Mawdesley v Chief Constable of the Cheshire Constabulary
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Yorke v Director of Public Prosecutions
[2003]
EWHC 1586 (Admin)
CRIMINAL; Criminal
Evidence; Road Traffic: HUMAN RIGHTS; Fair Trail
QUEENS BENCH DIVISION
(ADMINISTRATIVE COURT)
OWEN J
21 MAY, 2, 15, 31 JULY 2003
Criminal evidence –
Admissions and confessions – Statutory power – Power to require information –
Police issuing driver with form requiring under statutory power details of
driver of vehicle to be prosecuted for speeding offence – Driver returning form
completed as to name and address but undated and unsigned – Whether incomplete
form statement in writing purporting to be signed by accused – Whether
incomplete form confession – Whether use of incomplete form in evidence
infringing convention right to fair hearing – Police and Criminal Evidence Act
1984, s 82(1) – Road Traffic Act 1988, s 172(2) – Road Traffic Offenders Act
1988, s 12(1)(b), Human Rights Act 1998, Sch 1, Pt I, art 6(1).
The appellant in the
first case was sent a notice of intended prosecution for driving in excess of
the speed limit and a form requiring him to provide information under s 172a of the Road Traffic Act 1988 as to the
identity of the driver of the vehicle in question. The form required the completion of, inter
alia, full name, address and date of birth.
At the foot of that part of the form the words ‘signature’ and ‘date’
were printed, with space for insertion of each.
The form was returned to the police force with the appellant’s name and
address handwritten in the relevant boxes.
The spaces for signature and date had been left blank. At the subsequent hearing the magistrates
rejected the appellant’s submission that there was no admissible evidence that
he had been the driver on the relevant occasion and therefore no case to
answer. The court considered that the
partially completed s 172 form fulfilled the requirement under s 12(b)b of the Road Traffic Offenders Act 1988 of
being a statement in writing, purporting to be signed by the accused, that the
accused was the driver of the vehicle in question. The appellant in the first case was convicted
and appealed. The facts in the second
case were similar save that evidence was given on behalf of the appellant in
the second case that his agent had made the entries on the s 172 form without
his principal’s authority. On appeal
from the magistrates’ court, the Crown Court accepted that the agent had made
the entries but was satisfied he had authority to do so. The appellant in the second case also
appealed. The appellants in both cases
contended, inter alia, (i) that a s 172 form in which the name of the driver
had been inserted by hand but the space for signature left blank was not ‘a
statement in writing purporting to be signed by the accused’; and (ii) that s
172 forms identifying the appellants as the drivers were not admissible
evidence of that fact in that while such a s 172 form, if completed by an
accused person, could amount to a confession within s 82c of the Police and
________________________________________
a Section 172, so far as material, is set out at
[15], below
b Section 12, so far as material, is set out at
[17], below
c Section 82, so far as material, is set out at
[28], below
________________________________________
58
Criminal Evidence Act
1984, as being a statement wholly or partly adverse to the person who made it,
that (a) it could not be inferred that the entries on the s 172 forms had been
made by the appellants, that (b) no cautions had been administered, and that
(c) the admission of forms obtained in response to a request for information
under s 172 was a breach of the right to a fair hearing under art 6 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).
Held – A form requiring information under s 172 of the Road
Traffic Act 1988 completed with some or all of the information required to be
given, but not bearing any signature or mark in the space designated for the
signature did not satisfy the requirements of s 12 of the Road Traffic
Offenders Act 1988. There was a
distinction between the information that the recipient was required to provide
under s 172 and the signature that authenticated such information and enabled
it to be used under s 12 as definitive proof that the accused was the driver on
the relevant occasion. It could not
sensibly be said that the insertion of a name in the appropriate place on the
form but with the space for the signature left blank amounted to a ‘statement
in writing purporting to be signed by the accused’. However, if it was properly to be inferred
from the evidence that the entries in an unsigned s 172 form had been completed
by the accused person, that amounted to a confession within s 82(1) of the
Police and Criminal Evidence Act 1984 and, being information obtained in
accordance with a statutory requirement, fell within the exceptions to the need
for a caution. An unsigned s 172 form
was therefore capable of giving rise to a case to answer. Further, s 172 did not represent a
disproportionate legislative response to the problem of maintaining road safety
such that it was incompatible with art 6 of the convention. The appeals in both cases would accordingly
be allowed and the convictions set aside.
The first case would be remitted to the justices for rehearing. In the second case, in which the form had
been completed by an agent, no confession had been made, and there being no
evidence available to the prosecution to prove the identity of the driver,
remission would not be appropriate (see [26], [27], [29], [31], [37],
[41]–[43], below).
Dicta of Lord Bingham
of Cornhill in Brown v Stott (Procurator Fiscal, Dunfermline)
[2001] 2 All ER 97 applied.
Notes
For the right to a fair
trial, for the admissibility of extra-judicial confessions and for the duty to
give information as to the identity of a driver, see respectively 8(2) Halsbury’s
Laws (4th edn reissue) paras 134–137, 11(2) Halsbury’s Laws (4th edn
reissue) para 1124 and 40(2) Halsbury’s Laws (4th edn reissue) para 726.
For the Police and
Criminal Evidence Act 1984, s 82(1), see 17 Halsbury’s Statutes (4th
edn) (2002 reissue) 495.
For the Road Traffic
Act 1988, s 172(2), see 38 Halsbury’s Statutes (4th edn) (2001 reissue)
987.
For the Road Traffic
Offenders Act 1988, s 12(1)(b) see 38 Halsbury’s Statutes (4th edn)
(2001 reissue) 1028.
For the Human Rights
Act 1998, Sch 1, Pt I, art 6(1) see 7 Halsbury’s Statutes (4th edn)
(2002 reissue) 554.
59
Case referred to in
judgment
Brown v Stott
(Procurator Fiscal, Dunfermline) [2001] 2 All ER 97, [2003] 1 AC 681,
[2001] 2 WLR 817, PC.
Cases referred to in
skeleton arguments
Arnold v DPP [1999]
RTR 99, DC.
Boss v Measures
(1989) 87 LGR 667, DC.
DPP v Broomfield [2002] EWHC 1962 (Admin), [2003] RTR 108.
Durrell v Evans
(1862) 31 LJ Ex 345, 158 ER 848, Ex Ch.
Morton v Copeland (1855) 16 CB 517, 139 ER 861.
Saunders v UK (1997)
2 BHRC 358, ECt HR.
Mawdesley
v Chief Constable of the Cheshire Constabulary
Case stated
Michael Mawdesley appealed
by way of case stated against his conviction by the justices for the county of
Cheshire sitting in the petty sessional division of Warrington on 25 October
2002 for exceeding the speed limit contrary to reg 3 of the Motorways Traffic
(Speed Limit) Regulations 1974, s 17(4) of the Road Traffic Regulation Act 1984
and Sch 2 to the Road Traffic Offenders Act 1988. The question for the opinion of the High
Court is set out at [7], below. On 3 May
2003 Maurice Kay J directed that the appeal should be heard at the same time
and before the same judge as the appeal in Yorke v DPP. The facts are set out in the judgment.
Yorke
v DPP
Case stated
Dwight Yorke appealed by way
of case stated against the decision of the Crown Court at Manchester on 30
October 2002 upholding his conviction by the Manchester City Magistrates’ Court
on 2 May 2002 for speeding contrary to s 89(1) of the Road Traffic Regulation
Act 1984. The question for the opinion
of the High Court is set out at [14], below.
On 3 May 2003 Maurice Kay J directed that the appeal should be heard at
the same time and before the same judge as the appeal in Mawdesley v Chief
Constable of the Cheshire Constabulary.
The facts are set out in the judgment.
Mark Laprell (instructed
by Backhouse Jones, Clitheroe) for Mawdesley.
Martin Walsh (instructed
by the Crown Prosecution Service, Warrington) for the Crown.
Lisa Judge
(instructed by Freeman & Co, Manchester) for Yorke.
Martin Walsh (instructed
by the Crown Prosecution Service, Manchester) for the Crown.
Cur adv vult
31 July 2003. The following judgment was delivered.
OWEN J.
[1] Michael Mawdesley appeals by way of case stated against
the decision of the Warrington justices who on 25 October 2002 convicted him of
an offence of
60
exceeding the speed
limit contrary to reg 3 of the Motorways Traffic (Speed Limit) Regulations
1974, SI 1974/502, s 17(4) of the Road Traffic Regulation Act 1984 and Sch 2 to
the Road Traffic Offenders Act 1988 (the Road Traffic Offenders Act). Dwight Yorke appeals by way of case stated
against the decision of the Crown Court at Manchester on appeal from the
Manchester City Magistrates’ Court upholding his conviction for speeding
contrary to s 89(1) of the 1984 Act. The
issues to which the appeals give rise are closely related and in consequence on
3 March 2003 Maurice Kay J directed that they should be heard at the same time
and before the same judge.
THE FACTS
Michael Mawdesley
[2] On 7 April 2002 a police officer was operating a speed
camera from a bridge over the M56 when the speed of a motor car, registration
no H9 JPR, was checked by approved equipment and found to be travelling in
excess of the speed limit.
[3] On 25 April 2002 notice of intended prosecution was
sent to Mr Mawdesley. He was not the
registered owner of the vehicle; and the form said inter alia:
‘The current owner of the vehicle, or any other person who is able to do
so, is required by law to give any information which will lead to the
identification of the driver. You have
been named as the driver/hirer of the above vehicle at the time of the alleged
offence. If you were the driver at the
time of the alleged offence, you are required to provide your full name,
address and date of birth.’
The notice of intended
prosecution was accompanied in the usual manner by a form for completion by the
intended recipient requiring him to provide information under s 172 of the Road
Traffic Act 1988 (the Road Traffic Act).
The form was in three parts. The
first was headed: ‘IF YOU WERE THE DRIVER AT THE TIME OF THE ALLEGED OFFENCE,
COMPLETE THIS SECTION ONLY.’ The printed
form then read: ‘I was the driver of the vehicle registered number H9 JPR at
the time of the alleged offence.’ The
form then specified the information required, in each case leaving a box or
space for completion by the recipient.
He or she was required to provide their driver number, ie the number to
be found on their driving licence, their full name and address, date of birth
and occupation. At the foot of this part
of the form the words ‘signature’ and ‘date’ were printed with
space for the insertion of each. The
remaining parts of the form enabled the recipient to make the appropriate
response if he or she was neither the driver nor the owner at the time of the
alleged offence.
[4] The form sent to Mr Mawdesley was returned to the
motorway unit of the Cheshire Constabulary on 16 May 2002. Mr Mawdesley’s driver number had been
inserted in handwriting. So too had his
name and address together with his date of birth. But the spaces for his signature and date
were left blank.
[5] On 17 June 2002 an information was preferred alleging
an offence of speeding. The subsequent
hearing took place on 25 October 2002 before the justices for the county of
Cheshire sitting in the petty sessional division of Warrington. Mr Mawdesley did not appear, but was
represented by a solicitor who made a submission of no case to answer on the
basis that the court could not rely upon the unsigned response to the
requirement to supply information under
61
s 172 of the Road
Traffic Act. That submission was
rejected by the magistrates and the appellant was duly convicted.
[6] The justices’ reasoning is set out in the statement of
case:
‘3. It was contended by the appellant that the case was not proved
beyond a reasonable doubt on the basis that the respondent had not revealed the
identity of the driver of the said vehicle due to the fact that the said
response form had not been signed. The
appellant accepted that the requirement of s 12(1)(a) of the Road Traffic
Offenders Act was satisfied in so far as the said s 172 notice was served upon
the appellant by post. The appellant did
not accept that the provision of s 12(1)(b) of the Road Traffic Offenders Act
was satisfied. The appellant maintained
that the response form had not been signed and whilst it contained details
relating to the appellant, the document had not been signed, that there was
clearly a space dedicated for the purposes of such a signature being inserted
across from the word “sign” and that in the appellant’s submission it would be
absurd to suggest that in the absence of such a signature made in or about the
dedicated space (or anywhere else for that matter) on the said response form it
could be regarded as signed. The implication
being of course that if the said response form was not signed it could not be
accepted in evidence as per the provision of s 12 of the Road Traffic Offenders
Act and there being no other evidence to establish the appellant’s
identification, the respondent’s case would have to fail.
