X & Anor v London Borough of Hounslow

This appeal arises out of the events of the weekend of 17 to 19 November 2000 (‘the relevant weekend’), when the respondents were subjected to degrading sexual and physical assaults in their home by four local youths whom they had allowed into their flat. It is an appeal by the defendant, the London Borough of Hounslow (‘the Council’), from an order dated 23 May 2008 made by Maddison J (‘the judge’) in which, among other things, he gave judgment for the claimants against the Council and awarded damages in the agreed sum of £97,000 with costs. He also made an order that the names of the claimants should not be disclosed. This appeal is against the judgment on liability and is brought with the permission of the judge. The essential questions raised by the appeal are (a) whether the Council owed a duty of care to the claimants to protect them from the criminal acts of others and (b) if it did, whether it was in breach of that duty. The judge answered both questions in the affirmative. The Council submits that they should both have been answered in the negative.

The respondents lived in a Council flat, no 60 Towell Court (‘the flat’), with the second respondent’s children from another relationship. The second respondent (‘Y’) was a tenant of the Council and had lived in the flat with her daughters (‘A’ and ‘B’) since 1993, whereas the first respondent (‘X’) married Y and moved into the flat in January 1999. The respondents have mild learning difficulties. Their IQs have been assessed at various times as being in the 70s, with Y being more able than X. Since the relevant events, X has been assessed as being on the autistic spectrum. However, both X and Y were capable of consenting to marriage and both were assessed as not requiring supported living accommodation, which in any event they did not want. They both continue to live independently in the community today. They are and have since 14 January 2008 been protected parties, although their expert psychiatrist, Dr Rix, had previously taken the view that they were both capable of giving instructions to their lawyers themselves. As we see it, the respondents were both vulnerable adults who needed support in the community.

At the time of the attacks X, Y, A and B were 44, 38, 11 and 8 years of age respectively. In the course of the summer of 2000 the respondents had befriended the youths and it appears that they had allowed them (or some of them) to use the flat as a place where they could take drugs, engage in under-age sexual activity, store stolen goods and, as the judge put it at [4], generally misbehave. One of the youths had been staying at the flat. On 11 October X was assaulted quite seriously in a McDonald’s restaurant by one of the youths, who believed that X had grassed on him in relation to goods found by the police at the flat the previous day.

The judge summarised the events during the relevant weekend at [5] of his judgment, broadly in this way. X and Y were effectively imprisoned in their own home, and repeatedly assaulted and abused, often in the presence of the two children. At one stage the youths confined X and Y to their bedroom, and made them perform sexual acts. They threw many of their possessions over the balcony. They forced pepper and fluid into X's eyes; they locked him in the bathroom for a time, in the dark; they made him drink urine, eat dog biscuits, dog faeces and the faeces of one of the youths, threatening him that he would be stabbed if he did not; they made him put a vibrator up his bottom and then lick it; they sprayed kitchen cleaner in his mouth, face and hair; and they slashed him repeatedly all over his body with a knife or knives. Y too was made to put the vibrator in her mouth. As for the children, they were abused, assaulted and locked in their bedroom from time to time. Even the family dog was abused.

Two sections of the Council’s Social Services Department had been engaged with the family for some considerable time before the relevant weekend. They were the Community Team for People with Learning Difficulties (‘CTPLD’) and the Children and Families Section (‘C&F’), which dealt with child protection concerns. X and Y had a social worker from the CTPLD assigned to them called Tajinder Hayre. She had become Y’s social worker in 1999 and X’s in March 2000. Her role was to give them advice and assistance in managing their lives. She visited them regularly and accompanied them to appointments.

During October 2000 she became aware that X and Y were being exploited by local youths using the flat for illicit activities. On 12 October she became aware of the assault referred to above. On 31 October she learned that another youth was staying in the flat. She reported these matters to the police, who declined to take action unless X and Y made complaints themselves. She also contacted the C&F, who made arrangements for a child protection meeting to take place on 24 November. In the meantime she wrote letters dated 18 October and 3 November to the Council’s Housing Department asking that X and Y’s long-standing application for rehousing be considered urgently and on 23 October she accompanied X and Y to a meeting with the Housing Department’s harassment officer. On 14 November she arranged a further meeting with the Council’s housing officers to take place on 22 November. This meeting was arranged because, since the letter of 3 November, the Housing Department had received complaints about X and Y from their neighbours.

We will return to the facts in more detail below. We should however note at this stage that Miss Hayre did not ask the Housing Department to place X and Y in emergency temporary accommodation in the interim before the meeting of 22 November because she did not foresee that they might be assaulted in their own flat in the way that occurred over the relevant weekend of 17 to 19 November.

It is important to note that at the trial it was conceded on behalf of X and Y that Miss Hayre had not acted negligently. It was also conceded that no action for breach of statutory duty lay against the Council.

The case for X and Y at the trial can be summarised in this way. The Council, through its Social Services and Housing Departments, should have foreseen that X and Y were in imminent physical danger at the flat and should have arranged for them to be accommodated elsewhere. It was said that the Council’s failure to do so was a breach of a duty of care owed to X and Y and that the events of the weekend were caused by that breach. It was said that the Council was liable in the tort of negligence, and under sections 6 and 7 of the Human Rights Act 1998 (‘the HRA’), having acted in a manner incompatible with the claimants' rights under articles 3 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’). A pleaded claim in nuisance was abandoned.

The Council denied that it owed X and Y any duty of care. It relied upon the fact (as was conceded on behalf of X and Y) that in no previous case had a local authority been held to be under a duty of care to protect vulnerable adults from abuse by third parties. The Council asserted that any failings of the kind alleged were justiciable, if at all, only in public law and not by way of private law actions for damages for negligence. It further asserted that, if it owed a duty of care to X and Y, it was not in breach of that duty because neither it nor its servants or agents acted negligently and, in any event, what happened during the relevant weekend was caused by third parties and was not reasonably foreseeable.

We begin with the statutory framework because the Council is a creature of statute so that the question whether it owes a duty of care in any particular circumstances must be judged against the relevant statutory background. As Lord Browne-Wilkinson put it in X (Minors) v Bedfordshire [1995] 2 AC 633 at 739C, the question whether there is a duty of care at common law must be profoundly influenced by the statutory framework within which the acts complained of were done. The same must be true of any omissions complained of. The most important statutes for present purposes are the National Assistance Act 1948 (‘the 1948 Act’) and the Housing Act 1996 (‘the 1996 Act’).

By section 21(1)(a) of the 1948 Act local authorities may (and, in so far as directed by the Secretary of State, must) make arrangements for providing residential accommodation for persons who, by reason of age, illness, disability or other circumstances are in need of care and attention not otherwise available to them. In Appendix 1 to Department of Health Circular LAC (93)10 the Secretary of State directed local authorities (including the Council)

“to make arrangements under section 21(1)(a) of the Act in relation to persons are ordinarily resident in the Council’s area or other persons in urgent need thereof, to provide residential accommodation for persons aged 18 or over who by reason of age, illness, disability or other circumstances are in need of care and attention not otherwise available to them”.

By section 21(8) of the 1948 Act,

“nothing in [section 21] shall authorise or require a local authority to make any provision authorised or required to be made (whether by that or any other authority) by or under any enactment not contained in this part of this Act or authorised or required to be provided under the National Health Service Act 1977.”

It has been held that, except perhaps in some cases of asylum seekers which are not relevant in this appeal, section 21(1)(a) does not apply where the Housing Act 1985 (‘the 1985 Act’) would apply: R v Hammersmith and Fulham Borough Council ex parte M (1997) 30 HLR 10. It follows that section 21(1)(a) does not apply if the 1996 Act applies.

By section 29(1) of the 1948 Act, local authorities may (and, in so far as directed by the Secretary of State must) make arrangements for “promoting the welfare” of persons with illness, mental disorders or disabilities. The arrangements may include informing persons of the services available, giving instruction to individuals as to how they might overcome the effects of their disabilities and where appropriate providing training or work including hostel accommodation attached to such training or work.

In Appendix 2 to LAC (93)10 the Secretary of State directed local authorities to make arrangements under section 29(1) for all persons ordinarily resident in their area for all or any of the following purposes: the provision of a social work service and such advice as might be needed for people in their own home or elsewhere; the provision of facilities for social rehabilitation and adjustment to disability; and the provision of facilities for recreational, occupational, social or cultural use.

