Attorney General’s Reference (No 4 of 2002)
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Attorney General’s Reference (No 4 of 2002)
[2003]
EWCA Crim 762
CRIMINAL; Criminal
Evidence: HUMAN RIGHTS; Expression
COURT OF APPEAL, CRIMINAL
DIVISION
LATHAM LJ, HUNT AND HEDLEY JJ
25 FEBRUARY, 21 MARCH 2003
Criminal evidence –
Burden of proof – Statutory provisions imposing burden of proof on defendant –
Statutory provision requiring defendant to prove defence of proscribed
organisation not being proscribed on last or only occasion of membership or
professing of membership and of not taking part in activities of proscribed
organisation at any time while it was proscribed – Whether provision affecting
definition of offence – Whether provision compatible with presumption of
innocence under human rights convention – Whether provision compatible with
right to freedom of expression under human rights convention – Human Rights Act
1998, Sch 1, Pt I, arts 6(2), 10 – Terrorism Act 2000, s 11(1), (2).
Section 11(1)a of the Terrorism Act 2000 provides that a
person commits an offence if he belongs or professes to belong to a proscribed
organisation and s 11(2) provides that it is a defence for a person charged
with an offence under s 11(1) to prove that the organisation was not proscribed
on the last (or only) occasion on which he became a member or began to profess
to be a member, and that he has not taken part in the activities of the
organisation at any time while it was proscribed. The ingredients of the s 11(1) offence are
set out fully in s 11(1). It defines the
gravamen of the offence, even when read together with s 11(2) because s 11(2)
identifies a very specific exception applicable to a limited class of
defendants which does not in any affect or infect the criminal offence fully
identified in s 11(1). It is clear that
Parliament intended that a person should be guilty of an offence under s 11(1)
irrespective of whether or not he had played any active part in the proscribed
organisation. Section 11(2) therefore
does not breach art 6(2)b of the
European Convention for the Protection of Human Rights and Fundamental Freedoms
1950 (as set out in Sch 1 to the Human Rights Act
________________________________________
a Section 11, so far as material, is set out at
[3], below
b Article 6(2) provides: ‘Everyone charged with
a criminal offence shall be presumed innocent until proved guilty according to
law.’
________________________________________
1
1998) which provides
that everyone charged with a criminal offence is to be presumed innocent until
proved guilty according to law. The
defence in s 11(2) imposes a legal rather than an evidential burden of
proof on an accused and is compatible with arts 6(2) and 10c of the convention, subject to the caveat that
there may be circumstances in a particular case in which a provision such as s
11 might involve a disproportionate infringement of an individual’s rights to
freedom of expression under art 10, difficult though it may be to envisage such
a situation in the abstract (see [23], [25], [26], [38], [41]–[44], below).
________________________________________
c Article 10, so far as material, provides:
‘Everyone has the right to freedom of expression …’
________________________________________
Notes
For legal and evidential
burden of proof, for legal burden on accused, for the presumption of innocence
and for the right to freedom of expression, see 11(2) Halsbury’s Laws
(4th edn reissue), para 1062, Supp to 11(2) Halsbury’s Laws (reissue),
para 1064, 8(2) Halsbury’s Laws (4th edn reissue) paras 142, 158 and
159, respectively.
For the Human Rights
Act 1998, Sch 1, Pt I, arts 6, 10, see 7 Halsbury’s Statutes (4th edn)
(2002) reissue 554, 555.
For the Terrorism Act
2000, s 11 see 12 Halsbury’s Statutes (4th edn) (2002 reissue) 2072.
Cases referred to in
opinion
DPP v Watkins
[1989] 1 All ER 1126, [1989] QB 821, [1989] 2 WLR 966, DC.
Murray v UK
(1994) 19 EHRR 193, [1994] ECHR 14310/88, ECt HR.
R (on the
application of Grundy & Co Excavations Ltd) v Halton Division
Magistrates’ Court [2003] EWHC 272 (Admin), [2003] All ER (D) 322 (Feb),
DC.
R (on the
application of the Kurdistan Workers’ Party) v Secretary of State for
the Home Dept, R (on the application of the People’s Mojahedin
Organisation of Iran) v Same, R (on the application of Ahmed)
v Same [2002] EWHC 644 (Admin), [2002] All ER (D) 99.
R v Carass
[2001] EWCA Crim 2845, [2002] 1 WLR 1714.
R v Daniel
[2002] EWCA Crim 959, [2002] All ER (D) 354 (Mar).
R v DPP, ex p Kebeline, R v DPP, ex p Rechachi [1999] 4 All 801, [2000] 2 AC 326, [1999] 3 WLR 972,
DC and HL.
R v Drummond
[2002] EWCA Crim 527, [2002] 2 Cr App R 352.
R v Edwards (Errington)
[1974] 2 All ER 1085, [1975] QB 27, [1974] 3 WLR 285, CA.
R v Hunt (Richard)
[1987] 1 All ER 1, [1987] AC 352, [1986] 3 WLR 1115, HL.
R v Lambert (Stephen)
[2001] UKHL 37, [2001] 3 All ER 577, [2002] 2 AC 545, [2001] 3 WLR 206.
R v Whyte
(1988) 51 DLR (4th) 481, Can SC.
Salabiaku v France (1988) 13 EHRR 379, [1988] ECHR 10589/83, ECt HR.
Sheldrake v DPP
[2003] EWHC 273 (Admin), [2003] 2 All ER 497, [2003] 2 WLR 1629, DC.
Reference
Pursuant to s 36 of the
Criminal Justice Act 1972, the Attorney General referred to the Court of Appeal
for its opinion points of law arising on the acquittal of A, on 22 May 2002 in
the Crown Court, on an indictment containing counts of offences contrary to s
11(1) of the Terrorism Act 2000 of being a member and
2
professing to be a member of
a proscribed organisation. The questions
referred are set out at [2], below. The
facts are set out in the opinion of the court.
Timothy Owen QC
and Anne Richardson (assigned by the Registrar of Criminal Appeals)
for the acquitted person.
David Perry
and Melanie Cumberland (instructed by the Treasury Solicitor) for
the Attorney General.
Cur adv vult
21 March 2003. The following opinion of the court was
delivered.
LATHAM LJ.
[1] On 8 May 2002, the acquitted person ‘A’ appeared in the
Crown Court to stand his trial on an indictment which contained three
counts. The first two counts alleged
offences contrary to s 11(1) of the Terrorism Act 2000 of being a member of
(count 1) and professing to be a member of (count 2) a proscribed organisation,
namely Hamas-Izz al-din al Qassem Brigades (which we shall refer to as Hamas
hereafter). The third count alleged an
offence of witness intimidation, contrary to s 51 of the Criminal Justice and
Public Order Act 1994. On 21 May 2002,
at the conclusion of the prosecution evidence and following legal argument, the
trial judge ruled that there was no case to answer on counts 1 and 2 of the
indictment and, subsequently on 22 May 2002, a verdict of not guilty was
entered in respect of each of those counts.
So far as count 3 was concerned, the prosecution asked for it to remain
on the file marked: ‘Not to be proceeded with without the leave of the Crown
Court or the Court of Appeal.’
[2] Arising out of those proceedings, Her Majesty’s
Attorney General has referred the following two questions to this court under s
36 of the Criminal Justice Act 1972 for its opinion:
‘1. What are the ingredients of
an offence contrary to s 11(1) of the Terrorism Act 2000?
2. Does the defence contained in
s 11(2) of the 2000 Act impose a legal, rather than an evidential burden of
proof on an accused, and if so, is such a legal burden compatible with the
European Convention for the Protection of Human Rights and Fundamental Freedoms
[1950 (as set out in Sch 1 to the Human Rights Act 1998)], and in particular,
with arts 6(2) and 10 of the convention?’
[3] Section 11 of the Act provides as follows:
‘(1) A person commits an offence if he belongs or professes to belong to
a proscribed organisation.
(2) It is a defence for a person charged with an offence under
subsection (1) to prove—(a) that the organisation was not proscribed on the
last (or only) occasion on which he became a member or began to profess to be a
member, and (b) that he has not taken part in the activities of the
organisation at any time while it was proscribed.’
[4] A person charged with an offence under s 11 may be
tried summarily or on indictment. The
maximum penalty on conviction on indictment is ten years’ imprisonment.
3
[5] The facts out of which the prosecution arose were as
follows. The acquitted person arrived in
the United Kingdom on 20 April 2001 having travelled as a stowaway on a ferry
from Bergen, Norway. He gave his name as
‘A’ and his date of birth as 17 November 1980.
He described himself as a Palestinian and claimed political asylum. He was arrested and taken to a police
station, where he gave a different name and date of birth and described himself
as Jordanian. On 21 April 2001 he was
interviewed by immigration officers. He
said that he had been born in Bethlehem and was a Palestinian; that his parents
still lived in Palestine; that he had been shot and wounded by Israeli soldiers
in 1995; that his brother had been shot and killed by Israeli soldiers in 1999;
that he had left Palestine on 20 September 2000 to escape poverty, and that he
had travelled to the United Kingdom via Algeria, Turkey, Germany and
Norway. He was allowed temporary admission
into the United Kingdom and provided with accommodation at a local authority
hostel.
[6] It became apparent to those who were at the hostel with
him that he was multilingual. He
exhibited a keen interest in any news concerning Israel particularly after 11
September 2001. He made a number of
comments which would eventually lead to his arrest. These can be summarised as follows: (i) In
about October 2001, he told another resident at the hostel that he was prepared
to take a bomb to a public place like an English pub if he was asked to do so
by someone. He was prepared to blow it
up. He also said that this was ‘Jihad’
and if he did it did not matter. It was
not clear to the other resident whether he was serious or joking. (ii) When speaking to other residents in the
hostel he said on several occasions that he was a supporter and member of
Hamas, he expressed joy at 11 September bombing and said that he loved Osama
Bin Laden and supported the Taliban.
Some of the residents considered that he was a joker and did not take
him seriously. (iii) On 28 September
2001, while attending a course, he announced to his classmates and to the
lecturer that he was not afraid of any backlash following the events of 11
September because ‘my family name is Bin Laden’ and stated ‘I am a member of
Hamas’.
[7] He was arrested on 10 December 2001 and interviewed on
a number of occasions between 10 and 14 December 2001. The interviews may be summarised as follows:
(i) He admitted that he had been a member of Hamas from either 1997 or 1998,
but said that he had left in 1999 because he had discovered that it was
involved in the killing of innocent civilians.
(ii) During his time as a member he had received training in the use of
firearms and explosives and had been involved in attacks on the Israeli
army. (iii) His father belonged to but
was not an active member of Hamas. (iv)
He described Hamas as a military organisation and its members who died in the
Palestinian cause as martyrs. He could
not understand why it was seen as a terrorist group when its members were
merely trying to defend themselves against the Israelis. (v) He said that he had had nothing to do
with terrorism since he had arrived in the United Kingdom and had not come to
this country to cause trouble. Although
he would not use explosives in the United Kingdom, he would do so if he was in
Palestine. (vi) He denied the
conversations attributed to him by the witnesses at the hostel and the
college. (vii) He declined to give
details of the membership of Hamas or how it was financed.
[8] He was charged with the two offences which became the
first two counts in the indictment and was remanded in custody. Whilst in custody, he wrote a letter to the
lecturer who was to be a prosecution witness which was said to have
4
been intended to
intimidate. It is not necessary for the
purposes of these proceedings to deal with this offence in any greater detail.
[9] At the Crown Court, counsel for the Crown accepted that
the acquitted person only bore an evidential burden in relation to the defence
under s 11(2) of the Act. In other words
he accepted that as the defendant was able to raise upon the evidence a real
issue as to whether or not he had become a member of Hamas, or professed to be
a member of Hamas, before it was a proscribed organisation, it was for the
prosecution to establish to the criminal standard of proof that either his
membership or professed membership had been after Hamas had been proscribed, or
that he had taken part in the activities of the organisation after it had been
proscribed. On the basis of that
concession by counsel for the Crown, the judge concluded that the acquitted
person had sufficiently raised the issue as to when he first became a member of
or professed membership of Hamas, and that the prosecution had failed to establish
to the criminal standard of proof that he had taken part in the activities of
Hamas since proscription. The Attorney
General, in referring the matter to this court, is principally concerned with
whether or not counsel for the prosecution was correct to concede that the
acquitted person only had an evidential, as opposed to a legal burden of
establishing the defence under s 11(2) of the Act.
[10] Counsel for the Crown clearly made his concession on
the belief that s 11(2) if construed so as to impose a legal burden of proof,
that is the task of proving the defence on the balance of probabilities, would
conflict with the presumption of innocence, and would accordingly be a breach
of art 6(2) of the convention. He did so
on the basis of the decision of the House of Lords in R v Lambert (Stephen)
[2001] UKHL 37, [2001] 3 All ER 577, [2002] 2 AC 545, in which the House,
strictly speaking obiter, determined, by a majority, that the provision with
which the House was concerned, apparently imposing a legal burden on a
defendant to establish a defence would, so construed, amount to a breach of art
6(2); but their Lordships concluded that the provision could, in accordance
with s 3(1) of the Human Rights Act 1998, be construed so as to impose an
evidential burden only and would be proportionate and accordingly compatible
with the convention.
[11] Since the case of R v Lambert there have been a
number of cases in which the courts have grappled with the issue of how to deal
as a result with statutory provisions providing for a defence to a charge. In R v Drummond [2002] EWCA Crim 527,
[2002] 2 Cr App R 352 and Sheldrake v DPP [2003] EWHC 273 (Admin),
[2003] 2 All ER 497, [2003] 2 WLR 1629 the courts considered provisions of the
Road Traffic Acts. In R v Carass
[2001] EWCA Crim 2845, [2002] 1 WLR 1714 and R v Daniel [2002] EWCA Crim
959, [2002] All ER (D) 354 (Mar), the courts considered provisions of the
Insolvency Act 1966. In R (on
the application of Grundy & Co Excavations Ltd) v Halton Division
Magistrates’ Court [2003] EWHC 272 (Admin), [2003] All ER (D) 322 (Feb) the
court considered provisions of the Forestry Act 1967. This is not an exhaustive list of the cases
in which the ambit of the decision of the House of Lords in R v Lambert
has been considered. But they highlight
a number of difficulties that are arising in practice, and indeed an apparent
divergence of views that have emerged as to the right approach to this
problem. In R v Drummond and the
Halton Magistrates case the courts held that the statutory provisions in
question imposed a legal burden of proof on a defendant which was justified and
proportionate in the public interest in its context, albeit prima facie in
conflict with the presumption of innocence.
In R v Carass and Sheldrake v DPP the courts
applied the reasoning of the House of Lords in R v
5
Lambert to construe what was apparently the imposition of a
legal burden of proof as imposing merely an evidential burden of proof. In R v Daniel, the court held that it
was bound by the decision in R v Carass but had clear reservations about
the ability of the court to construe words which on their face appeared to
impose a legal burden of proof as imposing merely an evidential one.
[12] The varying consequences of the application of the
views of the House of Lords in R v Lambert in these cases makes it clear
to us that the first task of the court in this type of case is to determine the
meaning of the statutory provision in question on ordinary canons of
construction and to identify the context in terms of the mischief to which the
statutory provisions are directed before turning to determine the effect of the
1998 Act and the convention.
[13] The 2000 Act replaced the Prevention of Terrorism
(Temporary Provisions) Act 1989 and the Prevention of Terrorism (Additional
Powers) Act 1996, together with acts relating to Northern Ireland. Its long title provides:
‘An Act to make provision about terrorism; and to make temporary
provision in Northern Ireland about the prosecution and punishment of certain offences,
the preservation of peace and the maintenance of order.’
[14] It was expressly subjected to an audit under the 1998
Act; and a statement of compatibility was made to Parliament pursuant to s 19
of that Act. The purpose of the Act is
self-evident. It provides the measures
which Parliament considers necessary to prevent political or paramilitary
violence and thereby protect the citizens of the United Kingdom, and enable a
democratic society to operate without fear.
It also contains measures which are designed to prevent the United
Kingdom from being used for the purposes of terrorism outside the
jurisdiction. It is universally
acknowledged that terrorism is particularly difficult to counter. The European Court of Human Rights
acknowledged that full account had to be taken of the special nature of
terrorist crime and the threat which it posed to a democratic society in
Murray v UK (1994) 19 EHRR 193 at 222 (para 47).
[15] Section 1 of the Act provides:
‘(1) In this Act “terrorism” means the use or threat of action where—(a)
the action falls within subsection (2), (b) the use or threat is designed to
influence the government or to intimidate the public or a section of the
public, and (c) the use or threat is made for the purpose of advancing a political,
religious or ideological cause.
(2) Action falls within this subsection if it—(a) involves serious
violence against a person, (b) involves serious damage to property, (c)
endangers a person’s life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section
of the public, or (e) is designed seriously to interfere with or seriously to
disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which
involves the use of firearms or explosives is terrorism whether or not
subsection (1)(b) is satisfied …
(5) In this Act a reference to action taken for the purposes of
terrorism includes reference to an action taken for the benefit of a proscribed
organisation.’
[16] Proscription is dealt with in Pt II of the Act. Section 3 provides:
6
‘(1) For the purposes of this Act an organisation is proscribed if—(a)
it is listed in Schedule 2, or (b) it operates under the same name as an
organisation listed in that Schedule …
(3) The Secretary of State may by order—(a) add an organisation to
Schedule 2 …
(4) The Secretary of State may exercise his power under subsection
(3)(a) in respect of an organisation only if he believes that it is concerned
in terrorism.
(5) For the purposes of subsection (4) an organisation is concerned in
terrorism if it—(a) commits or participates in acts of terrorism, (b) prepares
for terrorism, (c) promotes or encourages terrorism, or (d) is otherwise
concerned in terrorism.’
[17] Sections 4–7 of the Act thereafter make provision for
organisations and persons to apply to the Secretary of State for an
organisation to be removed from Sch 2 and for appeals from any refusal by the
Secretary of State in the first instance to the Proscribed Organisations Appeal
Commission, and thereafter to the Court of Appeal. Section 7 makes provision for the
consequences of any successful application or appeal on those who may have, in
the meantime, been convicted of certain offences in respect of that organisation.
[18] The offences specifically related to proscription are:
(i) s 11, with which we are concerned and which is set out in [2], above. (ii) Section 12 provides that a person
commits an offence if he invites support for a proscribed organisation, if he
arranges, manages or assists in arranging or managing a meeting of three or
more persons which he knows is to support a proscribed organisation, to further
the activities of a proscribed organisation or to be addressed by another
person who belongs or professes to belong to a proscribed organisation, or if
he addresses a meeting of three or more persons and the purpose of his address
is to encourage support for a proscribed organisation or to further its
activity. (iii) Section 13 provides that
a person in a public place commits an offence if he wears an item of clothing
or wears, carries or displays an article in such a way or in such circumstances
as to arouse reasonable suspicion that he is a member or supporter of a
proscribed organisation.
[19] Sections 15–18 create offences of fundraising, use or
possession of money or other property, making funding arrangements, or money
laundering for the purposes of terrorism.
Section 19 makes it an offence to fail to disclose any belief or
suspicion that another person has committed any offences under ss 15–18 in
certain circumstances. Section 56 makes
it an offence to direct at any level the activities of an organisation which is
concerned in the commissions of acts of terrorism. By virtue of s 1(5) all these prohibitions
and requirements apply to the activities of a proscribed organisation.
[20] It can therefore be seen that proscription is an
important weapon in the state’s armoury in its battle against terrorism. It criminalises activities in relation to
proscribed organisations in a way which is intended to prevent such
organisations from gathering support or financial aid.
