25.66R (Anufrijeva) v Southwark LBC [2003] EWCA Civ 1406, (2003) 6 CCLR 415
A failure to provide a statutory service will usually only breach Article 8 ECHR where there is a level of culpability on the part of the authority and where the consequences are so serious as to be comparable with cases of violations of Article 3 ECHR although a lower threshold could apply in the case of children
Facts: Southwark was under a duty to secure suitable residential accommodation for Mrs Anufrijeva, under section 21 of the National Assistance Act 1948.
Judgment: on the facts, Southwark had made reasonable efforts to provide appropriate accommodation and it could not be said that Southwark had departed so far from what section 21 required as to amount to a breach of Article 8 ECHR:
45. In so far as Article 8 imposes positive obligations, these are not absolute. Before inaction can amount to a lack of respect for private and family life, there must be some ground for criticising the failure to act. There must be an element of culpability. At the very least there must be knowledge that the claimant’s private and family life were at risk – see the approach of the ECtHR to the positive obligation in relation to Article 2 in Osman v United Kingdom (1998) 29 EHRR 245 and the discussion of Silber J in N at paragraphs 126 to 148. Where the domestic law of a State imposes positive obligations in relation to the provision of welfare support, breach of those positive obligations of domestic law may suffice to provide the element of culpability necessary to establish a breach of Article 8, provided that the impact on private or family life is sufficiently serious and was foreseeable.
46. Where the complaint is that there has been culpable delay in the administrative processes necessary to determine and to give effect to an Article 8 right, the approach of both the Strasbourg Court and the Commission has been not to find an infringement of Article 8 unless substantial prejudice has been caused to the applicant. In cases involving custody of children, procedural delay has been held to amount to a breach of Article 8 because of the prejudice such delay can have on the ultimate decision – thus in H v United Kingdom (1987) 10 EHRR 95 the court held Article 8 infringed by delay in the conduct of access and adoption proceedings because the proceedings ‘lay within an area in which procedural delay may lead to a de factodetermination of the matter in issue’, which was precisely what had occurred. The ECtHR had adopted similar reasoning in W v United Kingdom (1987) 10 EHRR 29. In contrast, in Askar v United Kingdom (application no. 26373/95) the Commission held inadmissible a complaint of substantial delay in granting permission for the family of a refugee to join him in this country, observing:
‘The Commission recalls that delay in proceedings concerning matters of ‘family life’ may raise issues under Article 8 of the Convention. In the case of H v United Kingdom, the court found a violation of Article 8 in respect of proceedings concerning the mother’s access to her child which lasted two years and seven months. However, the court had regard in reaching that conclusion that the proceedings concerned a fundamental element of family life (whether a mother would be able to see her child again) and that they had a quality of irreversibility, lying within an area in which delay might lead to a de facto determination of the matter, whereas an effective respect for the mother’s family life required that the question be determined solely in the light of all relevant considerations and not by mere effluxion of time.’
H, W and a third case were then cited. The Commission continued:
‘The Commission finds that the present case is not comparable. The subject-matter of the proceedings concerns the granting of permission to enter the United Kingdom for members of the applicant’s family, whom the applicant had not seen for at least six years and with some of whom the nature of his ties has not been specified beyond the fact that, pursuant to Somali tradition, the applicant has on the death of his father become head of the extended family group. Further, it is not apparent that the delay in the proceedings has any prejudicial effect on their eventual determination or that the effect of the passage of time is such as to prevent the proper and fair examination of the merits of the case.’
47. We consider that there is sound sense in this approach at Strasbourg, particularly in cases where what is in issue is the grant of some form of welfare support. The Strasbourg Court has rightly emphasised the need to have regard to resources when considering the obligations imposed on a State by Article 8. The demands on resources would be significantly increased if States were to be faced with claims for breaches of Article 8 simply on the ground of administrative delays. Maladministration of the type that we are considering will only infringe Article 8 where the consequence is serious.
The judgment also contains detailed consideration of the basis on which damages should be awarded for breaches of the ECHR:
1) Awards of damages have a less prominent role to play in actions based on breaches of the ECHR than in relation to alleged breaches of private law rights. In relation to breaches of human rights, the primary concern is to bring the infringement to an end. The consequences of administrative delay must amount to more than distress and frustration before Article 8 is even engaged.
2) In terms of an entitlement to an award of damages, the scale and manner of the violation should be taken into account, in the context of whether it is just and appropriate or necessary to afford just satisfaction, as is the manner in which the violation has taken place.
3) The court should take a summary, broad brush approach to damages. If damages are to be awarded for maladministration, the awards of the Judicial Studies Board, the Criminal Injuries Compensation Authority and the relevant ombudsman are likely to provide rough guidance.
4) In order to prevent disproportionate costs in claims for damages under the Human Rights Act 1998 for maladministration, courts should look carefully at attempts to recover damages for maladministration. Such claims should be brought in the Administrative Court, which should control the evidence and procedure to be followed, with an emphasis on summary determination of the damages aspect of the claim. Before giving permission to apply for judicial review the judge should require the claimant to explain why it would not be more appropriate to use any available internal complaints procedure, or to make a complaint to the Parliamentary Commissioner for Administration or the Local Government Ombudsman.
Comment: like the
Bernard case, this case illustrates how extreme the facts must be, for a failure to provide a social welfare service, to amount to a breach of the ECHR: unless children or family life is involved, the consequences must be equivalent to the type of consequences that trigger the core duty of the court to protect individuals from serious harm perpetrated by the State, incompatibly with Article 3 ECHR. A classic example, is
R (Limbuela) v Secretary of State for the Home Department,
1[2005] UKHL 66, (2006) 9 CCLR 30.in which the House of Lords held that it was incompatible with Article 3 ECHR to decline to provide asylum support to destitute asylum-seekers. In
R (Greenfield) v Secretary of State for the Home Department,
2[2005] UKHL 14, [2005] 1 WLR 673.the House of Lords endorsed a restrictive approach to the award of financial compensation in ECHR cases, pointing out that declaratory relief will often amount of ‘just satisfaction’.