Suspension and/or consequential publicity may damage reputation. When it does so Article 8 may be engaged.  Proportionality will then apply to the suspension.  See paragraphs 95-98 inclusive of Divisional Court Judgment in R (Crompton) v Police and Crime Commissioner for South Yorkshire (2017) EWHC 1349 (Admin).

In Poshteh v Kensington and Chelsea RLBC (2017) UKSC 36 the appellant arrived in the UK in 2003 as a refugee from Iran, where she had been subject to imprisonment and torture. She gained indefinite leave to remain in 2009, the year in which she applied to the respondent council for accommodation as a homeless person. In November 2012 the respondent offered the appellant accommodation in Norland Road, London in a first floor, two-bedroom flat. The appellant’s concerns about the physical features of the property (including the small size of the windows) were first raised in correspondence of 29 November 2012, including a letter from the appellant’s therapist and her GP, and in a solicitors’ letter of 30 August 2013. The appellant ultimately refused this “final offer” of permanent accommodation at the property on the basis that it had features which reminded her of her prison in Iran and which would exacerbate her post-traumatic stress disorder, anxiety attacks and other conditions. Read more »

Those who have incurred financial obligations in reliance on a statute have a legitimate expectation that the statute would not be retrospectively repealed or otherwise invalidated to their detriment. Their right to recover costs constituted a right under Article 1/1 of the ECHR.  A newspaper publisher’s freedom of expression under Article 10 is also a fundamental principle.  However, in the circumstances of Times Newspapers v Flood [2017] UKSC 33 the Supreme Court held that the Art 1/1 rights prevailed.

In SXH v CPS [2017] UKSC 30 the Supreme Court held that, although ECHR Article 8 is broad, it is not so broad as to encompass everything done by a public authority which has the consequence of affecting someone’s private life in a more than minimal way. Neither the Strasbourg authorities nor domestic case law supports the contention that the institution of criminal proceedings, for a matter which is properly the subject of the criminal law and for which there is sufficient evidence, may be open to challenge on Article 8 grounds. It would be illogical; for if the matter is properly the subject of the criminal law, it is a matter for the processes of the criminal law. The criminalisation of conduct may amount to an interference with Article 8 rights. However, if it does not amount to an unjustifiable interference, then neither does the decision to prosecute for that conduct.

It was argued that Article 8 applied to the decision to prosecute for two reasons: it “targeted” conduct which was itself protected by Article 8, and its consequences were to interfere with the enjoyment of the appellant’s private life. It was submitted that the range of Article 8 is broad, that the threshold for it to apply is low, and that it is almost inevitable that the decisions of the CPS, as a public body, will impact on the private life of the defendant and so engage Article 8.  It was argued that anything done by a public body which has the consequence of affecting someone’s private life in a more than minimal way involves interference with respect for it within the meaning of Article 8.

The Supreme Court said that, broad as Article 8 undoubtedly is, the consequentialist argument advanced was far too broad. Lord Toulson took an example far removed from the present case. If a highway authority closes a road for roadworks, or introduces a partial closure, there may be a more than minimal effect on how long it takes residents to get to work, but that cannot be enough to make Article 8 applicable. “Such matters are part of the ordinary incidents of daily life in a community and involve no lack of respect for personal autonomy of the kind which Article 8 is designed to protect”.

