Convention right to respect for private and family life - maladministration capable of causing breach - modest damages awardable

Anufrijeva and another v Southwark London Borough Council; R (N) v Secretary of State for the Home Department; R (M) v Secretary of State for the Home Department: CA (Lord Woolf Chief Justice, Lord Phillips of Worth Matravers, Master of the Rolls, and Lord Justice Auld): 16 October 2003

In the first case, the claimants sought damages from the council under section 8 of the Human Rights Act 1998 for breach of their right under article 8 of the European Convention on Human Rights, (respect for their private and family life), on the ground that the council had failed to discharge its duty, under section 21 of the National Assistance Act 1948, to provide them with accommodation which met the special needs of one member of the family, with the result that their quality of family life was drastically impaired.

The judge dismissed the claim.

The claimants appealed.

In the second case the claimant, who had arrived in the UK in February 2000 and been granted asylum in May 2002, claimed damages from the home secretary under section 8 for breach of his article 8 rights, alleging maladministration in the handling of his asylum application which had caused delay, inadequate financial support during much of that period and psychiatric injury caused by the stress of his experience.

The judge allowed the claim.

The home secretary appealed.

In the third case the claimant, who had been granted asylum in January 2001 but whose family had not been given permission to enter the UK until November 2002, claimed damages from the home secretary under section 8 for breach of his article 8 rights, contending that much of that delay was attributable to maladministration and that it had infringed his right to respect for family life.

The judge dismissed the claim.

The claimant appealed.

Richard Clayton QC with Nicola Braganza (instructed by Ole Hansen & Partners), Richard Clayton QC and Stephanie Harrison (instructed by The Rights Partnership, Birmingham) and Andrew Nicol QC and Duran Seddon (instructed by the solicitor, Refugee Legal Centre) for the claimants; Joshua Swirsky (instructed by the solicitor, Southwark London Borough Council), Philip Sales and Sean Wilken (instructed by the Treasury Solicitor) and Philip Sales and Jason Coppel (instructed by the Treasury Solicitor) for the defendants.

Held, dismissing the claimants' appeals in the first and third cases and allowing the home secretary's appeal in the second case, that article 8 was capable of imposing on a state a positive duty to provide an individual with welfare support in order to ensure respect for his private and family life, although such a duty would arise rarely and would most likely occur where the welfare of children was at stake or the impact on family life was severe; that maladministration could constitute a lack of respect for private and family life if there were an element of culpability or, at the very least, knowledge that the individual's private and family life were at risk; that if domestic law imposed positive obligations, and those obligations were not met, that could suffice to establish a breach of article 8, provided that the impact on private or family life was sufficiently serious; that damages could be awarded for such maladministration under the 1998 Act if that were just and appropriate and necessary to afford just satisfaction, although such awards should be modest; and that, in future, appropriate procedures should be followed to ensure that the costs of obtaining such relief were proportionate.

(WLR)