December 2018 – Adequate Accommodation for those Subject to No Recourse Requirements

The first and second claimants were the father and mother of the third claimant (referred to as MIV) their five year old son born in 2013, who suffered from significant developmental delay and epilepsy. The parents were nationals of India and had no leave to remain in the United Kingdom. They lived in private rented single room shared accommodation, relying on money from friends and relatives in order to subsist.

 

In March 2017, the hospital that treated MIV referred him to childrens services for assessment of his needs. The resulting assessment found that he was a child in need within the meaning of section 17 of the 1989 Act, and referred to what was working well (including his attendance at a nursery placement and the care of his parents) and what was not working so well - including the lack of space in the accommodation and the family having limited resources, having no employment and no right to claim benefits.

 

On 25 July 2017, the claimants approached Newham childrens services, stating that they were facing imminent street homelessness after being served with an eviction letter by their landlord. Following receipt of a pre-action protocol letter in early August, the council reviewed the section 17 assessment and offered the claimants temporary accommodation consisting of a single room in a shared house, secured through its No Recourse to Public Fund Team (the NRPF Team) along with financial support of £112.50 per week. Two-bed accommodation was found in April 2018.

 

The claimants issued a claim for damages, challenging the alleged ongoing failures of the council for leaving MIV in unsuitable accommodation which they said had inflicted a severe impact on him that infringed his right to private and family life in breach of article 8 of the European Convention on Human Rights (two further grounds of claim were found to be academic by the High Court as the claims were now remedied by the provision of more suitable accommodation).

 

Deputy High Court Judge Steyn highlighted that:

 

a decision not to meet a childs needs assessed pursuant to section 17 of the 1989 Act is not a breach of statutory duty, but it may be challenged on public law grounds, such as those relied on in this case and

 

schedule 3 to the Nationality Immigration and Asylum Act 2002 prima facie prevents the provision of accommodation pursuant to section 17 to the family because the parents lack valid immigration status however, schedule 3 does not prevent the exercise of a power or performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of a persons Convention rights.

 

Turning to the grounds for claiming a breach of Convention rights under article 8, Judge Steyn firstly considered the case that there is a positive obligation on the local authority to provide welfare support to the claimant – relying, in part, on Anufrijeva v Southwark London Borough Council (2004) in which the Court of Appeal observed that while Strasbourg has recognised the possibility that article 8 may oblige a state to provide positive welfare support, such as housing, in special circumstances, it has equally made it plain that neither article 3 [protection against inhuman and degrading treatment] nor article 8 imposes such a requirement as a matter of course.

 

Having assessed the case further, Judge Steyn held that in his view it would be

inconsistent with the Court of Appeals judgment in Anufrijeva to accept the submission that a positive obligation to provide welfare support may arise pursuant to article 8, if the individual is particularly vulnerable by reason of disability, even though the individuals predicament is not sufficiently severe to engage article 3.

 

Turning to the circumstances of the present case, Judge Steyn found that there were no grounds to establish that there had been a breach of the claimants article 8 rights because:

 

Article 3 of the Convention had not been engaged

 

The specific article 8 right relied upon in this case - MIVs individual right to a private life - was never under any threat as he was not at risk of being accommodated other than together with both his parents

 

The local authority had provided accommodation speedily in order to prevent street homelessness in its capacity as a childrens service, not as a housing authority, and its delay in finding more suitable accommodation was not excessive under all the circumstances

 

The local authoritys culpability was low, bearing in mind the speed that accommodation was originally obtained, the support provided to arrange suitable schooling to meet MIVs special educational needs and payments to the parents to meet transport and subsistence costs and

 

Although the accommodation provided in August 2017 was far from ideal, in my judgment the impact of living there has not caused substantial prejudice to MIVs private life.

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