authority, the easier it will be to establish the necessary want of respect.”’
The court considered that though ‘Mr Idolo's predicament could well be recognised as severe’ and the delay in re-housing was ‘long,’ ‘neither Anufrijeva nor Bernard is authority for the proposition that a compensatable breach of Art.8 through delay may be found unless the delay is attributable to a breach of legal duty with an element of culpability involved.’ In the absence of a breach of legal duty or a finding of maladministration, the court did not find a ‘breach of statutory or more general public law duties – I do not find a basis in the authorities for simply inferring lack of respect for fundamental rights, or culpability, from the fact of delay. More is needed.’ Namely, the court noted that it did not find an ‘additional element of lack of respect or culpability on the facts of this case.’
The court noted that ‘permission to bring judicial review proceedings was granted in this case on 25th September 2019, after Mr Idolo had accepted the offer to rehouse him and during the period in which matters were actively in hand to organise the move and to meet his needs for adaptations. The case has proceeded since then entirely as a claim for damages for breach of the Human Rights Act.’ It was suggested by Mr Idolo’s lawyers that he was seeking compensation of approximately £10,000.
The court observed that:‘The guidance could not be clearer about the public policy and administration of justice considerations engaged in cases of this sort. Concerns were raised in that case that, bearing in mind the state of the authorities on the level of damages recoverable for breach of Art.8, the cost of the proceedings would be totally out of proportion to the damages likely to be awarded, even where the proceedings were conducted as economically as possible.’
The court further noted the guidance in Anufrijeva that ‘a claimant should expect to have to explain at the permission stage why it would not be more appropriate to pursue internal complaint procedures, or proceed via the Parliamentary Commissioner for Administration or Local Government Ombudsman – systems designed to deal economically and expeditiously with compensation for maladministration. There is also a strong steer towards alternative dispute resolution, and towards other ways in which proportionate resolution of this type of claim for damages can be achieved.’ The court found that it was ‘incumbent upon counsel to see that these matters are addressed at the permission stage’ and noted that a complaint procedure (internally or via an ombudsman) may be more appropriately able to consider issues of culpable delay due to its greater access to local authority case files.
The court expressed concern that in seeking £10,000 in compensation, ‘this litigation, publicly-funded on both sides, will no doubt have cost the public purse very many times that sum.’
This case is notable for two reasons:
- Its discussion of Article 8 in light of the Care Act as amended by the Coronavirus Act (the Care Act ‘easements’), which alters the Care Act eligibility framework so as to require local authorities to provide care and support only where it is necessary to avoid a breach of the human’s rights; and
- Its strong guidance against the use of judicial review to seek compensation for breaches of human rights.
Local authorities which have elected to take the Care Act ‘easements’ have replaced the previous framework for determining eligibility for care and support with a requirement to meet a person’s needs only where it is ‘necessary to meet those needs for the purpose of avoiding a breach of the adult’s Convention rights.’
A duty to meet needs to prevent a breach of Convention Rights is not linked to the Care Act eligibility framework, see Aburas v London Borough of Southwark  EWHC 2754 ‘there is in principle room for Convention rights to arise beyond the scope of "eligible" needs.’ Consideration of when care is required to avoid a breach of a person’s human rights is most typically in relation to Articles 3 (‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’) and 8 (the right to a private and family life). Article 8 is a qualified right, and Article 8(2) allows for interference with this right in accordance with the law and as necessary in the interests of ‘the economic well-being of the country’ or ‘for the protection of health and morals’. As noted in the Idolo judgment, no cases were brought before the court which related to a breach of Article 8 in the absence of a breach of statutory duty.
The Care Act eligibility framework introduced in the ‘easements’ pose new difficulties for social workers insofar as there is no gap between what is required under the Convention and what is required by the Care Act. Instead of the previous Care Act Eligibility regulations – which considered whether a person was unable to achieve a series of specific outcomes – the question of eligibility (insofar as it turns on Article 8 issues) would now depend on the balance between the potential infringement to the person’s private life, and the needs of the state to achieve a legitimate outcome.
Though not in the context of the ‘easements’ or pandemic, the court in Idolo grappled with the very challenging question of when conduct which does not amount to a breach of a statutory duty might nevertheless be disproportionate or unnecessary for the purposes of Article 8(2). The court considered that a breach of the positive duties which flow from Article 8 are likely to be found only where one of the following exists:
- A breach of statutory duties relevant to such a breach, or
- A lack of respect for human rights and/or culpable delay in action to address needs which engage Article 8
It is clear from the judgment that while breaches due to culpable delay or a lack of respect for human rights are not readily found, they are possible, and local authorities must be cognisant of this possible. While not approaching the relative precision of the former Care Act eligibility framework, this case does provide important guidance on the need to ensure appropriate processes are in place to identify when Article 8 rights may be engaged by a lack of care and support, and ensure appropriate support is provided in a timely fashion.
As summarised above, the court robustly reiterated the Anufriejeva guidance against bringing judicial reviews primarily for the purpose of seeking compensation of breaches of human rights. This was largely on the basis of the finding that the cost of the litigation was disproportionate to the sum recovered, and the relatively less advantageous position of the court in considering the issue to its consideration in a complaints process.
It is of some interest that the case did not engage with the recent case of R(CP) v North East Lincolnshire Council  EWCA Civ 1614, in which the Court of Appeal made findings that a claimant had proceeded appropriately in seeking compensation following on a breach of statutory duties which had been resolved prior the start of proceedings; the amounts in question there were broadly similar to those sought by Mr Idolo. The Court of Appeal there found that the lower court had erred in its approach in refusing compensation to the claimant:
A breach of a statutory duty is a breach of statutory duty. It is, by definition, unlawful conduct. Unlawful conduct by a public body cannot merely be discounted or ignored. Moreover, s. 26 is no minor matter. A local authority's statutory duty under s. 26 of the Care Act 2014 to provide a personal budget to meet a person's care and support needs is fundamental to the operation of the care and support scheme which the Care Act 2014 underpins.
In the present case, having found the Council in breach of its statutory duties, he should have gone on to hold that the Council had acted unlawfully and, accordingly, was liable in principle to compensate CP in respect of any monetary shortfall in accordance with normal public law principles of legal accountability of public bodies.
There is a clear distinction between the cases insofar as one related to a breach of statutory duties and the other to human rights – however, it is perhaps an oddity that such a different approach should be taken where the rationale for avoiding the court process is the disproportionate level of the award to cost.