4. (After setting out s 12(1) of the Road Traffic Offenders Act) the
respondent contended that the response form was completed in that it included
details of a driver licence number, a full name and address, a date of birth
and details of an occupation and most importantly the name of Michael Mawdesley
had been written (in block capitals) and the abbreviations of Mrs, Ms and Miss
had been deleted. These details
according to the respondent constituted a signature and as such the response
form could be regarded as signed by the appellant.
5. We were of the opinion that the response form had been signed by the
appellant and had no reason to believe otherwise. The appellant had accepted that the notice of
intended prosecution had been served upon him in the post and that a reply had
been received. The appellant was not
present at court to give evidence to refute that he was the person who had
signed the s 172 notice and returned it to the police. The appellant proceeded by way of submission
through his legal representative that the prosecution had failed to discharge
the burden of proving the case beyond all reasonable doubt. We are satisfied in the absence of such
evidence that the appellant had been the person who had completed the form “a
manual signature written with his own hand” and as such the provisions of s
12(1)(b) of the Road Traffic Offenders Act had been complied with and we were
entitled to use our discretion to admit the statement as evidence that the
appellant was the driver of the vehicle on this occasion.’
[7] By their case stated the justices posed the following
question for the opinion of the High Court:
‘As a matter of law were the justices correct in finding that the s 172
notice, attached to this application, was admissible pursuant to s 12(1)(b) of
the Road Traffic Offenders Act?’
62
Dwight Yorke
[8] Dwight Yorke was the owner and registered keeper of a
motor vehicle which on 17 May 2001 was recorded by an approved laser device as
travelling in excess of a 40 mph speed limit in Princess Road, Withington.
[9] On 29 May 2001 a notice of intended prosecution was
sent by post to Mr Yorke at his address.
As in the case of Mawdesley it was accompanied by a form requiring him
to provide information under s 172 of the Road Traffic Act. A reminder was sent by post on 19 June 2001.
[10] The form was duly returned on 26 July 2001. The box for the driver licence number had
been left blank; but Mr Yorke’s name and address had been inserted in the
appropriate boxes by hand in block capitals.
His date of birth had also been inserted. As in the case of Mawdesley the boxes for
‘drivers signature’ and ‘date’ had been left blank.
[11] On 2 May 2002 Mr Yorke was convicted of the speeding
offence by the Manchester City Magistrates’ Court. He appealed to the Crown Court against his
conviction.
[12] The appeal came before the Crown Court on 30 October
2002. At the close of the prosecution
case it was submitted on behalf of Mr Yorke that there was no case to answer on
the basis that the court could not rely upon the unsigned s 172 notice; and
that in consequence there was no admissible evidence that Mr Yorke was the
driver of the vehicle on the occasion in question. That submission was rejected. Mr Yorke did not give evidence; but evidence
was given on his behalf by Simon Bailiff, his agent, who gave evidence that he
had completed the form, but that he had been acting without the authority of Mr
Yorke. The court accepted that he had
made the entries on the form, but was satisfied that he was acting with the
authority of Mr Yorke.
[13] In giving the judgment of the court dismissing the
appeal Judge Humphries addressed the issue with which I am now concerned in the
following terms:
‘We find the case proved. The
only issue is identity: of that we had to be sure or the defendant would have
to be found not guilty. We considered
that the fact of the defendant being registered keeper, the notices being sent
to his address, and to him as registered keeper, the reply document to say that
he was driver, together amounted to a case to answer that Dwight Yorke was the
driver. That was our earlier
decision. So we heard the defence case. Now we had to consider the whole of the
evidence. The defendant submits again
that document 2 is not admissible here: we now have evidence from the man who
says he wrote the documents including evidence on which we can make a decision
as to whether it was made with authority.
We do not rule the evidence now as inadmissible. I reminded myself and the magistrates of the
law, obviously, that the prosecution must prove their case and make us sure of
guilt or else be found not guilty. Also,
the defendant himself chose not to be present and not to give evidence and be
represented. The defendant knew and
knows that if he chooses not to give evidence, the tribunal of fact may draw
such inferences as appear proper from his failure to do so.’
The court went on to find:
‘We are sure that Dwight Yorke was driving the car on the occasion in
question.’
[14] The question posed for the High Court in the case
stated is:
63
‘Can a returned partially completed notice under s 172(2) of the Road
Traffic Act be considered by the court as part of the evidence of a speeding
driver’s identity though unsigned and not complying with s 12(b) of the Road
Traffic Offenders Act?’
THE RELEVANT STATUTORY
PROVISIONS
[15] Section 172 of the Road Traffic Act imposes a duty to
give information as to the identity of the driver of a motor vehicle. The duty arises in the circumstances
specified in sub-ss (1) and (2).
Subsection (1) sets out the offences to which the section applies, a
list that includes the offences with which both appellants were charged. Section 172(2) provides:
‘Where the driver of a vehicle is alleged to be guilty of an offence to
which this section applies—(a) the person keeping the vehicle shall give such
information as to the identity of the driver as he may be required to give by
or on behalf of a chief officer of police, and (b) any other person shall if required
as stated above give any information which it is in his power to give and may
lead to identification of the driver.’
[16] Section 172(3) provides that a person who fails to
comply with a requirement under sub-s (2) shall be guilty of an offence. Subsection (7) provides that a requirement
under sub-s (2) may be made by written notice served by post.
[17] Section 12 of the Road Traffic Offenders Act provides,
so far as material:
‘(1) Where on the summary trial in England and Wales of an information for
an offence to which this subsection applies—(a) it is proved to the
satisfaction of the court, on oath or in manner prescribed by rules made under
section 144 of the Magistrates’ Courts Act 1980, that a requirement under
section 172(2) of the Road Traffic Act 1988 to give information as to the
identity of the driver of a particular vehicle on the particular occasion to
which the information relates has been served on the accused by post, and (b) a
statement in writing is produced to the court purporting to be signed by the
accused that the accused was the driver of that vehicle on that occasion, the
court may accept that statement as evidence that the accused was the driver of
that vehicle on that occasion.’
THE ISSUES
[18] The narrow issue in Mawdesley’s case is whether the
court erred in finding that the s 172 form was a statement in writing
purporting to be signed by the appellant within the meaning of s 12(1)(b) of
the Road Traffic Offenders Act. If the
magistrates’ court were in error, then it is submitted that, as in the case of
Yorke, there was no basis on which the form could be admitted as evidence of
the identity of the driver on the relevant occasion, and that in the absence of
any other evidence as to the identity of the driver, the prosecution had failed
to establish a case to answer.
[19] Mr Walsh, who appeared for the respondents to both
appeals, submitted in relation to Mawdesley’s case that the s 172 form was
signed within the meaning of s 12(1)(b); but that in any event s 12 does not
preclude the admission of evidence as to the delivery, return and content of a
partially completed but unsigned s 172 form, that in both cases the forms and
their contents were admissible in evidence and thirdly that they gave rise to a
case to answer against each of the appellants.
64
[20] Mr Walsh further submitted that once a prima facie case
had been established, it was then open to the appellant to rebut that case
through admissible evidence, and secondly that in such circumstances and where
the appellant failed to give evidence, the court was entitled to draw adverse
inferences from such failure under s 35(3) of the Criminal Justice and Public
Order Act 1994. But that argument only
comes into play if an unsigned s 172 form is admissible in evidence and gives
rise to a case to answer.
[21] Accordingly the appeals give rise to three issues,
namely (1) whether a s 172 form in which the name of the driver is inserted by
hand, but in which the space for a signature is left blank, is ‘a
statement in writing … purporting to be signed by the accused’ to which
s 12 of the Road Traffic Offenders Act applies, (2) whether an unsigned s 172
form identifying the defendant as the driver on the relevant occasion is
admissible evidence of that fact and (3) if the answer to (2), above is Yes,
whether, together with evidence as to the commission of the offence, such
evidence is capable of giving rise to a case to answer.
[22] The issues to which these appeals give rise are of wide
importance given the prevalence of the use of laser and photographic technology
to check the speed of motor vehicles. Mr
Laprell, who appeared for Mr Mawdesley, submits that there is a lacuna in the
law in that a person who does not sign a s 172 form is arguably not guilty of
the offence of failing to comply with a requirement to provide
information. Section 172(3) provides
that a person who fails to comply with a requirement under sub-s (2) shall be
guilty of an offence. Under sub-s (2)
the registered keeper of a vehicle ‘shall give such information as to the
identity of the driver as he may be required to give’. Mr Laprell argues that the signature that
enables a court to accept a statement as evidence that the accused was the
driver of the vehicle on the relevant occasion under s 12 of the Road Traffic
Offenders Act, is not part of the information that a person may be required to
give under s 172; and that accordingly a person who supplies the information
requested, namely his driver’s number, name and address, date of birth and
occupation, but who does not sign the form has discharged his obligations under
s 172, and has not committed an offence under s 172(3). If that submission is well founded, and if
the appellants’ submission that a part completed but unsigned s 172 form is not
admissible as evidence of the identity of the driver, a person who does not
sign the form may escape conviction for the original offence and for the
offence of failing to comply with a requirement to provide information.
[23] The possible lacuna in the law explains why the issues
with which I am concerned are arising frequently in prosecutions for speeding
offences. Knowledge that it may be
possible to escape conviction for the original offence and to avoid prosecution
under s 172(3) by completing the s 172 form but not signing it, would appear to
be widespread. Mr Walsh, counsel for
both respondents, likened it to the spread of a virus.
[24] I accept that if the appellants are right in their
submission that an unsigned s 172 form is inadmissible, then there may be a lacuna
in the law. But that is not an issue
that it is necessary for me to resolve for the purposes of these appeals.
Issue 1
[25] As to the first issue it is submitted on behalf of the
respondent that in Mawdesley’s case the Warrington justices were fully
justified in concluding that the insertion of the name ‘Michael Mawdesley’ in
hand-written block capitals amounted to ‘a manual signature written with his
own hand’, and therefore
65
complied with the
requirements of s 12(1)(b). In support
of that submission Mr Walsh sought to rely upon the following proposition set
out in Phipson on Evidence (15th edn, 2000) p 1073 (para 40-04):
‘As a general rule, even where signature is required by statute and for
solemn documents, a manual signing is not essential; any form in which a person
affixes his name, with intent that it shall be treated as his signature, is
sufficient.’
The critical feature of that
general proposition is that in whatever form a person affixes his name, he does
so with the intent that it shall be treated as his signature.
[26] The form used by the Cheshire Constabulary reflects the
distinction between the information that the registered keeper is required to
provide under s 172, and the signature that serves to authenticate such
information and enables it to be used under s 12 of the Road Traffic Offenders
Act as definitive proof that the accused was the driver on the relevant
occasion. It is sent with the notice of
intended prosecution; and the recipient must know that serious consequences may
flow from the receipt of the information that he provides. On the assumption
that it was Mr Mawdesley who inserted his name in block capitals, I do not
consider that it is possible to infer that he intended that to be treated as
his signature, given the design of the form and the fact that the spaces beside
the printed words ‘signature’ and ‘date’ were left blank. It cannot sensibly be said that the insertion
of a name in block capitals in the appropriate place on the form but with the
space for the signature left blank, amounts to a ‘statement in writing …
purporting to be signed by the accused’.
[27] It follows that in my judgment a s 172 form completed
with some or all of the information required to be given, but not bearing any
signature or mark in the space designated for the signature, does not satisfy
the requirements of s 12. Accordingly
the question posed in the case stated in Mawdesley must be answered in the
negative.
Issue 2
[28] The second issue concerns the admissibility in evidence
of an unsigned s 172 form. Section 76(1)
of the Police and Criminal Evidence Act 1984 (PACE) provides:
‘In any proceedings a confession made by an accused person may be given
in evidence against him in so far as it is relevant to any matter in issue in
the proceedings and is not excluded by the court in pursuance of this section.’
Section 82(1) defines a
confession as ‘any statement wholly or partly adverse to the person who made
it, whether made to a person in authority or not and whether made in words or
otherwise’.
[29] If it was properly to be inferred from the evidence
that the entries in the unsigned s 172 forms were made by the appellants, they
amounted to confessions within the meaning of s 82(1) of PACE, and could be
proved in accordance with s 27 of the Criminal Justice Act 1988, which
provides:
‘Where a statement contained in a document is admissible as evidence in
criminal proceedings, it may be proved—(a) by the production of that document;
or (b) (whether or not that document is still in existence) by the production
of a copy of that document, or of the material part of it, authenticated in
such manner as the court may approve; and it is immaterial
66
for the purposes of this subsection how many removes there are between a
copy and the original.’
