Incompetent and inefficient decision-making has long been a part of public administration in the UK. Judging by the government’s recent performance there are no signs of that trend disappearing soon. The aftermath of austerity and the COVID-19 pandemic introduce fresh challenges for decision-makers that are likely to see even lower standards.
Judicial review claims that target alleged breaches of human rights due to maladministration may provide redress in appropriate cases, but equally, public authorities can deploy a range of defences against them.
The recent case of R (Idolo) v London Borough of Bromley [2020] EWHC 860 (Admin) contains comments which place further obstacles in the way of successful human rights claims based on maladministration, even in very unfortunate circumstances.
Background
When Mr Idolo suddenly lost the use of his legs following a hospital procedure, he became bedroom bound in an 8th floor council flat, dependent on his family and carers for meeting his basic needs for what must have been a very difficult period of 21 months (described by the Judge as ‘indisputably grim‘). His flat had become unsuitable for his needs because it was not wheelchair accessible and lacked adaptations and facilities to address his mobility and care needs.
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He brought a claim alleging that the local authority had breached its duties to him under the Care Act 2014 and had failed to protect his Article 8 rights to private and family life under the ECHR. He had no complaints against the domestic care provided to him via the local authority, however his accommodation remained unsuitable. He sought a delcaration of unlawfulness and damages under the Human Rights Act 1998.
The law
The judgment of Rowena Collins Rice sitting as a Deputy High Court Judge includes a helpful overview (at §§ 8 to 15) of the scheme of duties contained in the Care Act 2014 (starting with holistic needs assessments, determination of whether a person’s needs meet the eligibility criteria for support, and the duty on local authorities to meet those needs, subject to a number of considerations and exceptions and via a care and support plan to be kept under review). A specific exception is made by section 23 of the 2014 Act, which requires that a local authority ‘may not‘ meet social care needs by doing anything that it is obliged to do under the Housing Act 1996.
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The outcome
The Care Act claim
The Judge found that the chronology of events in this case did not amount to an unlawful delay in the discharge of duties under the Care Act 2014. The Judge rejected the argument that the local authority was under a duty to use its social services powers to find an adapted home for the Claimant if his existing accommodation was not adaptable. The exception in section 23 of the 2014 Act meant that where the Housing Act 1996 duties applied, the Council had no overlapping power to meet social care needs by re-accommodating the Claimant (see § 45).
In summary:
47. …(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 Care Act 2014 duty was flexible enough to extend to providing information and advocacy which may include seeking housing services, separate local authority departments were expected to cooperate in discharging any ‘complementary duties‘ (§ 55).
The delays in rehousing the Claimant were lengthy but not so severe in nature as to become unlawful. His case was treated as one of the two most urgent ones in the borough. The shortage of suitable housing in the local area had compounded the situation but there was no evidence that the borough had failed to allocate available and suitable properties to the Claimant due to incompetence or inefficiency.
The Human Rights Act claim
The Judge distinguished Mr Idolo’s claim from more culpable breaches of duty as typified by R (Bernard) v Enfield LBC [2002] EWHC 2282 (where that local authority admitted a breach of duty, failed to act on the recommendations of social services and even attempted to evict a vulnerable family from unsuitable accommodation due to poor coordination between different departments).
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The Court cited the leading authority of Anufrijeva v Southwark LBC [2003] EWCA Civ 1406, where the Court of Appeal considered the Strasbourg guidance on the circumstances in which maladministration may amount to a breach of Article 8 of the ECHR. Anufrijeva emphasised:
- the need for culpability on the part of the relevant public body;
- that it was possible for delay to amount to a breach of Article 8 where it caused substantial prejudice; and
- that the Court must balance the extent of the prejudice and the severity of the consequences.
In Mr Idolo’s case, there was no evidence of a lack of respect or culpability on the part of the borough. While the lengthy delay was regrettable, the Judge concluded that there could only be a successful claim where there is (i) a breach of a legal duty; and (ii) culpability. The evidence did not support either of those requirements being met.
73. …the narrative before me is one in which the correspondence, the conduct of the council officers involved, and the co-operation between the departments have the appearance of demonstrating a degree of empathy, attentiveness to Mr Idolo’s plight, respect for his needs and acknowledgment of the council’s duty to help him.
Procedural issues
Having dismissed the Claimant’s claim on all grounds, the Judge went on to make some observations about how judicial review proceedings in claims for damages due to maladministration should operate. She looked again to the authoritative guidance in Anufrijeva, where it was held at § 81(iii) that:
Before giving permission to apply for judicial review, the Administrative Court judge should require the claimant to explain why it would not be more appropriate to use any available internal complaint procedure or proceed by making a claim to the [Parliamentary Commissioner for Administration] or [Local Government Ombudsman] at least in the first instance.
The Judge highlighted that counsel must address these matters at the permission stage (ie. at the outset of a claim for judicial review). Neither party had complied with that procedure here. While Mr Idolo’s judicial review claim did not provide an opportunity for detailed study of the borough’s case files, that could have been achieved via a complaint to the Ombudsperson who would have examined the matter in greater depth and provided a clearer answer as to whether the borough had breached its duties to the claimant.
Conclusions
This judgment re-iterates the stringent limitations on the scope of claims for damages for maladministration under the Human Rights Act 1998 in judicial review proceedings. Local authorities may place particular reliance on this decision now that the Care Act 2014 duties are subject to ‘easements‘ or relaxations contained in the Coronavirus Act 2020, (as discussed towards the end of Arianna Kelly’s article for Kings Chambers here).
Practitioners and decision-makers should note the procedural guidance which focuses on the need for a proportionate approach to litigating maladministration claims and for clear justification as to why a complaint could not be pursued via the relevant Ombudsperson. The heavy case-load of the Administrative Court and the corresponding willingness of judges to reduce that burden by preventing disproportionate claims is likely to make these requirements a significant challenge to navigate. In any given case, there may be other damages claims, such as in negligence or breach of contract, that may be more viable ways of seeking compensation.
This is a complex area of law but should you or your organisation require any assistance, I would be happy to hear from you.