[21] The final statutory provision to which it is necessary
to refer is s 118 of the Act which deals expressly with defences provided to a
person charged with certain offences under the Act. It provides:
‘(1) Subsection (2) applies where in accordance with the provision
mentioned in subsection (5) it is a defence for a person charged with an
offence to prove a particular matter.
7
(2) If the person adduces evidence which is sufficient to raise an issue
with respect to the matter the court or jury shall assume that the defence is
satisfied unless the prosecution proves beyond reasonable doubt that it is not
…
(5) The provisions in respect of which subsections (2) and (4) apply
are—(a) sections 12(4), 39(5)(a), 54, 57, 58, 77 and 103 of this Act …’
[22] This section was clearly enacted in order to deal with
the possibility that certain of the statutory provisions providing for such defences
might be considered an unjustified infringement of a person’s rights under art
6(2) of the convention. It is likely
that this was a response to the views expressed by both the Divisional Court
and the House of Lords in R v DPP, ex p Kebeline, R v DPP, ex p Rechachi
[1999] 4 All 801, [2000] 2 AC 326, a decision in relation to s 16A of the
Prevention of Terrorism (Temporary Provisions) Act 1989. The important point for our purposes is that
the defence in s 11(2) of the Act with which we are concerned is not one to
which the provisions of s 118 apply.
[23] There is no dispute before us as to the proper
interpretation of s 11 if the ordinary principles of construction of a statute
are applied. The requirement for a
person charged with the offence under sub-s (2) to ‘prove’ the matters set out
in (a) and (b) impose on him a legal burden of establishing both of those
matters on the balance of probabilities.
That follows not simply from a straightforward reading of s 11(2), but
also from the omission of s 11(2) from s 118.
The purpose of the section, it seems to us is clear. The offence is defined simply in s
11(1). The intention is to criminalise
membership of a proscribed organisation in the light of the statutory purpose
to which we have referred. Proof of
membership may sometimes be difficult, hence profession of membership is itself
a criminal offence. Quite apart from
dealing with the problem of proof of membership, it also deals with the
mischief that professing membership of an organisation is a form of
encouragement or support for that organisation as an implicit statement of
approval of its aims.
[24] The reason for the defence was given by Lord Bassam in
the House of Lords (613 HL Official Report (5th series) col 269) in the course
of the debate on the second reading as follows:
‘Clause 11(2) contains a defence to cover the very rare and specific set
of circumstances in which a person becomes a member of an organisation before
it is proscribed and has played no part in it after its proscription. To all intents and purposes the person has
left the organisation, although that may not be possible in the
circumstances. Normally, it is an
offence to be a member of a proscribed organisation and no distinction is drawn
between active and passive membership, but in the interests of justice this
provision makes an exception in the specific case that I have set out. Having made an exception to the general rule
that membership per se is an offence, it seems reasonable that the onus should
be on the defendant to make the case that he or she has not played an active
part in the organisation.’
[25] This statement of the purpose of the provision
underlines what seems to us to be the inescapable meaning and effect of s 11
taken as a whole. The offence itself is
complete on proof that the defendant belongs to the organisation or has
professed that he belongs to the organisation.
The defence is only available to two limited categories of persons. As to the first, that is the person who
belonged before the date of proscription and played no part in its activities
after proscription, there is no difficulty in understanding the rationale of
excluding
8
such a person from the
criminal consequences of the section.
There would otherwise be a real danger of giving to the section a
retrospective effect. It is less easy to
see the justification for excluding the second category, namely a person who
professes membership. He could only be
charged with an offence under s 11(1) if he professed membership at some time
after proscription. It follows that the
defence will be available to him if he first professed membership before
proscription but repeated it afterwards in circumstances where he played no
active part in the organisation. It
might be thought that professing membership in such circumstances would carry
with it the same vice as professing membership for the first time after
proscription. Be that as it may,
Parliament has determined that the defence should be available to that category
of person. What is of particular
significance is that the defence will inevitably be available to fewer and
fewer persons charged with the offence with the passage of time.
[26] On that construction of the section, sub-s 11(2)
involves no infringement of the presumption of innocence. It provides an exception in a limited number
of cases. The effect of the judge’s
decision in the present case, is that wherever a defendant raises on the
evidence an issue as to his belonging to one of the two excluded categories,
the prosecution has to disprove that issue.
That can only be justified if s 11(2) involves an infringement of the
defendant’s art 6(2) rights; in other words it can only be right if in addition
to proving membership or professed membership of the proscribed organisation,
there is a further necessary ingredient of the offence, namely, that the
defendant was not a member of the organisation or a person who professed
membership before proscription and had not taken part in the activities of the
organisation after it had been proscribed.
If that element is not a necessary ingredient of the offence, it is
difficult to see how s 11(2) could be said to interfere with the presumption of
innocence.
[27] Mr Owen QC, on behalf of the acquitted person, submits
that it is a necessary ingredient in the light of the reasoning of the House of
Lords in R v Lambert [2001] 3 All ER 577, [2002] 2 AC 545. In that case the statutory provisions in
question were contained in the Misuse of Drugs Act 1971, in particular s 28(2)
which provides:
‘Subject to subsection (3) below, in any proceedings for an offence to
which this section applies it shall be a defence for the accused to prove that
he neither knew of nor suspected nor had reason to suspect the existence of
some fact alleged by the prosecution which it is necessary for the prosecution
to prove if he is to be convicted of the offence charged.’
[28] Mr Owen also
appeared for the appellant in R v Lambert. Dealing with his argument that knowledge that
the article was a dangerous drug, was an essential ingredient of the offence of
possession of a dangerous drug, Lord Steyn said (at [35]):
‘Taking into account that s 28 deals directly with the situation where
the accused is denying moral blameworthiness and the fact that the maximum
prescribed penalty is life imprisonment, I conclude that the appellant’s
interpretation is to be preferred. It
follows that s 28 derogates from the presumption of innocence. I would, however, also reach this conclusion
on broader grounds. The distinction
between constituent elements of the crime and defensive issues will sometimes
be unprincipled and arbitrary. After
all, it is sometimes simply a matter of which drafting technique is adopted: a
true constituent element can be removed from the definition of the crime and
9
cast as a defensive issue whereas any definition of an offence can be
reformulated so as to include all possible defences within it. It is necessary to concentrate not on
technicalities and niceties of language but rather on matters of substance. I do not have in mind cases within the narrow
exception “limited to offences arising under enactments which prohibit the
doing of an act save in specified circumstances or by persons of specified
classes or with specified qualifications or with the licence or permission of
specified authorities”: R v Edwards [1974] 2 All ER 1085 at 1095, [1975]
QB 27 at 40; R v Hunt [1987] 1 All ER 1, [1987] AC 352; and s 101 of the
Magistrates’ Courts Act 1980. There are
other cases where the defence is so closely linked with mens rea and moral
blameworthiness that it would derogate from the presumption to transfer the
legal burden to the accused, eg the hypothetical case of transferring the
burden of disproving provocation to an accused.
In R v Whyte (1988) 51 DLR (4th) 481 the Canadian Supreme Court
rejected an argument that as a matter of principle a constitutional presumption
of innocence only applies to elements of the offence and not excuses. Giving the judgment of the court Dickson CJC
observed, at page 493: “‘The real concern is not whether the accused must
disprove an element or prove an excuse, but that an accused may be convicted
while a reasonable doubt exists. When
that possibility exists, there is a breach of the presumption of
innocence. The exact characterization of
a factor as an essential element, a collateral factor, an excuse, or a defence
should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the
verdict that is decisive. If an accused
is required to prove some fact on the balance of probabilities to avoid
conviction, the provision violates the presumption of innocence because it
permits conviction in spite of a reasonable doubt in the mind of the trier of
fact as to the guilt of the accused.” I
would adopt this reasoning. In the
present case the defence under s 28 is one directly bearing on the moral
blameworthiness of the accused. It is
this factor alone which could justify a maximum sentence of life
imprisonment. In my view there is an inroad
on the presumption even if an issue under s 28 is in strict law regarded as a
pure defence.’
[29] Mr Owen
therefore submits that it is not sufficient just to consider in the present
case s 11(1) alone. It has to be read
together with s 11(2) in order to determine what the true nature of the offence
is and the extent to which, as a consequence, s 11(2) can properly be said to
interfere with the presumption of innocence.
We accept that that is the task that we have to engage in. The other members of the House of Lords,
whilst perhaps not taking precisely the same route as Lord Steyn, came to the
same conclusion as to the need to identify the true nature of the offence. Lord Slynn said (at [17]):
‘If read in isolation there is obviously much force in the contention
that s 28(2) imposes the legal burden of proof on the accused, in which case
serious arguments arise as to whether this is justified or so disproportionate
that there is a violation of art 6(2) of the convention rights (see
Salabiaku v France (1988) 13 EHRR 379 at 388 (para 28)). In balancing the interests of the individual
in achieving justice against the needs of society to protect against abuse of
drugs this seems to me a very difficult question but I incline to the view that
this burden would not be justified under art 6(2) of the convention
rights. For my part I do not think it
necessary to come to a conclusion on these arguments since even if s 28(2) read
alone were thought prima facie to
10
violate art 6(2) the House must still go on the consider s 3(1) of the
1998 Act. That section provides: “So far
as it is possible to do so, primary legislation must be read and given effect
in a way which is compatible with the Convention rights.” This obligation
applies to primary legislation “whenever enacted”. Even if the most obvious way to read s 28(2)
is that it imposes a legal burden of proof I have no doubt that it is
“possible”, without doing violence to the language or to the objective of that section,
to read the words as imposing only the evidential burden of proof. Such a reading would in my view be compatible
with convention rights since, even if this may create evidential difficulties
for the prosecution as I accept, it ensures that the defendant does not have
the legal onus of proving the matters referred to in s 28(2) which whether they
are regarded as part of the offence as a riposte to the offence prima facie
established are of crucial importance.’
[30] The views of
Lord Hope of Craighead make the point even more starkly. He concluded that the offence was complete
once the prosecution had proved possession of the dangerous drug in the sense
that the defendant knew that the thing existed and was in his possession. He went on (at [89]), however, as follows:
‘The statutory objective is to penalise the unauthorised possession of
dangerous or otherwise harmful drugs.
But the statute recognises, among other things, that it would be wrong
to penalise those who neither knew nor suspected nor had reason to suspect the
existence of some fact alleged by the prosecution which it is necessary for the
prosecution to prove if he is to be convicted of the offence charged (s 28(2))
or that the substance or product in question is a controlled drug (s
28(3)(b)(i)). That being so, it is hard
to see why a person who is accused of the offence of possessing a controlled
drug and who wishes to raise this defence should be deprived of the full
benefit of the presumption of innocence.’
[31] Lord Clyde
approached the matter in the same way.
He clearly considered that properly construed, although the offence was
strictly complete on proof of possession, the gravamen of the offence was
knowledge of the fact that what was possessed was a dangerous drug. That follows from the conclusion that he
reached at [156] where he said:
‘By imposing a persuasive burden on the accused it would be possible for
an accused person to be convicted where the jury believed he might well be
innocent but have not been persuaded that he probably did not know the nature
of what he possessed. The jury may have
a reasonable doubt as to his guilt in respect of his knowledge of the nature of
what he possessed but still be required to convict. Looking to the potentially serious
consequences of a conviction at least in respect of class A drugs it does not
seem to me that such a burden is acceptable.’
[32] Equally, Lord Hutton, who was ultimately of the view
that the legal burden was justified and proportionate, was none the less of the
view (at [183]–[185]) that the offence-creating section, namely s 5(3) had to
be read together with s 28(2) in order to determine the ambit of the offence;
that is the effect of the way he approached the matter. He equated the position to the type of presumption
which was considered by the European Court of Human Rights in Salabiaku v
France (1988) 13 EHRR 379. That was
a case in which the court had to consider a presumption of criminal liability
laid down in the French Customs
11
Code for every person
found in possession of prohibited goods.
The court noted that presumptions of fact and law operated in every
legal system. It held that the
convention did not prohibit such presumptions in principle, but stated that the
convention required contracting states to remain within certain limits in this
respect as regards criminal law. It held
(at 388 (para 28)):
‘Article 6(2) does not therefore regard presumptions of fact or of law
provided for in the criminal law with indifference. It requires states to confine them within
reasonable limits which take into account the importance of what is at stake
and maintain the rights of the defence.’
[33] In analysing the problem in this way, it is clear that
Lord Hutton considered that the offence-creating section was essentially one
raising a presumption of guilty knowledge, in other words knowledge that the
goods were indeed dangerous drugs. He
was therefore of the opinion that the true offence included that guilty
knowledge. His conclusion however was
that Parliament was entitled to impose a legal burden on the defendant in the
context of drug offences.
[34] The exercise of discovering the true nature of the
offence is exemplified in the decision of the Divisional Court in Sheldrake
v DPP [2003] 2 All ER 497, [2003] 2 WLR 1629. As we have already said, this concerned
provisions of the Road Traffic Act. The
offence with which the appellant was charged was an offence under s 5(1)(b) of
the Road Traffic Act 1988. This section
so far as material, provides:
‘(1) If a person … (b) is in charge of a motor vehicle on a road or
other public place, after consuming so much alcohol that the proportion in his
breath, blood or urine exceeds the prescribed limit he is guilty of an offence.
(2) It is a defence for a person charged with an offence under
subsection (1)(b) above to prove that at the time he is alleged to have
committed the offence the circumstances were such that there was no likelihood
of his driving the vehicle whilst the proportion of alcohol in his breath,
blood, or urine remained likely to exceed the prescribed limit.’
[35] Clarke LJ, who gave the leading judgment, set out (at
[25]) four questions which had to be answered: (i) whether s 5(1)(b) of the
1988 Act, read with s 5(2) made an inroad on or derogated from art 6(2) of the
convention; (ii) if so, whether s 5(2) was justified; (iii) if so whether s
5(2) was proportionate if it imposed a legal burden on the accused; and (iv) if
not, whether it could and should be read down in s 3(1) of the 1998 Act as
imposing only an evidential burden on the accused.
[36] In answering the first question, he concluded that the
gravamen of the offence under s 5(1)(b) was the likelihood of the accused
driving. He decided that, following
Taylor LJ in DPP v Watkins [1989] 1 All ER 1126 at 1131, [1989] QB 821
at 829, the mischief aimed at was to prevent driving whilst unfit through
drink, and that accordingly the offence of ‘being in charge’ was intended to
convict those who were not driving but who in all the circumstances either had
or might yet form the intention of driving the vehicle and therefore driving
the vehicle whilst still unfit. The
court held that as a result, s 5(1)(b) prima facie infringed the presumption of
innocence. By a majority, it held that
to construe the provision as imposing a legal burden on the defendant would be
disproportionate and would amount to a breach of art 6(2), but that the
provision could be read down in the same way as envisaged in R v Lambert
so as to impose an evidential burden only.
12
[37] In both R v Lambert and Sheldrake v DPP,
the courts approached the solution to the first question posed by Clarke LJ in
Sheldrake v DPP on the basis that it was the gravamen of the offence which
had to be identified in order to determine whether in truth a provision
providing a defence infringed the presumption of innocence. In R v Lambert the gravamen of the
offence was guilty knowledge; in Sheldrake v DPP the gravamen of the
offence was the risk of driving whilst unfit.
The defence which identified the gravamen of the offence was available to
every person charged with the offence and could properly, therefore, be taken
into account in determining what the true nature of the prohibited activity was
intended to be.
[38] In the present case, similar considerations do not
arise. Whether Lord Bassam was correct in stating that the defence was only
likely to be applicable in ‘very rare’ cases, may be a matter for debate. The fact is that, in our view, s 11(1)
defines the gravamen of the offence, even read together with s 11(2). That is because s 11(2) identifies a very
specific exception applicable to a limited class of defendants which does not,
in our judgment, in any way affect or infect the criminal offence fully
identified in s 11(1). It is in our judgment
quite clear that Parliament intended that a person should be guilty of an
offence under s 11(1) irrespective of whether or not he had played any active
part in the organisation. Section 11(2)
therefore does not infringe the presumption of innocence so as to breach art
6(2) of the convention.
[39] Although we have referred in this judgment to the
defence in s 11(2) of the Act as amounting to an exception, it is not an
exception of the same sort as was considered in the cases of R v Edwards
(Errington) [1974] 2 All ER 1085, [1975] QB 27 and R v Hunt (Richard)
[1987] 1 All ER 1, [1987] AC 352 referred to by Lord Steyn in R v
Lambert. The courts in those cases
discussed provisions of Acts which did not expressly impose on the defendant
any burden, but which were held to have done so on the construction of the Act
in question. A typical case of this type
involves an allegation that a particular activity has been carried on without a
licence. The Divisional Court considered
this problem in R (on the application of Grundy & Co Excavations
Ltd) v Halton Division Magistrates’ Court [2003] All ER (D) 322
(Feb) to which we have already referred.
It was a court again presided over by Clarke LJ, and the judgment was
handed down on the same day as Sheldrake v DPP [2003] 2 All ER 497. Clarke LJ giving the leading judgment,
considered that in such cases the question was not whether or not the
presumption of innocence had been infringed, if the burden of proving that the
activity was carried out in accordance with the licence was a legal burden,
because it clearly was. The question was
whether or not the imposition of that burden was both justified and
proportionate. He held that in the
context of the Forestry Act 1967, it was.
[40] That type of statutory provision is clearly different
from the one under consideration in this case.
In particular the context of those cases was that the statutory
provisions were regulatory in nature.
[41] If we are wrong as to the nature of the offence and
accordingly the effect of art 6(2), the question is whether or not the
provision is justified and proportionate.
Although art 6(2) is in apparently absolute terms, the European Court of
Human Rights made it plain in Salabiaku v France (1988) 13 EHRR 379 that
for the reasons given in the passage to which we have referred at [32], above,
a balancing exercise has to be carried out which takes into account the
importance of what is at stake for the state on the one hand and the defendant
on the other.
13
[42] This exercise involves taking into account a number of
considerations. On the one hand, the
defendant faces a charge which on conviction carries a maximum sentence of ten
years’ imprisonment, although it is to be noted that the offence can be tried
summarily and a charge can only be brought with the consent of the Director of
Public Prosecutions. On the other hand,
there is a manifest public interest in the suppression of terrorism which
requires effective measures which can meet the threat to society. An important consideration in this context is
the relative difficulty of discharging the burden of proof were it to be placed
on the one hand on the defendant and on the other on the state. It seems to us that the defendant is the
person peculiarly able to establish the date on which he became a member of a
proscribed organisation, or first professed membership. To impose merely an evidential burden on a
defendant could enable mere assertion on his part to require the prosecution to
prove the contrary. That would be an
unrealistic burden to impose upon the prosecution. It seems to us that Parliament was
accordingly entitled to take the view that a legal burden was appropriate.
[43] The final question which we have to resolve is whether
or not art 10 either affects the conclusion that we have come to on the
arguments under art 6(2), or otherwise imposes any constraints upon a
prosecution under s 11(1), in that imposing the legal burden of proof on a
defendant would amount to an unjustified and disproportionate interference with
his right to freedom of expression. For
the moment, we find it difficult to see how this could ever be the case. Section 11 does not interfere with any
person’s freedom to hold opinions and to receive and impart information and
ideas, except in the specific instance of professing membership of a proscribed
organisation. Parliament has determined
that that is, in itself, to be an offence.
