Bedford v Bedfordshire County Council

For a claim under the Human Rights Act 1998 concerning failure to protect an individual from criminal acts by a third party, pleading Article 8 does not avoid the stringent threshold applicable to Articles 2 and 3. The claimant must establish a real and immediate risk of serious harm to an identified individual, known or reasonably knowable to the public authority. Only then does the court consider whether reasonable steps were taken to remove or reduce the risk.

An extension of the one-year limitation period under section 7(5)(b) requires an assessment of all the circumstances, including delay, culpability, prejudice, proportionality and overall fairness. The claim was dismissed because time was not extended, the threshold was not met, and the authority had in any event taken reasonable steps.

The claimant suffered serious brain injury after being attacked by a looked-after child, AH, who had absconded from a privately operated children’s home arranged by the defendant local authority. The claim was brought solely under section 7 of the Human Rights Act 1998, alleging breach of Article 8 and seeking an extension of the statutory limitation period.

The court tried limitation, liability and causation together. The central issues were whether it was equitable to extend time, whether there was a real and immediate risk of serious harm to the claimant which the authority knew or ought to have known about, and whether reasonable protective steps had been taken.

1. Limitation. The court has an open-textured discretion under section 7(5)(b) of the Human Rights Act 1998. It must consider all relevant circumstances without assigning predetermined weight to particular factors. Relevant considerations included the length and culpability of the delay, actual prejudice, proportionality and overall fairness. The claimant’s lengthy and culpable delay, together with the costs and limited value of the claim, meant that an extension was not equitable.
2. Applicable Convention threshold. Although the claim was pleaded under Article 8, its substance concerned an alleged failure to protect against serious criminal violence. The reasoning in Osman v UK required proof of a real and immediate risk of serious harm to an identified individual or individuals, of which the authority knew or ought to have known. The relationship created by section 20 of the Children Act 1989 could affect knowledge and the reasonableness of preventive measures, but could not alter that threshold. The claimant was not an identified target and the risk was neither immediate nor specific to him.
3. Articles 2 and 3. The court held that the same threshold applied to claims under Articles 2 and 3. The claimant could not obtain a more favourable position by relying on Article 8. The environmental cases relied upon concerned risks created by the state, or identifiable classes exposed to such risks, and did not govern criminal acts by a non-state actor.
4. Reasonable steps. Even assuming a lower threshold, the authority ought to have regarded AH as a risk to the public. However, it had not acted unreasonably. The placement was acceptable, the authority maintained the required supervision and review arrangements, and it was entitled to rely on the home’s reports unless alerted to likely error or misrepresentation. Operational failings by the privately operated home were not attributable to the authority.
5. The claim therefore failed independently on limitation, failure to satisfy the Convention threshold, and failure to prove that the authority had not taken reasonable protective steps. The claim was dismissed, with judgment for the defendant.