FACTS:-

The Claimants were protected parties proceeding by their Litigation Friend, the Official Solicitor and claiming damages against the Defendant, the London Borough of Hounslow. X and Y were aged 44 and 38, and lived in a flat owned by the Defendant with Y’s two daughters, A and B aged 11 and 8. X, Y and A all had learning difficulties and the family had involvement with social services. X was assessed as being at risk of being exploited and abused, this being partly related to his friendly nature, trust of people and some impulsivity. Y was described as slightly more able than X, but her disability was sufficient to affect her ability to maintain the family home to a reasonable standard and to ensure the safety of her children.

X had lived in Wandsworth prior to moving in with X, who lived in the Defendant’s borough, where social services recognised that he needed support. In relation to Y, she was also seen by the Defendant’s social services as being in need of support and vulnerable to abuse. On one occasion a Schedule 1 sex offender was staying at her flat in 1994 and a community psychiatric nurse commented in an assessment that Y was often the victim of people more assertive than herself.

The Defendant’s social services department had a sub department “Adult Social Services”. Within that sub department was a team that dealt specifically with adults with learning difficulties. This was the “Community Team for People with Learning Difficulties” (“CTPLD”). There was also a separate Children and Families section (“C & F”).

In 1999, the Defendant’s social workers expressed concerns about the dirty and unkempt condition of X and Y’s flat. In July 1999 A’s school reported that her genitals were seen to be swollen and adult like when she was taking a shower at school. In August 1999 there was a report that a friend of X, “Andy” had taken A and B to his flat for four days. In August 1999, X’s mother, Z told Tajinder Hayre, a social worker employed by the Defendant that X was being harassed by a gang of boys and threatened with a knife. She also wrote to the Defendant’s housing department about these incidents. There was a subsequent visit in August 1999 by the Defendant’s social workers, Tajinder Hayre and Karen Wan to X and Y’s flat, which was found to be very untidy and smelled strongly of animal urine. This was followed by a visit in August that disclosed the same conditions, but X and Y refused support. In September 1999, a community psychiatric nurse, Jo Darrow recommended that the family be re-housed.

On the 3rd September 1999, Z informed Karen Wan who in turn informed Tajinder Hayre that X had been tormented by a group of local youths. On the 24th September the police received a report that “Andy” had tried to break in to X and Y’s flat. At that point it was accepted by the Defendant’s social services that the Claimants could manage some areas of their lives but not all.

On the 4th October 1999, social services held a family support planning meeting, at which Y and Z were present. It was decided that the family should receive continued support from CTPLD and C & F and that pressure should be applied to the Housing Department for re-housing. An initial application had been made by & in 1995. A follow up meeting was set for the 11th January 2000, but no such meeting ever took place. In December 1999, the Claimant completed another application for re-housing. A housing officer recommended that this be granted but it did not go through.

Later in December 1999, X and Y informed C & F about the harassment they were experiencing on the estate. On the 30th December 1999, Tajinder Hayre, a social worker wrote to C & F asking them to allocate a social worker as a matter of urgency.

In February 2000, Heidi Vogel, A and B’s social worker wrote to CTPLD saying that X was extremely vulnerable. Later that same month, Z wrote to the Defendant’s director of social services, reporting the threats and harassment that X had received and express concern about the children.

In March 2000 Z telephoned Tajinder Hayre to say that X needed his own social worker. There was then a meeting attended by X, Z and social services together with a representative of MENCAP, as a result of which Tajinder Hayre completed a “Comprehensive Needs Assessment” form in relation to X and he was appointed the social worker for X as well as Y. Social services sent a letter to the Defendant’s housing department again requesting a transfer.

Z was told in May 2000 by a friend of X’s called Christian that a group of youths had been congregating at the flat, bullying X and demanding food from him.

In August 2000 Tajinder Hayre made a visit to X and Y’s flat and was told by Y that the family had been refused a housing transfer, unless they cleaned and decorated the property and got rid of the dogs. That was broadly confirmed by the housing department.

In September 2000, Z and another social worker made a visit to X and Y and found the flat in a dreadful state, and occupied by a gang of teenagers. In October 2000 two youths were arrested at X and Y’s home for handling stolen car stereo car speakers. X was also arrested and released on bail. The police also reported their concerns about the state of the flat and the risk to the children. On the 11th October 2000, X was approached by one of the arrested youths, Robert Davenport and his father who threatened and assaulted him. The assault necessitated hospital treatment and came to the attention of Tajinder Hayre. X also told Z who told Tajinder Hayre that other people had keys to the flat and were using it to store stolen goods. Tajinder Haryre reported this to the police, who refused to do anything unless it was reported by X.