For the reasons that we have already given, there is clear justification
for criminalizing that activity which appears to us to be proportionate to the
mischief with which the Act is intended to deal. The fact that in a particular circumstance,
that is where a person has professed membership before the organisation was
proscribed, a person is granted an indulgence which permits an exception to be
made to that limited extent, does not, in our view, undermine that
justification. However, as Richards J
pointed out in R (on the application of the Kurdistan Workers’ Party)
v Secretary of State for the Home Dept, R (on the application of the
People’s Mojahedin Organisation of Iran) v Same, R (on the
application of Ahmed) v Same [2002] EWHC 644 (Admin), [2002] All ER
(D) 99 there may be circumstances in a particular case in which a statutory
provision such as s 11 might involve a disproportionate infringement of an
individual’s art 10 rights, difficult though it may be to envisage such a
situation in the abstract. Mr Owen
argues that to apply s 11 to a situation where a person merely out of bravado
professes membership of a proscribed organisation would be such a case. We
disagree. Whatever the motive, the fact of professing membership carries with
it the vice that s 11 is intended to meet.
We can see no justification therefore for the argument that there has to
be a further ingredient, such as an intention to further the aims of the
proscribed organisation, in order to avoid infringing art 10.
[44] Accordingly, in answer to the two questions which have
been referred to this court by the Attorney General, our opinion is: (i) The
ingredients of the offence contrary to s 11(1) are set out fully in s
11(1). (ii) The defence in s 11(2)
imposes a legal rather than an evidential burden of proof on an accused and is
compatible with art 6(2) of the convention, and, subject to the caveat in [43],
above, compatible with art 10 of the convention.
Opinion accordingly.
Lynne Townley
Barrister.
14
[2004] 1 All ER 15
R (on the application of A) v National Asylum
Support Service and another
[2003]
EWCA Civ 1473
IMMIGRATION
COURT OF APPEAL, CIVIL
DIVISION
BROOKE, WALLER AND CLARKE LJJ
15, 16 SEPTEMBER, 23 OCTOBER 2003
Immigration – Asylum
seeker – Destitute asylum seeker with disabled children – Duty to provide
adequate accommodation – Meaning of ‘adequate’ – Whether duty of providing
adequate accommodation for destitute asylum seeker with disabled children
falling on central government or local authority – Immigration and Asylum Act
1999, ss 95, 122.
The claimant, A, was an
asylum seeker whose dependants included two disabled children. She was destitute for the purposes of s 95a of the Immigration and Asylum Act 1999 as she
and her dependants did not have ‘adequate accommodation’ or any means of
attaining it, and accordingly fell within the definition of an ‘eligible
person’ for whom the Secretary of State for the Home Department, through the
National Asylum Support Service (NASS) might provide or arrange for the
provision of support. Section 122b of the 1999 Act applied where the household
of an eligible person included a child and sub-s (3) provided that if it
appeared to the Secretary of State that ‘adequate accommodation’ was not being
provided for the child, he ‘must exercise his powers under s 95’ by offering,
and if his offer was accepted, by providing or arranging, for the provision of
adequate accommodation for the child as part of the eligible person’s
household. Section 122(5), provided that
no local authority was to provide assistance in respect of a dependant under
the age of 18 of an eligible person at any time when the Secretary of State was
complying with s 122 or there were reasonable grounds for believing that
support might be provided under s 95.
The claimant was provided with a house and applied for judicial review
of, inter alia, the actions of the NASS and the relevant local authority in
carrying out their duties under the 1999 Act.
Dismissing the application, the judge held, on the basis that additional
support needed as a result of disabilities would be provided by local
authorities under a duty imposed by a separate statute, that adequacy of
accommodation under the 1999 Act was to be tested by reference to able-bodied
children and not disabled children. The
claimant appealed. The issues before the
Court of Appeal included (i) what ‘adequate’ accommodation was for such a
family and (ii) who owed the duty to provide it. All the parties submitted that the judge’s
ruling could not stand in so far as it suggested that the 1999 Act took no
account of the disability of a dependant child in assessing the adequacy of
accommodation.
________________________________________
a Section 95, so far as material, is set out
at [9], below
b Section 122, so far as material, is set out at
[16], below
________________________________________
Held – Whether the question of the adequacy of accommodation
arose under s 95, in considering whether an asylum seeker was destitute in the
first instance, or whether it arose under s 122(3), in considering whether
accommodation being
15
provided for children
as part of the destitute asylum seeker’s household was adequate, ‘adequate’
took its meaning from its context.
‘Adequacy’ had to be tested by reference to the needs of the persons to
whom the duty was owed. The context for
asylum seekers was the provision of accommodation which prevented such people
being destitute, and which provided for their essential living needs. Furthermore, in considering adequacy the
circumstance of each individual, including dependants, had to be considered;
the ages of children and whether any person including the children suffered
from a disability were relevant to the adequacy of accommodation and as to
whether the family would be destitute.
The period during which the accommodation was likely to be occupied was
also clearly relevant. The duty to
provide adequate accommodation was a continuing one and thus what might have
been suitable at one moment might become unsuitable later. In addition, while an asylum seeker who
accepted accommodation as adequate was not entitled to challenge its
suitability, circumstances could change and rekindle the duty. Adequacy might also be fact-specific in that
accommodation might be adequate in one area, if that were where the NASS had
accepted a family should stay, although it would not be adequate in other areas
where much more suitable accommodation was available. If the accommodation in the one area became
such that it was impossible to survive as a family in it, the NASS would be
entitled to offer accommodation in other areas.
When exercising its s 95 powers the NASS was entitled to place persons
in accommodation which would be adequate in the short term until they found
accommodation adequate for the slightly longer term. Where there were disabled children a
balancing exercise had to be carried out, with at the forefront the question
whether the accommodation was adequate for the needs of those children in the
circumstances which persisted at that moment in time (see [52]–[60],
below).
(2) The proper
construction of s 122(5) was that it excluded the local authority from
providing assistance where the NASS ought to be complying with its obligations
under ss 95 and 122. For that reason, in
the instant case, where the NASS was purporting to carry out its ss 95 and 122
duties, no remedy lay against the local authority. In the instant case the NASS was not in
breach of its duty. Circumstances had
not changed appreciably and the NASS had requested and insisted on the local
authority searching for further accommodation.
Urgent steps had to continue to be taken by the NASS to see that the
local authority did all that was reasonable to provide the family with more
suitable accommodation. But the time had
not arrived where it could be said that the NASS was in breach of its duty
under the 1999 Act. Accordingly, the
appeal would be dismissed (see [67], [68], [78], [79], [83], [84], [89], [90],
below).
Notes
For persons for whom support
may be provided by the National Asylum Support Service and for welfare
entitlements for persons subject to immigration control, see 4(2) Halsbury’s
Laws (4th edn) (2002 reissue) paras 246, 257–300.
For the Immigration and
Asylum Act 1999, ss 95, 122, see 31 Halsbury’s Statutes (4th edn) (2003
reissue) 329, 351.
Cases referred to in
judgments
Alghile v Westminster City Council [2001] EWCA Civ 363, (2001) 33 HLR 57.
16
Anufrijeva v Southwark London BC, R (on the application of N) v Secretary of
State for the Home Dept, R (on the application of M) v Secretary
of State for the Home Dept [2003] EWCA Civ 1406, [2003] All ER (D) 288
(Oct).
Botta v Italy (1998)
4 BHRC 81, ECt HR.
R (on the
application of Batantu) v Islington London Borough (8 November 2000,
unreported), QBD.
R (on the
application of Bernard) v Enfield LBC [2002] EWHC 2282 (Admin),
[2003] HRLR 111.
R (on the
application of Ouji) v Secretary of State for the Home Dept [2002]
EWHC 1839 (Admin), [2003] Imm AR 88.
R (on the
application of Westminster City Council) v National Asylum Support
Service [2002] UKHL 38, [2002] 4 All ER 654, [2002] 1 WLR 2956.
R (on the
application of Zaher) v Westminster City Council [2003] EWHC 101
(Admin), [2003] All ER (D) 253 (Jan).
R v Avon CC, ex p M [1994] 2 FCR 259, [1994] 2 FLR 1006.
R v Brent London Borough, ex p Omar (1991) 23 HLR 446.
R v Bristol City Council, ex p Penfold (Alice) (1998) 1 CCLR 315.
R v Hammersmith and Fulham London BC, ex p M (1997) 30 HLR 10, CA; affg (1996) 1 CCLR 69.
R v Royal Borough of Kensington and Chelsea, ex p
Kujtim [1999] 4 All ER 161, CA.
R v Sefton Metropolitan BC, ex p Help the Aged [1997] 4 All ER 532, CA; rvsg [1997] 3 FCR 392.
Appeal
The claimant, A, an asylum
seeker with two disabled children, appealed from the decision of Keith J on 24
June 2003 ([2003] EWHC 1402 (Admin), [2003] All ER (D) 371 (Jun)) dismissing
her application for judicial review of the actions of the National Asylum
Support Service (NASS) and the London
Borough of Waltham Forest, inter alia, pursuant to their obligations under the
Immigration and Asylum Act 1999 to provide her household with appropriate
accommodation. The facts are set out in
the judgment of Waller LJ.
Alison Foster QC
and Fenella Morris (instructed by Pierce Glynn) for Mrs A.
Robert Jay QC
and Adam Robb (instructed by the Treasury Solicitor) for the
NASS.
Bryan McGuire
and Mark Baumohl (instructed by London Borough of Waltham Forest
solicitors) for Waltham Forest.
Cur adv vult
23 October 2003. The following judgments were delivered.
WALLER LJ.
INTRODUCTION
[1] This appeal is concerned with a family of asylum
seekers with two disabled children who without ‘adequate’ accommodation would
be destitute. It raises the questions as
to what is ‘adequate’ accommodation for such a family, and who owes the duty to
provide it. As regards destitute but
also disabled adult asylum seekers, in R (on the application of
Westminster City Council) v National Asylum Support Service [2002]
UKHL 38, [2002] 4 All ER 654, [2002] 1 WLR 2956, the House of Lords upheld the
ruling of the Court of Appeal that it was a local authority who owed the duty
to provide accommodation under s 21 of the
17
National Assistance Act
1948 as amended. They held that the
Immigration and Asylum Act 1999, passed to relieve local authorities of a
burden imposed by the decision of the Court of Appeal in R v Hammersmith and
Fulham London BC, ex p M (1997) 30 HLR 10, did not apply. They held that s 21(1A) of the 1948 Act
(inserted by s 116 of the 1999 Act) excluded from a local authority’s
obligation to provide accommodation under s 21(1A) only asylum seekers whose
need for care and attention arose solely because they were destitute and did
not exclude those who needed care and attention because they were infirm as
well as destitute.
[2] In the instant case Keith J ([2003] EWHC 1402 (Admin),
[2003] All ER (D) 371 (Jun)) followed what he perceived to be the reasoning in
the Westminster case as applied by Collins J in R (on the
application of Ouji) v Secretary of State for the Home Dept [2002]
EWHC 1839 (Admin), [2003] Imm AR 88. In
Ouji’s case Collins J was concerned to interpret s 122(4) of the 1999 Act
relating to ‘essential living needs’.
Keith and Collins JJ reasoned that basic support and basic essential
needs by reference to non-disabled asylum seekers would be provided by the
Secretary of State under the 1999 Act, but that any additional support needed
as a result of disabilities would be provided by local authorities under s 21 of
the 1948 Act. Keith J thus held that
adequacy under the 1999 Act fell to be tested by reference to able-bodied
children and not disabled children. On
that basis he held that the accommodation offered to the A family in the
instant case was adequate.
[3] No counsel supported Keith J’s conclusion or
reasoning. It was submitted by all
counsel, including Mr Jay QC for the Secretary of State, that the ruling in
this case and in Ouji’s case in so far as they suggested that the 1999
Act took no account of the disability of a dependant child in assessing either
the adequacy of accommodation or essential living needs, could not stand.
[4] Keith J also held that art 8 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in
Sch 1 to the Human Rights Act 1998) was not engaged. He held that he did not believe that it could
be said that the family life of the A’s had been affected when one focused on
their relationships with one another, on their ability to support one another
emotionally and on their ability to enjoy family life together. Once again no counsel, including Mr Jay for
the Secretary of State, was prepared to support Keith J’s application of art 8.
[5] I can say at the outset that it seems to me that the
judge’s reasoning in the two respects identified cannot be supported. But that does not provide an easy answer to
this case. It simply means there are
facets, and difficult facets, with which the judge did not need to grapple and
with which this court must grapple for the first time.
[6] There is furthermore an important point to bear in
mind. We are considering the provisions
of the 1999 Act and the ‘adequacy’ of accommodation for this family including
the disabled children. If we were
concerned with a disabled adult asylum seeker we would be concerned, following
the language of s 21 of the 1948 Act, with whether accommodation ‘suited’ to
that disabled adult had been provided.
Clearly the words ‘suited’ or ‘adequate’ could mean different things,
but it seems scarcely likely that Parliament intended disabled children to
receive less favourable treatment at the hands of the state, than a disabled
adult would receive at the hands of a local authority. In any event since art 8 of the convention
is, it is common ground, engaged in both instances, less favourable treatment
for disabled children as compared with disabled adults would be likely to fall
foul of art 14. That would lead to it
being necessary pursuant to s 3 of the 1998 Act to read both provisions so as
not to discriminate.
18
[7] This judgment will follow the following sequence. I will set out the relevant provisions of the
1999 Act. I will then look at the
provisions of the 1948 Act. I will then
set out the relevant facts. I will then
discuss the provisions of the 1999 Act by reference to the facts of this
case. I will thereafter deal with two
specific points on the construction of first s 118 of the 1999 Act and then s
122(5) of that Act. I will then come
back to consider what should be the answer in this case by reference to the
provisions of the 1999 Act. Finally I
will consider how a disabled adult asylum seeker might have been dealt with
under s 21 of the 1948 Act to cross-check whether any relevant distinction
might be drawn between the treatment of disabled children and disabled
adults. Finally I shall consider art 8
so far as necessary.
THE 1999 ACT
[8] The following relevant provisions of the 1999 Act are
all contained in Pt VI headed ‘Support for Asylum Seekers’. Section 94 is a definitions section where the
only relevant definitions are the following:
‘“asylum seeker” means a person who is not under 18 and has made a claim
for asylum which has been recorded by the Secretary of State but which has not
been determined …
“dependant”, in relation to an asylum seeker or a supported person,
means a person in the United Kingdom who—(a) is his spouse; (b) is a child of
his, or of his spouse, who is under 18 and dependent on him; or (c) …’
[9] Section 95 is the governing section. It provides:
‘(1) The Secretary of State may provide, or arrange for the provision
of, support for—(a) asylum seekers, or (b) dependants of asylum seekers, who
appear to the Secretary of State to be destitute or to be likely to become
destitute within such period as may be prescribed.
(2) In prescribed circumstances, a person who would otherwise fall
within subsection (1) is excluded.
(3) For the purposes of this section, a person is destitute if—(a) he
does not have adequate accommodation or any means of obtaining it (whether or
not his other essential living needs are met); or (b) he has adequate
accommodation or the means of obtaining it, but cannot meet his other essential
living needs.
(4) If a person has dependants, subsection (3) is to be read as if the references
to him were references to him and his dependants taken together.
(5) In determining, for the purposes of this section, whether a person’s
accommodation is adequate, the Secretary of State—(a) must have regard to such
matters as may be prescribed for the purposes of this paragraph; but (b) may
not have regard to such matters as may be prescribed for the purposes of this
paragraph or to any of the matters mentioned in subsection (6).
(6) Those matters are—(a) the fact that the person concerned has no
enforceable right to occupy the accommodation; (b) the fact that he shares the
accommodation, or any part of the accommodation, with one or more other
persons; (c) the fact that the accommodation is temporary; (d) the location of
the accommodation …’
[10] Section 96 identifies the nature of the support when
the Secretary of State provides or arranges support under s 95:
19
‘(1) Support may be provided under section 95—(a) by providing
accommodation appearing to the Secretary of State to be adequate for the needs
of the supported person and his dependants (if any) …
(2) If the Secretary of State considers that the circumstances of a
particular case are exceptional, he may provide support under section 95 in
such other ways as he considers necessary to enable the supported person and
his dependants (if any) to be supported …’
[11] Section 97 identifies both matters to which the
Secretary of State must have regard and also certain matters to which he may
not have regard. It is from this section
that it appears that the Secretary of State will contemplate in general
dispersing asylum seekers to different parts of the country:
‘(1) When exercising his power under section 95 to provide
accommodation, the Secretary of State must have regard to—(a) the fact that the
accommodation is to be temporary pending determination of the asylum seeker’s
claim; (b) the desirability, in general, of providing accommodation in areas in
which there is a ready supply of accommodation; and (c) such other matters (if
any) as may be prescribed.
(2) But he may not have regard to—(a) any preference that the supported
person or his dependants (if any) may have as to the locality in which the
accommodation is to be provided; or (b) such other matters (if any) as may be
prescribed …’
[12] Section 98 deals with temporary support:
‘(1) The Secretary of State may
provide, or arrange for the provision of, support for—(a) asylum seekers, or
(b) dependants of asylum seekers, who it appears to the Secretary of State may
be destitute.
(2) Support may be provided under
this section only until the Secretary of State is able to determine whether
support may be provided under section 95.
(3) Subsections (2) to (11) of
section 95 apply for the purposes of this section as they apply for the purposes
of that section.’
[13] Section 99 deals with support which may be provided by
a local authority pursuant to arrangements made by the Secretary of State. We were informed no arrangements relevant to
the instant case had been made. But its
provisions are relevant to the proper construction of the Act:
‘(1) A local authority may
provide support for asylum seekers and their dependants (if any) in accordance
with arrangements made by the Secretary of State under section 95.
(2) Support may be provided by
the local authority—(a) in one or more of the ways mentioned in section 96(1)
and (2); (b) whether the arrangements in question are made with the authority
or with another person …’
[14] Section 100 deals with assistance to be provided when
the Secretary of State requests it:
‘(1) This section applies if the
Secretary of State asks—(a) a local authority, (b) a registered social
landlord, (c) a registered housing association in Scotland or Northern Ireland,
or (d) the Executive, to assist him to exercise his power under section 95 to
provide accommodation.
20
(2) The person to whom the
request is made must co-operate in giving the Secretary of State such
assistance in the exercise of that power as is reasonable in the circumstances.
(3) Subsection (2) does not
require a registered social landlord to act beyond its powers.
(4) A local authority must supply
to the Secretary of State such information about their housing accommodation
(whether or not occupied) as he may from time to time request …’
[15] Section 118 relates to the use a local authority can
make of its housing stock. I will quote
that section when I come to deal with a specific point which arises on that
section.
[16] Section 122 is a key provision so far as this appeal is
concerned, creating a duty on the Secretary of State to provide accommodation
where adequate accommodation or essential needs are not being provided to
children. It furthermore fundamentally
affects the obligations of local authorities by virtue of s 122(5):
‘(1) In this section “eligible
person” means a person who appears to the Secretary of State to be a person for
whom support may be provided under section 95.
(2) Subsections (3) and (4) apply
if an application for support under section 95 has been made by an eligible
person whose household includes a dependant under the age of 18 (“the child”).
(3) If it appears to the
Secretary of State that adequate accommodation is not being provided for the
child, he must exercise his powers under section 95 by offering, and if his
offer is accepted by providing or arranging for the provision of, adequate
accommodation for the child as part of the eligible person’s household.
(4) If it appears to the
Secretary of State that essential living needs of the child are not being met,
he must exercise his powers under section 95 by offering, and if his offer is
accepted by providing or arranging for the provision of, essential living needs
for the child as part of the eligible person’s household.