[30] It is important to bear in mind that the prosecution
did not specifically contend that the unsigned s 172 forms were admissible as
confessions within the meaning of s 82(1) of PACE in either case. Furthermore the above analysis as to the
basis upon which the forms were admissible was not addressed in the original
submissions made on behalf of either the appellants or the respondents. I
therefore invited further submissions on the point.
[31] In the course of the further submissions it was
accepted by counsel for both the appellants and the respondents that if
completed by a defendant, an unsigned s 172 form could amount to a confession
within the meaning of s 82 of PACE. Mr
Walsh for the respondents acknowledged that that was the only basis upon which
such evidence could be admitted. But
counsel for the appellants argued that the forms were inadmissible on three
grounds.
[32] First it was submitted that it could not properly be
inferred from the evidence adduced by the prosecution that the entries on the
forms were made by the appellants, as the possibility that the forms had been
completed by another could not be excluded.
It was submitted that the point was demonstrated by the fact that
following the unsuccessful submission of no case to answer in Yorke’s case, the
defence called evidence that the form had been completed by his agent. But I am satisfied that it would have been
open to the court to infer from the fact that the notices of intended
prosecution were sent to the appellants at their addresses, and were returned
bearing the detailed information set out in relation to Mawdesley at [4],
above, and in relation to Yorke at [10], above that in each case the entries
were made by the appellant.
[33] Secondly it was submitted on behalf of the appellants
that had the prosecution sought to adduce such evidence upon the basis that the
s 172 forms amounted to confessions, there would have been an objection to
their admission on the grounds that there had been a failure to comply with the
Code of Practice under PACE in that no caution had been administered; and the
court would have been invited to exercise its discretion to exclude such
evidence under s 78 of PACE.
[34] Mr Laprell relied on Code C, para 10.1 of the Code of
Practice in the edition current at the time of both prosecutions. The paragraph has since been revised, but not
in such a manner to affect the issue.
Code C, para 10.1 provides:
‘A person whom there are grounds to suspect of an offence must be
cautioned before any questions about it (or further questions if it is his
answers to previous questions which provide the grounds for suspicion) are put
to him regarding his involvement or suspected involvement in that offence if
his answers or his silence (i.e. failure or refusal to answer a question or to
answer satisfactorily) may be given in evidence to a court in a
prosecution. He therefore need not be
cautioned if questions are put for other purposes, for example, solely to
establish his identity or his ownership of any vehicle or to obtain information
in accordance with any relevant statutory requirement (see paragraph 10.5C) or
in furtherance of the proper and effective conduct of a search, (for example to
determine the need to search in the exercise of powers of stop and search or to
seek cooperation while carrying out a search) or to seek verification of a
written record in accordance with paragraph 11.13.’
67
[35] In this context there is a distinction to be drawn
between the two cases. I was informed by
counsel that Mr Mawdesley was not the registered owner of the vehicle in
question. It follows that notice of
intended prosecution was sent to him as a result of his having been identified
as the driver by the registered keeper.
Mr Laprell therefore argued that in Mawdesley’s case there were grounds
to suspect him of having committed the offence before the s 172 form was sent
to him, and that in those circumstances the failure to administer a caution
would have been fatal to an attempt to adduce the confession in evidence.
[36] In contrast Mr Yorke was the registered owner of the
vehicle; and in his case the purpose of sending the form to him was to
establish the identity of the driver.
Thus it could be argued that the obligation to administer a caution had
not arisen.
[37] But in any event I am satisfied that the requirement to
provide information under s 172 falls within the exceptions to the need for a
caution contained in the second part of Code C, para 10.1, which provides that
a person need not be cautioned if questions are put ‘to obtain information in
accordance with any statutory requirement’.
The s 172 forms were sent to the appellants for that purpose. It follows that in my judgment Code C, para
10.1 of the Code of Practice does not impose an obligation to caution in such
circumstances. The same applies to the
current edition of the Code of Practice which came into effect on 1 April 2003.
[38] Accordingly an objection to the admission of such
evidence on the basis of failure to comply with the Code of Practice, could not
have succeeded.
[39] The third argument advanced on behalf of the appellants
was that the admission of the s 172 forms would have infringed their rights to
a fair hearing under art 6 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). In this context Mr
Laprell drew my attention to Brown v Stott (Procurator Fiscal,
Dunfermline) [2001] 2 All ER 97, [2003] 1 AC 681, in which the Privy
Council addressed the admissibility of an admission obtained in response to a
request under s 172.
[40] The Privy Council held that s 172, properly applied,
did not represent a disproportionate legislative response to the problem of
maintaining road safety, and that accordingly it was not incompatible with the
defendant’s rights under art 6 for the procurator fiscal to lead and rely on
evidence of her admission obtained under the compulsion of s 172(2)(a) that she
had been the driver of the motor vehicle.
As Lord Bingham of Cornhill said ([2001] 2 All ER 97 at 116, [2003] 1 AC
681 at 705–706):
‘All who own or drive motor cars know that by doing so they subject
themselves to a regulatory regime which does not apply to members of the public
who do neither. Section 172 of the 1988
Act forms part of that regulatory regime.
This regime is imposed not because owning or driving cars is a privilege
or indulgence granted by the state but because the possession and use of cars …
are recognised to have the potential to cause grave injury. It is true that s 172(2)(b) permits a
question to be asked of “any other person” who, if not the owner or driver,
might not be said to have impliedly accepted the regulatory regime, but someone
who was not the owner or the driver would not incriminate himself whatever
answer he gave. If, viewing this
situation in the round, one asks whether s 172 represents a disproportionate
legislative response to the problem of
68
maintaining road safety, whether the balance between the interests of
the community at large and the interests of the individual is struck in a
manner unduly prejudicial to the individual, whether (in short) the leading of
this evidence would infringe a basic human right of the respondent, I would
feel bound to give negative answers. If
the present argument is a good one it has been available to British citizens
since 1966, but no one in this country has to my knowledge, criticised the
legislation as unfair at any time up to now.’
[41] The confessions in issue were obtained in response to
the requirement to provide information under s 172, and accordingly the
decision in Brown v Stott would appear to be conclusive as to any art 6
argument. But Mr Laprell sought to argue
that Brown v Stott could be distinguished. He submitted that in addressing the issue of
proportionality, a distinction is to be drawn between drink-driving as in
Brown v Stott and speeding offences.
I do not agree. Speeding may
present the gravest danger to the public.
It cannot sensibly be argued that it is disproportionate to admit an
incriminating answer to a s 172 request in a speeding case, but not in a
drink-driving case.
[42] Accordingly I am satisfied that if it is properly to be
inferred from the evidence before the court that an unsigned s 172 form was
made by the defendant, it is admissible in evidence as a confession.
Issue 3
[43] As to the third issue, in each case the evidence as to
the commission of the offence was unchallenged.
The sole issue was the identity of the driver. The question is therefore whether an unsigned
s 172 form, admissible in evidence as a confession, was capable of giving rise
to a case to answer. That question must
be answered in the affirmative given my conclusion that it was open to the
court in each case to infer from the evidence that the entries on the form were
made by the appellant (see [32], above).
[44] But a further point arises in relation to Yorke’s
case. The court having found that there
was a case to answer, evidence was called by the defence to the effect that the
form had in fact been completed by Mr Yorke’s agent, Mr Bailiff. The court accepted that Mr Bailiff had
completed the form, but rejected his evidence that he was not doing so on
behalf of Mr Yorke. It was submitted by
Miss Judge that had the case been advanced on the basis that the s 172 form
amounted to a confession, the defence would have challenged its admission, and
sought a trial within a trial before the conclusion of the prosecution’s case,
in the course of which Mr Bailiff’s evidence would have been adduced. Had that happened the court would have been
bound to conclude that the form was not a confession within the meaning of PACE
as it was not made by Mr Yorke, and was therefore not admissible in
evidence. There would then have been no
evidence as to the identity of the driver, and the court would have been bound
to hold that there was no case to answer.
[45] In my judgment that submission is well founded. The prosecution’s case was not advanced upon
the basis that the partially completed s 172 form constituted a confession
within the meaning of PACE, and thus the appellant did not have the opportunity
to challenge its admissibility on the basis that it was not made by the
appellant, a challenge that would inevitably have succeeded given the findings
made with regard to the evidence of Mr Bailiff. Thus notwithstanding that the
question posed in the case stated in Yorke is to be answered in the
affirmative, it follows from the proper analysis as to the basis
69
upon which a partially
completed s 172 form may be admitted in evidence, that his conviction cannot
stand.
CONCLUSIONS
Mawdesley
[46] The justices resolved the issue of whether the
prosecution had established a prima facie case on the erroneous basis that the
s 172 form was ‘a statement in writing … purporting to be signed by the accused’
within the meaning of s 12 of the Road Traffic Offenders Act. In those circumstances the conviction must be
set aside. The question then arises as
to whether the case should be remitted to the justices for rehearing. Mr Laprell submitted that as the prosecution
had presented the case on an erroneous basis, it would be unfair to the
appellant for the case to be remitted. I
do not agree. The conviction will be set
aside and the case remitted to the Warrington justices for rehearing.
Yorke
[47] As indicated at [46], above Mr Yorke’s conviction must
be set aside. As there was no other
evidence available to the prosecution upon which to prove the identity of the
driver, it is not appropriate to remit the case to the Crown Court for a
rehearing.
Order accordingly.
Stephen Leake
Barrister.
70
[2004] 1 All ER 71
Re St Margaret’s, Hawes
Re Holy Trinity, Knaresborough
Re Holy Trinity, Knaresborough
ECCLESIASTICAL
RIPON AND LEEDS CONSISTORY
COURT
CHANCELLOR GRENFELL
1 MARCH, 21 MAY 2003
Ecclesiastical law –
Church – Faculty for use of church for secular purposes – Antennae etc for
personal communications network – Whether risk to human health – Whether
appropriate secular use of church – Whether risk of inappropriate traffic on
network rendering use inconsistent with role of church.
The petitioners sought
to install mobile telephone antennae and associated housing equipment within
the towers of two churches. The
petitions were opposed. The following
issues were raised: (i) whether radiowaves from the antennae would affect the
health of those in the vicinity of the church; (ii) whether it was appropriate
for a church to obtain rent for the use of secular telecommunications equipment
and whether a church was an appropriate place in which to position such equipment
and (iii) whether it was relevant to take account of the possible content of
messages passing through the masts.
Held – (1) There was no reason as a matter of
ecclesiastical law why a faculty should not be granted for wholly secular and
commercial use of part of a church building and it was consistent with
ecclesiastical law to permit the housing of secular telecommunications
equipment within a church building. Each
case had to be considered on its own merits.
It was for the petitioners to show that there was a good reason why a
faculty should be granted and it was for them to satisfy the court that the
grant of faculty would not give rise to a real, namely measurable or
significant, as opposed to a fanciful, risk to human health. On the evidence in the instant case the
health issue would be resolved in favour of the petitioners (see [12], [87],
[88], below).
(2) It was well
established that part of a church might be used for purely secular and
commercial purposes so long as those purposes did not interfere with the role
of a church as a local centre of worship and mission. If a church could receive financial support
by taking rent for a commercial undertaking that was consistent with that role
there could be no objection to such secular use. The use of mobile telephones as a means of
communication was a valued community resource and use of the towers to enable
that form of communication was an integral part of that resource. So long as a telecommunications company did
not promote indecent traffic over its network, it could not be said to be
responsible for such traffic any more than a highways authority was responsible
for the way in which people drove on the roads.
Similarly, there was no distinction between the transmission of a radio
signal and telephone signal that passed through a cable through or over church
property. The responsibility for the
transmission of an inappropriate signal or message was that of the person or
body transmitting it and the receiver, not that of the telecommunications
provider. In the instant case the
proposed installations would not interfere with the role of the church as a
local centre of worship and mission and the faculties in respect of both
churches would be granted (see [95],
[97], [99], [101], [103], [108], below); dicta of
71
Chancellor Gage QC in
Re All Saints, Harborough Magna [1992] 4 All ER 948 at 950 not followed.
Notes
For the use of consecrated
ground for secular purposes, see 14 Halsbury’s Laws (4th edn) para 1073.