In HB v A Local Authority and The Local Government Association (2017) EWHC 524 (Fam) MacDonald J rejected an argument that the High Court had by reference to ECHR Articles 6 and/or 8 to order a local authority to fund the legal costs of a person denied legal aid on means test grounds without breach of the ECHR and lawfully.  The argument constituted an impermissible attempt to circumvent the jurisdiction of the Administrative Court operating by reference to judicial review principles.  Nor did the inherent jurisdiction of the High Court with respect to children give it the power to require a local authority to incur expenditure to fund the legal representation of a litigant who had been lawfully refused legal aid in accordance with the statutory legal aid scheme put in place by Parliament. Authority for public expenditure required clear statutory authority.  This had to be in clear, express and unambiguous language.  Within that context, a general power or duty could not be used to circumvent a clear statutory code. The examples of cost funding jurisdictions relied on as indicating that the Court could properly find a power under the inherent jurisdiction to make a costs funding order against the local authority each had as their foundation a clear and unambiguous statutory power to award funds for a specific purpose.  There was no suggestion in the statutory code that Parliament intended the civil Courts to be able to make orders providing the funding for advice and representation outside the terms of the statutory scheme.  In circumstances where the Legal Aid Agency had taken a lawful decision by reference to a lawful and comprehensive statutory scheme to refuse legal aid, an order under the inherent jurisdiction for public funding from an alternate public authority for the same purpose would plainly constitute an attempt to sidestep a clear statutory code using a general power.

The unanimous Supreme Court Judgment on 8 February 2017 (2017) UKSC 8 on the Northern Ireland application for judicial review by Denise Brewster, allowing her appeal from a majority Judgment of the Northern Ireland Court of Appeal (2013) NICA 54 concerned a requirement in the Northern Ireland Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2009 (the “2009 Regulations”) that unmarried co-habiting partners be nominated by their pension scheme member partner in order to be eligible for a survivor’s pension. There is no similar nomination requirement for married or civil partner survivors. The Northern Ireland High Court held that the requirement of nomination of a cohabiting partner in the 2009 Regulations was incompatible with Article 14 of the European Convention on Human Rights (which prohibits discrimination) read together with Article 1 Protocol 1 (peaceful enjoyment of possessions) (“A1P1”). The Court of Appeal allowed the respondents’ appeal, finding that the nomination requirement was neither unjustified nor disproportionate. In the meantime, prompted by the judgment of the High Court, the equivalent regulations in England and Wales and in Scotland were amended to remove the nomination requirement in those schemes. When the appellant became aware of these changes, she applied for her appeal to be re-opened. Read more »

In Ansari v Aberdeen City Council (2017) CSIH 5 the Inner House of the Court of Session held that the Council owed no relevant duty to Mr Ansari under ECHR 5 to provide a reasonable opportunity for him to rehabilitate himself, in accordance with R (Haney) v Secretary of State for Justice (2015) AC 1344.  He claimed that both Scottish Ministers and the Council were in breach of that duty.  The issue was whether a relevant case had been made against the Council.  He argued that all public authorities were bound to act compatibly with ECHR rights, and that for the rights he claimed to be effective, both respondents should be subject to the duty to provide him with a reasonable opportunity for rehabilitation, having regard to the various statutory responsibilities on the Council. There was a risk of a gap he argued between the obligations arising in statute and the prisoner making progress in the phase of being partly in prison and partly outside prison.

Delivering the opinion of the Court, Lord Bracadale, who sat with Lady Paton and Lord Malcolm, said, at paragraph 26, that the duty in question was imposed on the State. It had the power to detain the prisoner relying on Article 5(1)(a), and implicitly also the duty to provide the prisoner with a reasonable opportunity to rehabilitate himself and to demonstrate that he no longer presented an unacceptable danger to the public. The Scottish Ministers accepted that the duty is incumbent on them.

“In our view”, he continued, at paragraph 27, “the Lord Ordinary was correct to hold that the local authority is in a different position. It is not responsible for the detention or release of the prisoner. It is not required to justify the continued detention for public protection reasons. The role of the local authority is to provide assistance in certain areas of the rehabilitation process before and after release. In carrying out its role in relation to rehabilitation of a prisoner the local authority operated on behalf of the Scottish ministers”. Since the Ministers accepted the duty on them, “no question of a duty gap arises”.