(5) No local authority may
provide assistance under any of the child welfare provisions in respect of a
dependant under the age of 18, or any member of his family, at any time
when—(a) the Secretary of State is complying with this section in relation to
him; or (b) there are reasonable grounds for believing that—(i) the person
concerned is a person for whom support may be provided under section 95; and
(ii) the Secretary of State would be required to comply with this section if
that person had made an application under section 95.
(6) “Assistance” means the provision of accommodation or of any
essential living needs …’
SECTION 21 OF THE 1948
ACT
[17] Section 21 of the 1948 Act is relevant to two aspects
of the appeal. First it is necessary by
reference to its terms and the terms of the 1999 Act to explain why the
construction that Keith J placed on the word ‘adequate’ is wrong. Second it is relevant because it does apply
to disabled adult asylum seekers, and its wording is different. It would as I said be unlikely that
Parliament would intend adult disabled asylum seekers to be treated more
favourably than disabled children of
21
asylum seekers, and it
may thus throw light on the question whether there is any distinction intended
between the use of the word ‘adequate’ as compared to the word ‘suited’ (the s
21 word) or even the word ‘suitable’ as used in other homelessness
legislation. It may be more likely that
the words mean much the same but take their meaning from their context in
different situations.
[18] Section 21 provides as follows:
‘(1) Subject to and in accordance with the provisions for this part of
this act, a local authority may with the approval of the Secretary of State,
and to such extent as he may direct shall, make arrangements for providing—(a)
residential accommodation for persons aged 18 or over who by reason of age
illness disability or any other circumstances are in need of care and attention
which is not otherwise available to them …
(1A) A person to whom section 115
of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may
not be provided with residential accommodation under subsection (1)(a) if his
need for care and attention has arisen solely—(a) because he is destitute; or
(b) because of the physical effects or anticipated physical effects of his
being destitute.
(2) In making such arrangements a
local authority shall have regard to the welfare of all persons for whom
accommodation is provided and in particular to the need for providing
accommodation of different descriptions suited to different descriptions of
such persons as are mentioned in the last foregoing subsection.’
WHY THE REASONING OF
THE JUDGE WAS WRONG
[19] In the Westminster case [2002] 4 All ER 654 Lord
Hoffmann construed the above provision as applying to adult disabled asylum seekers
in the following words:
‘[32] The use of the word
“solely” makes it clear that only the able-bodied destitute are excluded from
the powers and duties of s 21(1)(a). The
infirm destitute remain within. Their
need for care and attention arises because they are infirm as well as because
they are destitute. They would need care
and attention even if they were wealthy.
They would not of course need accommodation, but that is not where s
21(1A) draws the line.
[33] In parallel with the
amendment of s 21, s 95(1) of the 1999 Act gave the Secretary of State power
to—“provide, or arrange for the provision of, support for—(a) asylum seekers,
or (b) dependants of asylum seekers, who appear to the Secretary of State to be
destitute or to be likely to become destitute within such period as may be
prescribed.”
[34] This power is exercised
through NASS. Section 95(3) provides
that a person is destitute if—“(a) he does not have adequate accommodation or
any means of obtaining it (whether or not his other essential living needs are
met); or (b) he has adequate accommodation or the means of obtaining it, but
cannot meet his other essential living needs.”’
[20] He however found that even though s 95(1) of the 1999
Act prima facie also conferred a power in relation to all destitute
asylum seekers, other provisions of the 1999 Act and regulations made under it
made it clear that that power is residual.
In the result, if s 21 applied, s 95(1) did not.
[21] The reason why disabled children of asylum seekers do
not fall under s 21 is that that provision applies only to those over 18. The corresponding provision
22
for disabled children
would be s 17 of the Children Act 1989.
However that section is expressly excluded by s 122(5) and (6) of the
1999 Act. There is thus no provision
other than s 95 under which a disabled child of an asylum seeker can be
provided with accommodation. It is for
this reason that Keith J was by common consent wrong to hold that adequacy had
to be tested by reference to able-bodied children of asylum seekers as opposed
to disabled children of asylum seekers.
It was in any event to misread the effect of the Westminster case
to suggest that there was a division of responsibility as between the National
Asylum Support Service (NASS) and a local authority, NASS being responsible for
the normal accommodation and a local authority for that which related to
disability in relation to any individual asylum seeker. The Westminster case demonstrated that
an adult disabled asylum seeker fell outside the 1999 Act altogether. This also casts doubt on the reasoning of
Collins J in Ouji’s case. It is
right to say that the order of Jackson J in this particular case (see [48],
below) seems to have divided the responsibility as between the local authority
and NASS in a way consistent with the reasoning of Keith J and Collins J but
again before us it was accepted that that should not have happened.
‘SUITED’ TO AN ADULT
ASYLUM SEEKER
[22] As far as I am aware there is no authority which has
considered the position of a disabled adult asylum seeker and the nature of the
obligation of the local authority under s 21 of the 1948 Act. The wording of s 21 is clearly different from
the wording of s 95 and the other sections of the 1999 Act. In s 21 the obligation is to provide
accommodation ‘suited to different descriptions of such persons as are
mentioned’ ie suited to a person requiring accommodation by reason of
disability. Miss Foster QC, for Mrs A,
has relied on a number of cases concerned with s 21 but all in a different
context. They are summarised in R (on
the application of Batantu) v Islington London Borough (8 November
2000, unreported) a decision of Henriques J. There is no dispute about what the
authorities establish. They establish
the following: (i) the reference to ‘needs’ in s 21(1) makes it clear that the
residential accommodation should be appropriate to the needs of the individual
applicant (R v Avon CC, ex p M [1994] 2 FCR 259); (ii) once need has
been assessed the local authority are under a duty to provide suitable
accommodation on a continuing basis (R v Royal Borough of Kensington and
Chelsea, ex p Kujtim [1999] 4 All ER 161); (iii) a local authority cannot
at that stage parade their lack of resources as an excuse for failing to make
the necessary provision (see the same cases); (iv) thus resources cannot be an
excuse for failing to make provision—they may be taken into account in deciding
how to meet the needs as long as those needs are met (R v Sefton
Metropolitan BC, ex p Help the Aged [1997] 3 FCR 392); (v) the housing
lists are but one of the ways in which accommodation may be provided by the
local authority under s 21; (vi) other registered social landlords and
accommodation to be purchased from the private market are to be included (see
Batantu’s case, para 35 citing R v Bristol City Council, ex p Penfold (Alice)
(1998) 1 CCLR 315); (vii) a reasonable refusal by the needy person of
accommodation asserted by the authority to be suitable does not absolve the
authority from its duty to provide (Batantu’s case, para 41); (viii)
however, a local authority is entitled to treat its duty as discharged and
refuse to provide further accommodation if an applicant refuses to accept the
accommodation provided or following its provision manifests by his conduct a
persistent and unequivocal refusal to observe the authority’s reasonable
requirements in relation to the occupation of such accommodation (Ex p
Kujtim).
23
[23] Miss Foster suggests by reference to the above
authorities that a disabled adult asylum seeker would be entitled to an order
against NASS in the instant case, but that in my view takes no account of the
circumstances of the cases on which she relies as compared with the
circumstances of the instant case. So
far as asylum seekers pending the resolution of their status are concerned any
accommodation will be of a temporary nature pending determination of their
immigration status. The word ‘suited’ is
a flexible word and will mean slightly different things depending how long and
the purpose for which the accommodation is needed. Perhaps one of the strange features of the
decision in the Westminster case is that the power to disperse is
obviously not available to a local authority as it is under the 1999 Act to
NASS. However if one varies the
circumstances of the instant case to consideration under s 21 and how a
disabled adult asylum seeker might have been dealt with by the local authority
the answer is not as I see it as clear as Miss Foster would suggest. Prima facie one must accept that 50 Clacton
Road would not be ‘suited’ to the disabled adult. However if under s 21 the disabled adult had
at one stage accepted 50 Clacton Road where the family have lived since their
arrival in this country (see [26], below), as suited, and then maintained that
more suitable accommodation should be provided but now only in a particular
area, that is a situation with which the authorities have not yet dealt.
[24] My approach will thus be first to construe the
provisions of the 1999 Act as if there was not intended to be any material
distinction between the word ‘adequate’ and the word ‘suited’ (or ‘suitable’)
simply as words. It is the context which
will supply the answer to whether accommodation is ‘adequate’ or ‘suited’ or
‘suitable’. Thereafter I will revisit s
21 and the position of a disabled adult asylum seeker placed in similar
circumstances to the As to see whether the answer in such a case would be any
different.
RELEVANT FACTS AND
CHRONOLOGY
[25] The history can in my view be broken up into two
phases. Phase 1 deals with a period from
Mrs A’s arrival with her two boys on 30 May 2001 to the acceptance by NASS and
the two relevant local authorities Hackney and Waltham Forest that the As
should remain in 50 Clacton Road with support and not be dispersed. The second phase runs from receipt of an
occupational therapist’s report in May 2002 until the present day.
Phase 1
[26] Mrs A and her two boys arrived in the United Kingdom on
30 May 2001 and immediately claimed asylum.
They stayed for a short time with a family in Hackney. Hackney’s asylum department then placed them
in 50 Clacton Road, Walthamstow.
Understandable as that was, it is doubtful whether Hackney had any power
to place the A’s in that accommodation.
Hackney assisted Mrs A to make an application to NASS. That application described 50 Clacton Road as
‘emergency accommodation’. The form when
filled in did not answer either Yes or No to the question whether the A’s
wanted to stay in their present accommodation ie 50 Clacton Road. The application was received by NASS on 3
July 2001. No response was sent by NASS
until 7 February 2002. In the meanwhile
by letter dated 28 September 2001 solicitors for Mrs A wrote to NASS saying
that no response had been received and explaining that Hackney was providing
accommodation and essential living needs.
They said that Hackney had told them that NASS was reimbursing Hackney
for the costs, and said that
24
they assumed the
‘support was temporarily provided [by NASS] pursuant to s 98 of the 1999
Act’. The letter further said that the
accommodation was inadequate providing reasons, but said that dispersal was not
appropriate because of the availability of family support and because Mrs A was
a vulnerable person speaking no English.
[27] The solicitors sent a reminder on 17 October 2001 and
with still no answer from NASS sent a further letter of 22 November 2001. By this date Hackney had carried out two
assessments—a Child in Need–Initial Assessment dated 10 August 2001, and a
Child in Need–Core Assessment of 6 November 2001. The thrust of both assessments was that 50
Clacton Road met the family’s housing needs subject to one aspect, the problems
faced by H (the eldest child) getting downstairs to the toilet at night, but
the recommendation was that H’s bed be moved downstairs. The letter of 22 November 2001 furthermore
explained: (a) that roots had now been put down in the local area; (b) that the
family were registered now with a local GP; (c) that the boys were on a waiting
list for assessment by the local hospital; and (d) that Waltham Forest had
agreed to undertake an assessment of special educational needs (SEN). The letter ended as follows:
‘In view of the steps which have been taken by both local authorities to
provide for the educational and community care needs of the children, and of
our client as their carer, and in view of the steps which had been taken to
meet the children’s medical needs in the local area, we submit that it would
not be appropriate for this family now to be moved.
We would therefore be grateful if you would confirm to us that the
current accommodation arrangement will continue pending a final resolution of
our client’s claim for asylum.’
[28] On 7 January 2002 Mr A arrived from Turkey. On 21 January 2002 the two boys began to
attend the William Morris school for SEN children in Walthamstow. The first response of NASS was by letter
dated 7 February 2002. It stated:
‘I am writing in response to your request for accommodation in London
for the above mentioned applicant.
The Secretary of State has carefully considered the circumstances of the
request, however accommodation is allocated on a no choice basis whilst taking
into account the person’s individual circumstances.
The Secretary of State does not consider that the request to be
allocated accommodation near her relatives in London (Putney) is of sufficient
weight to justify a departure from his general policy of providing support
under section 95 of the Immigration and Asylum Act 1999 in areas where there is
a ready supply of accommodation.
He is required by section 97 of that Act to have regard to the
desirability, in general, of providing accommodation in such areas.
The health matter was referred to our medical adviser Dr John Keen who
after much consideration recommended that relocation was not necessary.
NASS is satisfied that wherever an asylum seeker is accommodated within
the UK they would be able to access the necessary medical facilities and that
additional support is available to them via the voluntary community
infrastructure in place.’
25
[29] On 26 February 2002 solicitors for the A’s responded
wondering whether NASS had sent a letter about a different family having regard
to the reference to Putney. They however
repeated their assertion that it would be wrong to remove the A family and
asked them for an assurance that the family would continue to be accommodated
‘at the above address’ ie 50 Clacton Road.
[30] By letter dated 5 March 2002 NASS regretted the mistake
and explained that they had meant Hackney and persisted in their view that the
family should be relocated out of London.
[31] By letter dated 14 March 2002 solicitors for the A’s
set out their case for being allowed to remain at 50 Clacton Road. They asserted that accommodation all on one level
would be ‘more suitable’ but said that ‘the family are settled at this
accommodation and, taking this into account and other matters which we will
come to, it is in their interests that they be allowed to continue to occupy
this accommodation until there is a final determination of their asylum
claim’. The solicitors concluded that
letter with the paragraph:
‘We put you on notice that unless you confirm to us within 14 days of
the date of this letter that NASS will continue to accommodate our Client and
the children at her current accommodation at 50 Clacton Road, our Client will
commence proceedings against NASS to seek a judicial review. Please reply to us at the above address. We are sending a copy of this letter to the
Treasury Solicitor.’
[32] By letter dated 2 April 2002 the Secretary of State
responded to the above letter in the following terms:
‘The Secretary of State has reconsidered his decision to disperse your
client and her family in light of your representations. Having weighed the needs of this family
against the policy of dispersal the Secretary of State has exceptionally
decided that it would not be appropriate to seek to disperse this family out of
London.
Whilst I note that the family are content to continue to reside at 50
Clacton Road, E17 I have referred the case to the NASS Accommodation Booking
Section to establish if more suitable accommodation is available. This is based on the information in respect
of H who has had difficulties with the layout of the house, specifically the
downstairs bathroom. Due to the shortage
of available accommodation in London I cannot guarantee that this is possible,
or if possible how quickly it will be available.’
[33] By letter dated 11 April 2002 the solicitors for the
A’s accepted that decision. Thus they
accepted non-dispersal and 50 Clacton Road knowing that although more suitable
property would be sought in the area of Waltham Forest, no guarantee was
possible and in particular no guarantee as to the speed at which such property
could be found. They noted that NASS was
looking for more suitable accommodation and asked NASS to note that the
accommodation needed had to meet certain criteria including (1) either a
two-bedroom property on one level, or if on two floors, then with a WC on each
floor; and (2) that the accommodation must be in the same locality as the
current accommodation so that the children could continue to attend the same
SEN school and so that the family could continue to access the support and
services described in their previous letter.
26
[34] An initial assessment commenced in relation to both
children on 23 April 2002. Those
assessments both contained the following comment in relation to housing:
‘Temporary housing has been provided by NASS. The accommodation comprises of hall stairs
and landing, a through lounge, kitchen and bathroom to the ground floor, two
bedrooms to the first floor. Though the
family have expressed a preference for a larger property, the present accommodation
does appear to meet basic needs.’
[35] In the meanwhile judicial review proceedings had been
commenced by Hackney against Waltham Forest with Mrs A joined as an interested
party. A consent order was made in those
proceedings under which Waltham Forest agreed within 14 days to carry out a
community care assessment of the needs of the two disabled children under s 17
of the 1989 Act and s 2 of the Chronically Sick and Disabled Persons Act
1970. The order also records Waltham
Forest agreeing in particular—
‘to carry out an occupational therapy assessment of the needs of H and
CA for works of adaptation in the home at 50 Clacton Road Waltham Forest London
E17 8AR or for the provision of any additional facilities in the home designed
to secure their comfort or convenience.
The said assessment is to pay particular regard to the need for a chair
lift and other facilities to enable H and C to use the stairs at the home;
their need for handrails to the stairs, living room, bathroom and WC and their
need for a bath seat.’
Conclusion of Phase
1
[36] The above concludes what I would describe as phase
1. There are two points to make at this
stage. First at no time have NASS
suggested that the A family were not a family to whom s 95 would not
apply. Right from the outset the Home
Secretary seems to have taken the view that s 95 would apply and the only
question was how NASS should exercise its powers. But second the normal policy of NASS would
have been to disperse a family such the A’s.
The A’s however wished to stay in 50 Clacton Road. It seems to me that the A’s were accepting up
until this moment that 50 Clacton Road was adequate in the ordinary meaning of
the word. It was not ideal but rather
than be moved or have NASS disperse them they wanted to stay in 50 Clacton
Road. Furthermore such assessment as had
been carried out up to 25 April 2002 supported the view that 50 Clacton Road
although not ideal was adequate for the A family. Furthermore the A’s sought and in effect
obtained an undertaking from NASS that the family would be allowed to remain in
50 Clacton Road pending the final decision on their immigration status.
Phase 2
[37] What commences the next phase appears from the
correspondence to be a request by telephone to Waltham Forest on 26 April 2002
to carry out certain adaptations to 50 Clacton Road. The response was in the following terms:
‘I refer to our telephone conversation on Friday, 26 April 2002 and to
confirm that I have been advised by an officer at NASS that it would not be
advisable for this Local Authority to seek to carry out any adaptation works in
respect of your client’s current accommodation.
He informed me that
27
there is a separate team within NASS that is negotiating properties for
people with special needs and that in the event the present property is deemed
unsuitable the family will be moved to property which would have already been
adapted.
In addition I have been informed by the O.T. Team that they would carry
out the O.T. assessments. They would
however not be in the position to provide any specialist equipment for your
clients until such time as NASS designates this Local Authority as the
responsible authority, as otherwise they would not be able to recover any
expenditure they would have incurred.’
[38] On 27 May 2002 Waltham Forest’s occupational therapy
team produced a home visit report. That
report contained the following quotation:
‘Present Accommodation:
The family lives in a relatively small and sparsely furnished privately
rented property that comprises of two upstairs bedrooms, a lounge-dining room,
kitchen and ground floor bathroom and separate toilet. The property is generally in poor repair and
has a faulty over-bath shower and damaged floor coverings …
The stairs to the first floor are very steep, narrow and with a series
of three winding steps at the top of the straight flight of stairs. The stairs have only one handrail on the
straight flight of stairs and none on the winding steps.
These stairs are extremely dangerous to climb whilst supporting another
person and Occupational Therapist advised that H should stay downstairs to
avoid the potential of falling. Keeping H downstairs had already been
recommended by the family’s social worker in her report dated 6th November
2001 She also arranged through section
17 funding to purchase H and C a single bed each, which have both been placed
upstairs by the family, therefore requiring H to be heavily supported on the
stairs …
Problems with Present Accommodation:
It is readily apparent that the present accommodation provided through
the NASS is insufficient for the family’s needs, due to the lack of ground
floor bedroom for H and no upstairs toilet for use by C during the night …
Conclusion:
It is possible to provide the H and C with equipment to support them in
both the short and long term, however the present accommodation does not
facilitate their medium or long term needs to be addressed. Therefore the action plan given at this time
is seeking to address those needs that can be reasonably addressed within their
present accommodation. The Children’s
Occupational Therapy Team will make reasonable efforts to give information and
recommendations to the relevant workers on H and C’s medium and long term
housing needs, but will not take responsibility in locating such
accommodation.’
