Damages and Article 8

January 23, 2019

R (on the application of MIV and others) v London Borough of Newham [2018] EWHC 3298

The High Court has dismissed a claim for damages in respect of accommodation provided under section 17, Children Act 1989 which was alleged to be in breach of article 8. Emma Godfrey of Field Court Chambers appeared for the respondent authority.

In Anufrijeva v Southwark London Borough Council [2004] QB 1124, the Court of Appeal considered that, whilst article 8 is capable of imposing a positive obligation to provide support, it was hard to conceive of a situation where article 8 required a person to be provided with welfare support where his predicament was not sufficient to engage article 3 (inhuman or degrading treatment). The Court of Appeal did, however, consider that if a child’s welfare was at stake, article 8 may require the provision of welfare support to allow the family life to continue.

Facts

The claimants did not have leave to remain in the United Kingdom. The first and second claimants were parents of the third claimant (MIV) who was born with a significant disability. In March 2017, MIV was referred to the local authority’s children’s services for an assessment of his needs. At the time of the assessment, the family had been privately renting a single room but were struggling to pay their rent. The assessment recommended that there be liaison with the no recourse to public funds team to consider housing and financial support.

On 25 July 2017, the family approached children’s services again, this time facing eviction. On 7 August 2017, the family were offered temporary accommodation. The accommodation consisted of a single room in a shared house sharing a kitchen and bathroom. On 15 August 2017, a revised assessment acknowledged that the room was not meeting the family’s needs in light of MIV’s disability as MIV didn’t have space to move around and engage with sensory toys which was necessary to address his delayed development. On 25 April 2018, the family were accommodated in alternative accommodation after proceedings had been issued.

The claimants alleged that the local authority breached MIV’s article 8 right to private and family life and sought damages.

Held

The Deputy High Court Judge, Karen Steyn QC, dismissed the claim. The challenge was restricted to an alleged breach of MIV’s right to a private life, in particular his right to physical and psychological integrity or well-being. The claim was not one where it was alleged that article 3 was engaged. Nor was it a case where it could be argued that MIV’s right to a family life was breached. The local authority were providing accommodation to MIV as children’s services not a housing authority and they were not rendered street homeless. The accommodation they were housed in was on a par to the accommodation they had been evicted from. MIV was able to attend school full time within three weeks of them being accommodated where his specialist educational needs were catered for. Whilst the accommodation was far from ideal, the impact of living there did not cause substantial prejudice to MIV’s private life. The local authority’s failure to offer alternative accommodation earlier than 6 April 2018 was not unlawful as a matter of public law or in breach of article 8.

Comment

This case demonstrates the difficulty in establishing a breach of article 8 in respect of inadequate or unsuitable accommodation where it is not alleged that article 3 is engaged. Although there were acknowledged concerns about the suitability of the accommodation, particularity in light of MIV’s disability, this was not sufficient to amount to a breach of article 8.