SZR v Blackburn with Darwen Borough Council

On an application for summary judgment or strike out, the court must apply the Easyair principles. It may examine evidence to identify assertions having no real substance, but must not resolve disputed facts or conduct a mini-trial.

In an Article 3 claim based on prolonged neglect, the threshold is assessed cumulatively and in light of all the circumstances, including duration, effects, age, sex and health. Fluctuating conditions may still create a real and immediate risk where deterioration is recurrent and potentially indefinite. Article 8 has distinct criteria from Article 3 and may be engaged by the same facts even where Article 3 is not.

The claimant, a protected adult with autism, ADHD and learning difficulties, alleged that the defendant local authority failed over several years to protect her from serious neglect while she lived with her mother. She brought claims under articles 3 and 8 of the European Convention on Human Rights pursuant to section 6 of the Human Rights Act 1998.

The defendant applied for summary judgment under CPR 24.2, alternatively strike out under CPR 3.4(2)(a), arguing that the pleaded treatment did not meet the Article 3 threshold, that no real and immediate risk was established, that reasonable protective measures had been taken, and that causation was absent. It also argued that the Article 8 claim was inadequately pleaded and necessarily failed with the Article 3 claim. The central issue was whether either claim was unsuitable for trial or had no realistic prospect of success.

1. Applications dismissed. The factual basis was fluid and contained serious live issues, particularly concerning the cumulative effect of the alleged neglect, the risk confronting the authority at different times, the adequacy of interventions and causation. Those issues made strike out or summary judgment inappropriate where their resolution would require a mini-trial.
2. The claim differed materially from AB v Worcestershire County Council and Birmingham City Council. It was advanced only cumulatively over approximately four years, rather than by reference to a finite number of incidents. The court therefore had to consider the overall impact of the pleaded treatment, while examining the records only so far as necessary to determine whether the factual assertions had no real substance or were contradicted. It could not resolve disputes by selecting between competing chronologies or assessing contested professional evidence.
3. The Article 3 threshold was arguably met. Severity is relative and fact-specific. Duration, physical or mental effects, age, sex and health were relevant. Actual bodily harm or intense suffering was not required for degrading treatment. The pleaded combination of squalid and fluctuating conditions, poor hygiene and clothing, untreated medical needs, isolation, impaired education, vulnerability and prolonged neglect could objectively diminish human dignity. The fluctuating pattern did not necessarily remove a continuing risk where deterioration repeatedly followed short-lived improvements.
4. The real and immediate risk issue was unsuitable for summary determination. Whether interventions temporarily removed the risk, or whether the risk remained present and continuing because the claimant could not sustain improvements, required findings of fact. The pleaded case also gave a realistic basis for arguing that the authority knew or ought to have known of the risk from its contemporaneous records.
5. The breach and causation issues remained realistically arguable. The expert evidence identified earlier opportunities for legal intervention and removal, and the court could not decide at this stage whether those conclusions would be accepted. The claimant also needed to show only a real prospect of altering the outcome or mitigating the harm, not necessarily that the harm would have been wholly avoided on a strict but-for basis.
6. The Article 8 claim was properly pleaded on the same factual matrix. Article 8 and Article 3 have different criteria, not merely different levels of seriousness. Prolonged neglect capable of impairing physical and psychological integrity could engage Article 8 even if Article 3 ultimately failed.