[39] The above report led to a letter from the solicitors
for the A’s dated 14 June 2002. The
letter refers to the decision of the Secretary of State and to the solicitors’
response. However it further states as
follows:
‘You will note that the Assessment finds that the accommodation is
unsuitable for the children. The report
states that the stairs to the first floor is very steep, narrow and with a
series of three winding steps at the top.
The Assessment finds that the stairs are extremely dangerous to climb
whilst
28
supporting another person. The
Occupational Therapist recommends that the child, H, should sleep downstairs to
avoid the potential of falling. However,
this is not a practical arrangement as the downstairs comprises an open plan
living room/dining area through to the kitchen with no door between. The child would lack privacy and the family
would lack living space. Further, H
requires supervision at night and our Client would be unable to hear him from
her bedroom upstairs. He needs
supervision to access the toilet at night.
The Local Authority are prepared to provide disability equipment and
minor adaptations to this address. This
is on the basis that the cost of this will be paid for by NASS. Please confirm whether, in fact, NASS have
agreed to pay for the adaptations and disability equipment recommended by the
assessment.
The Local Authority state that major adaptations will not be provided
until our Client has leave to remain in the UK.
We consider that this approach is unlawful. However, given that the stairs are narrow and
steep, adaptations to this particular accommodation would seem to be
problematic. Accordingly, it is our view
that the family need urgent re-housing to alternative suitable accommodation. The OT Assessment describes the type of
accommodation required.
In addition, as we have pointed out in previous correspondence, it is
essential that alternative accommodation is in the same locality. This is so the children continue to attend
the same special educational needs school …
Accordingly, we write to give you notice that we will advise our Client
to commence proceedings against NASS for a Judicial Review unless firstly you
confirm to us within 7 days of the date of this letter that suitable
alternative accommodation adequate for the family’s needs will be provided
within 21 days and secondly you actually provide such accommodation within 21
days of the date of this letter.’
[40] NASS’s response to that letter was in my view
restrained. They responded first by
letter dated 25 June 2002 and then by letter dated 27 June 2002. It is only necessary to quote 27 June letter:
‘The matter of alternative suitable accommodation for your client and
her family has been referred to the NASS accommodation section, who are
currently trying to establish if NASS has any suitable accommodation for this
family, given the special needs of the children. NASS will revert to you at the earliest
possible opportunity with details of any property which may be suitable,
however at this stage I cannot make any guarantee.
The second issue raised concerns the support that Mrs A and her 2
children have received to date. In order
to fully investigate this matter I would be grateful if you could confirm how,
and from whom, Mrs A is receiving the £157.26 per fortnight …’
[41] On 5 July 2002 solicitors for the A’s said that not
having heard about any alternative suitable accommodation they were proceeding
to instruct counsel to settle a claim form for judicial review. The response from the Treasury Solicitors was
again restrained. It said:
‘I have passed the documentation to my client and have stressed upon
them the importance of this matter in order to avoid unnecessary litigation.
29
With this thought in mind I trust the next time you hear from the Home Office
it will be on more favourable terms …’
[42] Clearly at this stage NASS started to make further
enquiries as to how the A’s came to be in 50 Clacton Road. Some explanation following telephone
conversations was given by the solicitors for the A’s by letter dated 25 July
2002. This led to a detailed letter from
NASS dated 31 July 2002 which stated as follows:
‘For the avoidance of any doubt, we wish to make absolutely clear that
50 Clacton Road was occupied by your clients before NASS became involved, and
that NASS agreed to support your clients in this accommodation at your specific
request—indeed at your insistence. We
would refer you to your letter of 14 March 2002 in which you stated “unless you
confirm to us within 14 days of the date of this letter that NASS will continue
to accommodate our client and the children at 50 Clacton Road our client will
commence proceedings against NASS to seek a judicial review”. We trust that you are not now seeking to criticise
or bring action against NASS for having done so.
The difficulties that your clients are facing in the accommodation are,
as we understand them, essentially of three types:
There are a number of disrepair items.
These should be susceptible of resolution, if not with the landlord
directly, through the environmental health department of the local authority,
which is responsible for and empowered to serve notices and take enforcement
action to ensure these are resolved. We
trust you will have referred the report from your consultant to the local
environmental health office for this reason.
There are a number of adaptations which would be desirable if your
clients are to remain in the property, due to the children’s specific
needs. We note that you are pursuing the
local authority in this respect, and they are the appropriate body to resolve
this matter. We do not therefore feel it
appropriate for us to comment further on this point.
There are deficiencies in the nature of the accommodation for your
clients, due to the children’s specific needs.
This is accepted, and is why we have agreed to seek alternative
accommodation for your clients. Finding
alternative accommodation quickly would clearly remove the necessity for
adaptations to be made to the existing property.
However, your client’s needs are quite specific and NASS does not
currently have any suitable accommodation available in the area and of the type
that is required. We have asked the London Borough of Waltham Forest to assist
in finding accommodation on our behalf, as is common in such cases, and have
confirmed our willingness to fund such accommodation. You have been notified by that authority that
they would expect to be able to find such accommodation in about a week, and I
see no reason not to take this expectation at face value. There should be no reason for significant
delay once available accommodation is identified, and certainly not the 7 days
that you envisage in your letter.
However, you must appreciate that the Secretary of State does not have
control over the availability of accommodation in the London Borough of Waltham
Forest (and neither, for that matter, does the local authority) and we cannot
predict precisely when suitable accommodation will become available that would
be able to be obtained for your clients.
It would be irresponsible for us to give an undertaking to find such
accommodation within a certain timescale without knowing for certain whether
there will be
30
any available within that time.
The position would be precisely the same if your clients were not asylum
seekers, but were applying for accommodation directly through the local
authority. No-one who is involved in the
social housing market in London would be able honestly to give the assurances
you seek.
We can, however, confirm that both NASS and the local authority are
committed to finding your clients more suitable accommodation as a matter of
priority, and as the local authority believes it is able to do so within a
matter of about a week, we suggest that you allow them to make their best endeavours
in this respect. Alternatively, if your
clients or their associates are aware of any suitable accommodation available
privately in the area then please do make NASS or the local authority aware of
it and we will seek to secure it for your clients. However, we would see no purpose in your
seeking permission for a judicial review at this time as this will not make
accommodation available which is not there.
In respect of your client’s subsistence we confirm that we have made
arrangements for subsistence at NASS rates to be provided directly to your
clients, instead of the allowance that was previously provided by the London
Borough of Hackney. This should be
received by the end of the week. We
understand this will overlap with the last payment from Hackney but do not yet
have confirmation of when that payment expires.’
[43] During August 2002 a property at 30 Pevensey Road E7
was located by Waltham Forest as a possible alternative. An assessment dated 15 August 2002 by the
occupational therapist indicated that once again the property would only be
suitable if H slept downstairs and considered that the property could only be
viewed as a further interim measure to provide for this family’s needs. Ultimately by letter dated 18 September 2002
solicitors for the A’s were told that 30 Pevensey Road was not
appropriate. By letter dated 23
September 2002 solicitors for A’s complained to NASS that it had taken seven
weeks to reach that conclusion.
[44] At the end of September 2002 the correspondence would indicate
that Waltham Forest were still endeavouring to find a property. They identified a property in Waltham Forest
but that was considered unsuitable. They
then considered a possible property in Redbridge. The correspondence indicates that the family went
to view 130 Wanstead Park Road, Redbridge.
They were concerned about the state of the property and as to whether it
could fulfil the family’s needs but in addition the family were troubled about
that property’s location. It seems that
Mrs A in any event expressed a desire to remain at 50 Clacton Road rather than
move out of Waltham Forest. At the same
time it is clear that consideration was being given to making adaptations to 50
Clacton Road to make that a more suitable accommodation for the A’s.
[45] By letter dated 27 January 2003 the solicitors for the
A’s set out in detail the position as it had been reached as of that date. That letter included an assertion that NASS
had not been reimbursing Hackney for the accommodation at 50 Clacton Road. It seems that Hackney had served a notice to
vacate the property because no payment had been received. The solicitors asked for confirmation of the
following:
‘(a) Why NASS are not paying for the accommodation at 50 Clacton Road;
(b) That NASS will pay for this accommodation, and make arrangements
with Hackney to pay arrears of rent, such that Hackney agree to take no steps
to terminate this accommodation;
31
(c) Provide a detailed account of the steps NASS are taking to identify
adequate accommodation for the family;
(d) Confirmation that NASS will call on Waltham Forest to try to
identify adequate accommodation within the Local Authority’s own stock;
(e) That NASS will ask other registered social landlords who may have
housing stock in the area to assist with identifying accommodation for the
family;
(f) The reason for the delay in NASS making the six-monthly lump-sum
payments which have been due to the family since our letter to you of 19th
November 2002 and confirmation that these sums will be paid immediately.’
[46] By letter of 29 January 2003 the Treasury Solicitor for
NASS wrote to the solicitors for the A’s.
In essence the letter maintained (1) that NASS was under no obligation
to pay for 50 Clacton Road because no arrangement existed with Hackney; (2)
that NASS had been in constant contact with Waltham Forest in an attempt to
identify adequate accommodation for the family; (3) that they understood from
Mr Higginbotham (the occupational therapist) that the A’s were prepared to stay
at 50 Clacton Road until their immigration status was decided and that minor
adaptations were being made to that property; and (4) that the A’s had had
property offered to them but insisted on remaining at 50 Clacton Road and thus
NASS had discharged their obligation.
[47] The judicial review application was about to come on
and solicitors for the A’s by letter dated 17 February 2003 indicated that they
would seek additional interim orders against NASS including an order that (a)
they pay for the accommodation at 50 Clacton Road and (b) determine the claim
for asylum support. On the same date
they wrote to Waltham Forest saying that they would seek a declaration that
Waltham Forest were acting unlawfully in failing to consider Waltham Forest’s
own housing stock for the A’s. This was raising a point on the proper
construction of s118 of the 1999 Act to which I will return.
[48] The matter came before Jackson J on 24 February
2003. NASS and Waltham Forest were
prepared to give certain undertakings which were recorded in that order. Waltham Forest undertook:
‘(a) to carry out an assessment of H and CA’s need for financial support
under section 17 of the Children Act on or before 4.00pm on 17th March 2003;
and (b) to meet the costs of any top up funding for the disability related part
of the A family’s accommodation from the date of this order until liability
ceases or further order.’
NASS undertook:
‘(a) to meet the costs of the basic part of the A family’s accommodation
from the date of this order until liability ceases or further order;
(b) to file and serve a witness statement on or before 4.00pm on 17th
March 2003 setting out whether asylum support had been paid to the A family
under section 95 or section 98 of the Immigration and Asylum Act 1999 to date;
(c) and if asylum support has been paid under section 98 to date, to
determine the A family’s claim for asylum support under section 95 on or before
4.00pm on 17th March 2003; and
32
(d) if asylum support has been paid under section 95 to pay the
supplementary sums due to the A family under regulation 11 of the Asylum
Support Regulation 2000 on or before 4.00pm on 17th March 2003.’
[49] Michael Barber’s witness statement dated 17 March 2003
on behalf of NASS complied with Jackson J’s order in the following
respect. It stated:
‘Arrangements, further to the Order of the Court, have now been made for
Hackney to be reimbursed the rent of the Claimant’s accommodation at 50 Clacton
Road from 26 February 2003 and this will continue to be paid during the time
that NASS has a legal responsibility to do so.
There is understood to be no financial issue for the Claimant in respect
of rent as she is provided with accommodation rent free.
NASS remains willing to fund the Claimant’s future accommodation during
the time that there remains a duty to do so under the Act should either the
London Borough of Hackney or the London Borough of Waltham Forest be able and
willing to provide such suitable accommodation.’
[50] There are other passages earlier in the statement of Mr
Barber which are relevant:
‘The London Borough of Waltham Forest agreed to locate more suitable
accommodation. As the London Borough of
Waltham Forest were prepared to deal with the Claimant and her family under the
scheme of co-operation that had been established between local authorities and
NASS to handle such cases, NASS authorised them to pay the rent on 50 Clacton
Road. The reason that they did not do so
is that the Claimant has no rent liability for that accommodation.
I understand that the London Borough of Waltham Forest investigated
whether the Claimant’s present accommodation can be suitably adapted to meet
her family’s needs, but their investigations revealed that this would not be
practicable. I am also aware that they
endeavoured to locate suitable alternative accommodation, although the
accommodation they located did not meet the Claimant’s wishes, and I understand
she elected to remain at 50 Clacton Road.
Essentially, NASS is prepared to support the Claimant’s family in
suitable accommodation locally, provided that someone is able to find
some. However, NASS has a very limited
remit in which to operate and quite simply does not have accommodation of the
sort required in the very limited geographical area stipulated by the
Claimant’s solicitors. I am unclear
whether such accommodation actually exists, is available, or is realistically
likely to become available. Doubtless
the London Borough of Waltham Forest is better placed to comment on the
accommodation within its area of authority.
NASS has always remained willing to provide the Claimant and her family
with accommodation appropriate to the family’s needs. Because of the apparent unsuitability of 50
Clacton Road, NASS has tried to obtain more suitable accommodation through the
available channels. NASS remains
prepared to accommodate the family in partnership with any local authority that
is prepared to do so and that is able to provide appropriate
accommodation. Should suitable
accommodation not be able to be secured locally, NASS is happy to provide
suitable accommodation in a dispersal area.
Indeed, it is at the Claimant’s request that we have not done so.
33
That the Claimant has now become settled to some extent in London and
contends that she cannot be dispersed is resultant from the arrangement by
which Hackney was accommodating her, but also from her own decision to remain
at 50 Clacton Road during the processing of her asylum matter. Had the Claimant not rejected dispersal then
she would be living in suitable accommodation for her family’s needs in a
dispersal area.’
DISCUSSION OF THE 1999
ACT
[51] The adequacy, or ‘suitability’ if that word were
preferred (see [24], above), of accommodation is relevant in two stages under
Pt VI of the 1999 Act. It is relevant to
the first stage when a decision is taken as to whether someone with their
dependants is destitute. Under s 95 a
person is destitute if ‘he does not have adequate accommodation or any means of
obtaining it (whether or not his other essential living needs are met)’. A decision that an asylum seeker is destitute
triggers the powers under s 95 but where there are children under s 122(3):
‘If it appears to the Secretary of State that adequate accommodation is
not being provided for the child, he must exercise his powers under
section 95 by offering, and if his offer is accepted by providing or arranging
for the provision of adequate accommodation for the child as part of the
eligible person’s household. [emphasis added]’
Thus if a decision is taken
that adequate accommodation was not being provided and a decision is thus taken
that the asylum seeker with dependants was destitute, the second stage at which
adequacy has to be assessed is when considering whether adequate accommodation
has been provided pursuant to s 95.
[52] Adequacy cannot have a different meaning depending on
which aspect the court is considering.
Although it is only in the context of providing the accommodation once
the s 95 powers are being exercised that it is expressly provided by s 96(1)
that the accommodation must be ‘adequate for the needs of the supported person
and his dependents (if any)’, it must be relevant to the initial decision as to
adequacy whether the needs of the asylum seeker and his dependants are being
met. But whether the question arises
under s 95 in considering whether an asylum seeker is destitute in the first
instance, or whether it arises in considering whether accommodation being
provided is adequate, the word ‘adequate’ will take its meaning from the
context. In the context of different legislation
concerned with homeless persons the court has said that ‘suitability’ must be
tested by reference to the needs of persons to whom the duty is owed (see R
v Brent London Borough, ex p Omar (1991) 23 HLR 446). The same must be true of the word ‘adequate’
in the 1999 Act, but the context is important.
[53] The context for asylum seekers is the provision of
accommodation which prevents such people being destitute, and which provides
for their essential living needs.
Furthermore in considering adequacy or suitability the individual
circumstance of each individual, including dependants, must be considered; thus
the age of the children and whether any person including the children suffers
from a disability will be relevant to the adequacy of accommodation and as to
whether the family would be destitute.
Lord Hoffmann accepted that s 95(1) prima facie conferred power to
accommodate all destitute asylum seekers, including disabled adult asylum
seekers, but accepted the argument that regulations made under Pt IV of the
1999 Act made clear that the power was ‘residual’ and could not be exercised if
the asylum seeker was entitled to
34
accommodation under
some other provision. See R (on
the application of Westminster City Council) v National Asylum Support
Service [2002] 4 All ER 654 at [38].
It is the fact that Keith J did not appreciate Lord Hoffmann’s reasoning
which led him wrongly to conclude that adequacy was to be tested without
reference to any disability.
[54] The period during
which the accommodation is likely to be occupied is also clearly
relevant. Section 95(6)(c) shows that
the fact that accommodation is temporary will not be taken into account in
considering adequacy. I understand that
to mean that its temporary nature cannot be relied on to support the argument
of inadequacy. That has to be so to make
it consistent with s 97(1)(a) under which in exercising his power to provide
accommodation, the Secretary of State must have regard to the fact that ‘the
accommodation is temporary pending determination of the asylum seeker’s
claim’. Adequacy or suitability will
vary from case to case; if it takes a very long time for an asylum seeker’s
claim to be dealt with, that may make accommodation inadequate which was in a
shorter time frame adequate.
[55] In considering whether the Secretary of State is
fulfilling a duty to provide adequate accommodation, the position may become
different over the passage of time. Just
as under homelessness legislation the duty to provide accommodation is a
continuing one and thus what may have been suitable at one moment may become
unsuitable later (see R (on the application of Zaher) v
Westminster City Council [2003] EWHC 101 (Admin), [2003] All ER (D) 253
(Jan)), so the same would be true under the 1999 Act.
[56] In addition just as under the homelessness legislation
if a party accepts accommodation as suitable he should not be entitled to
challenge its suitability (see Alghile v Westminster City Council [2001]
EWCA Civ 363, (2001) 33 HLR 57 referred to in Zaher’s case at [28]), so
the same principle should apply to the asylum seeker who accepts accommodation
as adequate or suitable. But again that
does not mean things are set in stone. Circumstances
can change and can rekindle the duty (see again Zaher’s case at [28]
and [29]).
[57] The distinction between temporary accommodation and
permanent accommodation must be borne in mind; but there are also degrees of
temporariness and what might be considered adequate or suitable in the
short-term may be inadequate or unsuitable in the longer term. One difficulty with the 1999 Act is that
although the Act expressly states that the temporary nature of the
accommodation is a fact to be taken into account, for some asylum seekers the appeal
process may make the length of stay in accommodation quite short whereas for
others the delay in the appeal process may make it quite long term. The difficulty for NASS, and indeed for the
court, may be in weighing up to what extent the delay in the process is solely
the fault of the system, to be contrasted with the conduct of the asylum seeker
who may wish to extend the process as long as possible. However in this case we have heard no
argument to the effect that the appeal process has in any way been extended by
the action or inaction of the A family and thus the approach of the court must
be to the facts as they are ie that the appeal process has in this case taken a
very considerable period.
[58] Adequacy or suitability may also be fact-specific in
another way. Accommodation is more difficult
to find in London. As has happened in
this case, the A family made clear their wish to stay in 50 Clacton Road
pending the result of their asylum claim.
