R v Enfield London Borough Council, ex parte Bernard
QBD Administrative Court (Sullivan J) 25/10/2002
For the purposes of determining damages under Section 8 of the Human Rights Act, where there is no analogous tortious award, the courts may look to equivalent awards for maladministration for quantum
The second claimant was a severely disabled woman who was wheelchair bound, and suffered from incontinence and diabetes. She was cared for by her husband, the first claimant, who also looked after their six children. Following the repossession of the family house they had been accomodated in local authority housing that was not properly adapted to meet the second claimant's needs. On 30 June 2000 the defendant authority rehoused the family but the new accomodation was also allegedly inadequate since the second claimant could not use her wheelchair to access the first floor and was confined to the lounge. In September 2000 social services drew up a care plan in which it was stated that she needed assistance to move to a suitably adapted property. No action was taken and in August 2001, the claimants' solicitor wrote to the defendants, referring to the assessments made in September 2000 and to the defendants' statutory duties, and expressed astonishment that the claimants had been left in accommodation that did not meet their basic community care needs. Still no action was taken and on 12 February 2002, the defendant notified the claimants that they were to be evicted from the property but subsequently withdrew that threat on the claimants' application for permission to apply for judicial review. The defendant accepted that it was under a duty to make arrangements for the provision of suitably-adapted accommodation under
s.21(1)(a) National Assistance Act 1948, but provided no explanation for the failure to comply with that duty or to act on social services' recommendation. Judicial review was granted and the defendant was ordered to provide the claimants with suitable accommodation within six months. The claim for damages was adjourned. The order was not complied with until 14 October 2002 in that period the defendant made no offer of suitable accommodation until the claimants threatened to apply for an order requiring the defendant to show cause why its director should not be committed to prison for contempt of court. The defendant gave no explanation for the delay or failure to respond to correspondence.
The court rejected one of the claimants' contentions, that they had been subject to degrading treatment contrary to Article 3 of the Convention. It observed that although some would describe the conditions in which the claimants were forced to live as degrading, particularly in light of the second claimant's incontinence, it was not persuaded that the minimum level of severity threshold required by that Article had been crossed. Although not conclusive, the fact that there was no intention to humiliate or debase the claimants was an important consideration. Cases concerned with prisoner's rights should be treated with caution outside the prison gates because a prisoner was in an uniquely vulnerable position. The claim under Article 8 succeeded. Following the assessments in September 2000, the defendant authority was under an obligation to take
positive steps to enable the claimants and their children to lead as normal a family life as possible, which would have secured the second claimant's physical and psychological integrity and restored her dignity as a human being. The failure to act showed a singular lack of respect for the claimants' private and family life. Article 8 had therefore been breached. Since the defendant had failed to take any steps to redress the situation it had failed to provide "just satisfaction" for this breach.
Therefore the Court was satisfied that an award of damages was necessary to give just satisfaction. As far as the scope of the award was concerned, it was difficult to see why awards should not be comparable to tortious awards. On the facts of this case there was no comparable tort. The awards recommended by the local government ombudsman were of great assistance. The consequences of minor injuries were not truly comparable with the humiliating conditions endured by the claimants over a period of 20 months and different policy considerations
were in play. The award set should not be minimal because that would diminish respect for the policy underlying the 1998 Act. There was no justification for a reduction that would push damages under s.8(3) of the 1998 Act below the level of tortious damages. The local government ombudsman's recommended awards were the best available comparison because this case was, in essence, a case of maladministration. The claimants' problems were compounded by the defendant's conduct and the award should be at the top end of the £5000 to £10,000 range.
The appropriate award was £10,000 to be divided between the claimants.
COMMENT (October 2002)
This judgment provides a lucid and helpful analysis of the relationship between two key Convention rights - Articles 3 and 8 - and the provision of social services by the state and its positive obligations under the Convention. This judgment is also a very important milestone in the development of a remedial jurisprudence under Section 8 of the Human Rights Act in conjunction with Article 41 of the Convention and the refinement of the term "just satisfaction" in the context of domestic claims for damages for human rights violations where no analogous tort exists.
The duty breached by the defendant council was a statutory duty to ensure the provision of suitably adapted accommodation for the second claimant under section 21(1)(a) of the National Assistance Act 1948: see R v Kensington and Chelsea Royal LBC ex parte Kujtim  4 All ER 161. There was no doubt that the defendant was liable for the breach of duty. But did such a breach lead to treatment that fell within the ambit of Article 3?
Naturally the defendant pointed to the need for the threshold to be set relatively high, since the right under Article 3 is an unqualified one. The claimants on the other hand made the point that there is a tendency in Strasbourg to reduce that threshold. In Selmouni v France  29 EHRR 403, at paragraph 101 the court observed:
"The Court has previously examined cases in which it concluded that there had been treatment which could only be described as torture. However, having regard to the fact that the Convention is a 'living instrument which must be interpreted in the light of present day conditions', the Court considers that certain acts which were classified in the past as 'inhuman and degrading treatment', as opposed to 'torture' could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies."
In one of the prisoner cases brought under Article 3 the Court appeared to take the position that if the defendant authority failed to do anything to ameliorate the conditions complained about, that omission would in effect elevate a situation that did not in itself reach the high threshold of severity required by Article 3 to treatment that did come within the scope of "inhuman treatment" under that Article, mainly because such an omission "denotes lack of respect for the applicant". The fact that there may have been no intention to humiliate or debase the claimant is no longer decisive. The Strasbourg court is beginning to look to outcomes rather than motivation in determining whether a situation falls within the ambit of Article 3.