By section 2 of the Chronically Sick and Disabled Persons Act 1970 (‘the 1970 Act’), where a local authority is satisfied that an individual in its area requires the authority to meet its needs in specified areas, then it must make arrangements to do so pursuant to its functions under section 29 of the 1948 Act. We accept the Council’s submission that the type of support and advice being given to the respondents by the CTPLD through Tajinder Hayre would have fallen within section 29 of the 1948 Act and section 2 of the 1970 Act.

Section 9 of the Housing Act 1985 (‘the 1985 Act’) gives local housing authorities the power to erect, convert and purchase houses. Section 11A gives them power to provide welfare services to those for whom they provide housing and to make reasonable charges. By section 3 of the 1970 Act, a local authority discharging its duty under section 8 of the 1985 Act, namely to consider housing conditions in its district and the needs of the district for further housing, is to have regard to the special needs of chronically sick or disabled persons.

Section 47 of the National Health Service and Community Care Act 1990 provides that, where a local authority considers that a person may be in need of “community care services”, which include services provided under the 1948 Act, they must carry out an assessment of that person’s needs and decide whether he requires any services. A housing authority can be invited to assist in an assessment if it is likely that there might be a need for services provided by such an authority. Tajinder Hayre carried out such an assessment of X.

Part VI of the 1996 Act provides for the allocation of social housing. By section 167, local authorities must have a scheme for determining priorities and as to the procedure to be followed in allocating housing accommodation. As originally enacted the section provided that reasonable preference was to be given to people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions, or to people living in temporary accommodation, or to families with dependent children, or to households where there was an expectant mother, or to households consisting of someone with a particular need for settled accommodation on medical or welfare grounds or to households whose social or economic circumstances were such that they have difficulty in securing settled accommodation. Subject to those conditions and to regulations made by the Secretary of State, local authorities could formulate their own principles as to how the allocation scheme should be framed. Regulations made by the Secretary of State provided for reasonable preference to be given to additional categories, including the homeless.

Part VII of the 1996 Act imposes duties on local authorities to assist the homeless, who, by section 175(3), include those who have accommodation which it is no longer reasonable for them to continue to occupy. By section 177, it was provided that it was not reasonable for a person to continue to occupy accommodation if it was probable that that would lead to domestic violence. At the relevant time section 177 was limited to domestic violence, although it has now been extended to cover other violence. At the relevant time, in other cases, which would include cases of non-domestic violence, the question what was reasonable was at large: Bond v Leicester City Council [2001] EWCA Civ 1544. By section 188, if a housing authority was satisfied that an applicant was or might be homeless and had a priority need, which by section 189 included those with children or disabilities, it was to secure accommodation for them while it further considered their case.

The judge held that, as a single entity, the Council owed a duty of care to X and Y and that it was in breach of that duty. He held that it ought to have moved them to temporary bed and breakfast accommodation by 20 October, alternatively by 7 November 2000, in order to protect X and Y. He held that it was unnecessary to consider the position of each of the Council’s departments, or the individuals in them, separately and that, so viewed, the Council was in breach of duty and liable to X and Y, largely because of a failure of communication between departments: see [88] to [91].

It is in our judgment important to note what the judge did not hold. He did not hold that the Council was in breach of any statutory duty owed to the respondents. At [144] the judge directed himself that, since he concluded that the Council should have operated its emergency transfer procedure, it was the statutory provisions governing that procedure which fell to be considered. He noted that at the trial he had understood counsel to agree that the emergency procedure would have been operated pursuant to section 21 of the 1948 Act. However, he said at [146] that after the hearing he received a note from counsel for the Council saying that he, counsel, had been in error because there was another provision which authorised or required it to make the relevant provision, namely the provisions of Part VII of the 1996 Act and that the effect of section 21(8) of the 1948 Act was to exclude the application of section 21(1)(a) of that Act.

Counsel relied upon O’Rourke v Camden LBC [1997] AC 188, where reliance was placed on section 63 of the 1985 Act, which provided that if the housing authority

“have reason to believe that an applicant may be homeless and have a priority need, they shall secure that accommodation is made available for his occupation pending a decision as a result of their inquiries under section 62.”

Section 62 related to inquiries as to whether a person was in fact homeless. Persons who “have a priority need” included those who were “vulnerable as a result of … physical disability or other special reason”. It was held that the duty contained in section 63 imposed no statutory duty the breach of which was actionable by a private law action for damages. In the post trial note the Council submitted that the position was the same here in respect of the Council’s duties under Part VII of the 1996 Act, including section 188.

We note in passing that in O’Rourke the House of Lords rejected the submission that it made a difference that the local authority had acknowledged the duty by at first securing accommodation. Lord Hoffmann, with whom all the other members of the appellate committee agreed, said at page 196:

“The concept of a duty in private law which arises only when it has been acknowledged to exist is anomalous. It means that a housing authority which accepts that it has a duty to house the applicant but does so inadequately will be liable in damages but an authority which perversely refuses to accept that it has any such duty will not. This seems to me to be wrong.”

It was not submitted in O’Rourke that the authority had otherwise assumed a responsibility which might give rise to a duty of care.

The judge rejected these submissions at [146] to [149] for a variety of reasons. He first noted at [146] that there was no evidence as to the statutory powers under which the council actually operated their transfer schemes. That may be so but we accept the submission made on behalf of the Council that the powers of the council are a matter of law. The second point made by the judge was a doubt that section 21(8) of the 1948 Act excluded the application of section 21(1) on the basis that it is at least arguable that the “provision” to which section 21(8) refers means the provision of accommodation for the persons referred to in section 21(1), who do not include homeless persons.

The judge put his third point in this way at [148]:

“Thirdly, since the Claimants were occupying the flat pursuant to a tenancy agreement, subsection 1 of section 175 of the Housing Act, 1996 (which defines "homelessness") would not apply to the Claimants. Neither by its terms would section 175(2). The Defendant would therefore have to rely on section 175(3) to show that the Claimants were homeless. This provides that "a person should not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy". The Defendant would therefore appear to be conceding that it was unreasonable for the Claimants to occupy the flat which the Defendant had provided under a tenancy agreement. What can have rendered it unreasonable? It can only have been the combination of circumstances referred to in detail in the chronology above, of most if not all of which the Defendant was aware, and over which the Claimants had no real control. Yet, the Defendant submits it owed no duty of care to the Claimants, whose remedy was limited to an application for a judicial review. Standing back, and looking at the general merits of this case, I would regard that as a surprising conclusion. Neither do I think that the O'Rourke case would compel that conclusion, if it were indeed the case that Part VII of the Housing Act, 1996 was the only relevant statutory provision. Mr O'Rourke was homeless in the literal sense. He had been temporarily accommodated by the Council but had then been evicted and was claiming damages in respect of the Council's failure to provide him with further temporary accommodation. The present case is distinguishable. The Claimants were well-established tenants of the Defendant. The Defendant had already exercised its powers as to social housing in relation to the Claimants. Their claim is that they should have been moved from that accommodation, and not necessarily into further Council accommodation. Their claim is not based on narrow considerations of housing policy. There is, for example, no complaint that, being literally homeless, the Claimants were wrongly denied housing; or, being already housed by the Defendant, were wrongly placed in a transfer list below competing candidates. Their claim involves both the Housing and Social Services Departments; the interaction between them; and the manner in which these departments together reacted (or failed to react) to information they received about the Claimants' predicament. ”

The judge added at [149] that the reality of the case was that, by virtue of whatever statutory provisions, the Council actually had in place an emergency transfer procedure which it could have used before the relevant weekend, and which it did in fact use though only after that weekend.

We will return below to the significance, if any, of the points made by the judge at [147] and [148]. The critical point for present purposes is that, whatever the relevant powers and duties, the respondents did not and do not contend that the Council was in breach of statutory duty actionable by a private law action for damages. In these circumstances we do not read the judge’s [149] as holding that it was.

Nor did the judge hold that any individual working for the Council owed a duty of care to the respondents. He applied the three stage test laid down in Caparo Industries Limited v Dickman [1990] 2 AC 605: see his judgment at [85] where he added:

“Given that I am dealing, as stated above, with a difficult and developing area of the law, and given that no previous case has established that a local authority owes a duty of care to adults in circumstances such as those arising in this case, I think it right that I should find that a duty of care existed only if I am satisfied that the injury and loss suffered by the Claimants was reasonably foreseeable; that their relationship with the Defendant was sufficiently proximate to warrant the imposition of the duty of care; and that it would be just, fair and reasonable to impose such a duty.”