On the 18th October 2000, Tajinder Hayre wrote to the Defendant’s housing department, expressing further concerns. The housing officer dealing with the case was on leave at the time, but another officer said in evidence before the court that had she done so, it would have prompted her to set in motion a procedure for the emergency transfer of the family.

On the 19th October 2000, a further warning was telephoned to Tajinder Hayre by a charity worker about X and Y, saying that X had been befriended by young people in the area who had keys to his flat and used it to have sex. In addition, X had been beaten up.

On the 23rd October 2000, an officer of the Defendant’s housing department visited X and Y’s home. X and Y told him that they had received offensive phone calls and that X had been attacked. They asked to be moved but were not prepared to name the youth who had attacked X until they were moved. The officer completed a “Harassment Investigation Form.”

On the 26th October 2000, the charity worker who made the call on the 19th, against contacted Tajinder Hayre by letter. She again expressed further concerns about youths visiting the flat and threatening X.

On the 31st October 2000, Z again wrote to the Defendant’s social services outlining the history of the case. On the 1st November 2000, she rang Tajinder Hayre to report that a youth named “Nick” had been causing trouble at X and Y’s flat. She also rang the police. On the 2nd November 2000, Mr Hayre wrote to the duty social worker at C & F asking them to liaise and outlining the problems.

A further report was made by Z to the police and Tajinder Hayre on the 1st November 2000. On the 2nd November, Tajinder Hayre wrote to the “Duty Social Worker” outlining the situation and asking to meet. On the 3rd November Mr Hayre wrote to the Defendant’s housing department saying that X and Y’s current accommodation was unsafe. On the 5th November 2000, the police arrested two youths for burglary at X and Y’s flat and reported that the flat was still in a disgusting state, and that it was still being used by youths. On the 6th November 2000, Tajinder Hayre visited X and Y’s flat to find X on his way out with Nick. On the same day, another tenant of the estate complained about items being thrown from the balcony of the flat and on the 7th November a different tenant complained about anti social behaviour from X and Y’s flat. On the 9th November 2000, a representative of C & F visited the flat, but found it still dirty and X and Y dishevelled.  On the same day, the Social Services Directorate sent by fax to the Defendant’s Director of Social Services, Z’s letter of the 31st October 2000.

On the 13th November 2000, the Defendant’s housing department sent housing transfer forms to X and Y and on the next day, received a petition from 17 residents on the estate about activities at the flat.

Further internal discussions took place within the Defendant’s social services and housing department on the 14th and 15th November 2000. Tajinder Hayre saw X and Y on the 16th November when both said that they felt threatened and wanted to move out.

During the weekend of the 17th to the 19th November 2000, the Claimants were imprisoned in their own home and repeatedly assaulted and abused, often in the presence of their two children. The abuse included being made to eat faeces, to perform sexual activities and being sprayed with kitchen cleaner. X was slashed with a knife and the children, A and B were also assaulted. The assailants were convicted and received custodial sentences.

Following these assaults, X and Y moved out and their children were put into foster care. However they were still in contact with some of the youths who had been causing problems at their flat. Eventually they were moved to Epsom.

A complaint was submitted by Z to the Defendant. Two reports were prepared, one by a Mr Sheppard who was asked to investigate the case from Z’s perspective and another by a Ms. Tilt who was appointed to investigate the case from X and Y’s’ perspective. The report of Mr Sheppard found a lack of co-ordination between CTPLD and C & F. There was also criticism of the way in which files were kept and the absence of an up to date chronology. The substantive part of the complaint was upheld.

The report of Ms. Tilt was much more detailed and said that A and B should have had a continuously allocated social worker, given the suspicions of sexual abuse. She criticised the standard of file keeping and concluded that warning signs had not been heeded. Tajinder Hayre had had too little supervision, support and guidance.

The complaint came before a Review Panel appointed by the Defendant, which accepted the conclusions of the Sheppard and Tilt reports. That decision was in turn accepted by the Defendant’s Chief Executive.

Damages were agreed but liability was in dispute.

