Damages

Council's delay in providing suitable accommodation to disabled claimant - breach of the European Convention on Human Rights - substantial damages payable

R(Bernard and another) v Enfield London Borough Council: QBD (Mr Justice Sullivan): 25 October 2002

The second claimant was severely disabled, had very limited mobility and was wheelchair-dependent.

She was cared for by her husband, the first claimant, who also looked after their six children.

The council's social services department undertook a number of assessments of claimants' needs, and concluded that they were living in wholly unsuitable accommodation.

The council offered suitable accommodation under section 21(1)(a) of the National Assistance Act 1948 into which the claimants moved after living in unsuitable accommodation for 20 months.

The claimants successfully sought judicial review, on the basis that the council's failure to act sooner had violated their convention rights, and applied for an award of damages under section 8(1) of the Human Rights Act 1998.

Richard Clayton QC and Jennifer Richards (Tyrer Roxburgh & Co, London) for the claimants; Hilton Harrop-Griffiths (Head of Legal Services, Enfield London Borough Council, Enfield) for the council.

Held, giving judgment for the claimants, that the defendant's failure to act over a period of 20 months was incompatible with claimants' rights under article 8 of the convention; that it did not follow that the claimants were entitled to an award under section 8(1) of the 1998 Act; that while awards by the European Court of Human Rights had been moderate there was no justification for them to be lower than tortious awards; that an award should not be minimal since that would diminish respect for the policy underlying the 1998 Act that convention rights should be respected by all public authorities; that, as with damages for personal injury, the court should not ignore the consequences of awards under section 8(3) for public authorities and society as a whole; that on the facts there was no comparative tort; that awards by the local government ombudsman for disruption, distress, worry and inconvenience suffered as a result of maladministration were the best available comparables; and that, being a bad case of malad ministration, an award of 10,000 apportioned at 8,000 to the second claimant and 2,000 to the first claimant would be appropriate.