He held at [93] to [106] that the injury and loss were reasonably foreseeable and at [107] that there was a relationship of sufficient proximity between the Council and the respondents. He said at [107]:

“The Claimants having thus cleared the first hurdle, as it were, I consider whether they and the Defendant were in a relationship sufficiently proximate to warrant the imposition of the duty of care. In my judgment they were, for reasons that can be explained comparatively briefly. The Defendant was the Claimants' landlord. More importantly, the Defendant, aware of the Claimants' disabilities, provided social services for them and indeed for their children. As has been seen, they provided community psychriatric nurses for Y from January 1995 until July 1999, albeit with a 6-month gap in 1998; allocated a social worker to her case from February 1999 onwards; and allocated a social worker to X's case from March 2000 onwards. The C & F Section also took a continuing interest in the children, albeit that there was only an allocated social worker for a very short time. Representatives of the Social Services and Housing Departments were regularly in contact with the Claimants and visited their home during 2000. Thus there was a close relationship between the parties to this litigation.”

We do not read those conclusions as amounting to a consideration of the question whether, let alone a finding that, the Council had assumed a responsibility to the respondents sufficient to amount to a duty of care.

The judge then considered the question whether it was just, fair and reasonable to impose a duty of care at [108] to [126], again (as we see it) without addressing the question whether there had been an assumption of responsibility. He noted at [109] that it was not suggested that the Council owed a general duty to protect the respondents from harm, vulnerable though they were. The judge noted that they were living independent lives in the community, that life is not free from risk and danger and that the Council did not purport to provide policing or security services. It would plainly not be fair, just and reasonable to impose such a broadly-based duty on the Council.

He noted at [110] that it was accepted on all sides that, other than remove them from the flat and into some form of alternative accommodation, there was nothing the Council could have done to protect the respondents from being assaulted and abused as they were over the relevant weekend. At [111] to [115] the judge rejected the three principal reasons that the respondents gave why they should have been moved from their flat long before the relevant weekend. First, at [112] he rejected the suggestion that the flat was generally unsuitable, accepting the Council’s evidence that there was a severe shortage of available Council accommodation. Secondly, at [113] he rejected the submission that, if C&F had had proper regard for the welfare and safety of the children, the Council would have moved the children and therefore their parents. Thirdly, at [114] he rejected the submission that the respondents’ parenting skills were so poor that the Council should have put them in a residential parenting skills assessment centre. At [115] the judge rejected what he described as the final reason, namely that the respondents and their children were so vulnerable that they should have been put in some form of supported or sheltered accommodation. He said that, given their desire to lead independent lives, he doubted if the respondents would have agreed to such a move. He also doubted whether they would have qualified for such accommodation, which was in very limited supply. He added that the respondents’ learning disabilities were real, but assessed as mild and noted that in Wandsworth, Hounslow and Epsom, where X now lived, all the local authorities thought it sensible to support him in his wish to live independently.

The judge’s key finding which led to his conclusion that it was fair just and reasonable to impose a duty of care on the Council is set out in [116], where he accepted Miss Gumbel QC’s alternative submission that it became the Council’s duty to move the respondents out of the flat before the relevant weekend in response to “the developing crisis towards the end of 2000”. He said:

“I accept that submission. I return to my earlier findings that by about 20 October 2000 an attack of the kind that the Claimants suffered during the relevant weekend was reasonably foreseeable, and that the Defendant had the power and the procedures in place to move the Claimants on an emergency basis. Subject to the further discussion below, in those circumstances I would regard it as fair, just and reasonable to impose upon the Defendant a narrowly-defined duty to move the Claimants out of the flat in response to the unusual but dangerous situation which had developed.”

The further discussion he referred to was his consideration in [117] to [126] of whether there were any features of the case which suggested that it would not be fair just and reasonable to impose a duty of care. They included the following.

It is important to note that the judge did not hold that the Council had assumed a responsibility to the respondents. He considered the issue what was fair just and reasonable more generally.

At [151] to [153] the judge briefly considered an alternative claim under the HRA. He noted that the parties had agreed in the course of the trial that it was difficult to see how such a claim could succeed if the claim in negligence failed. Having held the Council liable in negligence, the judge did not consider this alternative claim in any detail. The claim has not been revived in this appeal and is no longer relevant.

We have noted above the difference between the common ground at the trial as to the relevant statutory duties imposed on the Council on the facts of this case and the position subsequently taken by the Council which was not accepted by the judge at [146] to [149]. The Council has maintained its position in this appeal. We are not persuaded that the judge was correct to reject the Council’s submission that section 21(1) was excluded by section 21(8) because of the provisions of Part VII of the 1996 Act. We would not construe section 21(8) in the limited way suggested by the judge at [147].

As to the judge’s third point set out in [148] and quoted above, it appears to us that, if the judge’s analysis of the facts is correct, it could properly be said that the respondents’ flat was no longer accommodation which it would be reasonable for them to continue to occupy within the meaning of section 175(3) of the 1996 Act and that it followed that they were homeless, even though they were entitled to occupy the flat within section 175(1)(a) by reason of their tenancy agreement. On that basis, there would be a duty on the Council under section 188 to secure that accommodation was available to the respondents pending further consideration.

However, we do not think that the answer to the question whether, if the Council had removed the respondents from their flat and put them into temporary emergency accommodation, it would have been acting under Part VII of the 1996 Act or under section 21 of the 1948 Act, is of any real significance in answering the question whether it owed them a duty of care at common law to take reasonable care which required it to remove them from the flat into such accommodation. It is not in dispute that it had a duty to do so under section 188 of the 1996 Act or a duty (or at least a power) to do so under section 21 of the 1948 Act. As the judge himself observed at [149], the Council had in place an emergency procedure which it could have exercised. It certainly had the power to provide temporary emergency accommodation.

There has in recent years been much discussion as to the relationship between the tort of negligence and statutory powers and duties. Lord Steyn described the problems thus in Gorringe v Calderdale MBC [2004] UKHL 15, [2004] 1 WLR 1057, at [2] to [3]:

“2.

There are, however, a few remarks that I would wish to make about negligence and statutory duties and powers. This is a subject of great complexity and very much an evolving area of the law. No single decision is capable of providing a comprehensive analysis. It is a subject on which an intense focus on the particular facts and on the particular statutory background, seen in the context of the contours of our social welfare state, is necessary. On the one hand the courts must not contribute to the creation of a society bent on litigation, which is premised on the illusion that for every misfortune there is a remedy. On the other hand, there are cases where the courts must recognise on principled grounds the compelling demands of corrective justice or what has been called "the rule of public policy which has first claim on the loyalty of the law; that wrongs should be remedied": M (A Minor) v Newham London Borough Council and X (Minors) v Bedfordshire County Council [1995] 2 AC 633, at 663, per Sir Thomas Bingham MR. Sometimes cases may not obviously fall in one category or the other. Truly difficult cases arise.

3.

In recent years four House of Lords decisions have been milestones in the evolution of this branch of the law and have helped to clarify the correct approach, without answering all the questions: X (Minors) v Bedfordshire County Council [1995] 2 AC 633, Stovin v Wise [1996] AC 923,http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/1996/15.html Barrett v Enfield London Borough Council [2001] 2 AC 550http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/1999/25.html; and Phelps v Hillingdon London Borough Council [2001] 2 AC 619http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/2000/47.html. There are two comments on these decisions which I would make. First, except on a very careful study of these decisions, there is a principled distinction which is not always in the forefront of discussions. It is this: in a case founded on breach of statutory duty the central question is whether from the provisions and structure of the statute an intention can be gathered to create a private law remedy? In contradistinction in a case framed in negligence, against the background of a statutory duty or power, a basic question is whether the statute excludes a private law remedy? An assimilation of the two enquiries will sometimes produce wrong results.

4.

The second point relates to observations of Lord Hoffmann in his landmark majority judgment in Stovin v Wise, supra, to which Lord Hoffmann has made reference in his opinion. In Stovin v Wise Lord Hoffmann observed (953D-E):

“In summary, therefore, I think that the minimum preconditions for basing a duty of care upon the existence of a statutory power, if it can be done at all, are, first, that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised.”

Lord Steyn then pointed to a qualification of that part of Lord Hoffmann’s speech in a number of cases where it was doubted that it was appropriate to introduce the concept of irrationality into a consideration of the question whether a duty of care was owed on the facts of a particular case.

In Gorringe Lord Hoffmann himself returned to that issue but, before doing so, he identified the correct approach in general to cases where it was said that the existence or exercise of statutory duties or powers gave rise to a duty of care. At [21] and [22] he referred expressly to the well-known case of Stovin v Wise. It was suggested that a highway authority owed a duty of care to road users to improve the visibility at an intersection. Lord Hoffmann noted at [22] that the authority had done nothing which, apart from statute, would have attracted a common law duty of care. Indeed, as he put it, the authority had done nothing at all. He noted that Parliament had entrusted it with general authority for the highways and given it the power to improve them and take other measures for the safety of their users.

