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Their civil claim for damages was withdrawn, because of the effect of the 1995 House of Lords decision in X & Others v Bedfordshire County Council,² where the facts were similar.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

³ Neutral Citation Number, EWHC 2282 Admin, 2002 (see The Times, 8 November 2002

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)