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Anufrijeva and Another v Southwark London Borough Council and R(N) v Secretary of State for the Home Department and R(M) v Secretary of State for the Home Department, Court of Appeal, 16 October 2003

22 October 2003
The issues

Human Rights – right to respect for private and family life – Article 8 Rights – Damages.

The facts

The three appeals were heard together, giving the Court of Appeal the opportunity of dealing in detail with the power of Courts to award damages under the Human Rights Act. The three appeals had in common the fact that each Claimant was an Asylum Seeker. Each one complained of a failure by the Defendants to comply with the public law duty imposed by statute under which they claimed to be entitled to receive benefits or advantages and each further claimed that this failure was due to mal-administration. Each believed that the mal-administration and its consequences amounted to a breach of the Claimants right to respect for private and family life and that they should be entitled to damages under the Human Rights Act 1998 as a consequence. In none of the cases was there an allegation that there had been an action taken by the Defendants, which infringed Article 8. Rather each alleged that there was a failure to take positive action necessary to ensure that the Claimant’s rights under Article 8 had been respected.

The decision

1. Six questions were raised for consideration, namely:-

What is the nature of Article 8 Rights?
When does a duty arise under Article 8 to take positive action?
In what circumstances does mal-administration constitute breach of Article 8?
When should damages be awarded?
On what basis should damages be awarded?
What procedure should be followed to ensure that the costs of obtaining relief were proportionate to that relief?

2. What is the nature of Article 8 Rights?

In essence the right was one to live one’s personal life without unjustified interference; the right to one’s personal integrity. It included a right to develop a relationship with other human beings, demonstrating the link between the right to private life and the right to family life. If members of a family were prevented from sharing family life together, Article 8(i) was likely to be infringed. In each case the claim based on a failure to act by the Authorities was one, which understandably fell within the ambit of Article 8.

3. When does a duty arise under Article 8 to take positive action?

Strasbourg had provided little guidance and the Court of Appeal were unaware of any case in which the European Court of Human Rights had held a state in breach of the convention for failure to provide housing to a certain standard or for failure to provide welfare support. There was an interplay between Article 8 and Article 3 (right not to be subject to inhuman or degrading treatment). It was concluded that Article 8 was capable of imposing on a state a positive obligation to provide support, but hard to conceive of a situation in which the failure to provide him with support was not sufficiently severe as to engage Article 3. The blame might be more readily engaged where a family unit was involved and where the welfare of children was at stake requiring the provision of welfare support to enable family life to continue. The decision of the High Court in Bernard -v- Enfield London Borough Council (the Claimants husband and wife with 6 children – wife severely disabled – confined to wheelchair – Local Authority failed to provide family with accommodation suited to her disability and consequences to the quality of life of the family were severe) was expressly approved, notwithstanding that in that case Sullivan J found a breach of Article 8 without a breach of Article 3. The Court of Appeal described the conditions in Bernard as “hideous” which “seriously inhibited” family life.

4. In what circumstances does mal-administration constitute breach of Article 8?

There had to be knowledge that the Claimants private and family life were at risk. Where domestic law imposed positive obligations in relation to the provision of welfare support, breach of those positive obligations might suffice to provide the necessary element of culpability, provided that the impact on private or family life was sufficiently serious and was foreseeable. Mal-administration would only infringe Article 8 where the consequences were serious. Isolated acts of even significant carelessness were unlikely to suffice. If this were otherwise, demands on resources would be significantly increased.

5. When should damages be awarded?

Courts dealing with claims for damages for mal-administration should adopt a broad-brush approach. Where no pecuniary loss was involved the question whether other remedies granted to a successful Claimant were sufficient to vindicate the right that has been infringed, taking into account the complainant’s own responsibility for what had occurred, should be decided without a close examination of the Authorities or an extensive and prolonged examination of the facts. In many cases, the seriousness of the mal-administration and whether there was a need for damages should be capable of being ascertained by an examination of the correspondence and the witness statements.

The remedy had to be “just and appropriate” and “necessary” to afford “just satisfaction”. This was an equitable approach. The scale and manner of the violation could be taken into account. The way in which the violation took place might be considered sufficiently serious in some cases to lead the European Court to award damages.

6. How should damages be assessed?

The discretionary exercise of deciding whether to award compensation under the Human Rights Act was not to be compared to the approach adopted where damages were claimed for breach of an obligation under civil law. However, where in a claim under the Human Rights Act the Court decided that it was appropriate to award damages, the level of damages in respect of tort as provided in the Guidelines issued by the Judicial Studies Board or the level of awards made by the Criminal Injuries Compensation Board or the Parliamentary or Local Government Ombudsmen, might provide rough guidance. In cases of mal-administration where the consequences were not such as to give right to compensation under civil law, the award of the Ombudsman might be the only comparator. In cases under Article 8, a finding of a breach of positive obligation to provide support would be rare and would be likely to occur only where it impacted severely on family life. In such cases, it was unlikely that there would be a ready comparator to assist in the assessment of damages. There were good reasons why in such cases the scale of damages should be modest. The cost of supporting those in need fell on Society as a whole and resources were limited. Payment of substantial damages would deplete the resources available for other needs of the public including primary care. There was also the risk that Asylum Seekers whether genuine or not, might be perceived as profiting from their status which would bring the Human Rights Act into disrepute. The approach of Sullivan J in Bernard (whereby he referred to awards made by the Ombudsman in assessing damages) was expressly approved.

7. What procedures should be followed to ensure that the costs of obtaining relief were proportionate to that relief?

The Court was concerned that even if proceedings were conducted as economically as possible, the costs of those proceedings would be totally out of proportion to the damages likely to be awarded. Combined costs of both sides were many times greater than the damages that could reasonably have been anticipated. The figures were “truly horrendous” and the Court was worried by the fact that all parties were funded out of public funds. To avoid repetition of this situation in future, the following Guidelines would be laid down:-

(a) The Court should look critically at any attempt to recover damages under the Human Rights Act for mal-administration by any procedure other than judicial review in the Administrative Court;

(b) A claim for damages alone cannot be brought by judicial review – but in this case the proceedings should still be brought in the Administrative Court by an ordinary claim;

(c) Before giving permission to apply for a judicial review, the Administrative Court Judge should require the Claimant to explain why it would not be appropriate to make use of any available internal complaints procedure or proceed by means of a claim to the Parliamentary of Local Government Ombudsman;

(d) If there was a legitimate claim for other relief, permission should if appropriate be limited to that relief and consideration given to deferring permission for the damages claim or adjourning or staying that claim until use had been made of ADR, or remitting the claim to a District Judge or Master if it could not be dismissed summarily on the grounds that in any event an award of damages is not required to achieve just satisfaction;

(e) Each claim should be determined by the appropriate level of Judge in a summary manner by the Judge reading the relevant evidence. A citing of more than three Authorities should be justified and a Hearing should be limited to half a day except in exceptional circumstances;

(f) First and third appeals dismissed, second appeal allowed.

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