Darby v Richmond on Thames London Borough Council

This is an application for permission to appeal an order by HHJ McKenna sitting as a High Court Judge striking out the applicant’s Particulars of Claim pursuant to CPR 3.4 (2)(a) as disclosing no reasonable grounds for bringing the claim and granting summary judgment to the respondent pursuant to CPR 24.2.

HHJ McKenna refused permission to appeal. A further application for permission was refused on the papers by Tomlinson LJ and renewed orally before the Senior President of Tribunals, who directed that the application be listed before the full court with the appeal to follow if permission were granted.

We heard the oral submissions of Mr Utley on behalf of the applicant and have considered his skeleton argument. We also heard from Mr Stagg who had attended in light of the direction that the appeal should follow on.

The facts are tragic. The applicant is the administrator of the estate of her late son Lee Rabbetts. He died at the age of 36 on 23^rd January 2011. In April 2010 he was diagnosed with acute myeloid leukaemia. In August 2010 he underwent a bone marrow transplant, immunosuppressant treatment and chemotherapy at the Royal Marsden Hospital. Shortly after that he went to live with his mother in housing rented from the respondent council in its capacity as a Local Housing Authority under the Housing Act 1996. Also living there were his sister and her young baby. On 21^st December 2010 his sister and baby went to the GP who diagnosed they were both suffering from infections. On 1^st January 2011 Mr Rabbetts developed a dry cough. On 2^nd January he was admitted to the Royal Marsden with respiratory sepsis. He died on 23^rd January. For the purposes of this application I accept that he died as a result of acquiring an infection from either his sister or the baby.

The Particulars of Claim set out the history succinctly together with the basis of the claim:

“3.

In April 2010 Mr Rabbetts was diagnosed as suffering with acute myeloid leukaemia. In August 2010 he underwent a bone marrow transplant operation, immunosuppressant treatment and chemotherapy at the Royal Marsden Hospital. As a result of that treatment he was at significant risk of suffering infections which could be fatal.

4.

In April 2010 Mr Rabbetts was discharged from hospital to the claimant’s home in Teddington, Middlesex. Also living there were his sister and her baby.

5.

In August 2010 Mr Rabbetts’ GP wrote to the defendant asking that he should be re-housed because his health was at risk while he was living with his sister and her baby.

6.

In September 2010 Mr Rabbetts’ formal application for housing was made to the defendant.

7.

In a letter to the defendant dated 5^th October 2010 Doctor Bronwen Shaw, a Consultant Haematologist at the Royal Marsden, explained that it would be disastrous if Mr Rabbetts were to pick up an infection. Living with his sister’s baby made his environment “very dangerous”.

8.

In a letter to the defendant dated 6^th October 2010 a health visitor repeated the request for Mr Rabbetts to be re-housed.

9.

In a further letter to the defendant dated 30^th November 2010 Dr Shaw explained once more why it was essential for Mr Rabbetts to be re-housed.

10.

In a letter to Mr Rabbetts dated 10^th November 2010 the defendant informed him that he had reached the points threshold to be considered for approval for accommodation.

11.

In a letter to Mr Rabbetts dated 16^th December 2010 the defendant informed him that his application for housing had been approved, but that didn’t mean he would re-housed in the near future. He was told he had a points total of 285. He had been awarded only 50 points for medical needs.

12.

In a letter to Mr Rabbetts dated 5^th January 2011 the defendant informed him that 0-50 points could be given for medical problems and that exceptionally 200 priority points could be given where a life threatening condition is seriously affected by an applicant’s housing. The defendant, despite the medical evidence with which it had been supplied, took the view that he was only entitled to 50 points.

13.

The defendant’s Housing Allocation Policy provided, at paragraph 5.3 that a maximum of 200 points could be awarded for “persons whose condition is life threatening and their existing accommodation is undermining their health”. The defendant knew, or should have known, that Mr Rabbetts plainly came within that category.

14.

