Breach of ECHR Article 8

May 31st, 2018 by James Goudie KC

In R (McDonagh) v Enfield LBC (2018) EWHC1287 (Admin) the Council was found to be in breach of the homelessness legislation, but there was no entitlement to damages for that breach under ECHR Article 8.  Breaches of statutory duty under Part VII of the Housing Act 1996 do not by themselves constitute contraventions of Article 8.  In all the circumstances of the case the Council had not acted incompatibly with Article 8.  A number of matters led the Judge to that conclusion.

Firstly, in considering all the circumstances of the case, it is important to consider not merely the fact of a breach of statutory duty, but also the nature of any breach. Here, the Defendant was making efforts to find suitable accommodation for the Claimant and her family. It was in breach of statutory duty because it could and should have taken more steps by recognising its duties lay under Part VII, but this was not a case of a flagrant breach where the Claimant’s needs were wholly disregarded. The degree of culpability on the Defendant’s part was not great.Secondly, it is crucial for the Court to consider whether there is a “direct and immediate link between the measures sought by the Claimant and her private and/or family life”: Botta v Italy (1998) 26 EHRR 241at [34]. The measures sought were to secure the availability of interim accommodation on a homelessness application. Looked at in the round, it was not obvious that the measures sought, if implemented, would have contributed positively to the development of the personality and integrity of the Claimant to a substantially greater extent.

Thirdly, the Court should take into account the fair balance that has to be struck between the general interest and the interests of the individual. In this case that balance involved taking account of the practical difficulties the Defendant did have in finding suitable accommodation, and would have had in any event.

Fourthly, it is the Claimant’s right to privacy or family life that must be considered.

Fifthly, although not determinative, it is relevant that the Claimant’s family has not been divided, they have not been made “street homeless”, and at all times they have lived, four of them, in what can be described as a three-bedroom house. Family life did continue, although under significant strain.

Sixthly, the Judge took into account the Court of Appeal’s observation in Anufrijeva v Southwark LBC (2003) EWCA Civ 1406 in the context of the positive obligation, that they found it hard to conceive of a situation in which the predicament of an individual will be such that Article 8 requires her to be provided with welfare support, where her predicament is not sufficiently severe to engage Article 3, contravention of which was not argued by the Claimant in the present case. Whilst the Court of Appeal accepted that Article 8 may more readily be engaged where a family unit is involved, their observation points to the rarity of the circumstances in which the Courts are likely to find a breach of the Article 8 positive obligation in cases where, as here, the circumstances are not so severe as to constitute an Article 3 infringement.

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