Darby v Richmond on Thames London Borough Council

Statutory housing-allocation functions do not, without more, create a common-law duty of care to an applicant, even where the authority knows of a life-threatening medical condition. The claimant must identify a recognised basis in general law, such as voluntary assumption of responsibility, and establish proximity and the third limb of the Caparo test. A statutory social-welfare scheme and comprehensive public-law remedies may show that Parliament did not intend a damages remedy. Alternative remedies are assessed by what they purport to provide, rather than by variable practical effectiveness. A broader human-rights approach in child-protection cases does not extend to this housing context.

The claimant, administratrix of her late son’s estate, alleged that the respondent council negligently failed to award him sufficient housing-priority points despite medical evidence that his accommodation exposed him to serious infection. He died after allegedly contracting an infection from family members living in the same home.

HHJ McKenna struck out the Particulars of Claim and granted summary judgment to the council. Permission to appeal was refused below and on paper, but the renewed application was listed before the full Court of Appeal. The central issue was whether the pleaded facts could establish a common-law duty of care arising from the council’s statutory housing-allocation functions.

Lady Justice Thirlwall delivered the leading judgment, with Lady Justice Black and Lady Justice Sharp agreeing. The court refused permission to appeal.

1. At the strike-out and summary-judgment stage, the pleaded factual allegations were taken at their highest. Even on that favourable basis, the claim had no coherent legal foundation and no real prospect of success. The fact that a development in the law would be needed did not prevent disposal of the claim.
2. The council’s statutory housing functions and its knowledge of the deceased’s medical condition did not, without more, create a common-law duty of care. The proposed duty had no coherent basis in voluntary assumption of responsibility, the relationship was at least insufficiently proximate, and the claim could not arguably satisfy the third limb of the Caparo test. A council bound to act under the Housing Act 1996 did not voluntarily assume responsibility merely by receiving medical information.
3. The reasoning in O’Rourke v Camden LBC [1998] AC 188 was pertinent. A statutory duty enforceable by judicial review did not necessarily carry a damages remedy. The social-welfare character of the statutory scheme indicated that Parliament had not intended a common-law damages duty. The principles in Rowley v Secretary of State for Work and Pensions [2007] 1 WLR 2861, Gorringe v Calderdale MBC [2004] UKHL 15, X v Hounslow LBC [2009] EWCA Civ 286 and Michael v Chief Constable of South Wales [2015] AC 1732 provided no basis for the claim.
4. Alternative remedies were relevant to legislative intention. Their efficacy was assessed by what they purported to provide within the statutory scheme, not by their fluctuating practical effectiveness. Judicial review, including urgent interim procedures, and recourse to the Ombudsman were comprehensive remedies and constituted an insuperable obstacle to the proposed duty.
5. The broader Human Rights-based approach recognised in child-protection cases, including JD v East Berkshire Community NHS Trust and others [2003] EWCA Civ 1151, [2004] QB 558, did not assist in a statutory housing-allocation case. The law was settled and there was no real prospect of a successful appeal.

1. Court of Appeal (Civil Division): On 11 April 2017, the court refused permission to appeal and held that the proposed common-law duty of care was not arguable.
2. High Court, HHJ McKenna: Struck out the Particulars of Claim as disclosing no reasonable grounds and granted summary judgment to the respondent. Permission to appeal was refused.
3. Further permission applications: Tomlinson LJ refused permission on the papers. The renewed oral application was directed by the Senior President of Tribunals to be heard by the full court, with the appeal to follow if permission were granted.