District Judge Neil Hickman on redress for claimants where local authorities have breached their human rights


Anyone who claims that a public authority has breached their human rights may be able to bring proceedings against it under section 7 of the Human Rights Act 1998 (HRA). But in Anufrijeva v Southwark LBC [2004] 2 WLR 603, the Court of Appeal appeared to restrict the scope for such claims.



Anufrijeva concerned three cases brought by asylum seekers alleging infringement of their rights under article 8 of the European Convention on Human Rights (right to respect for private and family life). Delivering the court's judgment, Lord Woolf said that maladministration of the type being considered would only infringe article 8 where the consequence was serious, and indeed, that it would probably need also to cross the threshold of article 3 (prohibition of torture).



Whereas damages in tort were recoverable as of right, the same was not true in the case of a claim brought under the HRA. Section 8(4) required the court to take into account the principles applied by the convention when deciding whether to award damages and the amount of an award. The critical message was that the remedy had to be 'just and appropriate' and 'necessary' to afford 'just satisfaction'.



What particularly exercised the court in Anufrijeva was that court proceedings were likely to cost substantially more to try than the amount of any damages that could be expected to be awarded, and there would often be no certainty that an entitlement to damages would be established at all. Accordingly, Lord Woolf indicated that such a claim should be brought in the Administrative Court by an ordinary claim, and the claimant would be required to explain why it would not be more appropriate to use any available internal complaint procedure. Claims, it was said, should be determined by the appropriate level of judge in a summary manner. A maximum of three authorities should be cited, and the hearing last not more than half a day.



Anufrijeva was widely understood as requiring that any claim for damages under section 7 should be brought in the Administrative Court. That view, however, has been challenged by Mr Justice Collins in Andrews v Reading Borough Council [2004] EWHC 937 (Admin); [2004] All ER (D) 319 (Apr). Mr Andrews claimed that the council's adoption of a traffic regulation scheme had resulted in increased noise levels and sought to recover about £4,000 as the cost of additional sound insulation. He issued a claim in the county court, which was first allocated to the multi-track on account of the importance of the issues it raised, and was then transferred to the Administrative Court on the basis of Anufrijeva.



But Mr Justice Collins explained that decision as meaning only that claims for damages under the Act which depend on proving maladministration (that is, that the defendant has acted unlawfully, unreasonably or unfairly) should be brought in the Administrative Court. If the claimant does not need to prove maladministration in the sense in which the Administrative Court uses the term, he can issue proceedings in the county court or High Court. Not only is the Administrative Court not the correct forum for such a claim, a claim for damages for under £15,000 (or, if a claim in respect of personal injuries is included, £50,000) cannot be brought in the High Court if otherwise the county court has jurisdiction.



Mr Justice Collins was understandably cautious about Mr Andrews' prospects of success on the facts of the case before him. It is not difficult, however, to envisage cases where there might be a clear-cut claim against a local council. One such case arises from ground 8 under the Housing Act 1988. Eight weeks' rent arrears both at the date of service of a notice under section 8 of the Act, and at the date of the hearing, obliges the court to grant a possession order. Under section 89 of the Housing Act 1980, the court may only postpone the giving up of possession in those circumstances for a maximum of six weeks from the hearing. Once a possession order is made under ground 8, the court cannot set it aside or suspend it, even if the tenant subsequently pays the rent arrears (Artesian Residential Investments v Beck [1999] 3 All ER 113, CA).



The date at which the rent account must not be more than eight weeks in arrears is the date of the original hearing - Day v Coltrane [2003] EWCA Civ 342; [2003] 1 WLR 1379 - and the practice of adjourning such cases to give the tenant an opportunity of sorting out the housing benefit position appears ill-founded, although the point is not free from doubt. Appeals on the point are scheduled for hearing in the Court of Appeal next month.



Claims for housing benefit are meant to be determined within two weeks. The reality is that claims can frequently take months to be determined. This contains a clear potential for injustice to the tenant, as exemplified by the outrageous saga of R (Taha) v Lambeth Borough Council [2002] 7 CL 37. So if a local authority has a complete housing benefit claim, and the material to substantiate it, and fails to process the claim within the period prescribed by the appropriate regulations, the unfortunate tenant may, through no fault of his own, find himself facing the inevitable loss of his home.



This does not appear to involve maladministration in the sense in which Mr Justice Collins uses the term, but a simple failure by the local authority to do that which regulations say they are obliged to do. The local authority will always be on notice that the tenancy is an assured tenancy to which ground 8 potentially applies. It is difficult to see a defence to a claim by the tenant under section 7 seeking damages for the loss of his home. Even though it appears to be accepted that damages under the HRA should be 'moderate', leaving a severely disabled claimant in grossly unsuitable accommodation for 20 months - something falling short of outright loss of one's home - resulted in an award of £8,000 in R (Bernard) v Enfield London Borough Council [2002] EWHC 2282 (Admin); [2002] All ER (D) 383 (Oct).



Of course, this possibility will only apply where the housing benefit claim is complete and properly verified. Where this is not the case, the attitude of the courts has been robust. Mr Justice Grigson in R (Chowdhury) v Newham London Borough Council [2003] EWHC 2837 (Admin); [2003] All ER (D) 397 (Nov), observed that the role of a tenant was not a passive one. If the tenant wanted benefit, it was incumbent on him to deal with the application efficiently, and if he ignored correspondence and requests for further information, the failure lay at his door.



District Judge Neil Hickman sits at Milton Keynes County Court and is a contributor to Jordans' Civil Court Service