In a landmark judgment for local authorities, the Court of Appeal has found the Housing Act 1996 does not create a common law duty of care to individuals in relation to housing applications. Had a duty of care been found to exist, this would have opened the floodgates for such claims at significant cost to already financially-stretched local authorities. Several cases currently 'waiting in the wings' will no longer be proceeding on this issue.
The Applicant was the administratrix of the estate of her late son, Mr Lee Rabbetts. In April 2010 Mr Rabbetts was diagnosed with acute myeloid leukaemia and underwent a bone marrow transplant and chemotherapy. He went to live with his mother, sister and her child in rented accommodation provided by the local authority.
In September 2010, Mr Rabbetts made a formal application for housing supported by requests from his GP, a Consultant Haematologist and a health visitor. It was made on the basis that living with his sister and a young baby put his health at risk due to potential infections. Mr Rabbetts' application was approved in December 2010 however the Defendant informed him this did not mean he would be re-housed in the near future.
Housing entitlement and relative need is determined by a points based system. Between 0-50 points are available if the applicant has a medical condition, however 200 'priority' points can be granted where a life threatening condition is seriously affected by their housing. The Defendant took the view that Mr Rabbetts was entitled to 50 points.
On 21 December 2010 his sister and her child were found to have infections. Mr Rabbetts developed a dry cough and was hospitalised on 3 January 2011. Tragically, he died from influenza on 23 January 2011.
Ms Darby issued proceedings and claimed the local authority owed a common law duty of care to provide her late son with housing, having regard to his medical condition, which would ensure he was safe from infection.
Clyde & Co, instructed by the Defendant, defended the claim on the basis no duty of care was owed under the Housing Act. At first instance HHJ McKenna agreed and struck out the Particulars of Claim pursuant to CPR 3.4(2) (a) as disclosing no reasonable grounds for bringing the claim and granted summary judgment to the Defendant.
HHJ McKenna refused permission to appeal and a further application for permission was refused on the papers by Tomlinson LJ. The Senior President of Tribunals directed an application for permission be listed before the full Court of Appeal, with the appeal to follow if permission was granted.
The Court of Appeal
The Claimant applied for permission to appeal on 3 grounds:
- The case should not have been struck out at such an early stage as the law in this area was still developing.
- The Defendant had a duty to take reasonable care to evaluate Mr Rabbetts' application in accordance with its statutory obligations so as to avoid causing him injury.
- The judge at first instance should have taken into account the obiter dicta of Lord Scott in Jain v Trent SHA  UKHL 4 where he said 'it might be fair and reasonable to conclude the authority did owe a common duty of care to the residents of a nursing home or a care home if conditions at the home warranting the exercise of the authority's statutory powers had come to the authority's attention but nothing had been done'.
The Court of Appeal refused to grant permission to appeal on any of the three points.
Lady Justice Thirlwall held the law is settled in this area and the legislative intention of the Housing Act 1996 is not to create a duty which is actionable in tort. The Act is a 'scheme of social welfare intended to confer benefits at the public expense on grounds of public policy'.
Furthermore, Counsel for the Claimant did not provide any coherent explanation as to how a common duty of care arose, as he did not try to establish the three stage Caparo test imposing a duty of care.
Moreover, there was no question of a voluntary assumption of responsibility in a situation where a local authority is bound to act under the Housing Act. The fact that the local authority was informed of the situation cannot, without more, give rise to a duty of care at common law.
What can we learn?
- The Housing Act 1996 does not create a duty which is actionable in tort. In order to give rise to a cause of action sounding in damages, there has to be legislative intention to create such a right.
- There is no such legislative intention with the Housing Act 1996. The purpose of the Act is to benefit social welfare in general and not for particular individuals.
- The case reaffirmed the decision in Gorringe v Calderdale MBC  UKHL 15: "Where there is no claim for breach of statutory duty, as here, and no duty of care arises under the general law, Parliament is taken to have intended that no common law duty of care existed."
- These types of cases are unlikely to pass the 'proximity' test under the third limb of the Caparo test. A local authority who is merely informed of a situation will not be said to have the necessary proximity required to establish a duty of care.
- For example, if a homeless person applies for housing and is granted accommodation, but whilst this rehousing is underway they suffer an infection, a claim that the local authority breached their duty of care by not placing them in housing and caused injury as a result, is unlikely to succeed as the local authority has properly fulfilled their statutory functions of considering an application for rehousing and granting it.
- Lord Scott's obiter dicta in Jain v Trent SHA  UKHL 4, paragraph 20, does not provide the building blocks to establish a duty of care in these types of cases.
- It will only be in very limited circumstances that a public authority acting under statute will be held to owe a common law duty of care.