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Adult Social Services - Litigation

Following the dismissal of their negligence claims in the Court of Appeal last year the claimants have taken their case to Europe on human rights…

Local government, social services, vulnerable adults, Human Rights. Following the case of X & Y v Hounslow LB

Executive summary

Following the dismissal of their negligence claims in the Court of Appeal last year the claimants have taken their case to Europe on human rights grounds.

Facts

Local authorities and insurers will likely recall the case of X & Y in which the council successfully appealed a High Court judgment that it had been negligent in not moving a vulnerable couple with learning difficulties from their council flat before they endured a weekend of appalling abuse at the hands of local youths. The council was exercising its statutory powers and duties and had not assumed a responsibility to the couple which could establish a duty of care. This decision was consistent with an earlier decision of the House of Lords in Mitchell v Glasgow where it was held that the council landlord did not owe a duty of care to a tenant to warn him that he was at risk of potential violence from a fellow tenant.

These were (and are) two important judgments, particularly in terms of keeping the duty of care owed by local authorities to vulnerable adults within reasonable bounds. In this regard the decisions will stand. However, in a potentially very significant development, the claimants have submitted an application to the European Court of Human Rights (ECtHR) to determine the extent to which the council may have acted in breach of their human rights under the European Convention.

Application to ECtHR

The claimants raise the following complaints:-

(i) The council failed to take positive steps to protect them from inhuman and degrading treatment under Article 3 despite the fact it knew or ought to have known they were at real risk of such treatment;

(ii) The council’s failure to take reasonable measures to prevent or mitigate the harm amounted to interference with their moral and physical integrity and/or their right to respect for their home (Article 8);

(iii) In finding that the council did not owe the claimants a duty of care the domestic courts deprived them of an effective remedy within the national legal system for violations of their Convention rights (contrary to Article 13);

At first instance in the High Court the human rights claims were not determined as they had been taken into account by the trial judge when deciding the duty of care point. The claims were not revived in the Court of Appeal and a petition for permission to appeal to the House of Lords was dismissed.

Comment

The claimants’ application to Europe will be followed with interest. In some ways it again brings into focus the continuing tension between Strasbourg and the UK, something we have seen recently with DNA retention and prisoner voting rights. It is arguably curious that in X & Y we have a case where the human rights claim was not resurrected (and therefore not argued) in the Court of Appeal but is now being put before the European Court. There is scope for a finding of a human rights violation where our appeal court has held both that there was no duty of care and, even if there was a duty, it was not breached.

This is a stark reminder of the importance of the Human Rights Act 1998 (HRA) and Convention rights generally in this area. The requirements of the Convention may still mean there is a viable damages claim even if there is no common law duty of care. This is something we have seen in Z v UK [2001] and AD & OD v UK [2010], when X (minors) v Bedfordshire [1995] and AD v Bury MBC [2006] respectively went to the ECtHR. However, in those cases the human rights claims could not be considered domestically because the events pre-dated the implementation of the HRA.

The application was communicated to the UK Government in October 2010 and it has been asked to submit observations on the admissibility and merits of the application.

Peter Wake
Partner