Cases referred to in
judgment
All Saints, Harborough Magna, Re [1992] 4 All ER 948, [1992] 1 WLR 1235, Con Ct.
Field v Leeds City Council [2000] 1 EGLR 54, CA.
St Mark’s, Biggin Hill, Re (1991) 10 Consistory and Commissary Court Cases 8, Con
Ct.
St Mark’s, Marske-in-Cleveland, Re (2000) 19 Consistory and Commissary Court Cases 1, Con
Ct.
St Peter Shipley (No 1), Re (1997) 16 Consistory and Commissary Court Cases
22, Con Ct.
Cases also cited or
referred to in skeleton arguments
Jayasena v R [1970]
1 All ER 219, [1970] AC 618, [1970] 2 WLR 448, PC.
St Nicholas, Plumstead (rector and churchwardens), Re [1961] 1
All ER 298, [1961] 1 WLR 916, Con Ct.
Petitions for
faculties
Re
St Margaret’s, Hawes
By a petition dated 5
November 2002, Reverend William Michael Simms, Jean Morley and Liz Bereford,
the vicar and churchwardens of St Margaret’s Church, Hawes and Vodaphone Ltd
petitioned for a faculty for the installation of two ‘omni’ antennae as
flagpoles on the church tower and the formation of an equipment room in the
tower. The faculty was opposed by 58 objectors. The facts are set out in the
judgment.
Re
Holy Trinity, Knaresborough
By a petition dated 25
September 2002, Reverend Anthony Betts, Michael Kenneth Gallico and Kenneth
George Hunter, the vicar and churchwardens of Holy Trinity Church, Knaresborough
and Vodaphone Ltd petitioned for a faculty for the installation of three
cross-polar antennae behind fibreglass louvres in the church tower and the
location of equipment cabinets within the church. The faculty was opposed by 49
objectors. The facts are set out in the judgment.
Robert Turrall-Clarke (instructed by Clarks, Reading) for the
petitioners.
The objectors appeared by their representatives.
The Venerable KR Good, Archdeacon of Richmond, appeared in person.
Cur adv vult
21 May 2003. The following judgment was delivered.
GRENFELL Ch.
[1] Two consolidated petitions seek the installation of
mobile telephone antennae in the towers of the churches of St Margaret, Hawes
and Holy Trinity,
72
Knaresborough. The proposal is for two ‘omni’ antennae as
flagpoles on the church tower and formation of an equipment room in the tower
at St Margaret’s Church, Hawes; and for three cross-polar antennae behind GRP
(fibreglass) louvres in the church tower and the location of equipment cabinets
within the church at Holy Trinity, Knaresborough.
[2] There are 58 and 49 objectors respectively. At a directions hearing on 14 December 2002
the following issues were identified: (a) whether radio waves from a
telecommunications mast situated as proposed may affect the health of humans in
the vicinity of the church (the health issue); (b) whether the appearance of
the church will be adversely affected by the presence of a telecommunications
antenna (the appearance issue); (c) whether it is appropriate for a church to
obtain rent for the use of secular telecommunications equipment (the rent
issue); (d) whether a church is an appropriate place in which to position such
equipment (the appropriateness issue); (e) whether it is relevant to take
account of the possible content of messages passing through the mast (the
content issue).
[3] I held an oral trial hearing on 1 March in respect of
the health issue. I had earlier directed
that the remaining issues be the subject of written evidence and submissions
only.
THE LAW
[4] I remind myself that, by virtue of s 1 of the Care of
Churches and Ecclesiastical Jurisdiction Measure 1991, I must ‘have due regard
to the role of a church as a local centre of worship and mission’.
[5] Several decisions of chancellors in other dioceses and
previous unopposed faculties granted by me in this diocese clearly indicate
that it is consistent with ecclesiastical law to permit the housing of secular
telecommunications equipment within a church building. Goodman Ch in Re St Mark’s, Biggin Hill (1991)
10 Consistory and Commissary Court Cases 8 considered the use of church
buildings for wholly secular purposes and held that he had jurisdiction to
grant the faculty sought.
[6] Gage QC Ch followed this decision with regard to the
installation of telecommunications aerials on a church tower with ancillary
equipment in Re All Saints, Harborough Magna [1992] 4 All ER 948
at 950, [1992] 1 WLR 1235 at 1237. He
said:
‘… in general it is my view that a faculty for use of a church for
secular purposes only should be granted only in rare and exceptional
circumstances. In cases such as this,
each one must be considered on its merits.
Although I shall give some general guidance, I recommend that each
parish looks at any individual case very carefully before deciding whether or
not to present such a petition.’
[7] The Knaresborough objectors referred me to the ‘General
Directions Concerning Churches and Churchyards’ which Hill Ch issued in April
2001 in the Diocese of Chichester (para 6.22):
‘Before granting any faculty, however, the consistory court will need to
be satisfied on cogent and compelling evidence from the parish, that the
installation will not pose a danger to the health or wellbeing of those using
the church or other property in the immediate vicinity.’
73
I made it clear at the
directions hearing that my approach to this case would be along similar
lines. Whether it is necessary for there
to be ‘cogent and compelling evidence’ in every case, however, I shall consider
in my conclusions, so that parishes within this diocese considering whether to
petition for such a faculty may have some guidance.
[8] I have also been referred to the judgment of Coningsby
QC Ch in Re St Mark’s, Marske-in-Cleveland (2000) 19 Consistory and
Commissary Court Cases 1 in which he directed a faculty to issue permitting the
installation of telecommunications equipment in the church. In that case there was the one objector, who
based her objection on risk to health.
Coningsby Ch pointed out (at 6):
‘She has not produced the kind of evidence which the court would need if
it were to uphold her objection in the face of the other evidence. That evidence from her would have to be a
report specially written by a properly qualified expert, speaking with full
knowledge of the particular installation proposed.’
[9] I do not share Mr Turrall-Clarke’s concern at this
passage. I am sure that Coningsby Ch did
not mean to say that all an objector had to do to persuade the court to uphold
an objection was to produce a properly qualified expert’s report; that what he
clearly meant was that, in the absence of such expert evidence, it would not be
possible to uphold the objection.
Clearly where there is expert evidence produced the court has to evaluate
it and reach its decision accordingly.
[10] The other decision cited to me was that of Savill QC Ch
in Re St Peter Shipley (No 1) (1997) 16 Consistory and
Commissary Court Cases 22 in which he directed a faculty to issue in respect of
telecommunications equipment with a specific condition with regard to the
content of messages. I shall return to
consider this aspect when I come to deal with the content issue.
[11] I know of no case in any other diocese where an
application to install such equipment in a church has been refused. However, it would be fair to say that
consideration, in particular, of the effect of exposure to radio waves has been
given wide consideration over the last four years or so. Furthermore, mobile telephone use has grown
in the United Kingdom from 7·1m to 46·3m users between 1997 and 2002
(government figures). This is,
therefore, a good opportunity to review the question of whether such
installations pose a risk to health.
[12] In my judgment, there is no reason as a matter of
ecclesiastical law why a faculty should not be granted for wholly secular and
commercial use of part of a church building.
Each case must be considered on its own merits. It is for the petitioners to show that there
is good reason why a faculty should be granted and, once the issue of whether
it involves risk to human health has been raised, it is for the petitioners to
satisfy the court that the grant of faculty will not give rise to a real, as
opposed to a fanciful, risk to human health.
In my judgment a real risk is properly described as being measurable or,
put another way, significant.
THE HEALTH ISSUE
[13] The issue of mixed law and fact is whether there should
be consistency between the decisions of this court and the guidelines followed
in respect of planning applications for mobile telephone base stations. The factual element is what lies behind those
guidelines and whether this court is satisfied on the expert evidence called
that they adequately take account of risk to human health.
74
[14] In accordance with my directions, the experts relied on
by the petitioners and by the Knaresborough objectors produced reports and
conferred. In accordance with CPR 35.12,
which I directed should apply to the expert evidence, the experts produced a
joint statement setting out their areas of agreement and disagreement. Somewhat surprisingly, however, not all the
areas of agreement found their way into this document, but were made clear at
the hearing.
The experts
[15] Dr Matthews is employed by Vodafone UK Ltd as the team
leader for the Electromagnetic Fields (EMF) Advisory Unit. It was Vodafone’s choice to rely on its
in-house expert. In Field v Leeds
City Council [2000] 1 EGLR 54 Lord Woolf MR made it clear that there was no
conflict with the principles enshrined in CPR Pt 35 where a party sought to
call an expert who was employed by that party, provided of course that the
expert clearly understood his overriding duty to the court. I formed the clear view that Dr Matthews
remained fully aware of that duty.
[16] Dr Matthews explained that the purpose of the EMF
Advisory Unit is to address the perceived health concerns of local communities
and other interested parties by providing up-to-date information about proposed
or existing radio base stations. Dr Matthews’
scientific qualifications are: BSc (Hons) in Physics for New Technology,
Liverpool University, MSc in the Physics and Technology of Nuclear Reactors,
Birmingham University, and PhD in Applied Physics, Birmingham University. He is a chartered physicist. Since joining Vodafone in April 2000, he has
been the technical and scientific specialist within the EMF Advisory Unit. Prior to this, he was employed by the
Ministry of Defence as a health physicist for four-and-a-half years providing
all branches of the military, other internal and external customers with advice
on protection from exposures to non-ionising radiation. This involved all aspects of assessment
including measurement of non-ionising radiation, risk assessment against
recognised guidelines and recommendation of any protection measures that might
require implementation.
[17] Dr Hyland is the expert relied on by the Knaresborough
objectors, although his evidence was also relevant to the Hawes petition.
[18] Dr Hyland is a theoretical physicist (as opposed to an
experimental physicist). He gave
evidence to the Stewart Inquiry, to which I shall refer. His scientific qualifications are as follows.
[19] He is an honorary associate fellow of the University of
Warwick; an executive board member of the International Institute of Biophysics,
Neuss-Holzheim, Germany, involved in biophoton research. He is about to take up an appointment as
visiting professor at the new University of Kirn (Rhineland-Pfalz), Germany.
[20] During the last six years, he has been concerned with
potential health hazards associated with non-thermal influences of the low
intensity, pulsed microwave radiation used in telecommunications, raising
awareness of the importance of this dimension to the problem (which, he
maintains, is not taken into account in existing safety guidelines governing
human exposure), and considering how this technology can be rendered more
electromagnetically biocompatible.
[21] He has addressed national and international conferences
with potential health hazards associated with non-thermal influences of pulsed
microwave radiation; he gave evidence to the Science and Technology Select
Committee on ‘Mobile Phones and Health’ in 1999, and to the Independent Expert
Group on
75
Mobile Phones (IEGMP)
in 1999, some of his recommendations featuring in their final report (the
Stewart Report).
[22] Dr Matthews correctly identifies the legal framework
into which this issue falls. There is no
health and safety legislation within the United Kingdom regulating exposures to
radiofrequency emissions. The IEGMP was ‘not convinced’ that legislation was
needed to incorporate the International Commission on Non-Ionising Radiation
Protection (ICNIRP) guidelines.
Nevertheless, a telecommunications operator has a duty of care towards
its employees and people liable to be affected by its operations.
[23] Dr Matthews in his statement sets out the
uncontroversial technical background concisely:
‘2.1 Electromagnetic radiation has been around since the dawn of time;
light is its most familiar form. Without
light man could not see and, at its ambient levels, there has never been a
suggestion that light is hazardous to health.
However, as the intensity of light increases beyond a particular
threshold, eg in the form of laser beam, the potential for harm may arise.
2.2 With the proliferation of industry, there has been an increase in
the general background exposure level of electromagnetic radiation, in
particular electric and magnetic fields.
Sources, such as power lines, household wiring, visual display units,
radio and television transmissions, telecommunications and radar are all forms
of man-made electromagnetic fields that exist in the modern environment. The portion of the electromagnetic spectrum
that is utilised in modern day communication is known as “Radiofrequency
Fields” or “RF Fields”.
2.3 Some forms of radiation, such as X-rays and gamma rays, can damage
the chemical bonds within molecules that form the body, which in turn may lead
to genetic disorders such as cancer.
This process is known as “ionisation” and therefore these types of
radiation are known as “ionising radiation”.