He said at [23]:

“Since the existence of these statutory powers is the only basis upon which a common law duty was claimed to exist, it seemed to me relevant to ask whether, in conferring such powers, Parliament could be taken to have intended to create such a duty. If a statute actually imposes a duty, it is well settled that the question of whether it was intended to give rise to a private right of action depends upon the construction of the statute: see Reg v Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 AC 58,http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/1990/8.html 159, 168-171. If the statute does not create a private right of action, it would be, to say the least, unusual if the mere existence of the statutory duty could generate a common law duty of care.”

At [24] Lord Hoffmann referred to O’Rourke, where, as appears above, the House of Lords applied the same principle to the 1985 Act in the context of housing. He added at [25]:

“In the absence of a right to sue for breach of the statutory duty itself, it would in my opinion have been absurd to hold that the council was nevertheless under a common law duty to take reasonable care to provide accommodation for homeless persons whom it could reasonably foresee would otherwise be reduced to sleeping rough. (Compare Stovin v Wise at pp 952-953.) And the argument would in my opinion have been even weaker if the council, instead of being under a duty to provide accommodation, merely had a power to do so.”

For a recent case in which the House of Lords held that there was no duty of care in respect of an allegedly negligent exercise of a statutory power, see Jain v Trent Strategic Health Authority (sub nom Trent Strategic Health Authority v Jain) [2009] UKHL 4.

In our judgment those principles remain valid. However, at [26] of Gorringe Lord Hoffmann adverted to the point raised by Lord Steyn as to the relevance of rationality to cases where a duty of care has been held to exist. He concluded that it may have been ill-advised to speculate on such matters. He then said at [32] that he found it difficult to imagine a case in which a common law duty can be founded simply on the failure (however irrational) to provide some benefit which a public authority has a power or a public law duty to provide.

Importantly, at [38] Lord Hoffmann made the point that Gorringe was concerned only with an attempt to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty. He added:

“My Lords, I must make it clear that this appeal is concerned only with an attempt to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty. We are not concerned with cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care. In such cases the fact that the public authority acted pursuant to a statutory power or public duty does not necessarily negative the existence of a duty. A hospital trust provides medical treatment pursuant to the public law duty in the National Health Service Act 1977, but the existence of its common law duty is based simply upon its acceptance of a professional relationship with the patient no different from that which would be accepted by a doctor in private practice. The duty rests upon a solid, orthodox common law foundation and the question is not whether it is created by the statute but whether the terms of the statute (for example, in requiring a particular thing to be done or conferring a discretion) are sufficient to exclude it. The law in this respect has been well established since Geddis v Proprietors of the Bann Reservoir (1878) 3 App Cas 430.”

Lord Hoffmann then gave examples from the decided cases. They included Dorset Yacht Co Ltd v Home Office [1970] AC 1004, where, as Lord Hoffmann put it, the duty of care arose out of officers in charge of young offenders bringing them to an island and leaving them unsupervised when it was reasonably foreseeable that they would cause damage if they tried to escape. In Barrett v Enfield LBC, the House of Lords refused to strike out a claim where the council assumed parental authority over the plaintiff. Although it had done so because of its powers or duties, the fact was that it had done so. Similarly in Phelps v Hillingdon BC, where the council had employed an educational psychologist to examine the plaintiff and diagnose her learning difficulties, the House of Lords held that the duty of care did not depend on the relevant statute but because the psychologist had impliedly undertaken to exercise proper professional skill in diagnosis, in the same way as a doctor provided by the National Health Service. Lord Hoffmann said (at [40]) that the fact that the doctor patient relationship was brought into being pursuant to public law duties was irrelevant except so far as statute provided a defence, which the House of Lords said that it did not.

At [73] Lord Scott recognised the decisions in Barrett and Phelps and also agreed with the speeches of Lord Hoffmann, Lord Rodger and Lord Brown. Lord Rodger delivered a speech of his own but also agreed with Lord Hoffmann, Lord Scott and Lord Brown. Lord Brown agreed with Lord Hoffmann, Lord Scott and Lord Rodger. He also agreed at [100] with Lord Hoffmann’s reasons for distinguishing the line of authority in X v Bedfordshire CC, Barrett and Phelps. He did so essentially because the common law duty of care in those cases was found or suggested to have arisen not by reference to the existence of the respective authorities’ statutory powers and duties but rather from the relationships in fact created between those authorities and the children for whom in differing ways they had assumed responsibility.

In this regard the respondents seem to us to face a particularly difficult hurdle in this case because of the approach of the courts to cases in which it is said that the defendant owes a duty to a claimant to take reasonable care to protect him or her from the criminal acts of others. It is no doubt for this reason that it is common ground that the judge’s judgment in this case is the first time that liability has been established on facts like these. Thus in Smith v Littlewoods Lord Goff said that page 270G-H that, where a claimant seeks to hold a defendant liable for having failed to prevent a third party causing him damage by the third party’s deliberate wrongdoing, it is well recognised that there is no general duty to take care to prevent a third party from causing such damage. The reason he gave at page 271C was that the common law does not impose liability for pure omissions.

The distinctions in Gorringe have been underlined in the recent decision of the House of Lords in this context which was handed down after the conclusion of the argument in this appeal and upon which both sides have made submissions. It is Mitchell v Glasgow City Council [2009] UKHL 11. The facts were that one James Mitchell was attacked with an iron bar by his neighbour and died as a result. The Crown accepted the neighbour’s plea to culpable homicide and he was sentenced to eight years imprisonment. They were both tenants of the Glasgow City Council. The widow and daughter of the deceased claimed damages from the council on the basis of a breach of a duty of care owed to the deceased at common law. The neighbour had made many threats against the deceased over a long period, including threats to kill. In March the council threatened to take action to evict the neighbour if he persisted in his conduct. Despite the warning he continued to threaten to kill the deceased at least once a month. The council served a notice of proceedings on the neighbour which made his behaviour worse. On 10 July 2001 he was arrested (as he had been before) and charged with a breach of the peace. The council was informed. A meeting took place between the neighbour and the council on 31 July 2001. The neighbour was told that a fresh notice would be served on him. He became abusive, although he apologised before leaving. Very soon after the meeting he attacked the deceased and inflicted the injuries which caused his death. The council did not warn the deceased or the police about his behaviour at the meeting or about a possible risk of retaliation. The pursuers’ case was that if the council had given such warnings the deceased would not have died.

The allegations against the council, which are summarised by Lord Hope at [8], were that it owed a duty at common law following the report of the incident on 10 July 2001 to keep the deceased and the police informed of the action it proposed to take against the neighbour, to advise the deceased that he might be at real and immediate risk of injury, to advise him and the police of the proposed meeting of 31 July and to tell him what had happened at the meeting and of the neighbour’s state of mind during it. In short the case was that there had been an operational failure by the council in circumstances in which it was reasonably foreseeable that harm would flow to the deceased if it did not warn him: see per Lord Hope at [14].

Lord Hope identified these key points at [15]: first, foreseeability of harm is not of itself enough for the imposition of a duty of care; secondly, the common law does not normally impose a positive duty on a person to protect others or, (as stated above) as Lord Goff put it in Smith v Littlewoods, the common law does not impose liability for what, without more, may be called pure omissions; and, thirdly, the law does not impose a duty to prevent a person from being harmed by the criminal act of another based simply on foreseeability. See per Lord Goff in Smith v Littlewoods at page 272C. At [19] Lord Hope noted Lord Hoffmann’s conclusion at [17] in Gorringe, where he followed Lord Goff’s approach in Smith v Littlewoods when he said that reasonable foreseeability was insufficient to justify the imposition of liability upon someone who has done nothing: who neither creates a risk nor undertakes to do anything to avert it.

At [20] Lord Hope concluded that cases of the kind before the House, which arise from another’s deliberate wrongdoing cannot be founded simply on the degree of foreseeability. We observe in passing that both Lord Hope and Lord Rodger (at [56]), in agreement with Lord Goff, rejected Lord Mackay of Clashfern’s approach in Smith v Littlewoods based on how foreseeable the unlawful conduct of the third party might be. It follows that it can now be seen from Mitchell, which was of course decided after the decision of the judge, that the judge was wrong to hold at [93] and [121] that a high degree of foresight is required in a case of this kind. It also follows that the Council’s submission to that effect must be rejected. On the other hand, it also follows from Mitchell that, if the defendant is to be held responsible in such circumstances it must be because the situation is one where it is readily understandable that the law should regard the defendant as under a responsibility to take care to protect the claimant from the risk.