HELD:-

Mr Justice Maddison went over the facts of the case. He then considered the applicable law under the following headings:-

The test to be applied

Counsel for the parties appeared to accept that the proper test to apply in this case was the familiar three stage test deriving from Caparo Industries Limited v Dickman [1990] 2 AC 605. This was:-

• Was the injury and loss suffered by the Claimants reasonably foreseeable?
• Was their relationship with the Defendant sufficiently proximate to warrant the imposition of the duty of care?
• Would it be just, fair and reasonable to impose such a duty?

The Defendant: A single entity?

There was an issue as to whether the different departments of the Defendant should be considered as a single entity. Maddison J accepted the Claimant’s counsel’s submission that the correct approach was to consider the Defendant as a single entity in law, particularly in light of the fact that it was the practice of the different departments to act together. It was a recurring theme of the Tilt and Sheppard reports that the different departments had failed to co-operate.

Was the injury and loss reasonably foreseeable?

The chronology seemed to point a picture of gradually mounting concern about the welfare and safety of the Claimants and their family. That mounting concern made it reasonable foreseeable from an early stage that the Claimants and their children might in some manner come to some sort of harm. However what needed to be asked was whether, and if so when, events gathered pace to the extent that the harm that was reasonably foreseeable changed from harm of a general ill-defined nature to harm resulting from an attack of the kind that happened during the relevant weekend. Maddison J said that in his judgment, this development did indeed take place and the events that made a critical difference began early in September 2000. They included sexually inappropriate behaviour by teenagers in front of children, stolen good being found at the flat, the serious assault on X and the later threats. Therefore it was reasonably, indeed clearly foreseeable that either or both of the Claimants would suffer a serious physical attack from local youths in their flat. At the very latest that danger should have been foreseen by the 7th November 2000, but it could and should reasonably have been foreseen by the 20th October 2000.

Was there a relationship of sufficient proximity?

Maddison J said that the relationship was sufficiently proximate. The Defendant was the Claimants’ landlord, and provided social services care for them and their children, as well as community psychiatric nurses. There was regular contact and involvement between the two sets of parties.

Was it just, fair and reasonable to impose a duty of care?

It was not suggested by the Claimants that the Defendant was under a general duty to protect them from harm. It would plainly not be fair, just and reasonable to impose such a broadly based duty on the Defendant. It was accepted by all parties in practical terms that, apart from moving the Claimants into new accommodation, there was nothing else the Defendant could have done to prevent the Claimants from being assaulted.

The Claimants’ expert had advanced four arguments.

Firstly it had been suggested by the Claimants’ expert that they should have been moved out because their flat was generally unsuitable. The Defendant’s expert had said that there was nothing unsuitable about the flat and Maddison J agreed with that conclusion. It was not ideal but there was a shortage of housing accommodation at the time. Such a failure could not be seen as negligent.

Secondly the Claimants’ expert said that had the C & F team had proper regard for the welfare and safety of the children and investigated the allegations that A was being sexually abused, they would have moved the children to a place of greater safety. Maddison J had difficulties with this submission insofar as it was for the Claimants to establish a duty of care to them rather than to their children. Moreover there was no detailed evidence about consideration of this issue. In any event, intervention by social services might not necessarily have led to the family being moved.

Thirdly the Claimants’ expert had said that because the Claimants were unable to parent their children properly, the Defendant should have sought to place them in a residential parenting skills assessment centre. In the judgment of Maddison J the parents would probably have refused to go.

Fourth the Claimants and their children were collectively so vulnerable that they should all have been placed in supported accommodation. Again Maddison J said that it was unlikely they would have agreed, given their clear wish to lead independent lives.

Maddison J was prepared to accept the submission by Claimants’ counsel that it was the duty of the Defendant to move the Claimants out of the flat in response to the developing crisis towards the end of 2000.

Maddison J referred to the case of Sutherland Shire Council v Heyman (1985) ALR 1 where it was said that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care. It was well established that local authorities might, in certain circumstances, owe a duty of care to children for example in relation to the investigation of suspected child abuse and initiation and pursuit of care proceedings. (JD and Others v East Berkshire NHS Trust and Others [2003] Lloyd’s Law Reports 552 and Pierce v Doncaster MBC [2007 EWHC 2968). This case represented such a small step and would not offend the incremental principle.

Maddison J had not overlooked the fact that in the case of JD, it was held that there was no separate duty of care owed to the adult parents of the children concerned (see also Lawrence v Pembrokeshire County Council [207] 1 WLR 2991). However there was no separate conflict of interest between parent and child in this case.