Exposures to ionising radiation are cumulative, ie individual exposures
are additive to give a total exposure over a period of time. Exposure guidelines for ionising radiation are
based upon the build-up of exposures over time, up to a particular
threshold. Vodafone’s antennae do not
emit ionising radiation.
2.4 Radiofrequency fields, such as those used in telecommunication, do
not contain enough energy to damage chemical bonds in the human body and
therefore these types of radiation are known as “non-ionising radiation”. Exposures to non-ionising radiation are not
cumulative over time. Individual exposures
are compared to a threshold within the relevant exposure guidelines. In this respect they are fundamentally
different to the forms of ionising radiation with which people are more
familiar and which have given rise to peoples perceived fears.’
[24] Dr Matthews and Dr Hyland agree that there is no risk
to health from thermal effects of radio waves transmitted from a
telecommunications antenna. This area of
agreement was the surprising omission from their agreed statement, to which I
earlier referred. The reason why this
agreement is so important is because some people perceive there to be an effect
from radio waves similar to that of microwaves in a domestic appliance. It is the intensity of the microwave that
distinguishes it from the level of radio wave with which the issue before me is
concerned. Given sufficient intensity a
radio wave could heat up a human body (the ‘thermal effect’), but it is common
ground that the kind of levels to which
76
any human could be
exposed from a mobile telephone mast are so low that the radio waves are
incapable of causing a thermal effect.
[25] Dr Hyland has addressed his concerns towards potential
‘non-thermal effects’. It is within this
area of concern that much andecdotal material has grown up. Ultimately I shall have to determine whether
there is any substance in the fears that radio waves at the levels anticipated,
in particular, from the church tower in Knaresborough, could present a risk of
some damage to health by means and aetiology as yet unidentified.
[26] The area of my inquiry in this case is by no means
new. It has been the subject of many
scientific papers and high level inquiries.
Dr Hyland’s evidence is directed principally at attacking the levels set
by some of the internationally and nationally recognised bodies.
Exposure guidelines
[27] According to Dr Matthews, exposure guidelines produced
by the National Radiological Protection Board (NRPB) and the ICNIRP took into
account both thermal and non-thermal effects.
Nevertheless, as he explained, the only established human health effects
that occur are those that arise as a result of heating within human
tissue. Energy absorption from
radiofrequency (RF) fields in bodily tissue is measured as a Specific
Absorption Rate (SAR) within a given tissue mass and is measured in watts per
kilogram (W/kg). It is possible to calculate
the SAR that would be equivalent to a particular increase in core body
temperature within the human body. When
setting guidelines the relevant bodies took a SAR of 4 W/kg. Dr Matthews’ opinion is that energy
absorption at this level, all day and every day, would not represent a health
hazard to the general population. The
NRPB have introduced a precautionary margin of factor 10 to take a SAR of 0·4
W/kg. The ICNIRP, for exposures to the
general public have incorporated a further factor of 5 to take a SAR of 0·08
W/kg). This is to take account of high
temperatures and high humidity, and of humans that have a potentially higher
thermal sensitivity than that of the general population. According to Dr Matthews, therefore, the
ICNIRP general public exposure guidelines are at least 50 times lower than the
threshold level at which adverse health effects might first become
apparent. Vodafone’s telecommunication
network, he demonstrated, operates within these guidelines.
[28] Dr Matthews explained that the increase in the
precautionary margin incorporated in the ICNIRP guidelines, compared to those
of the NRPB, founded the IEGMP’s recommendation that, as a precautionary
approach, these guidelines be adopted for use in the United Kingdom rather than
the NRPB guidelines, which recommendation has been adopted by the government
and NRPB. In July 1999, the European
Union (EU) Health Council agreed a recommendation for limiting general public
exposure to electromagnetic fields based on the ICNIRP guidelines. I shall refer to the ICNIRP guidelines as
‘the guidelines’.
[29] In August 2001, the government issued revised Planning
Policy Guidance 8 (Telecommunications) which gave guidance to local
planning authorities on health considerations (para 30):
‘… if a proposed mobile phone base station meets the ICNIRP guidelines
for public exposure it should not be necessary for a local planning authority,
in processing an application for planning permission or prior approval, to
consider further the health aspects and concerns about them.’
77
[30] Dr Matthews explained that all of Vodafone’s new radio
base stations are designed to meet the guidelines and that it has completed an
audit of all of its existing macrocell radio base stations to ensure that they
are compliant.
[31] The important postscript is that, given the
considerable allowance within the guidelines, the risk of harm is, in effect,
no greater at a figure just below the guidelines than it is at a figure far
below the guidelines.
[32] Dr Hyland’s opinion is that levels should be no higher
than those set by the Salzburg Resolution (Salzburg). The exposure limit recommended in it is the
intensity value below which no adverse health effect has yet been reported,
anecdotally or otherwise.
[33] Salzburg came about as follows—a conference with a
collection of talks. I quote from Dr
Hyland’s report:
‘In 2000, the first international conference dedicated to public health
issues connected with exposure to Base-station emissions was held in Salzburg,
resulting in the “Salzburg Resolution”, the 19 signatories of which include
both scientists and public health doctors from 10 countries. To adequately protect against Base-station
emissions, the Salzburg Resolution recommends that outdoor exposure should be
below 0.1 µW/cm2 (= 0.6 volts per metre, V/m) in publicly accessible areas
surrounding such an installation.’
[34] To put this into context, as Dr Hyland said:
‘Estimates of outdoor intensities at a number of locations near the
proposed installation at Holy Trinity Church [Knaresborough] exceed this value
by varying amounts, up to a factor of 16.’
[35] On the other hand, Dr Matthews’ evidence was that he
was not aware of anywhere in the world where a country has adopted
Salzburg. Dr Hyland’s evidence was that
Russia’s and China’s levels were significantly lower than the guidelines,
although he did not say by how much. The
question was raised at the outset of the hearing as to whether Paris was
proposing to adopt lower exposure guidelines.
I am satisfied, however, that there is in fact no indication that Paris
is going to adopt Salzburg. Not even
Austria has accepted it.
[36] How does Salzburg compare with the guidelines?
[37] It is important to appreciate the bases of such
guidelines. Dr Matthews distinguishes
between research reports that are ‘peer-reviewed’ and ‘non-peer-reviewed’. Peer review, he describes as—
‘a quality control and certification filter. This is a process that is undertaken by a
number of peers, who may make suggestions for improvements and who may decide
within which of the peer review journals the findings of the research should
appear.’
On the other hand—
‘Non-peer-reviewed papers are those which have not undergone the review
process and therefore cannot be given the same weight and credibility as those
that have undergone peer review.’
[38] It is clear that the guideline-setting bodies, such as
the NRPB, the ICNIRP and other equivalent bodies have used peer-reviewed papers
when recommending exposure guidelines.
78
[39] The guideline-setting bodies apply a further test for
research, ‘reproducibility’: that is—
‘the verification of particular research study findings by an
independent third party using the exact method and conditions under which the
original results were found … Irreproducible or one-off research findings
cannot be included within the guideline setting processes as they are only
indicators of what potentially may occur rather than evidence of what
will occur.’ (My emphasis.)
In other words, the
scientific world has to proceed on the basis of authenticated research.
[40] The Knaresborough objectors, in particular, criticise
the approach of only giving weight to peer-reviewed research. They argue that even unauthenticated
indications of possible risks to health should be taken into account by
me. This represents the core issue.
[41] I should say at once that Salzburg presents immediate
problems for the Hawes objectors on the ‘health’ issue. This is because it is clear that the highest
levels at which the base station in Hawes church would operate would be well
below the levels set by Salzburg. I
shall, however, return to the effect of Dr Hyland’s concession in respect of
levels below Salzburg.
[42] Dr Hyland also relied on the Freiburger Appeal of
October 2002, a statement by a number of medical doctors of the
Interdisziplinäre Gesellschaft für Umweltmedizin (IGUMED), which declared:
‘… we can see—especially after carefully-directed inquiry—a clear
temporal and spatial correlation between the appearance of disease and exposure
to pulsed high-frequency microwave radiation (HFMR), such as:
Installation of a mobile
telephone sending station in the near vicinity
Intensive mobile telephone use
Installation of a digital
cordless (DECT) telephone at home or in the neighbourhood.
We can no longer believe this to be purely coincidence, for:
Too often do we observe a marked
concentration of particular illnesses in correspondingly HFMR-polluted areas or
apartments;
Too often does a long-term
disease or affliction improve or disappear in a relatively short time after
reduction or elimination of HFMR pollution in the patient’s environment;
Too often are our observations
confirmed by on-site measurements of HFMR of unusual intensity …
In the face of this disquieting development, we feel obliged to inform
the public of our observations—especially since hearing that the German courts
regard any danger from mobile telephone radiation as “purely hypothetical” (see
the decisions of the constitutional court in Karlsruhe and the administrative
court in Mannheim, Spring 2002).’
[43] Essentially, however, the Freiburger Appeal does
nothing to advance my inquiry. It calls
for reduction in radio wave output and industry independent research. It contains no expert medical or biological connection
between radio waves and the various health problems that doctors had
observed. Their words, it seems to me,
were carefully chosen. They speak of a
‘correlation between the appearance of disease and exposure to pulsed
high-frequency microwave radiation’, but there is a quantum leap between a
correlation and a causal
79
connection. No properly authenticated causal connection
has been shown to exist between the two despite the many instances of reports
of health being affected where there is apparent exposure to radio waves. In the end, the Freiburger Appeal amounts to
no more than a responsible collection of professionals voicing their concern at
what they perceived to be coincidence deserving of ongoing research. For these reasons, despite the apparent
authority of the document, it has to be read in this context.
[44] Dr Hyland referred to the Catania Resolution which was
signed by 16 eminent scientists of international standing from seven different
countries following a conference in Sicily in September 2002. It stated, in particular: ‘Epidemiological
and in vivo and in vitro experimental evidence demonstrates the existence for
electromagnetic field (EMF) induced effects, some of which can be adverse to
health’, and: ‘The weight of evidence calls for preventive strategies based on
the Precautionary Principle. At times
the Precautionary Principle may involve prudent avoidance and prudent use.’
[45] Throughout his report, the information that came with
it and his evidence before me, Dr Hyland remained unable to explain how radio
waves of the intensity with which I am concerned can cause any of the various
posited health effects. He has many and
various theories as to how radio waves might adversely affect, in particular,
the brain and other cells within the body through the fact that the radio
signals are pulsed. His report referred
to various unverified reports of perceived ill effects from base stations. I take by way of example the Geoff Williams
letter of 12 January 2003, the Dr Ashwin letter of 10 January 2003, to which
particular reference was made at the hearing.
They are examples of many reported perceived connections, yet in no
instance has there been any reliable medical evidence to make the necessary
causal connection between radio waves and ill health. Many of these reports go back now a matter of
years. Many similar concerns were
expressed to the IEGMP and form part of the Stewart Report, yet still there is
no authenticated research work to make the connection.
Some peer group research
work
[46] Dr Matthews makes the preliminary observation:
‘Whilst there have been studies that suggest that radiofrequency energy
can interact with body tissues at levels too low to cause any significant
heating, “no study has shown adverse health effects at exposure levels below
international guidelines (WHOa, 2000)”.’
________________________________________
a World Health Organisation
________________________________________
[47] The Royal Society of Canada published in March 1999 ‘A
Review of the Potential Health Risks of Radiofrequency Fields from Wireless
Telecommunication Devices’. Dr Matthews
quoted from the summary (p 3 (para 3)): ‘Scientific studies performed to date
suggest that exposure to low intensity non-thermal RF Fields do not impair the
health of humans or animals’; and (p 4 (para 1)):
‘To date, human health studies have examined the relationship between
exposure to radiofrequency fields and different types of cancer, reproductive
problems, congenital anomalies, epilepsy, headaches and suicide. Overall, these studies do not provide
conclusive evidence of adverse health effects from RF exposure.’
80
[48] Dr Matthews points out:
‘In the world of science, no “convincing evidence” has a particular
meaning. It can be defined as a lack of
unreplicated and irreproducible research findings. These can only act as indicators and
therefore cannot be used when setting guidelines to protect health.’
The significance of this is
that people seize on statements such as this to voice the fear that there is
still the possibility of risk.