The fact that the Council was a public authority “does not create a freestanding duty to provide the petitioner with reasonable opportunities for rehabilitation in circumstances in which the [council is] not responsible for his imprisonment or release… The local authority having no responsibility for the decision to continue the detention of the petitioner, there is no basis for reading into article 5 an implied duty incumbent on it to facilitate his release”: paragraph 29.

In GD v Wakefield Council and West Yorkshire Police (2016) EWHC 3312 (Fam) Cobb J awarded damages for the significant harm caused by local and police authorities that had breached the ECHR Articles 6 and 8 rights of a mother and her two children in the conduct of investigations and public law proceedings under Part IV of the Children Act 1989.

In Hackney LBC v Haque (2017) EWCA Civ 4 the Council as local housing authority succeeded in an appeal against a decision that it had failed to comply with the Public Sector Equality Duty when determining whether accommodation which it provided pursuant to its duties under Part VII of the Housing Act 1996 (“HA 1996”) to a disabled homeless man was suitable. The duty in question was the full housing duty under Section 193.  These duties had been considered by the Supreme Court in Hotak v Southwark LBC (2016) AC 811. In the Hotak case, the PSED impacted upon the housing authority’s determination of the question whether the applicant had a priority need ie whether the authority owed him the full housing duty at all. In the Haque case the PSED impacted upon the question, raised by an applicant to whom the full duty is owed, whether the accommodation already provided was “suitable” within the meaning of HA Sections 206 and 210.  The PSED is of course engaged in the course of any decision-making about the suitability of accommodation made available for occupation under HA Section 193(2), when the applicant is in priority need for accommodation because he is vulnerable as a result of disability. This is because that person has a disability within the meaning of Section 6 of the Equality Act 2010 (“EA”), and because disability is a relevant protected characteristic which attracts the PSED, under EA Section 149. Read more »

In the light of the PSED under Section 149 of the Equality Act 2010, what is the extent of the duty of a local housing authority under Section 184 of the Housing Act 1996 to inquire into whether the children of a mother applying for homelessness assistance may have a disability as defined by Section 6 of the 2010 Act requiring special arrangements to be made? That is the question considered by the Court of Appeal in Birmingham City Council v Wilson [2016] EWCA Civ 1137. There was a good deal of common ground between the parties on the legal issues which the Court approved and applied:-

(1)       The relevant duty of inquiry, to which the City Council was subject, whether under Section 184 of the 1996 Act, or under general principles of public law, is an obligation to take reasonable steps to inform itself of matters relevant to the carrying out of its tasks of assessing the application under Section 193 of the 1996 Act, and of doing so in a manner compatible with its PSED under Section 149 of the 2010 Act;

(2)       As to the scope of the duty of inquiry under general public law, it is for the decision-maker and not the Court, subject to Wednesbury review, to decide upon the manner and intensity of enquiry to be undertaken into any relevant factor accepted or demonstrated as such;

(3)       Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely;

(4)       A Court should be hesitant to intervene upon review in a housing appeal if the appellant’s ground of appeal relates to a matter which the reviewing officer was never invited to consider, and which was not an obvious matter he should have considered;

(5)       The impact of the PSED now contained in Section 149 of the 2010 Act is to introduce a culture of greater awareness of the existence and legal consequences of disability;

(6)       In circumstances in which a decision-maker under Section184 of the 1996 Act (or a reviewing officer under Section 202) is not invited to consider an alleged disability, it would be wrong to say that he or she should consider disability only if it is obvious;

(7)       On the contrary, he or she needs to have due regard to the need to take steps to take account of it;

(8)       The relevant question has, in the light of the PSED, become whether there has been a failure to make inquiry in relation to some feature of the evidence presented as “raised a real possibility” of disability in a relevant sense; and

(9)       The question whether the evidence presented raises a “real possibility” that any applicant for housing assistance is disabled is to be assessed by looking to see whether the Council officer subjectively considers that such a “real possibility” arises or acts in a Wednesbury irrational way in concluding that it does not.