Lord Hope noted at [21] that in Van Colle v Chief Constable of the Hertfordshire Police [2008] UKHL 50, [2008] 3 WLR 593, Lord Bingham said at [42] that the threefold test in Caparo is currently the most favoured test of liability, namely that it must be shown that harm to B was a reasonably foreseeable consequence of what A did or failed to do, that the relationship was one of sufficient proximity and that in all the circumstances it is fair, just and reasonable to impose a duty of care towards B. At [22] Lord Hope suggested that the law attached ever greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, scope and limits of the various duties of care which the law imposes. These are cases where the imposition of a duty of care is readily understandable.

Lord Hope then sought to identify at [23] examples of such cases. They include cases where the defendant creates the source of the danger; where the third party who causes the damage is under the supervision or control of the defendant; where the defendant has assumed a responsibility to the claimant which lies within the scope of the duty which is alleged; where a decorator leaves a house unlocked which is entered by a thief while he is away; where the parents of an adopted child received assurances from the council that they would not be allocated a child who was known to be, or suspected of being, a sexual abuser; and where a prisoner is placed in a cell with another prisoner with a history of violence who perpetrates a racist attack on him from which he dies.

Lord Scott gave similar examples at [40] and, in particular, by reference to the South African case of Silva Fishing Corporation (Pty) Ltd v Maweza [1957] 2 SA 256, at [43] to [44]. So too did Lord Rodger at [57] to [61]. In particular, he identified cases in which the defendant’s act which gives the opportunity to injure the claimant is itself unlawful, although even then that only provides a starting point for the analysis: see [58]. He also referred in detail to Bullock v Tamiami Trail Tours Inc (1959) 266 F 2d 326, where a bus company was held liable to passengers who were injured by fellow passengers on the basis that the bus driver had, as Lord Rodger put it at [60], negligently and foolishly increased the danger of an assault and had not taken steps to prevent it.

Baroness Hale delivered a concurring speech. The respondents have drawn particular attention to [76] of her speech, where she said this:

“The second point upon which we are all agreed is that foreseeability alone is not enough to impose a duty to safeguard a person from the criminal acts of third parties. It is a necessary but not a sufficient condition. There must be something more. Lord Rodger in paragraph 57 and Lord Brown in paragraph 82 of their opinions have given some examples, none of which applies in this case. In essence, there must be some particular reason why X should be held to have assumed the responsibility for protecting Y from harm caused by the criminal acts of Z. I also share the view of Lord Rodger, in paragraph 55, that this is not a pure omission case. A driver who takes to the roads and thus is an actor in the drama is liable for the things which he fails to do as well as for the things which he does. His failure to keep a proper lookout, or to indicate when he proposes to change direction, is an omission. But he took the action of propelling his car in a particular way. Thus it could be said that the council were actors in this drama. They took the action of summoning Mr Drummond to warn him of what they proposed to do if he did not mend his ways. Just as the driver should not change direction without taking steps to safeguard other road users from harm, it could be said, the council should not take action against one tenant without taking steps to safeguard his neighbours from harm. Hence, it is not quite enough to say that the complaint of a failure to warn is a complaint of a pure omission. But the question remains whether it is fair, just and reasonable to impose such a safeguarding duty upon the council.”

The respondents rely in particular upon the sentence we have italicised.

Lord Brown’s reasoning is entirely consistent with that of the other members of the appellate committee. He too gave examples of circumstances in which a duty has been held to be established including cases where the defendant is under a duty to supervise the third party but fails to do so, where the defendant creates the risk of injury by, say, arming the third party, or, importantly in the context of the instant case, where the defendant assumes specific responsibility for the claimant’s safety: see [81] and [82].

In Mitchell it was common ground (as it is here) that the alleged duty was not part of the council’s contractual duties as a landlord, which it was accepted did not extend to the exercise of discretionary powers under the relevant statute: Hussain v Lancaster City Council [2000] QB 1. As stated by Lord Hope at [26], the question in Mitchell on the facts was whether, acknowledging that the council was the deceased’s neighbour’s landlord, it was fair just and reasonable that it should be held liable in damages for the omissions to warn relied upon. It was a matter of fairness and public policy. The House of Lords held that the answer was no. Lord Hope said at [29] that the position would have been different if there had been a basis for saying that that the council had assumed a responsibility to advise the deceased of the steps that they were taking or in some other way had induced the deceased to rely on them to do so.

In these circumstances, as we see it, the question is whether this case falls within Lord Hoffmann’s category of case in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care. Examples of such cases are given in Mitchell. Only in such a case would it be fair, just and reasonable to hold that a local authority such as the Council on facts such as these owe a duty of care to the respondents. This is not a case of control like Dorset Yacht. Nor is it a case where the defendant has created or increased the danger to the respondents. Moreover it is not a case of assumption of responsibility unless it can properly be held that there was a voluntary assumption of responsibility: see Rowley v Secretary of State for Work and Pensions [2007] EWCA Civ 598, [2007 1 WLR 2861, especially per Dyson LJ at [51] to [54]. This is because, as the cases cited above show, a public authority will not be held to have assumed a common law duty merely by doing what the statute requires or what it has power to do under a statute, at any rate unless the duty arises out of the relationship created as a result, such as in Lord Hoffmann’s example of the doctor patient relationship.

The Council’s case is that this case falls within none of the categories of case discussed in Mitchell and, in particular, that there was no assumption of responsibility on the facts of the instant case and that the respondents’ case is in truth no more than that the Council failed to move them into temporary emergency accommodation in breach of its statutory duty and/or in the exercise of its statutory powers. We accept the submission that, if that is indeed the only case that can be advanced against the Council, the cases to which we have referred lead to that conclusion because none of the statutory provisions relied upon gives rise to a private law cause of action for a breach of statutory duty or for a failure to exercise its statutory powers.

There was of course a legal relationship between the respondents and the Council arising out of the tenancy agreement between the Council as landlord and the respondents as tenants pursuant to which they lived in the flat. It is not, however, suggested that the Council was in breach of any of its obligations under the tenancy agreement.

In their written submissions on the decision in Mitchell Miss Gumbel QC and Mr Witcomb submit that this case falls squarely within Lord Brown’s example of the case where the defendant assumes specific responsibility for the claimants’ safety. In summary they submit that by October 2000 the Council had recognised the real danger X and Y were in, recognised the extreme vulnerability of X and Y and the children, recognised that they could not be protected in the premises and that they needed to be moved, had taken steps to achieve a move for them and knew that X and Y were relying on the Council to achieve such a move. It is submitted that those factors give rise to a duty based upon an assumption of responsibility to take reasonable steps to remove them into temporary emergency accommodation and that they were in breach of that duty in failing to do so.

The assumption of responsibility is put in this way. There was an existing involvement and assumption of responsibility in that the Council had assumed the task of providing social support for both X and Y and the children and of providing suitable and safe housing for them. In addition the council assumed responsibility for re-housing the respondents and the children in the emergency situation that arose in that they had taken a number of steps to do so but ultimately failed because of a lack of co-ordination between departments of the Council. It is further submitted that the case of X and Y involved a family with known vulnerability and mental health problems who could only live in the community if supported by the Council. X and Y were in a position where the Council had become specifically involved with the family and its plight in a particular situation of danger and had assumed responsibility and was taking steps to attempt to deal with the situation by arranging re-housing. There was a heavy degree of reliance by vulnerable adults who were known to be unable to report to the police or resist the exploitation of the gang of youths.

We are not persuaded that those considerations lead to the conclusion that there was an assumption of responsibility or some other special factor which might give rise to the imposition of a duty of care owed to the respondents. It appears to us that the principal difficulty facing the respondents is that their essential complaint is that the Council was not exercising its statutory duties and powers properly, which the cases show is not sufficient to give rise to a duty of care. Something more is required. Yet both the Social Services Department, through the CTPLD and C&F, and the Housing Department were simply trying to exercise their statutory functions, no more and no less.

We will nevertheless consider the facts in a little detail. In doing so we will consider both the facts relevant to the duty of care and, in particular, the submission that there was an assumption of responsibility and the facts relevant to the issue whether there was a breach of duty.

It appears to us that it is necessary to consider the relative roles of the Social Service Department and of the Housing Department separately. This is because the statutory powers and duties of a local authority are many and various and, moreover, those with which we are concerned are specific to particular functions of the Council. It is not therefore in our judgment correct simply to treat the Council as a single entity in quite the way the judge did. It is of course true that the Council is a single legal entity but this appeal focuses on the powers and duties of the Council in the context of social services and of housing. As already stated, we do not read the judgment as this Judge holding that the Council assumed a responsibility to the respondents but rather his asking himself the broader and less structured question whether it was fair, just and reasonable to impose a duty of care and, having held that it was, concluded at [88] to [91] that the Council’s failing was that its employees failed to communicate sufficiently with each other with the result that they did not remove the respondents from the flat.