NASS accepted that they should be entitled to do that albeit being
prepared to look for further accommodation which would be more
35
suitable. In the result the children have begun to
attend special needs schools and the A family have become keener still to stay
in the area. NASS are seeking to find
alternative accommodation but only within the relevant area. The argument of Miss Foster for the claimant
appears to be that having accepted the constraint of finding accommodation in
North London the obligation of NASS can only be fulfilled so as to provide
accommodation such that the children can continue to attend their school. In other words the submission appears to be
that it is now part of the test of adequacy whether the property fulfils the
requirement so far as the children’s particular school is concerned. In my view that is not the correct
approach. First, accommodation may be
adequate in London if that is where NASS has accepted the family should stay,
although it would not be adequate in other areas where much more suitable
accommodation is available. But if
the accommodation became such that it was impossible to survive as a family in
it, NASS would in my view be entitled to offer accommodation outside London
where other schools were available.
[59] The duty on NASS under which they must provide
adequate accommodation appears to be absolute.
But I suggest that its absolute nature should work in this way. Obviously if asylum seekers are on the
streets without any accommodation the duty to provide accommodation is absolute
and immediate. The legislature
contemplates temporary support until the Secretary of State ‘is able to
determine whether support may be provided under section 95’. But when exercising their s 95 powers NASS
are in my view entitled to place persons in accommodation which will be
adequate in the short-term until they find accommodation adequate for the
slightly longer term. That may lead to a
family being prepared to accept as adequate the shorter term property for the
longer, albeit temporary, term in order to maintain the same schools or doctor
etc for the family. Circumstances can of
course change so that what was previously accepted as adequate is clearly no
longer so, but it would take an extreme change to bring about a duty to provide
other accommodation immediately, and that extreme change might be such as to
alter the constraints which the family would like to maintain.
[60] A balancing exercise has to be carried out with the
question at the forefront—is the accommodation adequate for the needs of the
disabled children in the circumstances which persist at that moment in
time? The circumstances of this case,
for example, seem to be that the A’s wanted to stay in that particular area of
London and accepted 50 Clacton Road as adequate while they established their
immigration status. It would seem they
appreciated that although other accommodation would be sought in the area, the
constraints were such that no guarantee of providing better accommodation could
be given. If this is right, the
questions which would need addressing would be first whether NASS have carried
out a proper search for better accommodation, and second whether circumstances
have changed so as to render 50 Clacton Road inadequate, that being tested
against the accommodation as it was when it was accepted as adequate. That involves a balancing exercise. If no proper search was being carried out
that would lead to a finding of a breach of duty. If circumstances had changed in such a
serious way, that may have imposed a duty to find better accommodation come
what may, but the constraints may also need further consideration and the
balancing exercise will involve considering whether the family should be asked
to move from the area or whether it is fair to continue to ask them to accept
50 Clacton Road as acceptable. Before
reaching any final
36
conclusions on these
points, I should deal with two other points of construction on the 1999 Act.
SECTION 118
[61] One point of contention has been that Waltham Forest
have construed s 118 as not allowing them to use their own housing stock. That section provides as follows:
‘(1) Each housing authority must
secure that, so far as practicable, a tenancy of, or licence to occupy, housing
accommodation provided under the accommodation provisions is not granted to a
person subject to immigration control unless—(a) he is of a class specified in
an order made by the Secretary of State; or (b) the tenancy of, or licence to
occupy, such accommodation is granted in accordance with arrangements made
under section 95.
(2) “Housing authority” means—(a)
in relation to England and Wales, a local housing authority within the meaning
of the Housing Act 1985; (b) in relation to Scotland, a local authority within
the meaning of the Housing (Scotland) Act 1987; and (c) in relation to Northern
Ireland, the Executive.
(3) “Accommodation provisions”
means—(a) in relation to England and Wales, Part II of the Housing Act 1985;
(b) in relation to Scotland, Part I of the Housing (Scotland) Act 1987; (c) in
relation to Northern Ireland, Part II of the Housing (Northern Ireland) Order
1981.
(4) “Licence to occupy”, in
relation to Scotland, means a
permission or right to occupy.
(5) “Tenancy”, in relation to
England and Wales, has the same meaning as in the Housing Act 1985.
(6) “Person subject to
immigration control” means a person who under the 1971 Act requires leave to
enter or remain in the United Kingdom (whether or not such leave has been
given).
(7) This section does not apply
in relation to any allocation of housing to which Part VI of the Housing Act
1996 (allocation of housing accommodation) applies.’
[62] The first question is whether ‘arrangements’ under s
118(1)(b) refers to arrangements made under s 99 or whether it also covers more
loose arrangements following a request under s 100. If ‘arrangements’ refers to only to s 99
arrangements the exception would not apply in this case. The answer in this case would then depend on
the meaning of the words ‘so far as practicable’ in s 118(1).
[63] In my view ‘arrangements’ has a meaning under the 1999
Act and means s 99 arrangements. Thus
since there were no such arrangements with Waltham Forest in this case, s
118(1)(b) does not provide an exception.
[64] What, then, about the words ‘so far as
practicable’? Were those words intended
to mean that if the local authority knew that a person was subject to
immigration control they should not use their housing stock in any
circumstances because with that knowledge it was ‘practicable’ to refuse? Or are the words simply an exhortation not to
use housing stock unless that was the only way of providing accommodation? In my view the words ‘so far as practicable’
are an exhortation. The local authority
if requested to assist under s 100 must co-operate in giving such assistance as
is reasonable; it must look outside its housing stock, but there may be
circumstances in which the inadequacy of the
37
accommodation is such
that it would be unreasonable for the local authority not to use its own
housing stock. Once again a balancing
exercise has to be performed.
SECTION 122(5)
[65] Subsection (5) of s 122 I should set out again:
‘No local authority may provide assistance under any of the child
welfare provisions in respect of a dependant under the age of 18, or any member
of his family, at any time when—(a) the Secretary of State is complying with
this section in relation to him; or (b) there are reasonable grounds for
believing that—(i) the person concerned is a person for whom support may be
provided under section 95; and (ii) the Secretary of State would be required to
comply with this section if that person had made an application under section
95.’
[66] Miss Foster primarily submits that if she can establish
a failure by NASS to provide accommodation, she should be entitled to an order
against Waltham Forest to provide the same under s 17 of the 1989 Act. She accepts however, that she could not
obtain an order both against NASS and against the local authority. In my view she is right in making that
concession, and that is a pointer towards the proper construction of this subsection.
[67] In my view the proper construction of this subsection
is that it excludes the local authority from providing assistance where NASS
should be complying with its obligations under s 95 and s 122. Subsection (b) provides a clue, and it seems
to me that that is what Parliament intended.
[68] For this reason, and since NASS are purporting to carry
out their s 95 and s 122 duties, no remedy lies against Waltham Forest.
OVERVIEW OF THE PRESENT
CASE IN THE CONTEXT OF THE ABOVE DISCUSSION OF THE 1999 ACT
[69] There can be no doubt that NASS are now exercising
their s 95 powers in relation to accommodation in that from February 2003 they
have been paying for 50 Clacton Road.
Were they exercising their s 95 powers in relation to accommodation
prior to that date? They were clearly
contemplating their s 95 powers in early 2002 because they were contemplating
dispersing the A family. But it can be
said with some force that they did not in fact exercise those powers because
otherwise they would have been bound to offer accommodation pursuant to s
122(3). So far as 50 Clacton Road was
concerned, that was not offered by NASS, nor was it provided or arranged for by
NASS. The proper analysis of what
occurred in April 2002 appears to be that NASS were contemplating exercising
their powers under s 95 which would have included dispersing the A family but
were prepared not to do so and prepared to accept that 50 Clacton Road was in
fact adequate and thus that the A family were not destitute while they remained
in that accommodation pending a search for more suitable accommodation in
London. Since that was a decision with
which those representing the As expressly agreed, it seems to me that the A’s
cannot now challenge the adequacy of 50 Clacton Road as at April 2002. In any event the reports, such as they were
at that date would not suggest that 50 Clacton Road was inadequate and would
demonstrate that the decision was an understandable one for the A family and
those responsible for finding accommodation for them. I shall quote hereafter a recent report from
a community consultant paediatrician Corina O’Neill who expresses the view that
this accommodation was never
38
adequate, but that does
not have regard to the decision that the A family actually took at that time,
nor the proper construction of the 1999 Act.
The accommodation was not ideal for the two disabled children but the
assessments suggested it was adequate and would certainly be so if H moved
downstairs as recommended by the social services.
[70] Has the accommodation become inadequate? The occupational therapist’s report of May
2002 suggested that 50 Clacton Road was unsuitable for the two children’s
‘medium and long term needs’. There
seems little doubt that the disabilities of the two children became and are
getting worse. The time that it is
taking to resolve the asylum claim is probably longer than was contemplated in
April 2002. A’s indicated in the
decision of April 2002 NASS have been requesting Waltham Forest to look for
better accommodation. Waltham Forest
have identified certain properties, but they have either been no more suitable
than 50 Clacton Road or if they have been marginally more suitable, they are in
areas into which the A’s would prefer not to move. They would prefer to put up with what they
have got at 50 Clacton Road in order to take advantage of the school and the
support that they are now getting from Waltham Forest. (There was a time it appears when disrepairs
were causing problems at 50 Clacton Road but it seems that those repairs have
now been done and that that is not an issue.)
[71] What are NASS’s obligations in relation to searching
for particular accommodation? They are,
on the language of s 122(3), to provide or arrange for the provision of
adequate accommodation. They can do that
by making arrangements with a local authority under s 99 (not this case). They can also request the local authority to
give assistance under s 100. Furthermore
they could make their own inquiries both of registered social landlords or
presumably estate agents. In the
circumstances of this case NASS had been placed in a situation by the decision
by the A’s in April 2002 whereby they are being asked to confine their search
to a certain area. It may not in all
circumstances be reasonable for NASS to request only one local authority under
s 100 to assist, but in this case, with Waltham Forest’s expertise in the
particular area, it is entirely reasonable that they should have done so. Furthermore Waltham Forest will be likely to
have greater experience of relevant registered social landlords than NASS
themselves, and indeed will be likely to have more detailed knowledge of the
particular area, even in so far as estate agents are concerned. NASS have in any event made clear that if the
A family or any member of that family could find accommodation in the relevant
area they would be prepared to pay for it.
[72] It clearly is not enough for NASS simply to request
Waltham Forest, they must see that Waltham Forest comply with that request so
far as Waltham Forest are obliged to do so.
Waltham Forest’s obligation is to cooperate in giving such assistance as
is reasonable in the circumstances (s 100(2)).
They must in so acting have regard to s 118 and the exhortation not to
use their housing stock ‘so far as practicable’. The most recent statement of Mr Barber for
NASS before us makes clear the difficulties.
‘I am informed by the Borough that currently they have 43 high priority
medical cases waiting for placement in two-bedroom accommodation. They have a further 13 high priority medical
cases waiting for three-bedroom accommodation.
Since my previous discussion with the Borough in May, 5 two-bedroom
properties which are suitable for wheelchair users have been let to
tenants. Their records show that there
39
have been no three-bedroom properties which are suitable for wheelchair
users let during that period.’
[73] The most recent statement relating to the A family
comes from Corina O’Neill to whom I have already referred, and was put before
us without objection. It bears no date
but was faxed to the A’s solicitors on 11 September 2003 and thus presumably
reflects Corina O’Neill’s view at that date.
She says amongst other things:
‘The accommodation currently provided could not be made adequate for H
and C by arranging for them to have beds downstairs. If H and C’s beds were downstairs there would
be no or no sufficient space for their equipment, including their wheelchairs. It would be impossible to accommodate the
further equipment they will require as they deteriorate. Secondly, H and C would be deprived of their
privacy and dignity. It is undesirable
for boys of this age to share a room, but it is wrong for them to have to sleep
in a room, which is the whole family’s living room. This proposal would mean that H and C would
have to live their whole lives in one room.
The problem is intensified because their disabilities limit the extent
to which they can leave the house.
Thirdly, this arrangement would undermine family life. Either the whole family would have to live in
the boys’ bedroom, or Mr and Mrs A would have to use living accommodation
upstairs apart from the boys’ living accommodation and be apart. We must also remember that despite their
significant disability their intellect is relatively preserved and
opportunities for appropriate hobbies and social interaction are most
important.
I consider that the accommodation provided has never been adequate for
them. When I first met the family I was
horrified to learn that Mrs A was supporting H up and down the stairs. I am just as concerned today now that both
boys require support. As time has
progressed, H and C have continued to deteriorate because their condition is
degenerative. Consequently, the
accommodation has become more and more inadequate, and it will continue to do
so. The accommodation is not adequate in
the short, medium or long term.’
[74] The view of Miss O’Neill that this accommodation was never ‘adequate’
is respected, but as of April 2002 the A’s accepted it as adequate in order to
be able to stay where they were. They
did so knowing that efforts would be made to find other accommodation, but that
there would be major difficulties finding alternative more adequate or suitable
accommodation. It is in that context
that the balancing exercise to which I have previously referred had to be
conducted and the questions which I posed would arise. The condition of the children has clearly
deteriorated and the process of dealing with the A’s asylum claim has been
extended beyond that which would have been contemplated as at April 2002. Those two factors must make it the more
urgent to find accommodation which provides more nearly for the needs of these
disabled children. But at the same time
Waltham Forest have their obligations to disabled persons other than asylum
seekers, and NASS only has properties which would be more suitable outside the
area where the A’s want to stay.
[75] It would not be reasonable to impose on NASS or Waltham
Forest in this case an obligation to purchase property in the defined area
where the As desire to live and convert the same so as to enable the A’s to
continue their children’s
40
education at the school
they are now attending even if such property could be found.
[76] Miss Foster when asked what actual remedy she sought,
responded that an order should be made to find a property in the relevant area
within three months, with a further three months to convert the same to make it
adequate for the A’s. That on any view
involves a proper appreciation that it cannot be said that there has come a
stage that there is an absolute obligation to place the A’s in further
accommodation with immediate effect.
[77] The question is whether circumstances have so changed
since April 2002 that NASS must request Waltham Forest to do more than Waltham
Forest are in fact doing, or whether it is unfair that the A family should
continue to be asked to accept 50 Clacton Road as adequate.
[78] I have found this a very troublesome case having regard
to the situation of the two disabled children.
But my conclusion is that NASS are not at this stage in breach of
their duty. One reason that I say this
is that I do not think circumstances have changed appreciably. In addition to wishing to remain in the area the
A family have still, for example, not followed the recommendation to the effect
that the two children could live downstairs.
I have quoted the opinion of Miss O’Neill in this regard, but the
obligation of NASS is to prevent destitution and adequacy or suitability must
be tested in that context. That is just
as true when looking at the needs of disabled children of asylum seekers as it
is when looking at the needs of the asylum seekers themselves. In addition, following the decision in April
2002 it does seem to me that NASS have requested and insisted on Waltham Forest
searching for further accommodation. The
difficulties of that exercise were pointed out to the A’s at the time, and I do
not think it can be shown that NASS have failed in this respect so far.
[79] Steps—indeed urgent steps—must continue to be taken by
NASS to see that Waltham Forest do all that is reasonable to provide this
family with more suitable accommodation.
But in my view the time has not arrived where it can be said that NASS are
in breach of duty under the 1999 Act.
[80] I said I would come back to cross-check the position of
a disabled adult asylum seeker under s 21 of the 1948 Act. In the circumstances of this case where there
has been an acceptance of the accommodation as suited so that a family may live
in a particular location with the terms of that acceptance clear and where that
accommodation is temporary in the sense that it is to be used pending
resolution of an asylum claim, in my view no different result would have been
reached under s 21.
ARTICLE 8
[81] I should finally add that I do not believe that my
construction of the 1999 Act or indeed the decision which I make will give rise
to a breach of art 8. I accept that
Keith J was wrong in suggesting art 8 was not engaged. It would be engaged having regard to the
effect on the ‘physical and psychological integrity’ of the family (see
Botta v Italy (1998) 4 BHRC 81 relied on by Sullivan J in R (on
the application of Bernard) v Enfield LBC [2002] EWHC 2282 (Admin)
at [31], [2003] HRLR 111 at [31]). But
the balancing exercise which I suggest must be carried out bears in mind the
possible interference with the lives of other families who may not get more
suitable accommodation if the A’s get that accommodation and pays regard in
particular to the economic resources required to remove the interference in the
lives of the A’s, and is thus justified under art 8(2).
41
[82] I have noted also the very recent decision of
Anufrijeva v Southwark London BC, R (on the application of N) v
Secretary of State for the Home Dept, R (on the application of M) v
Secretary of State for the Home Dept [2003] EWCA Civ 1406, [2003] All ER
(D) 288 (Oct), and believe my view on art 8 to be in accordance with the
judgment of the court in that case.
[83] I would therefore dismiss the appeal.
CLARKE LJ.
[84] I agree that the appeal should be dismissed for the
reasons given by Waller and Brooke LJ.
BROOKE LJ.
[85] The purpose of Pt VI of the Immigration and Asylum Act
1999 is to prevent asylum seekers and their dependants from becoming destitute
while they are in this country waiting for their asylum claims to be
processed. If they appear to the
Secretary of State to be destitute or to be likely to become destitute in a
prescribed period, the Secretary of State is given power under s 95(1) of the
Act to provide, or arrange for the provision of, support for them. For this purpose a person is destitute if he
does not have adequate accommodation or any means of obtaining it (s 95(3)).
[86] Section 96(1) shows that the Secretary of State may
provide the requisite support by providing accommodation appearing to him to be
adequate for the needs of the supported person and his dependants.
[87] So far I have only referred to powers. Section 122(3) speaks of a duty if there is a
child in the family of the person whom the Secretary of State has a power to
support. In such a case the Secretary of
State must offer accommodation, and if his offer is accepted, he must provide
or arrange for the provision of adequate accommodation for the child as part of
that person’s family. In the present
case the two children are disabled, and I agree with Waller LJ, for the reasons
he gives, that art 14 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights
Act 1998) obliges us not to interpret the word ‘adequate’ in such a way as to
imply that a lower standard of accommodation might be appropriate for a
disabled child than accommodation that is suited to a disabled adult within the
meaning of s 21(2) of the National Assistance Act 1948.
[88] The evidence shows that the Secretary of State would
normally perform his s 122(3) duty by finding accommodation for the child and
his family in a part of the country which is not, like London, beset by a
housing crisis. The scale of that
crisis, at any rate so far as North London is concerned, is apparent from the
distressing evidence from Waltham Forest recorded in Waller LJ’s judgment at
[72], above. In the present case the
Secretary of State did not follow the normal course because of the urgent plea
of Mrs A’s solicitors that their client and her family should be allowed to
remain where they were pending the resolution of their asylum claim, because
they had a stronger preference for the location of 50 Clacton Road and the
nearness of a suitable school for the boys than they had for accommodation in a
different part of the country where they might be equally close to a suitable
school but where the accommodation might be more suited to the boys’
needs. For these reasons I consider that
Mrs A cannot be heard to say that the Clacton Road accommodation was inadequate
between the time of her first application to NASS and the time of the
occupational therapist’s report in
42
May 2002. She actively chose to stay there when NASS
was willing to provide more suitable accommodation elsewhere.
[89] The more difficult question then arises whether NASS
was at any time in breach of its duty after the unsuitability of Clacton Road
had become apparent from the occupational therapist’s report which Waller LJ
cites at [38], above. For the reasons
given by Waller LJ I have concluded, with some hesitation, that it was not. Palliatives which the family chose not to
adopt could have mitigated some of those matters highlighted in that report
which have not yet been remedied, and it must always be remembered that the
purpose of this statutory scheme is to prevent a family from being destitute
within the meaning of s 95 of the Act. If
a family actively chooses to stay in an area with a housing crisis for the
entirely understandable reasons adopted by Mrs A and her family, I can see no
evidence that Parliament envisaged the Secretary of State buying a house for
them in that area as their home for the remainder of the comparatively short
period before their asylum claim is finally determined. By using the word ‘comparative’ I am speaking
of a period which may not exceed two or three years at most, and may well be
shorter.
