McDonagh, R (on the application of) v London Borough of Enfield

A breach of the interim accommodation duty under Part VII of the Housing Act 1996 does not, by itself, establish a breach of Article 8. The court must assess the nature and culpability of the breach, its practical effect on private and family life, whether there is a direct and immediate link between the measures sought and those interests, and the fair balance between the individual and the general interest. Positive obligations under Article 8 may arise in housing cases, particularly where family life or physical and psychological integrity is seriously affected, but such cases are rare. On the facts, the authority had breached section 188(1), but the impact, culpability, resource constraints and continuing family life did not establish an Article 8 incompatibility.

The claimant lived with her children in accommodation unsuitable for her wheelchair-using son, who could not access the upstairs bathroom or toilet. She applied to the defendant for accommodation in March 2015. The defendant treated the application under Part VI rather than Part VII of the Housing Act 1996, and did not accept a full homelessness duty until February 2018. Suitable accommodation was provided in March 2018.

The claimant abandoned her claim for mandatory relief and sought damages for breach of Article 8, alleging that the defendant had failed to accept a Part VII application and to secure interim accommodation. The central issues were whether the authority had breached its statutory duties, whether that breach was incompatible with Article 8, and whether damages were appropriate.

1. Statutory duty. The substance of the information supplied, rather than the form of an application, determines whether Part VII of the Housing Act 1996 is engaged. The threshold in section 183(1) is low. An applicant may be homeless under section 175(3) despite having accommodation if it would not be reasonable to continue occupying it. The claimant’s March 2015 application, read with the existing occupational therapy assessment, gave the authority reason to believe that she might be homeless.
2. The authority should therefore have made inquiries under section 184(1). By December 2015, following further evidence, the interim duty under section 188(1) had arisen. That duty required the authority to secure accommodation pending its decision under the later provisions of Part VII. It was unqualified and could not be deferred, although the court would not enforce it unreasonably. The authority failed to take all reasonable steps and was in breach from December 2015 until February 2018.
3. Article 8. Statutory breach alone did not establish an Article 8 violation. Article 8 can impose positive obligations, including in cases involving unsuitable accommodation, but the court must examine all the circumstances. Relevant considerations included the degree of culpability, the direct and immediate link between the measures sought and private or family life, the practical availability of suitable accommodation, the margin of appreciation and resource implications, and the actual effect on the claimant’s own rights. The family remained together and was not street homeless. The claimant’s additional caring burden was substantial, but did not deny her physical or psychological integrity or family life. The circumstances were materially less severe than in R (Bernard) v Enfield London Borough Council.
4. The claim for Article 8 damages was dismissed. The court observed that, had an infringement been established, damages would not necessarily have been required for just satisfaction; a declaration might have sufficed. Any award would have been modest and aggravated damages were not justified.