O'Rourke v. Mayor etc. of the London Borough of Camden

The House of Lords held that the temporary housing duty in section 63(1) of the Housing Act 1985 (consolidating the Housing (Homeless Persons) Act 1977 provisions) does not give rise to a private law cause of action in tort for damages. The court applied established indicators of legislative intent (as analysed in X (Minors) v. Bedfordshire County Council) and found contra-indications: the statutory scheme is a welfare regime funded from public money, the duties involve evaluative judgments and discretions for housing authorities, and effective public law remedies (judicial review) were available when the 1977 Act was enacted. Accordingly breaches of the Part III duties are enforceable by public law proceedings but do not, in themselves, create an actionable private law duty for damages.

The claimant, Mr O'Rourke, sued the London Borough of Camden for damages for alleged wrongful eviction from temporary accommodation provided under Part III of the Housing Act 1985 (originally enacted in the Housing (Homeless Persons) Act 1977). He alleged that Camden had accepted duties under section 63(1) to provide temporary accommodation and then wrongfully evicted him on 24 April 1991 without offering alternative accommodation.

The Central London County Court (His Honour Judge Tibber) struck out the claim as disclosing no cause of action. The Court of Appeal reinstated one of the claims. The appellants (Camden) appealed to the House of Lords.

The principal issue was whether section 63(1) creates a private law duty giving rise to damages, or whether breaches of the Part III duties are only enforceable by public law remedies such as judicial review. The Lords applied the approach in X (Minors) v. Bedfordshire County Council, considering indicators of legislative intent. They identified several contra-indications to implying a private right of action: the statute is part of a public welfare scheme funded by public money and designed for public policy reasons; the duties involve evaluative judgments and discretions (phrases such as "have reason to believe", "necessary to satisfy themselves" and being "satisfied"), making judicial review the more appropriate control mechanism; and the procedural machinery for judicial review was sufficiently developed by 1977 to render a private tort action unnecessary as a remedy.

The House considered, and rejected, the argument that section 63(1) was an objectively framed obligation that should give rise to a private law remedy. The court observed that it would be irrational for Parliament to make most Part III duties enforceable only in public law but to embed a single temporary duty enforceable by private action in tort. The House therefore allowed the appeal and restored the strike-out.

Appeal allowed. The House of Lords held that the duties under Part III of the Housing Act 1985, including the temporary duty in section 63(1), do not create a private law cause of action for damages; breaches are enforceable by public law remedies such as judicial review. The statutory context (welfare scheme funded by public money), the evaluative discretions conferred on housing authorities and the availability of adequate public law remedies at the time of enactment indicate that Parliament did not intend to create private law liability in tort for breaches of these duties.

Central London County Court (His Honour Judge Tibber) — strike out of all claims. Court of Appeal — reinstated one claim (no neutral citation stated in the judgment). House of Lords — appeal allowed; strike-out restored. (House of Lords citation: [1997] UKHL 24.)