25.61R (Bernard) v Enfield LBC [2002] EWHC 2282 (Admin), (2002) 5 CCLR 577
A serious failure to provide the services required under section 21 of the National Assistance Act 1948, which had severe repercussion on Ms Bernard’s family and private law, breached Article 8 ECHR
Facts: Mrs Bernard and her family had become intentionally homeless but meanwhile occupied temporary accommodation provided under the Housing Act 1996. Being unable to secure suitable, alternative accommodation, because of Mrs Bernard’s disability, they sought a community care assessment from Enfield. Enfield assessed Mrs Bernard as being wholly wheelchair dependent, but as being unable to use her wheelchair in her home, confining her to the living room, where she had no privacy and was in discomfort, as being wholly dependent on her husband and as being unable to gain access to the bathroom without great difficulty, although she was doubly incontinent: it concluded that the family needed assistance to move to suitable adapted accommodation. Enfield failed to secure the family’s re-housing and meanwhile Mrs Bernard’s circumstances remained dire: not only did she lack privacy, and any ability to mobilise within the home, she was incontinent in the living room several times a day, so that her husband had to clean her and her clothes/bedding and the carpets.
Judgment: Sullivan J noted that Enfield accepted that, in substance, it had assessed Mrs Bernard as requiring to be moved to suitable, adapted accommodation so as to trigger the duty to provide residential accommodation in section 21 of the National Assistance Act 1948. He held that Enfield’s failure to discharge that duty, for about 20 months, did not quite reach the threshold of inhuman or degrading treatment in breach of Article 3 ECHR, but that it was an unjustified breach of Mrs Bernard’s rights under Article 8, for which damages would be awarded of £10,000 (£8,000 for Mrs Bernard and £2,000 for her husband):
32. I accept the defendant’s submission that not every breach of duty under section 21 of the 1948 Act will result in a breach of Article 8. 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 Newham LBC [2002] EWHC 1262 (Admin) paras 59–62. However, those entitled to care under section 21 are a particularly vulnerable group. Positive measures have to be taken (by way of community care facilities) to enable them to enjoy, so far as possible, a normal private and family life. In Morris Jackson J was concerned with an unlawful failure to provide accommodation under Part VII of the Housing Act 1996, but the same approach is equally applicable to the duty to provide suitably adapted accommodation under the 1948 Act. Whether the breach of statutory duty has also resulted in an infringement of the claimants’ Article 8 rights will depend upon all the circumstances of the case. Just what was the effect of the breach in practical terms on the claimants’ family and private life?
33. Following the assessments in September 2000 the defendant was under an obligation not merely to refrain from unwarranted interference in the claimants’ family life, but also to take positive steps, including the provision of suitably adapted accommodation, to enable the claimants and their children to lead as normal a family life as possible, bearing in mind the second claimant’s severe disabilities. Suitably adapted accommodation would not merely have facilitated the normal incidents of family life, for example the second claimant would have been able to move around her home to some extent and would have been able to play some part, together with the first claimant, in looking after their children. It would also have secured her ‘physical and psychological integrity’. She would no longer have been housebound, confined to a shower chair for most of the day, lacking privacy in the most undignified of circumstances, but would have been able to operate again as part of her family and as a person in her own right, rather than being a burden, wholly dependent upon the rest of her family. In short, it would have restored her dignity as a human being.
34. The Council’s failure to act on the September 2000 assessments showed a singular lack of respect for the claimants’ private and family life. 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 Article 8. Accordingly, I have no doubt that 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.
Comment: this is a rare, extreme case where a failure to provide services (in breach of a statutory obligation) violated ECHR rights (although Article 8, still not Article 3) and resulted in an award of financial compensation.