[49] The IEGMP concluded as at May 2000 that ‘the balance of
evidence indicates that there is no general risk to the health of people living
near to base stations on the basis that exposures are expected to be small
fractions of the guidelines’ (see para 1.33 of the Stewart Report) and (para
1.17) ‘[t]he balance of evidence to date suggests that exposures to RF
radiation below NRPB and ICNIRP guidelines do not cause adverse health effects
to the general population.’ In the body
of the Report (para 5.267) they found:
‘The epidemiological evidence currently available does not suggest that
RF exposure causes cancer. This
conclusion is compatible with the balance of biological evidence, which
suggests that RF fields below guidelines do not cause mutation, or initiate or
promote tumour formation.’
And (para 5.268):
‘Experimental studies on cells and animals do not suggest that mobile
phone emissions below guidelines have damaging effects on the heart, on blood,
on the immune system or on reproduction and development. Moreover, even prolonged exposure does not
appear to affect longevity. The limited
epidemiological evidence currently available also gives no cause for concern
about these questions.’
[50] I have heard nothing to suggest that these conclusions
are no longer valid three years later.
[51] In the end the experts in this case differ as to which
maximum levels of radio wave should be permitted in order to protect health,
or, to put it another way, in order that there is no measurable risk of injury
to the health of persons of any age or vulnerability who may be within range of
the beams of greatest intensity transmitted from a base station. Dr Hyland adopts Salzburg as the appropriate
level. Dr Matthews adopts the
guidelines. Dr Hyland cites much
non-peer group research and many unsubstantiated reports of illness attributed
by non-scientific opinion to radio waves.
The problem with his approach is that it does nothing to reassure people
who are inevitably subject to radio waves wherever they travel, mostly quite
unknown to them. Dr Matthews, on the
other hand gave measured evidence, which clearly indicated to me that Vodafone
is genuinely concerned to ensure that its operations do not affect the health of
anyone.
[52] Of course, I bear in mind that Vodafone has a
commercial interest in relying on the higher levels permitted by the
guidelines. On the other hand, Dr Hyland
made no secret of the fact that he regards his task as being to promote the
case for lower levels unless and until it can be shown that there is no risk of
non-thermal effects from radio waves. In
the end, however, there is no comparison between the quality of the expert
evidence on which I have to act. Dr
Matthews’ evidence relies on authenticated peer group research. Dr Hyland relies on non-peer group research
and anecdotal evidence and principally on his
81
own as yet untested
theories. I was left with the clear
impression that, if Dr Hyland’s theories are right, then nothing short of a
complete ban on the use of mobile telephones would suffice.
[53] The fact remains, as Dr Matthews emphasised, that
whether we like it or not, humans of all ages are constantly exposed to mobile
telephone radio waves and have no way of knowing how to avoid them.
[54] I turn now to review the factual evidence generally
concerning all the issues in the case. I
bear in mind the many letters that formed the initial objections and that,
therefore, the factual evidence comes from a representative sample of those
objections. It is important that those
many objectors should appreciate that I have taken into account all that they
have said and contributed to the resolution of the issues before me.
Hawes
[55] I start with the levels of emission.
[56] The maximum radio wave intensity at ground level from
this installation, occurs at 134m from the church, and is more than 5000
(0.002%) times below the guidelines.
[57] Jane Macintosh has lived at Ings House, Hawes for
two-and-a-half years and in the immediate area for over 20 years. She is a member of the congregation of St
Margaret’s, Hawes. As to the rent issue
she accepts the need for the church to raise money, but considers there are
alternative means. To her it seems
morally inappropriate that the church should benefit from rent from telephone
masts, when other hardworking organisations are opposed to the mast. As to the appropriateness issue she looks on
a church as a holy place for spiritual reflection. She likens the application for telephone
masts on a church to the ‘moneylenders in the temple’.
[58] She points to an alternative site on the open fellside
near Sedbusk which has planning permission granted, with space for one
additional service provider, which would give much better coverage. However, I must remind myself that she is not
an expert in this regard.
[59] Of greater concern is her evidence that the
relationship between St Margaret’s Church and the community has been severely
strained, particularly amongst the younger members. She speaks of a congregation that is elderly;
and anticipates that if the mast is allowed there will be no congregation left
in several years time.
[60] Finally, in respect of the health issue, she often has
her grandchildren, both under five, to stay with her. Her house is within 350m of the church
tower. She complains of sleepless nights
worrying about the effect on them. A
mast on the church tower would be a constant worry and source of stress to her.
[61] The essence of Mr Blackie’s evidence refers to the fact
that the Yorkshire Dales National Park Authority has made a policy decision not
to allow their properties to be used as sites for mobile phone transmission
because of staff concerns. It is for
this reason, he argues, that the church should follow this example and show
similar concern towards its parishioners; that this problem could be resolved
by the operator entering into a mast share arrangement at Sedbusk which is on
the fell side out of town and away from residential properties.
82
KNARESBOROUGH
[62] The maximum radio wave intensity at ground level from
the installation occurs at 107m from the site along the main transmission
bearings and will be more than 1210 (0·082%) times below the guidelines.
[63] Specifically, the maximum radio wave intensity at the
ground floor of Old Trinity Vicarage will be more than 8330 (0·012%) times
below the guidelines; at the ground floor of the dwellings off Hope Street it
will be more than 10460 (0·0095%) times below them; at the second floor of the
dwelling at 45 Windsor Lane it will be more than 650 (0·1534%) times below
them; at the second floor of Windsor House it will be more than 1635 (0·061%)
times below them; at a height of 6m in the United Reform Church Hall it will be
more than 730 (0·136%) times below them; at the third floor of the dwelling at
27 Windsor Lane it will be more than 655 (0·152%) times below them.
[64] Mr and Mrs Eric Ferguson, who live at Box Cottage,
Briggate, live in the nearest house to the spire. They are concerned for children who visit
them and play in their garden within some 20m from it. They have had experience of different forms
of cancer within their immediate family.
It is clear that this heightens their concern about possible effects of
radio waves. Mr Ferguson describes
himself as implacably opposed to the proposed siting of the antennae.
[65] Mr and Mrs M Hassall of 32 Windsor Lane have three
children aged six years, four years and four months two of whom sleep at the
front of the house. The children play in
the garden some 50m from the church.
Their concern relates to the lack of evidence to indicate exposure is
safe. They speak of the church risking
the health of the community for the sake of money.
[66] Mr and Mrs Jackson at 7a Briggate, Knaresborough are
less than 50m from the church and in almost direct line with the proposed
antennae. Their children are aged 14 and
16. They point out that the 16-year-old
is small for his age and could be as vulnerable as a younger child. Both the children, however, are permitted to
use mobile telephones, although they say their use is limited predominantly to
text messaging. The Jacksons derive
their concern about the health issues as being widely reported in the media. They say they will be forced to sell their
property if the proposals succeed.
[67] Mr and Mrs H Prudames of 45 Windsor Lane have four
children aged 13 years, 5 years, 4 years and 2 years. All but the 13-year-old sleep at the front of
the house. Mrs Prudames describes
herself as extremely concerned about the proposed installation, and how it is
causing her undue stress as a result.
She particularly complains that her expressed concerns have been
inadequately addressed by the churchwardens.
She also deals in her evidence with the appearance of the proposed
installation and the possible content of communications by its means. She is concerned that the removal of the
stone louvres would be difficult structurally and speaks of damage being
inevitable. I should add that there is
no expert evidence before me to support this concern. Mrs Prudames links the issue whether it is
appropriate to make money from the installation with the concerns that the
church should have for the health of the community.
[68] Mr and Mrs J Smithells, of 2 Stockdale Walk, are some
200m to the north-east of the church.
They have two children who are aged seven and ten. Their concern is specifically that emissions
from the proposed mast present a risk to the health of their children on the
basis that their physical development is incomplete so that protection against
such emissions would be considerably less than that of an adult. Their concerns will remain and continue to
cause them
83
considerable anxiety,
unless and until there is no doubt whatsoever as to the safety of these
emissions.
[69] Mr and Mrs Trevethick, of 22 Windsor Lane,
Knaresborough, live approximately 70m east-north-east of the church spire. Their evidence I should describe as the key
evidence on behalf of the Knaresborough objectors. I should like to pay particular tribute to the
way in which they have approached this hearing.
They come across as moderate people, who hold genuine concerns. They have two children aged 8 and 18 years. The worry that the installation would be a
health risk has caused them anxiety and sleep problems. Mr Trevethick suffers from high blood
pressure and believes that his condition has deteriorated because of
worry. Their concerns about the effect
on their health, particularly their younger child’s, are based on the fact that
as a family they spend much time in their garden and conservatory which are in
a direct line to the church. They make
the point that, even if they were to move, the house is likely to remain a
family house because of its size, so that children would be exposed to the
radio waves.
[70] They believe that the installation would be a health
risk. The worry of this has already
caused them anxiety and sleep problems.
Mr Trevethick takes medication to control blood pressure. Their health concerns are based on the lack
of firm evidence that there is no long-term risk to health from these
installations; and what they describe as the increasing evidence that health
problems do occur in susceptible people, with no way of knowing if anyone will
be susceptible until it is too late.
They make particular reference to a number of research projects: the UK
Mobile Telecommunications and Health Research Programme (MTHR)
(http://www.mthr.org.uk); and the International Agency for Research on Cancer
(IARC), part of the World Health Organisation, which has set up the INTERPHONE
Study, a series of multinational case control studies on the health effects of
low-level exposures to radiofrequency signals (http://www.iarc.fr).
[71] Their evidence tends to overlap with the expert
evidence. They point out that it is
accepted that phone radiation which is within existing ICNIRP guidelines can
have direct short-term effects on brain activity. They are concerned that pulsating radio wave
patterns could be similar to those television patterns which can trigger
photosensitive epilepsy.
[72] They highlight the precautionary principle, derived
from the Stewart Report, that is applied at present by ‘allowing protection of
children at school (knowing that children are there six hours a day for part of
the year)’. This logically means that
their children deserve like protection where they live for 18 hours a day for
most of the year.
[73] They complain of Vodafone’s and Holy Trinity’s lack of
consultation with the local people and draw attention to the substantial gathering
of people who expressed to the Bishop on his visit to the church their
objection to the proposed installation, also represented by a petition signed
by some 283 objectors:
‘We, the undersigned, are strongly opposed to the threatened Vodafone
antennae installation in Holy Trinity Church spire. We object to the unnecessary vandalism of a
listed structure and the potential microwave radiation health hazards.’
[74] Mr and Mrs Trevethick sum up their fears and anxieties
as concerning the unknown and unquantified risks identified by the Stewart
Committee, which are
84
only now being
researched. These risks, to their mind,
outweigh the fact that the equipment is in compliance with the ICNIRP
guidelines which as they understand, are not precautionary in themselves.
[75] Mrs Grazyna Wells lives at 1 Hope Street,
Knaresborough, close to Holy Trinity Church.
She has three children aged 13, 10, and 7, who sleep in the back first
floor bedroom and the two attic bedrooms.
They also play outside at the back of her house, right underneath where
the antennae will be. She is worried
about the effects of the ‘radiation’ on her children.
[76] Until more research is done, she says, the mobile phone
companies should put their masts away from people’s houses. They already have to be more careful near
schools. Her children are at home for
longer than they are at school. She has
lived here for ten years and cannot afford to move. All the people in Hope Street are also
worried. She says she is angry that no
one considers the people living in the area, especially as the radiation is so
dangerous to young children. She hopes
the court will put the safety of her and her children before anything else.
[77] It is right to observe, so far as children are
concerned, that the levels proposed already take account of the fact that
humans of all ages and sizes will be exposed to the radio waves from a mobile
telephone base station; and that, although the Stewart Report recommended that
schools should be consulted where the beam of greatest intensity might fall on
any part of the school, it did not go so far as to recommend that in no
circumstances should a base station be so sited.
[78] Mr Walter Graham is concerned with an organisation,
Northern Ireland Opposing Masts. He refers
to several cases of cancer in a small rural area between Ballygawley and
Dunganon close to a radio mast; some five cases of cancer in Lurgan close to a
mast; in Saintfield a number of cases of leukaemia and other forms of cancer
near to some masts; to many complaints of sleeplessness and headaches; and
finally to a child experiencing increased epileptic fits once the masts were
placed near the home. He adds that he
does not believe government and the mobile telephone industry when they say
there is no proof of a connection.
