LAW REPORT v 9 August 1995 : Homeless person cannot claim damages

Regina v Northavon District Council, ex parte Palmer; Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice Auld and Lord Justice Ward) 13 July 1995

A homeless person's right to damages for the inconvenience and suffering caused by a local authority's failure to inquire into her application for accommodation and to provide housing did not arise until the local authority had concluded its public law decision-making function and had accepted its duty to provide accommodation for her.

The Court of Appeal dismissed an appeal by the applicant, Dorothy Palmer, from the dismissal by Mr Roger Toulson QC, sitting as a deputy Queen's Bench judge, of her application for judicial review of decisions of the council.

In January 1992 the applicant and her family were squatting in a house and she applied to the council for accommodation as a homeless person under the Housing Act 1985. However the council treated the application as one for council housing. In the autumn of 1992 the family were evicted and moved to a dilapidated caravan on an unauthorised site. The applicant again applied to the council who in May 1993 eventually accepted that the applicant was threatened with homelessness, was in priority need and secured accommodation for her.

The applicant applied for judicial review to challenge the council's earlier failures to treat her case as one requiring consideration as a homeless person. She sought declarations that the council had acted in breach of its statutory duty in failing to process her application in January 1992 and claimed damages for the inconvenience and suffering caused by the council's failure to inquire into her case and house her between January 1992 and May 1993.

Stephen Cottle (Bobbetts Mackan, Bristol) for the applicant; Timothy Straker (Council Solicitor) for the council.

Sir Thomas Bingham MR said that section 31(4) of the Supreme Court Act 1981 provided that on an application for judicial review the court might award damages to the applicant if a claim for damages in an action by writ could have been made at the time of the judicial review application.

The breaches of duty by the council relied on by the applicant included its failure to recognise her as an applicant for accommodation, its failure to inquire whether she was homeless and its failure to secure accommodation pending a decision.

The question therefore arose: was the court satisfied that if the applicant's claim had been made in an action begun by the applicant at the time of making her application for judicial review she would have been awarded damages? The council contended that the breaches complained of fell within the field of public law, giving rise to no private rights and thus no breach for which damages would lie.

Cocks v Thanet District Council [1983] 2 AC 286 marked the boundary between public law and private law in this field. From Lord Bridge's speech at page 292C it seemed clear that a number of matters relied on by the applicant fell on the public law side of the boundary as part of the council's decision- making function. Those included the failure to recognise her as an applicant for housing as homeless person, the failure to believe and inquire and to be satisfied about her homelessness.

The mode of challenge of the conduct of local authorities when performing those functions must be that provided for the supervision of public law functions. The applicant contended a breach of a duty on the private law side: the duty to house. But that did not help because a decision must be reached by the housing authority before the duty to house could arise and such decision was not reached until May 1993.

Although the council, properly directing itself, must have accepted the duty to make inquiries, the condition precedent to the creation of the statutory duty was not satisfied until May 1993 even if it should have been satisfied in January 1992.

The applicant could not overcome the difficulty, which was one both of substance and procedure, that she could not recover damages save for breach of a private law duty, that she could not establish a private law duty until the council's public law decision- making function had been concluded and that was a function which only it could perform.

Lord Justice Auld and Lord Justice Ward agreed.

Ying Hui Tan, Barrister