[90] For these reasons I, too, would dismiss this appeal.
Appeal dismissed.
Kate O’Hanlon
Barrister.
43
[2004] 1 All ER 44
Herring v Ministry of Defence
[2003]
EWCA Civ 528
QUANTUM
COURT OF APPEAL, CIVIL
DIVISION
POTTER, TUCKEY LJJ AND WALL J
14 MARCH, 10 APRIL 2003
Damages – Personal
injury – Amount of damages – Loss of future earnings – Likely career model –
Calculation of future earnings based on loss of chance – Approach to
calculation of future earnings based on model of likely career.
The claimant had been a
supremely fit young man, contemplating a career in the police force. He suffered serious spinal injuries in a
parachuting accident, for which the defendant was liable. He remained capable of full-time sedentary or
semi-sedentary work. In assessing damages,
the judge concluded that there was a strong likelihood that the claimant would
have been successful on an application to join the police, and that he would
have progressed to the rank of sergeant within seven years. He described the claimant as ‘someone who
would have found another door to open if the first door had been closed in his
face’. The judge calculated future loss
of earnings applying a multiplier of 15·54 from the Ogden Tables, reduced by
25% to 11·7 for the uncertain ‘contingencies’ of injury, disenchantment, and
incompatibility of a police career with ordinary family life, which yielded a
figure of £269,532·34. The judge
calculated the claimant’s residual earning capacity as £11,500 net, and adopted
a multiplier of 12 (reduced from 15·54) to produce a total of £138,000,
yielding a net award for future loss of earnings of £131,532·34. The judge made no award for loss of earnings
beyond the police retirement age of 55 on the basis that the claimant’s then
residual earning capacity would be no more than his current residual earning
capacity. The claimant appealed against
each stage of the judge’s calculation of loss.
The defendant contended that the judge should have treated the sum for
earnings loss based on a police career as a claim for loss of a chance.
Held – (1) In a case where the career model adopted had
been chosen because it was itself the appropriate baseline and/or was one of a
number of alternatives likely to give more or less similar results, it was
neither necessary nor appropriate to adopt the percentage chance approach in
respect of the possibility that the particular career identified would not be
followed after all. That was the
position in the instant case. On that
basis the discount of 25% applied to the future earnings loss figure was too
great. If and in so far as the judge
made any substantial discount for the chance that the claimant would not have
become a policeman at all, he had been wrong to do so. Any discount applied in respect of possible
non-promotion to sergeant was questionable, given the firm finding of the judge
that such promotion would have been obtained within seven years. Even if some discount were appropriate for
promotion prospects beyond the position of sergeant it should not have been
substantial given that such promotion would only have involved a salary
increment of around 10%. There was
nothing to indicate that the risk of injury leading to loss of employment in
the police was any higher than in comparable occupations referred to in the
Ogden Tables. The possibilities of
disenchantment and the strains of family life were entirely speculative and in
relation to all the ‘contingencies’ save injury the
44
claimant was a man whom
the judge had found well capable and adapted to finding another door to open if
the first door closed against him. Upon
analysis therefore, the justification for a discount for contingencies
substantially in excess of the figure to be obtained from the Ogden Tables was
not apparent. It appeared that in
concentrating upon the question of the inevitable lack of certainty (as opposed
to high probability) in the police career model and the assumed need for a
discount in that regard, the judge had overlooked the effect of the evidence as
to the claimant’s earning capacity elsewhere which he had apparently accepted,
and which meant that, if the police model were abandoned or interrupted, damage
in the form of earnings loss would at best be slight, and thus that the judge’s
reduction of the appropriate multiplier by 25% unjustly diminished the
claim. A figure of no more than 10%
would have been appropriate. However,
working on a broad-brush basis, the multiplier would be reduced from 15·54 to
14 years (rather than 11·7). That had
the effect of increasing the judge’s award for future earnings loss by 2·3 x
£23,608·99, ie £54,300 (see [26], [27], [33]–[38], [46], [47], below); Allied
Maples Group Ltd v Simmons & Simmons (a firm) [1995] 4 All ER
907 distinguished.
(2) There was no good
reason to disturb the judge’s award relating to residual earning capacity (see
[41], [46], [47], below).
(3) The contention that
the claimant’s post-retirement earnings would have been higher than his current
residual earning capacity was not so speculative as to be the subject of no
compensatory award. A modest award was
due in respect of a real risk of handicap in the labour market, and an
additional award of £5,000 would be made under that head (see [42], [43],
below); Smith v Manchester Corp (1974) 17 KIR 1 considered.
Notes
For loss of future earnings,
see 12(1) Halsbury’s Laws (4th edn reissue) para 887.
Cases referred to in
judgments
Allied Maples Group Ltd v Simmons & Simmons (a firm) [1995] 4 All ER 907, [1995] 1 WLR 1602,
CA.
Bresatz v Przibilla (1962) 108 CLR 541, Aust HC.
Doyle v Wallace
[1998] PIQR Q146, CA.
Langford v Hebran [2001] EWCA Civ 361, [2001] PIQR Q160.
Mallett v McMonagle [1969] 2 All ER 178, [1969] AC 166, HL.
Smith v Manchester Corp (1974) 17 KIR 1, CA.
Cases referred to in
skeleton arguments
Bank of Credit and Commerce International SA (in liq) v Ali (No 2) [1999] 4 All
ER 83; affd [2002] EWCA Civ 82, [2002] 3 All ER 750, [2002] ICR 1258.
Ross v Bowbelle (owners)
(18 June 1991, unreported), Admlty Ct.
Smee v Adye [2000]
All ER (D) 589, CA.
Appeal
The claimant, Francis John Herring,
appealed from the order of Judge Masterman, sitting as a judge of the Queen’s
Bench Division, on 12 August 2002, that the Ministry of Defence pay damages,
including the sum of £269,532·34 for future loss of earnings, for injuries
suffered by the claimant, a member of the Territorial Army Special Air
Services, in a parachute accident on 2 September 1994. The facts are set out in the judgment of
Potter LJ.
45
Theodore Huckle
(instructed by Hugh James, Cardiff) for the claimant.
Paul Kilcoyne
(instructed by the Treasury Solicitor) for the defendant.
Cur adv vult
10 April 2003. The following judgments were delivered.
POTTER LJ.
INTRODUCTION
[1] This is an appeal from the judgment dated 12 August
2002 of Judge Masterman sitting as a deputy judge of the High Court, whereby he
assessed the damages payable by the defendant, the Ministry of Defence, to the
claimant, Mr Herring, in respect of serious spinal and other injuries suffered
by him in a parachuting accident in September 1994. The effect on the claimant was that, from
being a supremely fit young man in the Territorial Army Special Air Service,
contemplating an eventual career in the police, he was, by trial, someone who
could walk no more than 500 metres with the aid of a stick and frequent rests.
THE BASIS OF THE
DAMAGES AWARDED
[2] The general damages were agreed at £28,000. The principal problem for the judge was to
assess the effect of the claimant’s accident and disability on his employment
prospects on the basis that the orthopaedic experts on both sides were agreed
that, while unemployed at the time of the trial, he was capable of full-time
sedentary or semi-sedentary work, provided it was in conditions where he could
get up and walk about whenever he felt the need.
[3] Prior to the accident, the claimant had worked as a
qualified sports coach and lifeguard in a leisure centre. He was an SAS standard physical training
instructor. In 1993, he was earning
£16,000 pa gross from that employment with an additional £4,000 gross from
casual coaching work with the Welsh Sports Council. He also had earnings from the Territorial
Army (TA). He was pursuing a Higher
National Diploma course in law (which he completed despite the intervention of
the accident) with a view to joining the police force which had for some time
been his ambition. There was employment
evidence on his behalf that, whilst selection for the police in South Wales
where he lived was very competitive, he was well suited to the job and a very
strong candidate, likely to be selected.
His case was advanced on the basis that he would have started in the
police force on a salary of £15,438 pa gross ie £11,500 pa net and would have
expected to become a sergeant with earnings of around £26,242 gross ie £19,030
net within five years. Retirement in
that rank was at 55 and the post was pensionable.
[4] Having reviewed the evidence, the judge concluded:
‘15. I find, to the extent of virtual certainty, that when the time was
right the claimant would have applied to the police. That could not have been before June
1996. Depending on recruitment
opportunities at the time, I believe he would have applied fairly soon after
that but undoubtedly waiting until he had completed his degree in 1997, had he
embarked on that in 1995. The
probability is therefore that he would have applied by autumn 1997 at the age
of 30.
46
16. I further find, on a wealth of evidence, that there is a strong
likelihood that his application would have been successful. How far he would then have progressed is
inevitably less certain although my impression of the claimant, shared by Mr
Pask and Mr Ames [who were employment experts], is that his expectation could
not reasonably run higher than attaining the rank of sergeant, which I find he
would have attained within seven years.
Of course one cannot entirely rule out the possibility that he might
have gone further, but on statistical grounds, as well as considering his
academic background and all the information about him, and my assessment of his
character and personality, I think that progress beyond sergeant is too
speculative and therefore sufficiently unlikely not to call for evaluation in
percentage terms.’
[5] Having so found, the judge went on first to assess the
claimant’s earning potential and loss of future earning capacity on the basis
of a career in the police force which would have permitted him for a further
three years from 1997 to continue his TA activities, but that thereafter such
activity would have been likely to have ceased as an additional source of income
by reason of his interests and activity in the police force. The judge calculated the future loss of
earnings in a conventional manner, applying to the multiplicand of the
claimant’s notional police salary a multiplier of 15·54 taken from the
Actuarial Tables with explanatory notes for use in Personal Injury and Fatal
Accident Cases (4th edn, 2000) (the Ogden Tables), reduced to 11·7 for
‘uncertainty’ (a reduction of 25%). This
yielded a figure of £269,532·34.
[6] The judge then calculated the claimant’s residual
earning capacity in a clerical role as a result of the accident. He assessed it at £15,000 pa gross ie £11,500
net, and adopted a multiplier of 12 (reduced from 15·54), so as to produce a
total of £138,000. Deduction of that
total from the sum previously calculated for gross earnings loss yielded a net
award for future earnings loss of £131,532·34.
[7] The judge made no award for loss of earnings beyond the
police retirement age of 55 because he was not satisfied that by then the
claimant’s residual earning capacity would be more (at today’s values) than his
residual earning capacity as above assessed but deemed to continue to age 65.
[8] Finally, the judge awarded a sum of £50,000 for loss of
pension on the basis of the claimant’s notional retirement from the police
force as a sergeant at the age of 55.
[9] Issues arise upon this appeal in relation to each stage
of the judge’s calculation of loss. I
turn first to the question of future earnings loss.
FUTURE EARNINGS LOSS
[10] There was no substantial issue at trial as to the
figures for police earnings to be used for the purpose of arriving at a
multiplicand. However there was an issue
as to how far there was room for assessment of the gross loss by application of
a conventional (Ogden) multiplier (discounted for contingencies) and applied to
a multiplicand based on the claimant’s putative earnings in a police career.
[11] The judge accurately summarised the submissions for the
claimant as follows:
‘32. As for the basis for assessing the claimant’s future loss, Mr
Huckle recognised that there cannot be certainty that the claimant would have
joined the police but he submitted that if that is a strong probability, effect
47
should be given to it in the following way. Firstly, that the police career is a
reasonable model for the loss of career earnings which the claimant has
suffered. If the aim is to put the
claimant so far as possible into the position he would have been but for the
accident, then the police career is a reasonable basis for compensation. Secondly, he points out that if, for example,
there is a 75% likelihood of joining the police, then there is a corresponding
25% likelihood of some other career in the alternative, which might be similarly
remunerated. So one way or the other, he
submits, the claimant should be assessed as losing career earnings in that
bracket because he was the sort of man to set himself goals and then to achieve
them. He had demonstrated that when he
had wanted to become a lifeguard, when he wanted to qualify as a sports coach,
when he wanted to get into an elite branch of the TA and when he wanted to gain
a Higher National Diploma, he was able to achieve all of these. He might well have gone on to obtain a law
degree. Furthermore, former colleagues
had gone on to achieve good earnings so why not the claimant?
33. Mr Huckle therefore submitted that the claimant should be
compensated as if he would have become a police officer and that this case is
not about the loss of a chance.’
[12] The judge went on to summarise the contention for the
defendant, namely that so far as a career in the police was concerned, there
was no certainty of selection in a competitive field, nor that the claimant
would be promoted to sergeant and that therefore any calculation of loss on the
basis of a career in the police fell to be assessed only upon the basis of
‘loss of a chance’. No particular
percentage figure was put forward but, on this appeal, Mr Kilcoyne for the
defendant indicates that, in the light of the judge’s view of the
probabilities, a 75% award would have been appropriate.
[13] In this connection the judge was referred, as we have
been, to the speech of Lord Diplock in Mallett v McMonagle [1969] 2 All
ER 178 at 191, [1970] AC 166 at 176, to the judgment of Stuart-Smith LJ in
Allied Maples Group Ltd v Simmons & Simmons (a firm) [1995] 4
All ER 907 at 915–916, [1995] 1 WLR 1602 at 1611 and that of Otton LJ in
Doyle v Wallace [1998] PIQR Q146 at 149–151 as considered and applied in
Langford v Hebran [2001] EWCA Civ 361, [2001] PIQR Q160.
[14] The judge dealt with the rival arguments in this
way. He said:
‘34. … The authorities show that provided a chance is substantial,
rather than a speculative one, a claimant will receive compensation even if he
cannot show that it is more probable than not that the chance would have fallen
in his favour. That plainly does justice
to a claimant who would otherwise received [sic] nothing because he could not
show a loss on the balance of probabilities.
Does that still apply where the claimant can show a loss on the balance
of probabilities, more so if there is a strong likelihood?
35. This seems to me to be a common enough situation. An employee is injured in the course of his
employment. His loss is based on the
probability that he would have continued to work for that employer or in that
industry or profession but it ignores the fact that the current employer may go
out of business or the employee may be made redundant or markets may change and
so on. Plainly there is a chance of such
things happening, quite apart from the factors which give rise to the Ogden
Tables. In cases like these a court has
to weigh up various factors and attempt to arrive at a fair balance,
48
fair in the sense that it properly compensates the injured claimant but
reflects future uncertainties so that the end result is neither
over-compensation nor under-compensation.
In the present case there cannot be certainty that the claimant would
have become a police officer, less so that he would have been promoted to
sergeant. On the other hand I am
satisfied that there is, as I have said, a strong likelihood that he would have
succeeded in his application to the police.
But would he have remained in the police throughout his career? He might have become disenchanted, or been
injured, or found it incompatible with family life. There are inevitably more uncertainties than
with a claimant who is already established in a career and has a “track
record”.
36. In my judgment the fairest way of reflecting the lack of certainty
in a case such as this is to calculate the claimant’s loss on the basis that he
would have become a police officer, rising to sergeant within seven years and
then to discount the normal multiplier to reflect the uncertainties on which I
have touched.’
[15] Having indicated that he would deal with the matter in
the light of those observations, later in his judgment the judge stated his
findings as to the appropriate calculations on the basis put forward by the
claimant. He said (para 38):
‘Future loss
Loss of earnings as a police constable from the date of this judgement
to 2 September 2004. I have discounted
the normal multiplier (15·54 years) to 11·70 to reflect the uncertainties
referred to in the body of this judgement.
This future loss should therefore be calculated on the basis of a
multiplicand of a current police constable’s net earnings including overtime
multiplied by two years (notionally the remainder of the seven-year period from
2 September 1997). On the assumption
that the claimant would have become a sergeant by 2 September 2004, the
multiplicand should then become the current net earnings of a sergeant together
with overtime multiplied by the balance of the multiplier, namely 9·70 years.’
[16] The gross future earnings loss calculated upon that
basis was £269,532·34.
[17] Upon this appeal Mr Huckle approves and adopts the
refusal of the judge to accept the invitation of the defendant to treat the sum
for earnings loss based on a police career as a claim for loss of a chance,
assessed on the basis set out in the Allied Maples case. He does so because of the basis on which that
career model was put before the judge and apparently accepted by him as
appropriate. As appears from para 32 of
the judgment (see [11], above) the police career was advanced as a reasonable
model for the claimant’s loss of future earnings in the circumstances peculiar
to his case. It was not advanced on the
basis that it was likely to yield more to the claimant than the general level
of earnings of which he was capable and likely to achieve in the future, but
simply as the sensible method of putting specific figures upon the injury to
his earning capacity. Put another way,
it was advanced as typical of, rather than an improvement on, the level of earnings
he might reasonably achieve by reason of his record, application, intentions
and abilities. This the judge appeared
to accept in those passages where he quoted without demur the submissions for
the claimant that, if he did not achieve his ambition of joining the police,
the likelihood was that he would be similarly remunerated because he was the
sort of man to set himself goals and
49
to achieve them. Elsewhere in his judgment the judge had
stated that, assuming the claimant was accepted by the police, of which there
was a ‘strong likelihood’, he would certainly have become a sergeant within
seven years. He also observed as follows
in respect of evidence called from a former colleague of the claimant as to his
opportunities to make money abroad as a result of his skills acquired in the
SAS:
‘It seems likely that if his preferred options had failed, the claimant
would have qualified for work of that kind.
I draw attention to that as reinforcing my assessment of the claimant as
someone who would have found another door to open if the first door had been
closed in his face. There is no reason
to think he would not have achieved good earnings if he set his mind to it,
particularly if by then he had a law degree.’
[18] In those circumstances, submits Mr Huckle, it was not
appropriate to calculate the claimant’s future loss of earnings as a police
officer upon a ‘loss of chance’ basis.
The claimant’s position, unlike the situations dealt with in the ‘loss
of chance’ authorities quoted to the judge, was not such that, if he lost the
chance to become a police officer, his earning capacity was
reduced. In such a case the conventional
approach to the calculation of earnings loss, adopted whenever the court is
satisfied as to the rate and/or likely level of future earnings (ie by
application of a multiplier based on the Ogden Tables to a selected
multiplicand) was appropriate.
[19] That being so, submits Mr Huckle, the judge was in
error in discounting the normal (ie Ogden) multiplier of 15·54 by as large an
amount as 3·84. He points out that this
reflected a period of earning capacity of six years within the period to age 55
and had the effect of reducing the value of the claimant’s claim for the
relevant loss of earnings by as much as 25%.
Mr Huckle submits that, given the ability and opportunity of the
claimant to earn equivalent money elsewhere, a nominal discount (if any) was
appropriate on the basis that he might never have become a policeman at
all. Further, such conventional discount
for contingencies or the ‘vicissitudes of life’ as is customarily applied
should have been far less than 25%.
[20] On this aspect of the appeal, Mr Kilcoyne for the
defendant, submits as follows. First, he
makes clear that there is no dispute as to the calculation of the value of the
potential police career had it been embarked upon, the figures for future
earnings, first as a constable then as a sergeant, and for the value of the
pension all being accepted. Second, he
asserts that the judge erred in law by failing to assess the value of the
claimant’s potential police career on the basis of a percentage chance applied
so as to reduce the total putative loss by an appropriate amount. He submits that the correct way of reflecting
the ‘lack of certainty’ referred to by the judge was by a finding that there
was only a 75% chance of the claimant pursuing a police career which would have
produced the same level of award by a more correct method.