On 20^th December 2010 Mr Rabbetts was seen at the Royal Marsden with no signs of infection. That was the only relevant time at which he left his mother’s home (he was terrified of picking up infections).

15.

On 21^st December 2010 Mr Rabbetts’ sister and baby were both seen by the GP and found to have infections.

16.

On 2^nd January 2011 Mr Rabbetts had developed a dry cough. He rang the Royal Marsden for advice.

17.

On the night of 3^rd January 2011 he was admitted to hospital with respiratory sepsis. He remained in hospital until his death from influenza on 23^rd January 2011”.

Mr Utley submits that the case should not have been struck out at this early stage. Where the law is developing, cases should be decided on the facts, not on assumed facts. By a “developing area of the law” what Mr Utley really means is that a development in the law would be necessary for this claim to succeed. In either event, given that the judge approached the case on the basis that every allegation of fact made by the applicant would be proved the applicant’s case could not have been more favourably considered. There was no risk of prejudice to either side. It was clearly appropriate to proceed on the basis of the pleadings.

Mr Utley submits, as he did before HHJ McKenna, that the special and highly unusual facts of this case gave rise to a common law duty of care owed by the respondent to Mr Rabbetts. That duty was to take reasonable care to evaluate his application for housing in accordance with its statutory obligations and its own policy so as to avoid causing him injury. This is a development of the duty pleaded in the Particulars of Claim (see paragraph 5 above) but nothing turns on this.

Mr Utley’s principal ground of appeal is that the judge failed to take into account obiter dicta of Lord Scott in Jain v Trent SHA [2009] UKHL 4 to which he had referred at some length in argument. In that case the House of Lords held that where the exercise of statutory functions to assist one individual (here people who lived in a care home) might prejudice another (the owner of the care home) the other could not be owed a duty of care at common law in respect of that function. See in particular paragraphs 21 to 28 of the judgment. The appellant seeks to rely on the following observation of Lord Scott at paragraph 20:

“The purpose of the power is the protection of the residents in the home in question. It might be fair and reasonable to conclude that the authority did owe a common law duty of care to the residents of a nursing home or a care home if conditions at the home warranting the exercise of the authority’s statutory powers had come to the authority’s attention but nothing had been done.”

Those observations in my view fell significantly short of providing the building blocks for a duty of care in this case. In refusing permission to appeal in this case Tomlinson LJ said that the passages in Jain relied on were “simply a tentative observation principally to underline the impossibility of finding that a common law duty of care was owed to persons whose protection was not the statutory power.”

Mr Utley submits that Tomlinson LJ was wrong. I disagree. The obiter remarks in the case of Jain do not advance the applicant’s case.

Mr Utley did not support the application with any coherent explanation of how the common law duty of care could be said to arise (eg voluntary assumption of responsibility, Caparo test, incremental development). His case was effectively this: the council had been informed of Mr Rabbetts’ serious medical condition. It was therefore under a duty at common law to award him the correct number of points and so provide him with housing in which he would be safe from infection. Breach of that duty led to his illness and death which sound in damages. We infer that is how he put the case before the judge at first instance.

The judge’s reasoning in striking out the claim was impeccable. Beyond the complaint about the case of Jain, to which I have already referred Mr Utley does not identify any error in any of it. We can find no arguable error either.

In O’Rourkev Camden LBC [1998] AC 188 the House of Lords considered a local housing authority’s powers and duties in respect of homelessness in Part III of the Housing Act 1985, the predecessor to Part VII of the 1996 Act, Part VI of which is relied upon by the claimant in this case. The claimant sought damages in tort for breach of statutory duty – the breach being the failure to house a person who was entitled to housing under the statute. The claim was not framed as arising out of a common law duty of care but the reasoning is pertinent. The question was whether section 63(1) created a duty to Mr O’Rourke “which was actionable in tort.” Lord Hoffmann at 192 H said “There is no doubt that, like several other provisions in Part III, it creates a duty which is enforceable by proceedings for judicial review. But whether it gives rise to a cause of action sounding in damages depends upon whether the Act shows a legislative intention to create such a remedy.” Lord Hoffman with whom the other members of the House agreed concluded that there was no such legislative intention. The Act is, as Lord Hoffmann found, a scheme of social welfare, intended to confer benefits at the public expense on grounds of public policy. It is plain that the same conclusion must arise in respect of a proposed claim at common law. The judge’s analysis of this authority was correct.

