Does the State have a positive obligation to provide housing?

TG, R (on the application of) v London Borough of Lambeth [2011] EWCA Civ 526 (6 May 2011) Summary

The UK Court of Appeal has considered whether a failure to provide housing and other supports to a vulnerable young person breaches their positive obligation to respect the right to a private life. The Court has signposted that ordinarily only failures that amount to ‘inhuman and degrading treatment’ will breach the UK’s positive obligation.

Facts

As a teenager, the appellant (TG) got into some trouble with the police and came to the attention of the local authority’s Youth Offending Service (YOS). As a result of his deteriorating relationship with his mother, the YOS referred TG to the Lambeth housing department, which provided him with accommodation for some seven months, when he was aged 16 and 17. Lambeth contended that the assistance was provided under the Housing Act 1996, although TG should have been provided with assistance under the Children’s Act 1989. By not referring TG for support under the Children’s Act, Lambeth failed to adhere to laws and practices for referring vulnerable young people to appropriate supports, which was a systemic failure by many local authorities, according to the accepted submissions of Shelter, acting as intervener. Had he been provided with assistance under the Children’s Act, TG would have been entitled to certain benefits, including continuing access to housing. TG applied for judicial review of Lambeth’s decision that he was not a ‘former relevant child’ and therefore not entitled to continuing support.

The Court of Appeal (Neuberger MR, Wilson and Toulson LLJ) held that the failures of Lambeth and its staff were a breach of their duties, and declared that TG was a ‘former relevant child’ and therefore entitled to the continuing assistance.

The Court of Appeal then turned to consider TG’s claim for damages for Lambeth’s past failures, as TG alleged that these failures ‘represent an infringement of his rights under Article 8 of the [European Convention on Human Rights] to respect for his private life’ (at [31]).

Held

The Court accepted that ‘Article 8 can impose positive obligations on public authorities’ ([33]), and cited a number of European and UK cases in support of that proposition. However, those cases ‘never held that a failure of the state to provide financial or other support to a person represented a violation of Article 8’ ([34]), with one domestic exception: R (Bernard) v Enfield LB [2002] EWHC 2282 Admin. In that case:

…those entitled to care under s.21 [of the National Assistance Act 1948] were ‘a particularly vulnerable group’, for whom positive measures by way of community care had to be taken in order to enable them to enjoy, so far as possible, a normal private and family life; and ...  that Enfield's breach of statutory duty had condemned the claimants ‘to living conditions which made it virtually impossible for them to have any meaningful private or family life’, their rights under Article 8 had been infringed.

In considering Bernard and later cases, the Court accepted general propositions of the operation of Article 8 (at [40]), including:

• that the European Court of Human Rights ‘had always drawn back from imposing on states, by reference to Article 8, the obligation to provide a home or any other form of financial support’;
• that the UK’s welfare system provided benefits which ‘went far beyond any positive action required by the convention’;
• while the European Court of Human Rights had recognised the possibility that Article 8 might in special circumstances require a state to provide positive welfare support such as housing, it had made plain that neither Article 8 nor even Article 3 imposed such a requirement as a matter of course; but
• that, if a failure of support degraded a person's circumstances down to the level identified in Article 3, the latter required that it be provided.

(Article 3 provides that a person has a right to freedom from inhuman or degrading treatment, which would be a greater infringement of rights than interference with Article 8 rights and would impose stronger positive obligations on states.)

The Court also distinguished Bernard on the basis that the rights were more readily engaged where a family unit is involved, while TG was an individual.

Having considered forerunning cases, the Court then turned to consider the actual loss suffered by TG, inquiring as to “the likely impact on the Appellant in his private and social and work life of having been given a lawful level of support” ([45]). The Court concluded (at [45]) that:

The truth is that these various duties cast by Parliament upon the state to aid the personal development of a person who is or has been an adolescent in need, which raise the bar of welfare provision to him to an appropriately high level, of which we should all be modestly proud and which in my view we should strive to retain in being notwithstanding the state's temporary financial difficulties, are the creature of statute and enforceable on that basis. A failure to discharge the duties might lead to an infringement of that person's right under Article 3; but otherwise the consequences of failure are likely to be – as in this case they certainly are – far too nebulous, far too speculative and, insofar as discernible, far too slight to lead to a conclusion that the failure infringes his right to respect for his private life under Article 8.

The Court rejected TG’s claim for damages.

Relevance to the Victorian Charter

At international law (and as recognised by the UK Court of Appeal), states have a positive obligation to respect human rights; this provides that states must go further than abstaining from interference in the enjoyment of human rights, and must also take positive actions to promote those human rights. This is often misunderstood as meaning that governments will be obliged to expend resources in a particular way, or ensure that every person obtains a base (high) level of living that is consistent with the aspirations of human rights laws.

Cases such as TG show that, while there may be positive obligations imposed on states, these matters will be balanced with the competing rights, responsibilities and obligations of governments and peoples. TG (and the cases that go before it) acknowledge that the state may so infringe and neglect the human rights of vulnerable people to whom it owes a positive duty, that remedies may need to be provided. This approach ensures that governments are accountable for the services that they provide, while courts have a role to play in ensuring that human rights are enforced in egregious breaches of human rights. This is an appropriate safeguard to ensure that governments meet the norms and standards articulated in human rights laws, and sought by their constituent communities.

The decision can be accessed at http://www.bailii.org/ew/cases/EWCA/Civ/2011/526.html.

James Farrell is Manager and Principal Lawyer of the PILCH Homeless Persons’ Legal Clinic.