[21] Mr Kilcoyne’s interest in this point is not just
academic, however; its significance lies so far as he is concerned in its
effect upon the award in respect of the claimant’s lost pension (see further
below).
[22] In the particular circumstances of this case, I do not
accept Mr Kilcoyne’s strictures as to the method adopted by the judge in
relation to the claim for future loss of earnings, though for reasons to which
I turn below I would have made a lesser reduction for uncertainty than did the
judge.
50
[23] In any claim for injury to earning capacity based on
long-term disability, the task of the court in assessing a fair figure for
future earnings loss can only be effected by forming a view as to the most
likely future working career (the career model) of the claimant had he not been
injured. Where, at the time of the
accident, a claimant is in an established job or field of work in which he was
likely to have remained but for the accident, the working assumption is that he
would have done so and the conventional multiplier/multiplicand method of
calculation is adopted, the court taking into account any reasonable prospects
of promotion and/or movement to a higher salary scale or into a better
remunerated field of work, by adjusting the multiplicand at an appropriate
point along the scale of the multiplier.
However, if a move of job or change of career at some stage is probable,
it need only be allowed for so far as it is likely to increase or decrease the
level of the claimant’s earnings at the stage of his career at which it is
regarded as likely to happen. If such a
move or change is unlikely significantly to affect the future level of
earnings, it may be ignored in the multiplicand/multiplier exercise, save that
it will generally be appropriate to make a (moderate) discount in the
multiplier in respect of contingencies or ‘the vicissitudes of life’.
[24] In the situation of a young claimant who has not yet
been in employment at the time of injury but is still in education or has
otherwise not embarked on his career, or (as in this case) one who has taken
time out from employment in order to acquire a further qualification for a
desired change of direction, it may or may not be appropriate to select a
specific career model in his chosen field.
In this connection the court will have regard to the claimant’s previous
performance, expressed intentions and ambitions, the opportunities reasonably
open to him and any steps he has already taken to pursue a particular
path. In many cases it will not be
possible to identify a specific career model and it may be necessary simply to
resort to national average earnings figures for persons of the claimant’s
ability and qualifications in his likely field(s) of activity. In other cases, however, it may be possible
with confidence to select a career model appropriate to be used as the multiplicand
for calculating loss. In either case,
the purpose and function of the exercise is simply to select an appropriate
‘baseline’ for calculation of the claimant’s probable future earnings whatever
his future occupation may in fact turn out to be. Thus if the career model chosen is based upon
a specific occupation (such as the police force in this case), the chance or
possibility that the claimant will not in the event enter that occupation or,
having done so, may leave it, will not be significant if the likelihood is that
he will find alternative employment at a similar level of remuneration.
[25] These are truisms so far as the conventional approach
to the assessment of injury to earning capacity is concerned. Similarly, it is a truism that the assessment
of future loss in this field is in a broad sense the assessment of a chance or,
more accurately, a series of chances as to the likely future progress of the
claimant in obtaining, retaining or changing his employment, obtaining
promotion, or otherwise increasing his remuneration. None the less, such assessment has not
traditionally been regarded as necessitating application of the technique of
percentage assessment for ‘loss of a chance’ based on the likely actions of
third parties, as articulated by Stuart-Smith LJ in Allied Maples Group Ltd
v Simmons & Simmons (a firm) [1995] 4 All ER 907, [1995] 1 WLR
1602. In cases such as Doyle v
Wallace [1998] PIQR Q146 and Langford v Hebran [2001] PIQR Q160 the
court has in special circumstances felt obliged to adopt such a method in order
to calculate particular aspects of the claimant’s future loss claim. However, those
51
decisions have not
purported generally to replace the traditional method of adjusting the
multiplier or multiplicand within the career model appropriate to the
particular claimant so as to reflect (a) the likelihood of an increase in
earnings at some point in the claimant’s career and (b) those
contingencies/vicissitudes in respect of which a discount appears to be
appropriate.
[26] The cases in which the percentage ‘loss of a chance’
approach has been adopted appear to me to be those where the chance to be
assessed has been the chance that the career of the claimant will take a
particular course leading to significantly higher overall earnings than those
which it is otherwise reasonable to take as the baseline for calculation. Thus, it was appropriate in Doyle’s
case to assess on a percentage basis the chance that the claimant might have a
remunerative career as a drama teacher rather than the more prosaic baseline
activity of clerical or administrative work.
Similarly, in Langford’s case the same technique was applied to
the chance that the appellant might become a highly successful full-time
kick-boxing champion, rather than a bricklayer with five fights a year at what
might be called ‘journeyman level’. In a
case where the career model adopted by the judge has been chosen because it is
itself the appropriate baseline and/or is one of a number of alternatives
likely to give more or less similar results, then it is neither necessary nor
appropriate to adopt the percentage chance approach in respect of the
possibility that the particular career identified will not be followed after
all. That seems to be me to be the
position in this case.
[27] On that basis, was the 25% discount applied by the
judge to the future earnings loss figure too great as Mr Huckle submits? I consider that it was. By way of preliminary, I would observe that,
whereas the judge’s starting point was, rightly, to select the appropriate
multiplier from the Ogden Tables for loss of earnings, that multiplier takes no
account of risks other than mortality.
Section B (pp 11–13 (paras 30–44)) of the explanatory notes to the Ogden
Tables presents a helpful discussion and guide in relation to the further
discount likely to be appropriate for other contingencies/vicissitudes. It makes the point that these contingencies
are principally illness and periods of unemployment, but that specific factors
in individual cases may necessitate larger reductions. Tables of percentage figures are then set
out, based on research conducted for the Institute of Actuaries, under the
heading ‘The basic deduction for contingencies other than mortality’ (p 12 (para
36)). Table A shows ‘Loss of Earnings to
Pension Age 65 (Males)’ and Table B to ‘Pension Age 60 (Males)’ (p 12 (para
38)). The deductions set out are notably
low compared with the level of discount traditionally applied over the years.
[28] The ‘Medium’ column in Tables A and B shows the level
of discount appropriate to be made if it is anticipated that economic activity
is likely to correspond to that in the 1970s and 1980s ignoring periods of high
and low unemployment. A discount of 2%
is shown under Table B for a man aged 35 at date of trial. In the case of the claimant the pension age
of 55 merits a smaller discount. Under
the heading ‘Variations by occupation’ (p 13 (paras 40–42)) the point is made
that the risks of illness, injury and disability are less for persons in
clerical or similar jobs and greater for those in manual jobs such as
construction, mining, quarrying and shipbuilding. However, what matters is the type and nature
of the work undertaken by the person in question rather than the industry as
such. It is suggested that in more risky
occupations the figures given in the tables should be reduced by a maximum of
the order of 1% at age 25, 2% at age 40 and 5% at age 55. Taking the tables as a guide, and treating
the police as a ‘more
52
risky’ occupation, the
appropriate discount for this claimant would thus be in the order of 3%.
[29] It is perhaps no surprise that the figures based on
general research reveal low appropriate discounts when averaged across the
board. The observations of Windeyer J in
Bresatz v Przibilla (1962) 108 CLR 541 have for long been quoted but
perhaps insufficiently recognised so far as deductions for contingencies are
concerned. In this connection he stated
(at 543–544):
‘It is a mistake to suppose that it necessarily involves a “scaling down”. What it involves depends, not on arithmetic,
but on considering what the future may have held for the particular individual
concerned. He might have fallen sick
from time to time, been away from work and unpaid. He might have become unemployed and unable to
get work. He might have been injured in
circumstances in which he would receive no compensation from any source. He might have met an untimely death. Allowance must be made for these
“contingencies”, or the “vicissitudes of life” as they are glibly called. But this ought not to be done by ignoring the
individual case and making some arbitrary subtraction.’
[30] In relation to a suggestion that it was common practice
to subtract 25% ‘for contingencies’ he continued:
‘I know of no reason for assuming that everyone who is injured and
rendered for a period unable to work would probably in any event have been for
a quarter of that period out of work, or away from work and unpaid. No statistics were presented to justify this
assumption. Moreover, the
generalization, that there must be a “scaling down” for contingencies, seems
mistaken. All “contingencies” are not
adverse: all “vicissitudes” are not harmful.
A particular plaintiff might have had prospects or chances of
advancement and increasingly remunerative employment. Why count the possible buffets and ignore the
rewards of fortune? Each case depends
upon its own facts.’
[31] I would only add in respect of the last passage quoted
that statistics, or at any rate guidance based upon research, are now available
in the notes to the Ogden Tables which demonstrate that so far as the level of
any ‘arbitrary’ or generally applied level of discount is concerned, a figure
of 25% is a gross departure from that appropriate simply in respect of future illness
and unemployment. In order to justify a
substantially higher discount by reason of additional future contingencies,
there should in my view be tangible reasons relating to the personality or
likely future circumstances of the claimant going beyond the purely
speculative.
[32] The principal difficulty in approaching this case is to
identify the contingencies to which the judge had regard when applying the
discount which he did. His reference to
the ‘uncertainties on which I have touched’ plainly included the lack of
‘certainty that the claimant would have been a police officer’. On the other hand, in making his award of
special damages based on the claimant’s notional loss of wages as a policeman
since 1997 he had made no discount whatsoever.
The judge also referred to lack of certainty that the claimant would
have been promoted to sergeant. Yet he
had earlier expressed himself satisfied that, following a successful
application to join the police, the claimant would have attained the
rank of sergeant (see para 16 of the judgment), the doubt expressed being
whether he would have progressed further to
53
inspector (the
possibility of which had been advanced and taken into account in the claimant’s
schedule of loss). The other matters to
which the judge referred were his suggestions that the claimant might have been
disenchanted, or been injured, or have found his police career incompatible
with family life.
[33] If and in so far as the judge made any substantial
discount for the chance that the claimant would not have become a policeman at
all, I consider he was wrong to do so, for the reasons advanced by Mr
Huckle. The judge appears to have
accepted that the police career model was appropriate on the assumption that,
if it was not followed, the claimant (whose abilities and determination he
assessed highly) was capable of ‘good earnings’ elsewhere if disappointed in
his ambition to become a policeman. He
did not put figures upon the ‘good earnings’ which he was satisfied the
claimant could have made elsewhere.
However, there was good reason to assume that such earnings would be
comparable with those earned in the police.
As pointed out by Mr Huckle, the claimant’s earnings of £20,000 pa gross
in 1993 updated to the date of trial represented an income of £29,000-odd gross
or £21,700 net, as against the net earnings of a police constable at time of
trial of £20,009. There was also
evidence before the judge from a former TA colleague that there would be work
available for the claimant as a security adviser in the oil industry in North
Africa at a salary level of around £40,000 pa tax free, which it appears that
the judge accepted (see [17], above).
[34] On that basis, as it seems to me, and given the
assessment by the judge of the claimant’s qualities, there was no reason to
adopt a baseline for the claimant’s earnings from an occupation or career
outside the police force which was substantially lower than that within it and
it is clear that the judge did not do so.
There was thus no proper basis for a discount to be applied simply
because of the risk that the claimant would not become a policeman in the first
place.
[35] So far as concerns any element of discount which the
judge applied in respect of possible non-promotion to sergeant, the
appropriateness of such discount is again in question, given the firm finding
of the judge that such promotion would have been obtained within seven
years. The doubts which he expressed as
to the claimant’s promotion prospects were related to promotion beyond
the position of sergeant. Even if some
discount were appropriate it should not have been substantial given that, on
the undisputed figures, such promotion would only have involved a salary
increment of around 10%.
[36] That leaves the ‘contingencies’ of injury, disenchantment,
and incompatibility with family life.
Plainly, while a policeman remains active upon the beat, rather than
employed in the police station or behind a desk, his occupation involves the
possibility of injury in the course of law enforcement. However, there was no evidence before the
judge, nor am I aware of statistics which indicate, that the risk of injury
leading to loss of employment in the police is any higher than in the
band of more active or hazardous occupations referred to in the notes to the
Ogden Tables above. While the chance of
injury was clearly one of the range of considerations to be taken into account,
it would only be so if the injury was sufficiently disabling to require the
claimant to retire from the force (rather than be ‘off sick’) and, in this
respect, there is no reason to suppose that the figures applicable to policemen
are out of line with those in the band of more hazardous occupations mentioned.
[37] So far as disenchantment and the strains of family life
are concerned, while undoubtedly these are possibilities which could lead to an
early exit from the police force, they were entirely speculative and there were
no general
54
statistics before the
judge or particular reasons in relation to the claimant which indicated that a
substantial discount was called for in this regard. Finally, the fact remains that, in relation
to all the contingencies mentioned save injury, the claimant was a man whom the
judge found well capable and adapted to finding another door to open if the
first door closed against him.
[38] Thus, upon analysis, the justification for a discount
for contingencies substantially in excess of the figure to be obtained from the
notes to the Ogden Tables is not apparent.
While I recognise that this court should be hesitant about interfering
with a discount considered appropriate by the trial judge, I am concerned from
the form of the judgment that, in concentrating upon the question of the
inevitable lack of certainty (as opposed to high probability) in the police
career model and the assumed need for a discount in this regard, the judge
overlooked the effect of the evidence as to the claimant’s earning capacity
elsewhere which he had apparently accepted and which meant that, if the police
model were abandoned or interrupted, damage in the form of earnings loss would
at best be slight, and thus that the judge’s reduction of the appropriate
multiplier by 25% unjustly diminished the claim. The tables in the notes to the Ogden Tables
make plain that on an ‘average’ basis the discount appropriate to be allowed
for the possibility that illness and unemployment will interrupt a claimant’s
earning career is a small one as compared with levels which have been
traditionally applied. In my view that
is a matter which should be borne in mind by judges when considering the level
of discount to be made for contingencies generally. In this case, the contingencies over and
above illness and unemployment which were anticipated by the judge were not
said to be based on any particular feature of the claimant’s character or a
higher ‘drop-out’ rate from the police force than any other occupation. There was thus no apparent reason for a
reduction in the assessment of the claimant’s future earnings of anything like
25%. In my view a figure of no more than
10% would have been appropriate.
However, working on a broad-brush basis I would reduce the multiplier
from 15·54 to 14 years (rather than 11·7).
This has the effect of increasing the judge’s award for future earnings
loss by 2·3 x £23,608·99 ie £54,300.
RESIDUAL EARNING
CAPACITY
[39] When dealing with the question of the claimant’s
residual earning capacity to be set against his future loss of earnings claim
to age 55 on retirement from the police, the judge accepted medical evidence
that it would be reasonable to suppose that the claimant would achieve a
residual earnings capacity within a year from the date of judgment. The full multiplier for the period to age 55
was 15·54. That required an immediate
reduction of 1 to allow for the delay of one year in the start of
earnings. Thus the net full multiplier
was 14·54. The judge discounted that
figure down to 12 on the basis of the claimant’s disability. Mr Huckle submits that that was an
insufficient discount bearing in mind the degree of the claimant’s
disablement. It was the unchallenged
evidence of the claimant’s employment consultant Mr Pask that it was ‘always
possible’ that the claimant’s physical and mental difficulties would form a
barrier to his becoming permanently employed in reasonably well-paid
employment. He observed that statistics
from the Labour Force Survey (summer 2000), from which he quoted
extracts, suggested that people with problems like the claimant’s were likely
to be economically inactive or unemployed and when unemployed to be so for a
considerable time. In the conclusion to
his final report Mr Pask observed that, since his injury, the claimant had been
employed in temporary administrative
55
work using his general
skills and academic background, being currently in a short-term training job
using his sporting and military experience.
He stated that while he might be able to find further administrative
jobs he might take some time to establish himself in a permanent post and set
out what he believed to be the claimant’s residual earning potential. He added finally that the claimant would,
however, remain more vulnerable than he would have done as a police
officer. The reference to the
psychological state of the claimant was a reference to the agreed medical
evidence that—
‘From a psychological point of view, he is capable of employment, which
his physical condition permits him to carry out. He would find it difficult to tolerate
employment which does not conform to his expectations of himself.’
[40] Mr Huckle submits that as a formerly extremely fit and
physically orientated ‘outdoor type’, the difficulties the claimant had
experienced in motivation for the kind of clerical and administrative work
which he could now expect to obtain were bound to continue. Mr Huckle submits that in the circumstances
the multiplier for the residual earning capacity should have been substantially
further discounted from the full working life multiplier and suggests an appropriate
net multiplier of 8.
[41] Mr Kilcoyne however supports the figure adopted by the
judge. He submits that the matter was
peculiarly one for the judge to form having seen the claimant give evidence at
length and having had an opportunity of assessing his qualities and resolution
favourably in the way which he did. He
submits that an alternative method of dealing with the claimant’s difficulties
and vulnerability in the labour market would have been to make a very
substantial Smith v Manchester award (see Smith v Manchester Corp
(1974) 17 KIR 1). On that basis he
points out that the deduction of the appropriate multiplier, even when the
‘delayed start’ of 12 months is taken into account, equates to an award of
almost £30,000 (2·54 x £11,500 = £29,210).
I accept the submissions of Mr Kilcoyne in this respect and see no good
reason to disturb the judge’s award under this head.
RESIDUAL LOSS AFTER AGE
55
[42] The evidence before the judge was to the effect that,
on a broad assessment, a police sergeant retiring at age 55 would have earning
capacity of around half his level of pay at retirement which would be a
basic £31,590 gross without allowance for overtime and that ex-military
personnel with the right skills could find lucrative posts in the oil or
communications industries provided they remained fit. The judge held that the position was
necessarily speculative and that there was no sufficient evidence that the
claimant’s earnings post-retirement would be more than the judge’s assessment
of his current residual earning capacity, which the judge deemed to continue to
age 65.
[43] Mr Huckle criticises this finding on the basis that
there was unchallenged evidence before the judge from the employment expert Mr
Pask based on the Department for Education and Employment Research Report RR133
(1999) ‘Earnings and Employment Opportunities of Disabled People’ that pay for
disabled males of all ages is 21% below that for their able-bodied
counterparts. He also submits that
common sense itself dictates that the earning capacity of an able-bodied 55-year-old
on retirement from the police must be greater than that of a person of the same
age with a disability which precludes any possibility of other than a sedentary
job in particular conditions. Further it
is inevitable that
56
such a person must be handicapped
in the labour market, presenting a far less impressive appearance and history
at interview to a prospective employer than an able-bodied former policeman of
the claimant’s accepted drive and fitness.
In particular, security or other active work of the kind for which
policemen may be peculiarly fitted on retirement would be precluded. Mr Huckle submits that rather than treating
the matter as too speculative to be the subject of any compensatory
award, the position was classically one deserving of a modest award in respect
of a real risk of handicap in the labour market on Smith v Manchester
principles. I am bound to say that I am
in agreement with that submission and would make an additional award to the
claimant of £5,000 under that head.
LOSS OF PENSION
[44] Under a respondent’s notice, Mr Kilcoyne, following the
logic of his argument in relation to future earnings loss (see [20], above),
submitted that the judge should have reduced the figure of £50,000 for pension
loss to a figure of £37,500 on the basis of a 75% recovery. However, in the course of the appeal, it
became apparent by reference to the claimant’s schedule of loss at trial (as to
the arithmetic of which there was no argument) that the judge’s figure of
£50,000 involved a discount of almost precisely 25% from the figure of
£66,601·96 put forward as the total pension loss at today’s values on the
assumption that the claimant retired from the police with the rank of
sergeant. Mr Kilcoyne therefore did not
press the point further and this aspect of the judge’s award remains intact.
CONCLUSION
KUJUA STYLE TAMU ZA KUMKUNA MSICHANA AKAKUPENDA DAIMA ASIKUSALITI BONYEZA HAPA CHINI
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