Anufrijeva v London Borough of Southwark

Article 8 can exceptionally require welfare support, particularly to preserve family life involving children, but creates no general right to housing or financial assistance. Maladministration infringes Article 8 only where there is culpability or knowledge of risk and a sufficiently serious, foreseeable impact on private or family life. Administrative delay must cause substantial prejudice. Unforeseeable psychiatric injury to an unusually susceptible person does not itself establish a breach.

Damages under the Human Rights Act 1998 are discretionary. They may be awarded only where just and appropriate and necessary for just satisfaction. Other remedies, the seriousness and manner of the violation, the claimant’s conduct and comparable awards may be relevant. Claims should be resolved proportionately, using complaints procedures, ombudsmen or alternative dispute resolution where suitable.

[2003] EWCA Civ 1406 concerned three appeals heard together. Each claimant was an asylum seeker or refugee alleging that maladministration by a public authority had infringed Article 8 and entitled the claimant to damages under the Human Rights Act 1998.

In Anufrijeva v London Borough of Southwark, Newman J dismissed a claim that unsuitable accommodation and failures under the National Assistance Act 1948 had seriously impaired the family life of an elderly, ill family member. In R (N) v Secretary of State for the Home Department, Silber J found that serious administrative errors in an asylum claim, withdrawal of benefits and ensuing psychiatric illness infringed Article 8. In R (M) v Secretary of State for the Home Department, Richards J dismissed a claim based on delay in reuniting a recognised refugee with his family.

The common questions concerned the nature of Article 8 rights, the circumstances in which positive obligations and maladministration engage Article 8, the availability and assessment of damages, and proportionate procedures for resolving such claims.

1. Disposition. The Secretary of State’s appeal in R (N) v Secretary of State for the Home Department was allowed. The appeals in Anufrijeva v London Borough of Southwark and R (M) v Secretary of State for the Home Department were dismissed.
2. Article 8 protects personal integrity and the ability to conduct private and family life without unjustified interference. It may impose positive obligations, including exceptionally an obligation to provide welfare support. It nevertheless creates no general entitlement to a home or financial assistance. Support for an individual will rarely be required under Article 8 where the circumstances are insufficiently severe to engage Article 3. Article 8 may be engaged more readily where support is necessary to preserve a family unit or protect children.
3. Positive obligations under Article 8 are not absolute. Maladministration infringes Article 8 only where there is an element of culpability, including at least knowledge that private or family life is at risk, and the impact is sufficiently serious and foreseeable. The court must consider both the degree of fault and the severity of the consequences. Isolated acts of significant carelessness will ordinarily be insufficient. Administrative delay requires substantial prejudice, as illustrated by Askar v United Kingdom.
4. A public authority’s acts may infringe Article 8 where it knows they are likely to cause psychiatric harm. Maladministration does not do so merely because stress causes psychiatric injury to an unusually susceptible person when that consequence was not reasonably foreseeable. The egg-shell skull principle forms no part of the test for breach under the Convention or the Human Rights Act 1998.
5. Damages are not recoverable as of right. Sections 6 to 8 of the Human Rights Act 1998 create a discretionary code under which an award must be just and appropriate and necessary for just satisfaction. Pecuniary loss caused by a breach may ordinarily be restored. Compensation for non-pecuniary harm depends on the gravity and manner of the violation, the loss suffered, other relief and the parties’ conduct. Where damages are appropriate, domestic tort awards, criminal-injury awards and ombudsman awards may provide rough guidance. Damages should not automatically be set below comparable tort awards, although awards for welfare-related maladministration will generally be modest. The approach to compensation in R (Bernard) v Enfield London Borough Council [2002] EWHC 2282 Admin was approved.
6. Damages claims for maladministration should ordinarily be brought in the Administrative Court and resolved summarily and proportionately. Courts should consider internal complaints, ombudsmen, mediation and other alternative procedures before permitting expensive adversarial litigation.
7. Southwark had acted in good faith and made reasonable efforts to accommodate the Anufrijeva family; the conditions did not reach the Article 8 threshold. N’s psychiatric injury was not reasonably foreseeable, notwithstanding serious administrative errors. Delay in M’s family reunion caused no prejudice to the eventual decision and, viewed as a whole, disclosed no lack of respect for family life.

1. Court of Appeal (Civil Division): In Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406, the court dismissed the appeals of Anufrijeva and M and allowed the Secretary of State’s appeal in N.
2. Queen’s Bench Division — Anufrijeva: Newman J dismissed the Article 8 damages claim, finding no breach.
3. Queen’s Bench Division — N: Silber J found that maladministration and resulting psychiatric harm infringed Article 8. That decision was reversed.
4. Queen’s Bench Division — M: Richards J dismissed the claim arising from delay in family reunion. That decision was affirmed.