[79] Unfortunately, in the context of my inquiry, this
evidence is of no value, since it lacks any attempt to link the cases of
cancers to radio waves. This underlines
the real problem that the objectors have to face that there is no biological
evidence to suggest a causal connection between the two. A biological or medical expert ought to be
able to say whether or not a radio wave could cause the necessary aetiology of
possible forms of cancer. The fact
remains that there are many cases of cancer within the general population and
mere coincidence is insufficient on which to found a case for a health
hazard. The fact also remains that in
the years since the Stewart Report no authenticated research has established
any such connection. It is easy to take
the coincidence of cancer cases and to home in on a perceived or correlated
cause, but in the end they are unverified scientifically. In my view, it would be irresponsible to act
on such evidence. Neither does evidence
of groups such as this do anything to alleviate the genuinely held concerns of
people like the Trevethicks.
[80] Ultimately, I find this evidence along with unsolicited
letters that came from similar organisations, unhelpful for these reasons. However, it is important that all the parties
should clearly understand that I take the concerns of the local community very
seriously and do not lightly reject the risk to health from the emission of
radio waves from a telecommunications antenna. In the end,
85
however, in the context
of a medium now being used by millions of people worldwide, where, if there is
any risk from non-thermal effects, those are likely to be several fold greater
in the use of handsets than from the beam of greatest intensity, the lack of
authenticated research findings is quite remarkable.
[81] I find the emotive language of the ‘petition’,
particularly the choice of the word ‘vandalism’, unhelpful to the cause it
espouses, but it does reveal an unreasoned attitude towards the proposed
alteration in appearance of the church tower, which on any view is minimal, and
a lack of understanding that there are no scientific concerns about ‘microwave
radiation’. The further talk of
‘radiation’ being dangerous to children is quite without
foundation. It is not helpful to hear of
someone being ‘implacably’ opposed to the proposal. This is why I required properly reasoned
expert evidence and argument on which to base a properly reasoned judgment.
[82] The comparison has been made between the protestations
that there was no evidence that BSE could affect humans and the ultimate proof
that it could. At least there was a
similarity in the aetiology of the disease which affected cows and that which
affected humans. No one, expert or
factual witness, has been able to point to how it is envisaged that a radio
wave could cause a cancer or any cumulative adverse effect, or indeed any
adverse effect at all. There are so many
aspects of modern life which may or may not expose human beings to unknown
risks. I should also highlight Dr
Hyland’s opinion that there is no risk to humans below the levels set by
Salzburg.
[83] The argument has been raised that anxiety about
possible risks to health is itself a risk to health. Taken logically, that would mean that a
person who held a genuine but illogical belief that he could be affected by,
for example, a television signal, and became anxious as a result, was being
adversely affected by the signal. In
this example, the cause of the anxiety is not the signal but the belief. So it is that genuinely held, but
unsubstantiated, belief that radio waves hold a risk to health is the cause of
anxiety and not the radio wave itself.
CONCLUSION ON THE
HEALTH ISSUE
[84] For the reasons I have already given I prefer the
expert evidence of Dr Matthews to Dr Hyland on the crucial issue as to the
maximum permitted level of radio wave.
Further I accept Mr Turrall-Clarke’s submission that, in the absence of
compelling evidence of a real risk to human health as a result of transmitting
radio waves up to the levels set by the United Kingdom government in their
adoption of the ICNIRP guidelines, it would be wrong to adopt lower guidelines
for a base station just because it happens to come under the jurisdiction of
the Consistory Court in addition to planning requirements.
[85] In my judgment, the factual evidence does not persuade
me that, if the proposals go ahead as forecast, particularly since the
predicted levels are very much maximum levels only rarely, if ever, reached,
that there is such compelling evidence of risk to health. I note Dr Matthews’ evidence:
‘The calculations made by Vodafone are a theoretical worst case
scenario; in fact when the base station is in operation the levels will be
several hundred, if not thousands, of times below those of the theoretical
calculations.’
[86] It is clear that in respect of Knaresborough, those
levels will always be well within the guidelines and that in respect of Hawes
they will be far below them, indeed below the levels suggested by
Salzburg. I accept Dr Matthews’
86
evidence, nevertheless,
that there is no difference in terms of risk to health whether the levels are
300 times below the guidelines or 5000 times below.
[87] I am satisfied on the key issue that, so long as the
base stations conform to the ICNIRP guidelines there is no compelling evidence
of real risk to health; that stress or anxiety, real enough in itself, is
attributable to the perception of risk and will not be attributable to the
levels of radio waves.
[88] For these reasons I resolve the ‘health issue’ in
favour of the petitioners.
[89] I accept the clearly expressed need for continuing
research into the effects of radio waves at the small levels envisaged by the
installation of these base stations in the churches on humans. This is acknowledged by Vodafone and urged by
the objectors to be met by a suitable condition for monitoring the levels.
[90] Vodafone’s EMF Advisory Unit will be available, I am
told by Dr Matthews, to allay concerns.
I hope that those who have expressed very real concerns will find it
possible to take advantage of this facility.
THE APPEARANCE ISSUE
[91] I can deal with this issue with regard to both churches
quite shortly. Objection has been raised
that two flagpoles on Hawes church will look odd and that it will be possible
to tell that the replaced louvres on Knaresborough church are not stone but
fibreglass. The issue, however, is
whether those features will adversely affect the appearance of either church.
[92] It is important for those concerned with the appearance
of churches to appreciate that before any faculty is granted which might affect
the appearance of a church whether inside or outside, a committee of experts,
including, in particular, the fields of architecture, heritage, town and country
planning and liturgy, considers the application. This is the Diocesan Advisory Committee,
which advises me on all faculty applications.
In cases such as the present representative experts from the committee
visit the church and consider the plans in context. That was done in respect of both these
applications. The outcome was that on
aesthetic grounds, the Diocesan Advisory Committee recommended that a faculty
be granted. It is, however, as its name
suggests purely an advisory body and the ultimate decision as to whether a
proposed alteration to a church will adversely affect its appearance is for me
to take. I should make it clear,
however, that I should need strong evidence to go against the advice of that
committee.
[93] In addition the appearance issue has been considered by
two other expert bodies, English Heritage and the relevant planning
authorities.
[94] I agree with the submissions of the Archdeacon of
Richmond in this regard. I am satisfied
that the proposed installations will not adversely affect the appearance of
either church.
THE RENT ISSUE AND THE
APPROPRIATENESS ISSUE
[95] It seems to me that these issues fall to be considered
together. Again they can be answered
shortly and in accordance with established case law, to which I have already
referred. In my judgment, it has been
long established that part of a church may be used for purely secular and
commercial purposes so long as those purposes do not interfere with the ‘role
of a church as a local centre of worship and mission’ (see s 1 of the Care of
Churches and Ecclesiastical Jurisdiction Measure 1991, to which I have already
referred at [4], above).
[96] The Archdeacon of Richmond points out that in medieval
times the naves of churches were commonly used for all kinds of secular use;
and that in recent
87
times the Church of
England has returned to encouraging all manner of community use of church
buildings in order that the church may take its place at the centre of the
community. For example, I recently granted a faculty for Holy Trinity Ripon to
open up its whole undercroft for community use.
[97] I agree with his observation that the very wide use of
mobile telephones suggests that this means of communication is a valued
community resource; that the use of church towers to enable this form of
communication is an integral part of that resource.
[98] He correctly draws my attention to the fact that the
Archbishop’s Council of the Church of England has concluded that it is in no
way sacrilegious to use church towers for such purposes; and that the Council
has now negotiated terms for an approved installer of such equipment, Quintel,
which churches are encouraged, but not obliged, to use.
[99] In a modern society there are ever competing calls on
resources. Churches are enormously expensive
to maintain. They are important
buildings which each generation is under a responsibility to maintain. In the light of the development of secular
use of churches in circumstances such as I have outlined over the last ten
years since I consider it right to revisit the observation of Gage QC Ch in
Re All Saints, Harborough Magna [1992] 4 All ER 948, [1992] 1 WLR 1235 (see
[6], above) that it would only be in rare and exceptional cases that secular
use would be permitted. In my judgment,
if a church can receive financial support by taking rent for a commercial
undertaking that is consistent with its role as a local centre of worship and
mission, then I can see no objection. To
that extent, respectfully, I should not follow his use of the words ‘rare and
exceptional’ today.
[100] Chancellors Gage, Savill and Coningsby all considered
the possibility that the content of some telephonic messages would be
inconsistent with the role of the church.
I have also given this consideration when dealing with unopposed
applications in respect of telecommunications masts. To that now has to be added consideration of
text messages and access to the Internet, all of which has the potential to be
inconsistent with the role of the church.
[101] It is important, however, in my view, to put this issue
into perspective. So long as a
telecommunications company does not promote, for example, indecent traffic over
its network, it cannot be said to be responsible for such traffic any more than
a highways authority is responsible for the way in which people drive on its
roads. Similarly, there is no
distinction between the transmission of a radio signal and telephone signal
that passes through a cable through or over church property. The responsibility for the transmission of an
inappropriate signal or message is that of the person or body transmitting it
and the receiver, not that of the telecommunications provider. Further, the improper use of
telecommunications make the communicator guilty of an offence by s 43 of the
Telecommunications Act 1984 (as amended)b.
________________________________________
b Section 43 of the 1984 Act (as amended):
________________________________________
88
[102] Nevertheless, Mr Turrall-Clarke has, on the
instructions of Vodafone suggested a possible formula for a condition that
could be imposed on the faculties, which could, so far as practicable, minimise
the use of the network for inappropriate traffic. I have assumed that this is technically
feasible.
[103] I agree with the submissions of the Archdeacon of
Richmond in this regard. I am satisfied
that the proposed installations will not interfere with the role of a church as
a local centre of worship and mission.
POSSIBLE ALTERNATIVE
SITES
[104] Because no one from the Hawes objectors attended the
directions hearing, the issue, whether an alternative site for the installation
should be preferred to that proposed for the church, was not defined. The issue became apparent at the trial
hearing on 1 March in the relatively narrow form of consideration of the farm
site at Sedbusk as a possible alternative site.
This would be a shared site with another provider. There was questioning put to Vodafone’s
witnesses which elicited the answer that this site had indeed been given due
consideration, but was not considered to be satisfactory for Vodafone’s
requirements. The church tower is the
highest building in Hawes and, it is said, an obvious site to provide the
necessary mobile telephone cover for Hawes.
I also directed that the Hawes objectors be permitted to put further
written questions to Vodafone in respect of this issue. The answers have now been received. The conclusion is essentially the same,
namely that Sedbusk has been considered as an alternative site but rejected as
not suitable for Vodafone’s requirements.
I remind myself that this issue was given consideration and taken into
account in the decision to grant planning permission. In my judgment, however, the decisive factors
are these. Even on Dr Hyland’s evidence
there is no conceivable risk to health from the proposed installation on the
church tower at Hawes and I am satisfied that none of the other objections are
sustainable. For these particular
reasons, I can see no reason to consider an alternative site at this stage.
[105] For the sake of completeness, I should also observe
that the question of other possible sites in Knaresborough was taken into
account in the planning application process.
In addition, it emerged during the cross-examination of Dr Matthews
that, if the levels of signal emission were reduced to those advocated by Dr
Hyland (Salzburg levels), then, in order to achieve normal coverage in
Knaresborough, it would be necessary for there to be a considerable increase in
base stations to produce the lower level from each; and that in a rural area
such as the Hawes are, Vodafone would have to consider park antennae instead of
confining the base station to the church.
[106] In my judgment, I am satisfied that in relation to both
churches the question of possible alternative sites have been considered and
rejected for proper reasons.
CONSULTATION OF THE
LOCAL COMMUNITY
[107] There have been some unfair criticisms of Vodafone,
which in my view are wholly unfounded, that it failed to consult the local
communities adequately. It is always
easy to tilt at a large corporation, but it seems to me that Vodafone has gone
out of its way to design installations which would cause the minimum impact on
the surrounding areas of these two churches and to attempt to dispel the understandable
fears that people living in the vicinity of the church have felt towards
them. This company clearly takes its
responsibility for public health very
89
seriously and no one
who attended the hearing on 1 March can have helped but be impressed with the
reassuring way in which Dr Matthews explained the company’s policy in this
regard, even if not all were convinced.
Further, although it is inevitable in cases like these for some people
to feel that there has been insufficient consultation, I am satisfied that
there was extensive public awareness as a result of Vodafone’s and the
parishes’ efforts to publicise their plans.
