Damned if you don’t

The courts’ interpretation of the Human Rights Act 1998 in cases
involving social services clients has been varied so far and
central themes are difficult to identify. So what should local
authorities be doing to protect themselves from successful claims
for damages?

The first case worth noting is the European Court of Human Rights
(ECHR) giving judgement in E & Others v United
Kingdom.¹ E and three of her siblings were physically
and sexually abused as young children by their mother’s partner. He
was twice convicted of relevant offences, in 1977 and 1989.
However, the council ignored clear signs that he was still living
at the family home, in breach of his probation, and failed to take
enough action after continuing disclosures by the children. As
adults they have suffered symptoms of post-traumatic stress
disorder.

Their civil claim for damages was withdrawn, because of the effect
of the 1995 House of Lords decision in X & Others v
Bedfordshire County Council,² where the facts were
similar.

The local government ombudsman also declined jurisdiction on time
limitation grounds (although, in any event, an ombudsman cannot
require compensation to be paid.) Three of the applicants then
secured £25,000 from the then Criminal Injuries Compensation
Board, but even this seems to have been as a result of a mistaken
application of the board’s jurisdiction.

So, the applicants went to the ECHR, claiming breaches of article 3
(torture or inhuman/degrading treatment/punishment), article 8
(respect for private and family life) and article 13 (effective
national remedy). They won on all three grounds and were awarded
£78,000 between them, excluding the compensation board’s
award.

Nobody should be surprised that prolonged, inescapable, much feared
and invasive sexual and physical assaults on young children should
be considered clear breaches of articles 3 and 8. But they were
breaches by the mother’s partner. More surprising is that the court
found the UK (acting at the time through the council) in breach of
article 3. It is as if the court said, “the council itself
subjected these children to inhuman and degrading treatment”.

This is going too far, especially given that the court found “the
psychological injury and the ongoing impact on [the applicants’]
ability to lead normal lives would almost certainly have existed
even if no abuse had occurred after 1977”. The answer to the legal
question of causation (did the treatment cause the suffering for
which damages are claimed?) is hard to follow here.

The approach of the High Court in October 2002 in the case of
Bernard v London Borough of Enfield seems more
sustainable.³ The applicants, Mr and Mrs Bernard, had
six children (the youngest 11 months). Mrs Bernard was severely
disabled.

The family lived in their own home, which had been fully adapted by
Enfield. Then they fell into mortgage arrears and the house was
repossessed. (I imagine Enfield now wishes it had itself bought the
property for the Bernards.) There then began a saga of the family
being inappropriately accommodated (especially at a house in
Shrubbery Road) and threatened with eviction by Enfield. The
Bernards resorted to judicial review and succeeded in obtaining an
order that Enfield must find a suitable property and adapt it –
quickly. But nothing happened until, it seems, the family’s
solicitor threatened to apply for the director of social services
to be imprisoned for contempt of court.

The Bernards were happy with the property eventually offered them
in 2002, but the judge’s task in October was to assess their claim
for damages under the Human Rights Act for the period when Enfield
failed in its obligations. Again, articles 3 and 8 were the
foundation.

The key elements of Mrs Bernard’s suffering were that the home in
Shrubbery Road was almost entirely unsuitable because of its layout
and design. The house greatly restricted her mobility and physical
independence. It exacerbated her toileting difficulties, resulting
in financially debilitating floor cleaning costs and a significant
loss of dignity, and substantially limited the care Mrs Bernard
could offer her children, meaning that they faced a greater risk of
harm. It also caused Mrs Bernard to feel unsafe and demeaned.

However, nothing appeared to be done to find a more suitable
property. This continued for at least 20 months, with no apology
from Enfield at any stage. And there were no signs that the
“administrative void” into which the Bernards had fallen had even
been identified by Enfield, let alone addressed.

The judge easily found for the Bernards under article 8 but not,
surprisingly, under article 3. He emphasised that Enfield had never
intended to humiliate or debase the Bernards (a factor which
appeared irrelevant in E v UK), and that the suffering had resulted
from “corporate neglect” rather than “a positive decision”. I can
only speculate on what made the court find article 3 breaches in E
but not in Bernard: the applicants had been children who suffered
deliberate, mostly sexualised and criminal harm. On the other hand,
in the Bernard case, at least the “treatment” was much more
directly inflicted by the council.

On the question of compensation, the judge in Bernard appeared more
cautious than his ECHR colleagues. It was clearly relevant that
neither of the Bernards had developed (or suffered any exacerbation
of) mental or physical illness as a result of Enfield’s failures,
whereas the claimants in E v UK had. The judge was also influenced
by the fact that Enfield had, in the end, discharged its duties “in
full measure”, rather than simply providing “good enough”
accommodation for the Bernard family.

The courts’ future interpretation of article 3 remains a mystery. I
suspect that UK judges will not be keen to follow E v UK. They will
be assisted if the public authority in question shows that it has
taken some or all of these steps:

• Clarified and publicised whistleblowing procedures so that
  staff habitually flag up to senior managers – anonymously if
  necessary – cases that are stalled, and where there are obvious
  signs that something is very wrong.
• Collated all known material, from all departments and agencies,
  concerning the person or people in question and have one or two key
  senior people read all of it in chronological order and prepare a
  careful written summary.
• Called an appropriate multi-disciplinary meeting, agreed and
  noted action, and ensured it was carried out. The nature of an
  “administrative void” means that you may have to create an
  emergency management system to deal with it.
• Apologised to those who have suffered (but first consult the
  authority’s insurer).
• Acted to plug the void so those who have already suffered could
  not later go to court and say they had done so in vain.

Councils can no longer rely on X v Bedfordshire for protection,
as shown by the Court of Appeal in the recent East Berkshire
decision, discussed in the second part of this article next
week.⁴ On the other hand, negligence cases are less
likely to end up before the ECHR, as the case law seems to provide
“an effective national remedy”. The Bernard-type case (no “loss”
actionable in negligence) could still be open to European findings
of compensatory liability.

Like Lord Laming, in his conclusion to the Victoria Climbie
Inquiry, I too am “convinced that the answer lies in doing
relatively straightforward things well”.

Alison Castrey is a solicitor and care standards
consultant,
carestandards@castrey.com

References

¹ Application No. 33218/96, 26 November, 2002
www.echr.coe.int/eng/Judgments.htm
(follow the link to HUDOC and then enter application number
33218/96)

²
All England Reports,
Volume 3, p353, 1995

⁴ JD & Others v East Berkshire, Community Health
& Others EWCA 1151 (31 July 2003), 2003, go to
www.bailii.org
(type “jd
east berkshire community health” in search box)