As Lord Browne Wilkinson said “Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general.” The fact that in the field of child protection only a broader, Human Rights based approach has been taken (see JD v East Berkshire Community NHS Trust and others [2003] EWCA Civ 1151, [2004] QB 558) does not avail the applicant in his argument that a common law duty arose here.

In X v Hounslow LBC [2009] EWCACiv 286, [2009] PTSR 1158 at paragraphs 60 and 65, this court reiterated that the carrying out of statutory functions under Part VI of the Housing Act 1996 was not sufficient to create a duty of care.

In Rowley v Secretary of State for Work and Pensions [2007]1 WLR 2861the Court of Appeal considered whether a duty of care at common law was owed by the Secretary of State in discharging his functions under the Child Support Act 1991. The claimants sought damages for economic loss and also for personal injury. The claims were struck out and the appeal was dismissed. The judge’s analysis of this case is correct.

The decision in Gorringe v Calderdale MBC [2004] UKHL 15 is also unhelpful to the applicant. Where there is no claim for breach of statutory duty, as here, and no duty of care arises under the general law, Parliament is taken to have intended that no common law duty of care existed.

The duty contended for would not even arguably satisfy the third limb of the Caparo test and it is far from clear that it would pass the proximity test. Approaching the matter from the perspective of assumption of responsibility there is no question of a voluntary assumption of responsibility in a situation where the council is bound to act under the Housing Act. The fact that the council were informed of the situation cannot, without more, give rise to a duty of care at common law.

The law in this area is settled. The decision of the Supreme Court in Michael v Chief Constable of South Wales [2015] UKSC, [2015] AC 1732 underscores the proposition that there are very limited circumstances in which it will be held that a public authority acting under statute will be held to owe a common law duty of care. There is nothing in the judgment to give encouragement to the applicant.

I am quite sure, as was the judge (see paragraph 24), that the existence of alternative remedies under the Housing Act is yet another obstacle to the common law duty of care contended for. In my view it is insuperable on the facts of this case. Judicial review is available, as are the ancillary procedures which include the ability to make interim applications and for them to be considered under the ‘urgent cases’ procedure. Recourse may also be had to the Ombudsman. Mr Utley argues that on the facts of this case these remedies would have been of no practical assistance to the claimant. I do not accept that but even if it is correct, as Dyson LJ (as he was then) said in Rowley at paragraph 24:

“the efficacy of these alternative remedies (in so far as it is relevant at all) should be judged by what they purport to provide rather than how effectively they work in practice. The existence of a duty of care cannot depend on the vagaries of how effective an alternative remedy may be from time to time.”

And at paragraph 73:

“I accept, of course, that the mere fact that there is an alternative remedy is not necessarily a reason for denying the existence of a common law duty of care. It is important to see how comprehensive a remedy is provided and to consider it in the context of the statutory scheme as a whole. Ultimately, what has to be decided is whether, having regard to the purpose of the legislation, Parliament is to be taken as having intended that there should be a right to damages for negligence. The more comprehensive the remedy provided by Parliament, the less likely it is that Parliament is to be taken as having had that intention.”

The alternative remedies here were comprehensive.

I can identify no arguable error in the judge’s decision. On the contrary it is impeccably reasoned. Having reviewed all the arguments and the relevant law, including cases to which the judge did not refer in his judgment and the decision in Michael, I am quite sure that there is no real prospect of a successful appeal. The law is settled and there is no prospect of establishing that there was a duty of care at common law owed in this case.

I would refuse permission to appeal.

I agree

I also agree.