Law Report: Council not liable in damages to homeless

LAW REPORT: 17 June 1997; O'Rourke v London Borough of Camden;
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O'Rourke v London Borough of Camden; House of Lords (Lord Goff of Chieveley, Lord Mustill, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffman) 12 June 1997

Breach of the duty of a housing authority to provide temporary accommodation pending inquiries as to whether a person was homeless was not actionable in tort.

The House of Lords allowed the appeal against the decision of the Court of Appeal to reinstate the respondent's claim for damages against his local housing authority, which had been struck out in the county court as disclosing no cause of action.

The respondent was suing Camden for damages for breach of statutory duty owed to him under Part III of the Housing Act 1985. He had applied to Camden for accommodation, claiming that he was homeless and had a priority need. Camden had agreed to make inquiries pursuant to section 62 of the Act to satisfy themselves as to whether he was homeless, and had provided temporary accommodation pursuant to section 63(1).

The respondent claimed that Camden had thereby acknowledged that it owed him a duty under section 63(1) to secure that accommodation was made available, and alleged that, in breach of that duty, they had wrongfully evicted him from the accommodation and had not offered him alternative accommodation.

Ashley Underwood QC and Brian McGuire (Council Solicitor) for Camden; Richard Drabble QC and Martin Russell (Moss Brenchley & Mullen) for Mr O'Rourke.

Lord Hoffman said the question was whether section 63(1) of the Housing Act 1985 created a duty to the respondent which was actionable in tort. There was no doubt that it created a duty which was enforceable by proceedings for judicial review.

The respondent relied on the proposition that a statute which appeared intended for the protection of a limited class of people but provided no other remedy for breach should ordinarily be construed as intended to create a private right of action. Camden said, however, that it was enforceable in public law. Furthermore, there were certain contra-indications which made it unlikely that Parliament had intended to create private law rights of action.

The first was that the Act was a scheme of social welfare, intended to confer benefits at the public expense on grounds of public policy. A second was that Part III of the 1985 Act made the existence of the duty to provide accommodation dependent upon a good deal of judgment on the part of the housing authority, which made it unlikely that Parliament had intended errors of judgment to give rise to an obligation to make financial reparation.

The question of the appropriate remedy for breaches of duty under the Housing (Homeless Persons) Act 1977, of which Part III of the 1985 Act was a consolidation, had been considered by the House of Lords in Cocks v Thanet District Council [1983] 2 AC 286, in which it had been decided that no duty in private law could arise until the housing authority had made its inquiries and decided whether or not it was satisfied that the duty to house a claimant existed. Until then its decision could be challenged only by judicial review.

Lord Bridge had gone on to say that a duty in private law would arise once the housing authority had made a decision in the claimant's favour. However, the concept of a duty in private law which only arose when it had been acknowledged to exist was anomalous.

The respondent accepted Cocks v Thanet District Council as authority for the proposition that the Part III duties which depended upon the housing authority being satisfied or not as to various matters gave rise to no private cause of action in tort, but argued that the temporory duty under section 63(1) was different, because it was framed in objective terms.

The main difficulty with that argument was that it required the court to suppose that, in an Act imposing a number of duties enforceable only in public law, Parliament had intended to embed one temporary duty enforceable by an action in tort.

Both in principle and on the authority of the actual decision in Cocks v Thanet District Council the appeal would be allowed.

Kate O'Hanlon, Barrister