While we entirely understand the judge’s view that the departments of a local authority, including the Council, should communicate with one another and that it is wrong to disregard the fact that the employees of various departments are all employees of a single entity, the duty to communicate is not a duty of care owed to members of the public at common law. As the authorities to which we have referred show, something more is required to establish duty of care. The question is whether the Council assumed a responsibility to the respondents, which involves consideration of when and how it did so.

As we see it, this involves considering first the role of the Social Services Department and, in particular that of Tajinder Hayre. In this regard, we accept Mr Faulks’s submission that, while Miss Hayre, as the respondents’ social worker, met them regularly and gave them advice and assistance with their day to day living, the Housing Department had roles of a more arms length nature. As social housing authority it had duties to balance the respondents’ claims to alternative accommodation against those of other deserving individuals and families in the area and as landlord it had duties both to the respondents as tenants and to its other tenants in the block.

We can take the facts almost entirely from the judgment, which sets them out both clearly and concisely. As stated above, Tajinder Hayre of the CTPLD had become Y’s social worker in August 1999 and X’s social worker in March 2000. As we see it, subject to supervision by Joanne Rawles and to the overall direction of Sue Spurlock as Assistant Director of Adult Social Services, she was responsible for discharging the Council’s duty and for exercising its powers under section 29 of the 1948 Act and section 2 of the 1970 Act. The judge described the Council’s departments and staff, so far as relevant, at [6] to [15] of his judgment, and the respondents’ disabilities at [16] to [22]. It is not necessary to repeat any of that detail here. At [23] the judge noted that X's mother, Z, who was an articulate and forthright woman, would often act in effect as an advocate for X, Y and the children, providing information and expressing concerns to the Social Services and Housing Departments which the respondents themselves were unable or unwilling to provide and express.

Between [24] and [70] the judge set out a very detailed chronology of events. He first set out at [25] to [28] the events between 1993, when Y moved into the flat, and 1998, when X moved in. As a result of various events, including a reported arson attack, the respondents asked to be re-housed on more than one occasion. That request was still outstanding at the time of the relevant weekend. At [28] the judge accepted Miss Hayre’s evidence that there was an acute housing shortage in the Hounslow area. The judge focused on the events between X moving into the flat and the relevant weekend at [29] to [69].

Given the judge’s conclusions at [111] to [115], which are referred to above, rejecting the three principal reasons why it had been submitted that the Council should have removed the respondents from the flat long before the relevant weekend, it is necessary only to focus on the respondents’ case that the Council had assumed a responsibility such that they owed a duty of care to them which required them to protect them by providing emergency accommodation for them before the relevant weekend in response, as the judge put it at [116] (quoted above), to “the developing crisis towards the end of 2000” and in the light of his finding that by 20 October 2000 an attack of the kind that the respondents in fact suffered was reasonably foreseeable.

The judge recorded at [41] that on 28 March, only five days after Tajinder Hayre was appointed as the social worker for X as well as Y, she wrote to Carole Nuamah of the Housing Department setting out the position very clearly as follows:

“I am writing with reference to the XY current housing situation. They live in a 2-bedroomed 9^th floor flat with their 2 daughters A and B.

Both X and Y have a learning disability. This impacts extensively on their everyday life. They have difficulty in recognising danger and keeping themselves safe. They do not always manage and there have been concerns about the safety of their children. X and Y are vulnerable adults, and will probably always need monitoring and support. Their eldest daughter A too, has a learning disability. This family relies on support that may break down due to the present accommodation.

I am Y's social worker and feel that the space and environment are not conducive for her to carry out everyday tasks. They are intimidated and harassed by certain residents and youths, and because of this their learning disability makes this difficult to manage. Their learning disability makes them extremely vulnerable.

Heidi Vogel social worker from the Children & Families Team in Feltham has been involved with the family and concerns for the children have been raised. I understand they have requested to be re-housed and have asked for a house in the local area. I spoke to you regarding this matter before and was informed that they do not have sufficient points. I strongly feel that they should be re-housed due to their learning disabilities and hope you will consider their situation which differs from other families in similar circumstances. I look forward to hearing from you soon.”

The judge noted that Heidi Vogel wrote to Carole Nuamah in similar terms on the same day.

During the summer a group of youths had been congregating at the flat bullying X and demanding food from him. The judge said at [44] that on 4 August 2000 Tajinder Hayre made a home visit to the flat. Y told her that Carole Nuamah had called and said that they would have to clean and decorate the property and get rid of the dogs if they wanted to be re-housed. Tajinder Hayre then spoke by telephone on 7 August to Carole Nuamah, who broadly confirmed what Y had said, but added that she had awarded the family more housing points, because of their situation. More housing points would be needed if the family were to be re-housed.

On 5 September a Jennifer Bowles, who had been to the flat with Z, wrote to Z as follows:

“The flat was overcrowded, untidy, dirty and … unhygienic. Both X and Y are obviously unable to recognise this and need all the support and assistance that can be obtained in order to rise above this sorry state of affairs … On a broader scale, is it considered advisable by the housing authorities to let a family with young children live on the 9^th floor of a lower block with no immediate access to safe recreational facilities? A more serious and morally questionable situation is that the flat, while we were visiting, was also being visited by a number of teenagers. One couple was embracing intimately in the presence of Y's two young girls. I understand that various young people are often visiting - maybe taking advantage of X and Y's unsophisticated outlook on life. This must put all the family at risk while they live in such close proximity to people who will abuse their situation.”

The judge noted at [45] that Z gave unchallenged evidence that she handed that letter to Tajinder Hayre. He added that in his judgment the presence of such youths in the flat marked a significant deterioration in what was already an unsatisfactory state of affairs at the flat and that from then things went swiftly and steeply downhill.

On 10 October the police went to the flat and arrested X and two youths for handling stolen car stereo speakers which were found at the flat. While in custody X was asked if he needed extra support and he said no, whereas, as the judge held at [46], on any fair view, he did. The police expressed concern at the state of the flat, saying that, although the children did not seem to be in any immediate danger, the conditions in which they were being forced to live were below the standards which reasonable people would see as fit.

There then followed the incident referred to above when X was assaulted at McDonald’s on 11 October. It was described by the judge at [48] as follows:

“On 11^th October, X was in Feltham when he was approached by Robert Davenport and his father. His father said: "you grassed up my son, I know where you live, I'm going to burn your flat down". X fled and went into a nearby McDonalds restaurant, taking refuge in the toilets. However he was pursued by Robert Davenport who head butted him causing bruising, and pushed or punched him so hard that he suffered a shoulder injury which required hospital treatment and the subsequent use of a sling. The evidence is unclear as to whether or not the shoulder was actually dislocated. The evidence did not establish that anyone within the Defendant's employment became aware at this stage of the terms of the threats made by Robert Davenport's father. However it is clear from Tajinder Hayre's notes of 12^th October that she visited No.60 on that day; that she knew then of the assault; that she also knew that Robert Davenport's father had "ordered X not to press charges"; and that "both Y and X are very frightened but do not want to inform the police". She advised the Claimants not to answer the door to anyone, especially Davenport. She noted that she would speak to the police to discuss X's arrest. Z was also present on this occasion and gave evidence that after Tajinder Hayre had left, X told her that other people had keys to the flat and were using it to store stolen goods. Tajinder Hayre gave evidence that having left No.60 she did tell the police what had happened to X, even though the Claimants had not wanted to do this. The police, however, refused to investigate unless X reported the matter himself.”

On 13 October X informed Tajinder Hayre, during a visit to hospital, that Robert Davenport had come to the flat and apologised, although the judge noted at [49] that she said in evidence that she treated that information with caution. On the same day, Z passed on to Tajinder Hayre the information that other people had keys to the flat and used it to dump stolen goods. The judge added that Tajinder Hayre appreciated that this reduced the value of the advice she had given to X not to open the door to anyone.

