O’Rourke v Camden London Borough Council

A statutory duty gives rise to a private action for damages only where the legislation shows that Parliament intended that remedy. Duties forming part of a social welfare scheme, involving the allocation of public resources and substantial administrative judgment, are ordinarily suited to enforcement through public law remedies.

The temporary accommodation duty under section 63(1) of the Housing Act 1985 therefore creates no cause of action in tort. This remains so after the housing authority has acknowledged that the statutory conditions are satisfied. Implementation may create an independent contractual relationship, such as a tenancy or licence, but it does not convert the statutory duty into a private law duty sounding in damages.

Following his release from prison, the respondent applied to Camden London Borough Council for accommodation. Camden agreed to make homelessness inquiries and provided temporary accommodation under section 63(1) of the Housing Act 1985. The respondent alleged that Camden subsequently evicted him without providing alternative accommodation and claimed damages for breach of statutory duty.

The Central London County Court struck out all claims as disclosing no cause of action. The Court of Appeal reinstated the claim based on section 63(1). Camden appealed to the House of Lords. The central issue was whether the temporary accommodation duty created a private law duty actionable in tort, in addition to being enforceable by judicial review.

1. Appeal allowed unanimously. Lord Hoffmann delivered the leading speech. Lord Goff of Chieveley, Lord Mustill, Lord Nicholls of Birkenhead and Lord Steyn agreed with his reasons. The order striking out the action was restored.

2. Per Lord Hoffmann, the existence of a private action for breach of statutory duty depends on the legislative intention disclosed by the statute. Part III of the Housing Act 1985 formed a social welfare scheme under which public money was spent for both individual and general public benefit. Parliament’s provision of benefits in kind did not imply an intention to compensate in damages every person who should have received, but was denied, those benefits.

3. The scheme also entrusted housing authorities with extensive judgment and discretion. The duties depended on such matters as whether an authority had reason to believe that an applicant might be homeless, what inquiries were necessary, whether it was satisfied about homelessness and priority need, and what accommodation should be provided. These features indicated that public law control was the appropriate remedy.

4. The availability of judicial review meant that the legislation was not ineffective without a damages remedy. By the enactment of the predecessor legislation in 1977, substantive administrative law was reasonably developed and procedures existed for obtaining swift relief. There was therefore no basis for construing the legislation as creating a private action merely to ensure effective enforcement.

5. The operative decision in Cocks v Thanet District Council [1983] 2 AC 286 supported enforcement through judicial review. Lord Hoffmann rejected its further, unnecessary suggestion that a private law duty arose after a housing authority made a favourable decision. Such a duty would operate anomalously by exposing an authority which acknowledged its obligation to damages while protecting one which perversely denied the obligation. Although implementation might independently create a tenancy, licence or other contractual relationship, no statutory tort was needed to bridge the interval between acknowledgement and implementation. Section 63(1) accordingly created no private cause of action.

1. House of Lords: Allowed Camden’s appeal unanimously and restored the County Court order striking out the action.

2. Court of Appeal: Reinstated the respondent’s claim for damages based on section 63(1) of the Housing Act 1985.

3. Central London County Court: Judge Tibber struck out all claims as disclosing no cause of action.