In this case however Sullivan J preferred to make a distinction between the claimant's position and those of the prisoners in the Strasbourg challenges - that in the claimant's case, her living conditions, however deplorable, were not deliberately inflicted upon her by the defendant. In his analysis of the Article 3 claim, he opted to attach more importance perhaps than the Strasbourg judges might have done to the absence of any malevolence on the part of the defendant council. "The claimants' suffering was due to the defendant's corporate neglect and not to a positive decision by the defendant that they should be subjected to such conditions." By subscribing to the "cockup" theory rather than the "conspiracy" theory of human nature, this judgment adds some welcome common sense to the application of human rights norms to the ills that befall us in modern society.
Respect for private and family life does not require the state to provide every one of its citizens with a house: see the decision of Jackson J in Morris v LB Newham  EWHC 1262 (Admin) paragraphs 59 to 62. However, the judge was satisfied that the defendant's conduct not only engaged but breached Article 8, since it "condemned the claimants to living conditions which made it virtually impossible for them to have any meaningful private or family life for the purposes of [that] Article". Accordingly, the defendant was not merely in breach of its statutory duty under the 1948 Act. Its failure to act on the September 2000 assessments over a period of 20 months was also incompatible with the claimants' rights under Article 8 of the Convention.
Damages under Section 8
Sullivan J's reasoning is all the more interesting and important because of the paucity of case law so far in this area. The first step under this Section was taken by Judge Havery QC in the Marcic case where he awarded damages for what was at the time a novel cause of action - breach of Article 8 of the Convention in a pollution case - where he could find no analogous grounds for the challenge in domestic negligence or nuisance law. However this award lost some of its impact or importance in this context when the Court of Appeal decided that the appellant did have a cause of action in nuisance.
It is significant that Sullivan J was prepared to increase the award - drawn from the recommended awards for maladministration - to take into account the defendant authority's "conduct" in this affair. This would appear to suggest that where courts determine quantum for the purposes of "just satisfaction" under Section 8 of the Human Rights Act, there may be a punitive element at play. The future role of punitive or exemplary damages in Human Rights Act remedies has been much debated by the Law Commission in their Report on Damages under the Human Rights Act LC 266 and by parties in litigation, notably in Kuddus v Chief Constable of Leistershire Constabulary (HL)  2 WLR 1789
The judge does emphasise quite firmly that he is not in the business of awarding the claimants exemplary or aggravated damages (see para 43 of the transcript); nevertheless this was a perfect test case for the "punitive" element in the "just satisfaction" award for non-pecuniary loss, since the injury suffered by the claimant was entirely occasioned by the reprehensible behaviour of the defendant. In the absence of any clear principles of remedial jurisprudence emanating from Strasbourg, Sullivan J cites with approval Para 44.4 of the Law Commission's report "Damages under the Human Rights Act 1998" (October 2000), where it hints that the conduct of the defendant should determine the size and nature of the award.
The defendant's conduct has long been a constituent element in the award of aggravated damages, which are designed to compensate the victim of a wrong for mental distress (or "injury to feelings") in circumstances in which the injury has been caused or increased by the manner in which the defendant committed the wrong, or by the defendant's conduct subsequent to the wrong (see Lord Devlin's authoritative analysis of aggravated damages in Rooks v Bernard  AC 1129.) Conduct has also of course been a central factor in the award of the more controversial punitive damages, which until Kuddus v Chief Constable of Leicestershire Constabulary (2001) 2 WLR 1789, were limited by the ruling in AB v South West Water (1993) QB 507 to causes of action that had been recognised before the ruling in Rooks v Bernard in 1964. In Kuddus the House of Lords ruled that the power to award exemplary damages was not so limited; the issue was determined by whether the factual situation was covered by either of Lord Devlin's formulations in Rookes v Barnard.
This judgment suggests that some of this wrangling over whether punitive damages are an archaism, or whether they should apply to relatively "new" torts such as misfeasance in public office, may now be laid to rest, since the "conduct" element is uncontroversially part of the decision as to whether a monetary award is appropriate in cases of wrongful behaviour by officials in public office when such a case (inevitably) comes to be considered under the Human Rights Act 1998.
As far as quantum was concerned, the judge pointed out out, quite rightly, that "comparisons with awards made by the European Court of Human Rights are made even more difficult by the need to make allowances, not merely for inflation since the dates of the awards, but also for differing standards and costs of living throughout Europe. For example, an award of a sum, the sterling equivalent of which is £3,000, to an applicant in Greece may be worth much more in real terms than an award of £3,000 to an applicant in the United Kingdom."
This observation should be taken to heart by litigation teams preparing huge dossiers of material on remedies granted by the Strasbourg court to back up their arguments on quantum. Reading between the lines of this judgment, it seems that domestic courts will be more receptive to analogies drawn from other, extra-judicial but local sources of compensation, such as the awards available for maladministration, which then can be adjusted up or down in order to achieve what the court perceives to be a fair balance between "just satisfaction" for the individual concerned, and the consequences of such an award under section 8(3) for public authorities generally and society as a whole.
Rosalind English, 1 Crown Office Row