On 18 October Tajinder Hayre wrote a letter to Carole Nuamah which the judge said at [50] he regarded as significant:

“I am writing to you with great concerns about this family. As you are probably aware both X and Y have learning disabilities and are very vulnerable. They have two daughters aged 8 & 10 years old. Recently they have been befriended by a group of local youths on the estate and I feel that they are being exploited by these youths. X has since got into trouble. X was also recently attacked by one of the youths but is too frightened to report this to the Police. X and Y are very vulnerable and they are both at risk. They have been scared to leave their flat. I understand that you have procedures to report harassment but in this case I feel that they are not able to do this due to various reasons. Their level of understanding and comprehension are limited which again highlights their vulnerability. Since the incidents above X and Y have repeatedly asked to move out of the immediate area. They want a new start and I think this will benefit them. I also feel that their children may be at risk too. I understand that they have recently been awarded social points and that they are on the waiting list to move into a larger property. Could you please liaise with me on this matter as I feel this is a sensitive matter. I look forward to hearing from you.”

Miss Hayre said that she wrote the letter because she was worried that the harassment might continue and that it represented a heightening of her concerns. The judge noted at [50] that the letter was received by the Housing Department but added that Marie Henderson, who took over temporarily from Carole Nuamah at about this time, said in evidence that the latter would not have seen the letter because she was on leave. Marie Henderson said that she did not see the letter, which would have gone to Ljijuna Scully, who was the Area Housing Manager. Marie Henderson gave what the judge described as the important evidence that, if she had seen the letter, it would have prompted her to set in motion a procedure for the emergency transfer of the family to emergency accommodation.

On 19 October Tajinder Hayre was told by a Rosemary Snell that Z had told her that X had been befriended by young people in the area who had keys to the flat and used it to have sex. It was also said that X had been beaten up: see [51].

On 23 October Narinder Padwal of the Housing Department visited the flat with Tajinder Hayre. The judge’s conclusions, which were derived from the notes kept by both the CTPLD and the Housing Department, were stated at [52] in this way. The respondents explained to Mr Padwal that they had received offensive phone calls and that X had been attacked by a local youth in McDonalds, Feltham two weeks previously. They confirmed that they wished to be moved. They were not prepared to name the youth who had assaulted X until they were moved. Mr Padwal told them that they may be offered alternative accommodation on a ‘like for like’ basis to get them out of the immediate area, and that he would go back and speak to his line manager. On the same day Mr Padwal completed a “Harassment Investigation Form” in these terms:

“Approximately 2 weeks ago X was attacked in the WC of McDonalds in Feltham. He was taken to St. Peters Hospital with dislocated shoulder and bleeding nose. Victim has not contacted police through fear of reprisals but will report to police after transfer. X and Y have also received threatening phone call 'you cunt, dog, slut'. Children have not been harassed.”

The judge noted that the form went on to say that the victims requested a transfer and that Mr Padwal had explained the ‘man.tran’ policy to them, which was not the emergency system that had been spoken of by Marie Henderson.

On 26 October Rosemary Snell wrote to Tajinder Hayre. She relayed Z’s concerns that the flat might be being used by truants from school who were using the flat for under-age sex. She added the concern that X and Y were not aware of the seriousness of the situation and that they appeared to have let a number of people have keys. On 27 October X’s sister in law telephoned Tsajinder Hayre to express her concern at the state of the flat and at X’s vulnerability. On 31 October Z rang Tajinder Hayre to say that X had been threatened by Nicholas Cooper, one of the youths known as Nick. Tajinder Hayre rang the police, who said that they too had heard from Z but that they could not act until X made a complaint. Tajinder Hayre rang X and told him to inform the police should Nick threaten him. See [53].

On 31 October Z wrote to the social Services Inspectorate. The judge quoted these passages from the letter at [54]:

“… over the past 20 years … X has persistently been abused, mainly by children, and youths, who have occupied his flat for their own purposes, exploiting him, taking his money, made him buy them cigarettes, taking girlfriends and behaving inappropriately in front of the children. The latest episode, the current youths blamed X to the police about a stolen car, which X vigorously denies any knowledge of … The present danger is that Robert, one of the youths, head butted X twice, dislocating his shoulder. I have now learned that Robert has head butted X before. Robert and his father have threatened X to set alight his flat and kill him if X grasses on Robert to the police about the head butting … Robert has ingratiated himself back into X's flat and, in my opinion, is staying close to X in order to prevent X from telling the truth. X and the youths are charged to appear at Hounslow Police Station on 6^th November. X is terrified of going to jail, but even more, he is terrified of Robert and his father. As a matter of great urgency X and his family must be in a place of safety. Many, many mistakes have been made by Social Services.”

At [55] the judge added that Z said in her statement that on 1 November X telephoned her saying that Nick had been sleeping on the sofa at the flat for some weeks and was refusing to leave. Nick had shouted at Y and A and threatened to hit them. Z advised X to lock the front door and contact the police if Nick returned. Several hours later however, X phoned again to say that Nick had returned, Y having let him in under duress. At this stage, Nick grabbed the telephone and shouted verbal abuse at Z. Z telephoned the police immediately. They said they could take no action unless X reported the incident himself. Z rang Tajinder Hayre to pass all this on. The judge noted that it was apparent from a letter written by Tajinder Hayre on the following day that she then spoke to X.

At [56] the judge made these findings about the letter of 2 November which Tajinder Hayre wrote to the ‘Duty Social Worker’ at C&F. In the letter she told them that the respondents had been befriended by local youths who Z had reported had been using the flat for under-age sex and playing truant from school; and that X had been arrested following which he had been attacked by a local youth and threatened. The letter continued:

“I spoke to X yesterday and apparently they have a friend called Nick staying over and that he is homeless. Nick has been bullying X, Y and the children. … Nick has several friends in the area and the family have been harassed and taken advantage of. I have reported the incidents to Housing and they are dealing with it and I am writing a social work report to support their move. I have explained to X and Y that they need to keep the children safe and call the police. Both X's mother Z and X's sister-in-law has (sic) expressed concerns about the children and I feel it necessary to report these concerns. Could you please liaise with me on this matter?”

The judge added that the records of C&F for the same day referred to “under age sex and truanting, threats and assaults and harassments to the family” and stated that there would be a home visit on 20 November and a professionals' meeting on the 24 November. Also on 2 November Neghet Khan sent a housing transfer form to the Claimants, arising from the home visit made by Narinder Padwal and Tajinder Hayre on 23 October.

On 3 November 2000, X told Tajinder Hayre during a hospital visit that Nick would be leaving the flat on 6 November. On the same day, Tajinder Hayre again wrote to Carole Nuamah of the Housing Department as follows:

“I wrote earlier on 18^th October outlining the recent line of events involving X and Y being befriended by a group of youths in their local estate. They have been visiting X and Y in their flat and I feel they have been exploited by the youths. X has since got into trouble. They have been threatened and bullied and are too frightened to report this to the police. Narinder took down the recent incidents of harassment and said it would be discussed with his manager, we are still waiting to hear from him. ……X and Y both have learning disabilities. This means that they have limited understanding and comprehension. They need support in managing independently and taking care of their children. They will probably need support and monitoring for the rest of their lives. As their social worker I need to take action to minimise risks where appropriate and I strongly feel that they need a new start. The environment can have a huge impact on the quality of their lives and of their children. I understand that there is not a place that is 100% safe but their current accommodation is very unsafe.”

That is the end of the part of the letter quoted by the judge at [57]. In fact, the letter concluded as follows:

“Narinder explained that due to the harassment they have experienced they may be offered a ‘like for like’ place. However they are on the waiting list to move into a larger property. In order for them to move they would need a great deal of support and time as they would not manage this independently and if in the near future they were offered a larger property, they would have to move again. I do not think that they could manage more than one move and so would like you to consider a larger property for the family to move into.

I hope that you will give this your urgent attention due to the above factors and I look forward to meeting you.”

We do not in any way blame the judge for not setting out this part of the letter in his judgment because there was a great deal of material and it was impossible to refer to it all. However it does appear to us to be of some significance, if only because it shows that Tajinder Hayre did not regard the appropriate course as being to place the family in emergency accommodation but as being to place them in larger permanent accommodation. We return to this below.

At [58] to [69] the judge made findings as to the events between 5 November and the relevant weekend, which can briefly be summarised in this way:

The judge said at [70] that so things stood when the respondents underwent their ordeal during the relevant weekend of 17 to 19 November. Those primarily responsible for what happened to the respondents were Nick Cooper, Robert Davenport and a youth named Wayne Marsh. All three were subsequently convicted of criminal offences and received custodial sentences.

As already indicated, we have taken the above substantially from the findings of fact made by the judge. The question is whether it is correct to hold on those facts that the Council assumed responsibility to the respondents so as to impose upon them a duty to take reasonable care of them by removing them from the flat to temporary emergency accommodation. We answer that question in the negative, essentially for the reasons we have already given. As we see it, both the Social Services Department and the Housing Department were seeking to carry out their statutory functions and no more. There was no-one who assumed a responsibility of the kind referred to by Lord Hoffmann in Gorringe such as might arise from a relationship of doctor and patient. Nor was there anyone who fell within the categories identified by the House of Lords in Mitchell. There was, for example, no-one within the Council who created the danger faced by the respondents or who assumed specific responsibility for the respondents’ safety.