The fact that the damage was caused by uncontrolled third parties did not mean that it was not just, fair and reasonable to impose a duty of care. It was clear from the case of Smith v Littlewoods Organisation [1987] 1 AC 241 that the actions of third parties were capable of founding an action in the tort of negligence. There was also the issue of the advent into law of the Human Rights Act 2000, although that was no determinative.

Maddison J did not consider that the repeated apologies made by the Defendant in the aftermath of the assaults, should be taken into account. The Defendant’s social services senior officers had in fact resiled from that position in their evidence.

Breach of duty

The next question was whether or not the Defendant could and should have moved the Claimants out of their flat before the relevant weekend. Evidence had been given of the Defendant’s procedures. One was based on a points system, but this was not designed for emergencies. A second scheme involved a transfer to protected or sheltered accommodation, but such accommodation was usually in short supply and the transfer was intended as a swift response to an emergency. A third scheme involved a management transfer but again it was not responsive to emergencies. The fourth scheme was an emergency system and Maddison J said that this appeared to be the only system available in this case that could and should have been employed. Maddison J was also satisfied that a temporary place could have been found for them.

However the Defendant did not consider the emergency system. Maddison J found that the Defendant should have invoked this emergency procedure on or very shortly after the 20th October 2000. So there was a breach of duty.

Causation

Maddison J said that causation was established in this case. The Defendant’s counsel submitted that the Claimants would have refused to leave their flat in any event, and they would have been assaulted elsewhere, if they had left. These arguments were not accepted. In relation to the first argument, the evidence showed that the Claimants were by 18th October 2000 frightened of their assailants and they had said that they wanted to leave. In line with the case of BHP Billiton Petroleum Ltd v Dalmine SpA [2003] EWCA Civ 170 it was for the Defendant to prove on the balance of probabilities that the Claimants would have been assaulted even had they moved before the relevant weekend, and the Defendant had failed to do that.

Did the Claimants have a right of action at all?

The Defendant’s counsel had relied on the case of O’Rourke v Camden London Borough Council [1998] AC 188 in which the House of Lords held that the Claimant’s claim for damages, arising out the council’s failure to accommodate him as a homeless person should be struck out.

It had also been submitted that the Defendant’s counsel that (at first sight) any emergency procedure to re-house the Claimants would have come under Section 21 of the National Assistance Act 1948. Section 21(1) of that Act provided that a local authority was under a duty to provide residential accommodation for persons who were in need of care by reason of age, illness, disability or other circumstances. However Section 21(8) of the 1948 Act then said that nothing in section 21 authorised or required a local authority “to make any provision authorised or required to be made….by or under any enactment not contained in this Part of this Act or authorised or required to be provided under the National Health Service Act 1977.”

The provision of emergency accommodation would have been governed by the provisions of Part VII (sections 175 to 218) of the Housing Act 1996. The 1996 Act substantially re-enacted the provisions of the Housing Act 1985, which was considered by the House of Lords in O’Rourke. Therefore the Claimants were not entitled to claim damage in the private law forum.

Maddison J was not persuaded by this argument. It was unsupported by any evidence as to the statutory powers under which the Defendant actually operated its various transfer schemes.

Secondly he was not sure that Section 21(8) of the National Assistance Act 1948 did exclude the application of section 21(1) to this case. Section 21(1) did not include homeless persons, which was why there was a reference to the National Health Service Act 1977.

Thirdly in the case of O’Rourke, the Claimant was homeless in the literal sense. He had been temporarily accommodated by the Council but had then been evicted. The present case was distinguishable. The Claimants were well established tenants of the Defendant, and they were not claiming that they were being wrongly denied housing.

Finally the Defendant had in fact had in place an emergency transfer procedure, which could have been used before the relevant weekend, but it was not used in time to prevent the assaults.

Thus there was a valid cause of action.

The claim under the Human Rights Act 1998

The Claimants also claimed damages under sections 6 and 7 of the Human Rights Act 1998. This claim was out of time, but Maddison J said that he would have granted the necessary extension of time under section 7(5) of the Act.

However there was no need to determine the claim, for several reasons:-

• The Defendant was already liable in the tort of negligence and Maddison J had taken into account the impact of the Human Rights Act 1998.
• It was difficult to see how the human rights claim could succeed if the claim based on negligence failed (although the converse might not necessarily apply).
• The 1998 Act came into force on the 2nd October 2000 and Maddison J had found that the significant deterioration in the Claimant’s situation had begun in September 2000, and that any future developments should be assessed against the background of what had gone before.

Judgment would be given on the Claimants on liability.