XPQ v The London Borough of Hammersmith and Fulham

A local housing authority’s statutory duty to secure interim accommodation does not, without more, create a private law claim for damages. For a recognised victim of trafficking, accommodation under Part VII of the Housing Act 1996 must be understood as requiring accommodation that is safe and appropriate, including protection against re-trafficking where the circumstances warrant it. That interpretation does not displace the rule that breach of the statutory duty is not actionable in damages.

Article 11 of Directive 2011/36/EU was too broad and discretionary, in the relevant respects, to have direct effect. Convention rights and common law did not create an exceptional duty to compensate for harm caused by independent third parties.

The claimant was a recognised victim of trafficking who applied to the defendant local housing authority for assistance after leaving safe accommodation. The authority accepted that it owed the interim accommodation duty under section 188(1) of the Housing Act 1996, and placed her first in mixed-sex temporary accommodation in Wembley, then in Tottenham, before moving her to self-contained accommodation in Shepherd’s Bush.

She claimed damages and declarations based on the Housing Act 1996, Directive 2011/36/EU, the European Convention on Human Rights, the EU Charter and common law negligence. The central issues were whether Article 11 had direct or indirect effect, whether the statutory and Convention framework created an actionable duty, and whether the accommodation decisions or third-party conduct caused legally recoverable loss.

1. The claim was dismissed. The court held that O’Rourke v Camden LBC [1998] AC 188 was binding. Section 188 of the Housing Act 1996, like its predecessor, did not create a private law cause of action for damages.
2. Article 11 of Directive 2011/36/EU was not directly effective in the relevant respects. The obligations to provide assistance and support, including appropriate accommodation and subsistence, left substantial choices to Member States and were not sufficiently precise or unconditional. The court did not exclude direct effect for other parts of the Directive.
3. The Directive nevertheless required purposive interpretation of domestic legislation. For a person conclusively recognised as trafficked, suitable accommodation under Part VII could be understood as safe and appropriate, including protection against re-trafficking. That interpretation did not create a damages remedy because the right remained one conferred by the Housing Act 1996.
4. The protection contemplated by Article 11 was qualitative rather than subject to a fixed 45-day limit. Its duration depended on whether circumstances had improved so that protection was no longer necessary.
5. The Convention rights, the EU Charter and common law negligence did not take the claim further. The authority was not generally liable for harm caused by independent third parties. No special proximity-based duty arose, and the court could not distinguish O’Rourke, Mitchell v Glasgow City Council [2009] UKHL 11 or Mitchell v Chief Constable of South Wales [2015] UKSC 2.
6. The evidence did not establish the alleged Tottenham incident or most alleged conditions at Rose Lodge. The initial allocation was not shown to be negligent or unlawful on the information reasonably available. The authority should have moved the claimant more quickly after reported harassment, but there was no private law duty and no proved loss caused by the delay.

First-instance decision. No earlier appellate decision is stated in the judgment.