We have reached a different conclusion from the judge, essentially because he did not approach the matter as one of assumption of responsibility but, having concluded that the test of reasonable foreseeability was satisfied, by asking whether there was a sufficient relationship of proximity and concluding that there was in his [107] quoted above and then by asking whether it would be fair, just and reasonable to impose the duty to move the claimants. He concluded at [116] quoted above that, subject to [117] to [124] he would regard it as fair, just and reasonable on the basis that it was a response to the “unusual but dangerous situation that had developed”. He then considered whether it would or would not be fair, just and reasonable having regard to a number of other broad considerations summarised above.

As to those considerations, we would make only these comments, apart from the general point made earlier that the judge did not consider whether the Council assumed the relevant responsibility. As to [119] and [120], in our judgment, there is an important difference between a case where children assert that a duty of care is owed to them and a case like this where the claimants are adults living in the community, albeit vulnerable adults. Although we would not take this point too far because the vulnerability of the respondents here is undoubtedly a relevant factor, local authorities have specific obligations in respect of children under the Children Act 1989 which are different from those which apply in respect of adults. For example, there are statutory duties to protect children from harm, which may lead to care proceedings and, indeed, to the local authority having parental responsibility. It was not suggested that the Council was in breach of any duty with regard to Y’s children.

As to the principles in Littlewoods referred to in [121] we have already addressed the correct approach. As to the HRA referred to in [122] to [124], while it may well be relevant in some circumstances, we do not think that it has any real relevance to the existence or otherwise of a duty of care on the facts of this case. Given our view that there was here no relevant assumption of responsibility or other considerations such as those discussed in Gorringe and Mitchell, we have reached a different conclusion on the question whether it would be fair, just and reasonable to impose a duty of care of the kind suggested on the Council. We do not think that it would.

If, contrary to that view, there was anyone who assumed a responsibility to the respondents, it was surely Tajinder Hayre. We do not see how the Housing Department or anyone within it did so. It received the letters from Tajinder Hayre which did not suggest an emergency move. Mr Padwal visited the flat with Miss Hayre on 23 October. The Department received the complaints of harassment, which included both the allegations of improper behaviour on the part of the youths and the remark that criticised the respondents, and arranged a meeting with Miss Hayre on 22 November to consider the case further. We accept the submission that it would not be fair just and reasonable to impose a duty of the kind alleged on the Housing Department because of the many potentially conflicting interests which it has to take into account as supplier of housing and as landlord. See in this connection Hussain v Lancaster City Council per Hirst LJ , with whom Thorpe and Hutchison LJJ agreed, at pages 24-26.

So, we repeat that, in our view, if anyone assumed a responsibility it can only have been Tajinder Hayre as the responsible social worker for the respondents. Yet the respondents, in our judgment correctly, conceded before the judge and concede before us that she was not in breach of any duty of care, if it otherwise existed. In our opinion, she behaved impeccably throughout. The facts set out above demonstrate that to be the case. She made frequent visits to the flat and assisted the respondents in numerous different ways. She had full knowledge of the relevant facts. She appreciated and gave thought to the problems faced by the respondents at each stage and did her utmost to solve them. So far as possible removal from the flat was concerned, she saw the dilemma facing the Housing Department and, indeed, the respondents themselves. The last two paragraphs of the letter of 3 November quoted above show that she had formed the view that it would be better for them to wait for a larger property than to be moved temporarily. Nobody has criticised her for that.

Moreover no-one has criticised Tajinder Hayre for not taking more urgent steps to persuade the Housing Department that the respondents should be provided with emergency accommodation. Yet, if the respondents are correct she should surely have done so. The judge described the four procedures of transfer at [129] to [132]. They were: first, the points system but the respondents did not have enough points; second, a transfer to protected or sheltered accommodation for tenants but such accommodation was in very short supply; and third, ‘man.tran’ or management transfer which offered accommodation on a ‘like for like’ basis and would have the effect that the applicants would go to the top of the waiting list but would then have to wait for accommodation and was not therefore suitable as emergency accommodation. The judge might have added in this regard that it was the evidence of Mr Padwal, whom no-one criticised, this was the procedure used in the cases of domestic or racial harassment, which he considered was appropriate in the light of the information he had been given by the respondents and Miss Hayre. His evidence was that the fourth procedure was reserved for cases of great emergency, such as where there was a threat to life caused, for example, by extreme domestic violence.

The fourth, emergency, procedure the judge described at [132] as follows:

“The fourth and final system was an emergency system by which tenants could be transferred to temporary accommodation such as bed and breakfast accommodation. Such transfers would usually be on the basis of information provided to the Housing Department by the Social Services Department and would only be considered in extreme cases, involving severe violence or harassment.”

The judge added:

“Given my earlier conclusion (which some might see as generous to the Defendant) that an assault of the kind that occurred during the relevant weekend first became reasonably foreseeable on or about 20^th October 2000, in my judgment this emergency system was the only one available to the Defendant which could have been deployed to move the Claimants out of their flat before the relevant weekend.”

In our view, the curious feature of that analysis is this. It appears from the description of the system that whether it is put into operation will depend upon information from and, no doubt, the advice and views of the Social Services Department. Yet the person who had the closest connection with the problems facing the respondents was Tajinder Hayre and no-one has suggested that she should have done more than she did to procure such a move. If anyone assumed responsibility towards the respondents it was her and, in our judgment, if anyone was at fault it was her. In our judgment, it follows from the fact that no such suggestion has been made that it is accepted that Tajinder Hayre’s approach was one which a reasonable social worker could reasonably take. It further follows that it is accepted that she could not be in breach of duty because of the principles in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

We should stress that we entirely accept that the decision not to blame Tajinder Hayre was correct. She did not foresee that anything like what occurred over the relevant weekend might occur. While it was no doubt foreseeable, as the judge found, that the respondents were at risk, it was not suggested to Tajinder Hayre that she ought to have foreseen that anything like what occurred might occur. In these circumstances the position is that a reasonable social worker in the position of Tajinder Hayre could properly view the matter as she did, write the letters that she did and give the advice that she did. She was reasonably concerned that the respondents should only be moved once and, in response to the events in early to mid November, she wrote a memorandum which has not been criticised and was due to have a meeting with the Housing Department on 22 November, which seemed to her at the time to be the sensible course. It follows that, if (contrary to our view) Miss Hayre assumed a responsibility to the respondents at common law and owed a duty of care to them, she was not in breach of that duty.

In these circumstances we are unable to accept the approach espoused on behalf of the respondents and adopted by the judge. In the absence of any blame being attached to Miss Hayre, we see no basis upon which it could be properly be said that some other unidentified employee of the Council (or the Council itself) could be held to be in breach of a duty of care owed to the respondents.

The judge by-passed these considerations in two ways. The first was by treating the Council as a single entity and holding that the problem was that there was insufficient communication between its compartments. We have already expressed our view that that is not a sufficient analysis of the problem. The second is set out at [133] to [138] where the judge set out his reasons for concluding that the Council was in breach of the duty he had identified at [107]. His reasoning may be summarised in this way:

We have reached the conclusion that that approach should not have led to the Council being held to be in breach of a duty of care. The judge accepted Marie Henderson’s evidence that, if she had received the letter of 18 October, it would have prompted her to put the emergency procedure in operation. He further accepted Suzanne Culling’s evidence as to what the Housing Department should have done, although it is fair to the council to observe that she did not claim expertise in housing matters. However that may be, critically, the judge did not direct himself by reference to the test in Bolam. Once it was accepted that a different view from that of Marie Henderson could properly be held by an experienced social worker, as it was (and is) in the case of Tajinder Hayre, it could not properly be held that either Tajinder Hayre herself or any other employee of the Council or the Council itself was in breach of a duty of care owed to the respondents in failing to remove them to emergency accommodation.

While this has been a very troubling case and we have every sympathy for the respondents in being subjected to an appalling ordeal, and while we fully appreciate the careful way the judge approached the evidence and the issues, we have reached a different conclusion from him. Our conclusion is that the Council did not assume a responsibility to the respondents at common law, that neither it nor its employees owed them a duty of care at common law and, in any event, that neither it nor its employees was in breach of a duty to take reasonable care to remove them from the flat into emergency accommodation as found by the judge. It follows that the appeal must be allowed.