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X & Y v Hounslow London Borough Council, Court of Appeal, 2 April 2009

20 April 2009
The issues

Assumption of responsibility – duty to house in emergency housing – duty of care to Council tenants at alleged risk of assault.

The facts

X and Y lived in a Council flat. Y’s children from another relationship. Y was a tenant of the Council and had lived with her daughters, A and B, since 1993. X married Y and moved into the flat in January 1999. Both X and Y had mild learning difficulties. X had been assessed as being on the autistic spectrum. X and Y were both capable of consenting to marriage and both were assessed as not requiring supported living accommodation, which in any event they did not want. Since 14th January 2008 they have been protected parties, although their expert psychiatrist had previously taken the view that they were both capable of giving instructions to their lawyers themselves. X and Y were vulnerable adults who needed support in the community.

In the summer of 2000 X and Y had befriended four local youths. The youths (or some of them) had been allowed to use the flat as a place they could take drugs and engage in under age sexual activity, store stolen goods and generally misbehave. In October 2000, X was assaulted quite seriously in a McDonalds restaurant by one of the youths who believed that he had been “grassed” by him to the police in respect of stolen goods found at the flat the previous day. In the weekend of the 17th – 19th November 2000 X and Y had been effectively imprisoned in their own home and repeatedly assaulted and abused, often in the presence of the two children. They had been forced to perform sexual acts, many of their possessions had been thrown over the balcony, pepper and fluid had been forced into X’s eyes. X had been locked in his bathroom in the dark. X had been made to drink urine, eat dog biscuits, dog faeces, and the faeces of one of the youths, threatening him that he would be stabbed if he did not. Other degrading sexual acts had been forced upon X, who had also been slashed repeatedly all over his body with a knife. Y also had been sexually assaulted. The children had been abused, assaulted and locked in their bedroom. Even the family dog had been abused.

Before that weekend two sections of the Council’s Social Services Department had been engaged with the family for a considerable time. Those were the Community Team for people with learning difficulties and the Children and Families Section, which dealt with child protection concerns. During 2000 a Social Worker had become aware that X and Y were being exploited by local youths, using the flat for illicit activities. In the 12th October she became aware of the assault in the restaurant. On the 31st October she learnt that another youth was staying in the flat. She reported these matters to the police who declined to act unless X and Y made complaints themselves. The Social Worker contacted the Children and Families Section, which made arrangements for a child protection meeting to take place on the 24th November. She also wrote to the Council’s Housing Department asking that X and Y’s long standing application for re-housing be considered urgently and on the 23rd October she went with X and Y to a meeting with the Housing Department’s Harassment Officer. X and Y had not been asked by the Social Worker to be placed in emergency temporary accommodation, because she had not foreseen that they might be assaulted in their own flat in the way that had occurred over the relevant weekend.

The Judge at first instance found the Local Authority owed a duty of care to X and Y and that it was in breach of that duty by not moving X and Y before the incident occurred.

The Local Authority Appealed.

The decision

The Local Authority had been acting under its statutory duties under the National Assistance Act 1948 and the Housing Act 1996.

It was not fair, just or reasonable to impose a duty of the kind alleged by the Claimants on the Housing Department, because of the many potentially conflicting interests which it had to take into account as supplier of housing and as landlord.

Although there was a legal relationship between the Respondent and the Council arising out of the Tenancy Agreement between the Council as landlord and the Respondents as tenants, pursuant to which they lived in the flat, it was not suggested that the Council was in breach of any of its obligations under the Tenancy Agreement.

It was not contended by the Claimant that the Local Authority was in breach of any statutory duty actionable by a private law action for damages. Equally, none of the statutory provisions could give rise to a failure to be alleged against the Local Authority to exercise its statutory powers.

The Claimant argued that the matter fell within one of the exceptions in Mitchell v Glasgow City Council. In particular, it was alleged that the Defendant had assumed specific responsibility for the Claimant’s safety. The Claimant had argued that the assumption of responsibility had come out of the existing involvement with X and Y and that the Council had assumed the task providing social support for X and Y and the children and of providing suitable and safe housing for them. In addition, they had assumed responsibility for re-housing the Respondents and the children in the emergency situation that had arisen in that they had taken a number of steps to do so but had ultimately failed because of lack of coordination between the departments of the Council. Moreover, it was submitted that the case of X and Y involved a family with known vulnerability and mental health problems who could only live in the community with support from the Council. None of these considerations led to the conclusion that there was an assumption of responsibility or some other special factor which might give rise to the imposition of a duty of care owed to the Respondents. The principle difficulty facing the Respondents was that their essential complaint was that the Council was not exercising its statutory duties and powers properly, which the leading cases show was not sufficient to give rise to a duty of care. Something more was required. Both the Social Services Department and the Housing Department were simply trying to exercise their statutory functions, no more and no less.

If anyone had assumed a responsibility it could only have been the Social Worker in question. She however had behaved impeccably throughout. She had made frequent visits and assisted the Respondents in numerous ways. No suggestion had been made that her approach had been one other than which a reasonable Social Worker would reasonably take and it followed therefore that if that was accepted, she could not be in breach of duty because of the principles in Bolam v Friern Hospital Management Committee.

Appeal allowed.

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