This court procedure is one way that ensures that concerns of interested
people are fully taken into account.
Here there were in addition the necessarily planning applications. There can be few people who were not fully
aware of what was proposed.
[108] For all the reasons that I have given, I am satisfied
that the faculties should be granted in respect of both churches.
[109] The following conditions will attach to each. (i) That the terms of the licence are
approved by the chancellor. (ii) That
the licence shall provide for the effective monitoring of radiofrequency
emissions from the [equipment] by suitably qualified professionals at the
written request of the Church after the [equipment] has been commissioned and
at reasonable intervals thereafter and for written confirmation following that
monitoring that the radio-frequency emissions from the [equipment] are not in
excess of the ICNIRP public exposure guideline level in publicly accessible
areas. (iii) That at all times for the
duration of the licence Vodafone shall effect and maintain adequate insurance
and a public liability and third party policy against the usual risks covered
by public and products liability insurance policies. (iv) That Vodafone use
reasonable endeavours, so far as technology allows, to prevent the use of the
equipment for sending a message or other matter that is grossly offensive or of
an indecent, obscene or menacing character, or for any purpose referred to in s
43 of the 1984 Act (as amended) or which might otherwise be contrary to English
law.
CONCLUSION
[110] In my judgment, parishes within this diocese
considering whether to petition for a faculty for the installation of
telecommunications equipment within a church, would not in future need to
provide ‘cogent and compelling evidence’ that there is no risk to health so
long as the proposed levels are within the ICNIRP guidelines as recommended by the
government. It is clear to me that these
guidelines are in themselves precautionary.
[111] It should also be clearly recognised that an objection
that it is not appropriate to use a church for a telecommunications
installation is not likely to succeed; that a telecommunications company should
be prepared to accept conditions requiring monitoring of levels and limiting,
so far as practicable inappropriate use of the telecommunications.
[112] Finally, I express my gratitude to all the parties and
their advisers for their full and helpful arguments.
Petitions granted.
Victoria Parkin
Barrister.
90
[2004] 1 All ER 91
Gilje and others v Charlegrove Securities Ltd
and another
[2003]
EWHC 1284 (Ch)
LANDLORD AND TENANT;
Tenancies
CHANCERY DIVISION
ETHERTON J
13 MAY 2003
Landlord and tenant
– Service charge – Flat – Limitation on service charges – Time limit on making
demands – Whether landlord entitled to recover payments on account – Landlord
and Tenant Act 1985, s 20B.
The claimants were
tenants of flats. The first defendant
was the landlord and the second defendant was the landlord’s agent with
responsibility for demanding and receiving service charge contributions from
the tenants. Each tenant’s contribution was expressed as a percentage of the
service charge expenditure and was to be made in two ways, namely by payment on
account of service charges during the relevant financial year and by a
balancing payment at the end of each financial year. The landlord gave notice in respect of the
accounting periods ending on 25 March 1999 and 25 March 2000 requiring payments
on account in respect of those years based on anticipated expenditure for the
periods in question. Accounts were not
supplied until October 2001. Those
accounts showed that the amounts expended by the landlord and claimed by way of
service charge were less than the interim quarterly service charge demands for
those years. The tenants claimed that by
virtue of s 20Ba of the Landlord and
Tenant Act 1985 the landlord was not entitled to recover by way of service
charge any expenditure in those accounts, such expenditure having been incurred
more than 18 months ‘before a demand for payment of the service charge’. At the trial of the preliminary issue the master
found in favour of the defendants. The
tenants appealed.
________________________________________
a Section 20B is set out at [13], below
________________________________________
Held – On its true construction s 20B of the 1985 Act had
no application where payments on account were made to the lessor in respect of
service charges, the actual expenditure of the lessor did not exceed the
payments on account and no request by the lessor for any further payment by the
tenant needed to be or was in fact made.
There was nothing to demand from the tenants since the interim sums paid
under the leases exceeded the actual expenditure in the two years in
question. The quarterly payments on
account were payments of any service charge within s 20B. There was no metamorphosis of those payments
once the final accounts and certificates were prepared. The appeal would therefore be dismissed (see
[20]–[22], [28], below).
Notes
For the time limit on making
demands for service charges, see 27(1) Halsbury’s Laws (4th edn reissue)
para 307.
For the Landlord and
Tenant Act 1985, s 20B, see 23 Halsbury’s Statutes (4th edn) (1997
reissue) 366.
91
Case referred to in
skeleton arguments
Gilje v Charlegrove Securities Ltd [2001] EWCA Civ 1777, [2002] 1 EGLR 41.
Appeal
The claimants, Mr and Mrs KO
Gilje, Bellhurst Ltd, Mr and Mrs J Hart and the Marchioness of Cholmondley,
tenants of flats at 27 Lennox Gardens, London, SW1, appealed with permission of
Master Price from his determination on 12 December 2002 of a preliminary issue,
set out at [2], below, in proceedings brought against the defendants,
Charlegrove Securities Ltd and Richard H Newman in relation to service charge
contributions. The facts are set out in the judgment.
Timothy Dutton
(instructed by Nicholson, Graham & Jones) for the claimants.
Amanda Eilledge
(instructed by Ellistons Solicitors, Stanmore) for the defendants.
13 May 2003. The following judgment was delivered.
ETHERTON J.
INTRODUCTION
[1] The claimants in these proceedings are tenants of flats
at 27 Lennox Gardens, London SW1 (the building). The first defendant is the landlord, and the
second defendant is the first defendant’s agent with responsibility for
demanding and receiving service charge contributions from the tenants.
[2] This is an appeal from an order of Master Price of 12
December 2002 on a preliminary issue by which he declared:
‘Section 20B of the Landlord and Tenant Act 1985 does not prevent the
defendants from charging expenditure by way of service charges in the years of
account ended 25 March 1998 and 25 March 1999 notwithstanding that this
expenditure was incurred more than 18 months prior to the final preparation of
the final accounts and demands in respect of those years of account but only in
so far as such expenditure was covered by amounts collected by the defendants
by way of advance service charges pursuant to the claimants’ leases.’
BACKGROUND FACTS
[3] The building comprises six flats, of which five are let
on long leases (the leases), the sixth being retained for use by a resident
caretaker. The leases are in similar
form.
[4] Each of the leases requires the lessee to contribute
towards the cost of providing certain services, as follows. Each lessee’s contribution is expressed as a
percentage of the service charge expenditure.
The contribution is to be made in two ways, that is to say by payments
on account of service charges during the relevant financial year and by a
balancing payment at the end of each financial year.
[5] The claimants, between them, hold four of the five long
leases and contribute 78·5% of the total service charge expenditure, the
balance being payable by the lessee of the fifth flat.
[6] The defendants, as I have said, are the claimants’
landlord, the first defendant, and Mr Richard Newman, the second defendant,
who, as the first defendant’s agent, corresponds with the claimants in respect
of the provision of
92
services and service
charges, demands service charge contributions from the lessees of the flats
within the building and accepts those contributions.
[7] There has been previous litigation between the
claimants and the first defendant in relation to service charges.
[8] The present dispute between the parties turns on four
matters: the making of an allegedly inappropriate demand for payment on account
of service charges for the year of account ending in 2002; adjusting the
account between the parties so as to reflect the consequences of decisions in
the Leasehold Valuation Tribunal, the Central London County Court and the Court
of Appeal; an issue arising under s 20B of the Landlord and Tenant Act 1985;
and a disagreement on the pleadings as to the amount the claimants have paid to
the defendants on account of service charges.
THE ISSUE
[9] The issue before me concerns the third disputed matter
which I have mentioned above. It arises
in the following way. Each of the
claimants’ leases contains covenants by the tenant:
‘4 … (2) To pay to the Lessor in each year a sum equal to [a specified
percentage] of (i) all monies expended by the Lessor in carrying out all or any
of the works and providing the services and management administration called
for under clause 5(4) hereof [that is, the Lessor’s covenant to maintain,
repair and decorate] (ii) the insurance premium for the insurance policy
covering the Building in accordance with the Lessor’s covenant herein contained
and (iii) such a sum as the Lessor shall reasonably require for the purpose of
setting up an adequate reserve fund to pay for any intended substantial works
which are not annually required to be done.
The liability of the Lessee shall be discharged in the following manner
that is to say: (a) By the payment on account in each year of such a reasonable
sum as the Lessor shall require such sum to be paid in advance by quarterly
instalments on the days hereinbefore provided for the payment of rent the first
payment to be made at the time hereinbefore provided for the first payment of
rent and to be a proportion calculated from the date hereof (b) In the event of
the moneys expended by the Lessor as aforesaid in any year exceeding the aforesaid
payment on account the balance shall be paid by the Lessee within twenty-one
days after receiving a demand for the same.
The Lessor will procure that the Lessor’s managing agents shall within
three months at the end of each year issue a certificate and account as to the
amount expended by the Lessor in such year as hereinbefore provided and such
certificate shall be conclusive and binding on the Lessor and the Lessee.’
[10] In respect of the accounting periods ending on 25 March
1999 and 25 March 2000, the first defendant gave notice requiring payments on
account in respect of those years based on anticipated expenditure for the
period in question. Projected budgets
for those years were supplied to the claimants on about 17 March 1998 and 10
March 1999 respectively. Accounts for
the years ending 1999 and 2000 were not supplied until the beginning of October
2001.
[11] Those accounts showed that the amounts expended by the
first defendant for the two years in question and claimed by way of service
charge were less than the interim quarterly service charge demands for those
years.
[12] The claimants claim that by virtue of s 20B of the 1985
Act the first defendant is not entitled to recover by way of service charge any
expenditure in
93
those accounts, such
expenditure having been incurred more than 18 months previously.
THE STATUTORY
PROVISIONS
[13] The relevant statutory provisions in the 1985 Act are
as follows:
‘18. Meaning of “service charge” and “relevant costs”.—(1)
In the following provisions of this Act “service charge” means an amount
payable by a tenant of a dwelling as part of or in addition to the rent—(a)
which is payable, directly or indirectly, for services, repairs, maintenance or
insurance or the landlord’s costs of management, and (b) the whole or part of
which varies or may vary according to the relevant costs.
(2) The relevant costs are the costs or estimated costs incurred or to
be incurred by or on behalf of the landlord, or a superior landlord, in
connection with the matters for which the service charge is payable.
(3) For this purpose—(a) “costs” includes overheads, and (b) costs are
relevant costs in relation to a service charge whether they are incurred, or to
be incurred, in the period for which the service charge is payable or in an
earlier or later period
19. Limitation
of service charges: reasonableness.—(1)
Relevant costs shall be taken into account in determining the amount of a
service charge payable for a period—(a) only to the extent that they are
reasonably incurred, and (b) where they are incurred on the provision of
services or the carrying out of works, only if the services or works are of a
reasonable standard; and the amount payable shall be limited accordingly.
(2) Where a service charge is payable before the relevant costs are
incurred, no greater amount than is reasonable is so payable, and after the
relevant costs have been incurred any necessary adjustment shall be made by
repayment, reduction or subsequent charges or otherwise …
20B. Limitation
of service charges: time limit on making demands.—(1) If any of the relevant costs taken into account in
determining the amount of any service charge were incurred more than 18 months
before a demand for payment of the service charge is served on the tenant, then
(subject to subsection (2)), the tenant shall not be liable to pay so much of
the service charge as reflects the costs so incurred.
(2) Subsection (1) shall not apply if, within the period of 18 months
beginning with the date when the relevant costs in question were incurred, the
tenant was notified in writing that those costs had been incurred and that he
would subsequently be required under the terms of his lease to contribute to
them by the payment of a service charge.’
MASTER PRICE’S JUDGMENT
[14] Master Price concluded in his judgment on 12 December
2002 that—
‘s 20B has nothing to do with payments on account which fall to be dealt
with under s 19(2), by way of subsequent adjustment by repayment, reduction or
further charges. Section 20B only comes
into play if the landlord spends more than he has demanded on account, in which
case he must raise a further demand within the 18-month period.’
[15] It is common ground between the parties that Master
Price’s judgment contained an error, which was carried through into his order,
in referring to one of
94
the relevant years of
account as ending on 25 March 1998. As I
have said, the two relevant years of account are those ending on 25 March 1999
and 25 March 2000.
THE CLAIMANTS’ CASE
[16] Mr Timothy Dutton, counsel, who appeared for the
claimants on the appeal before me, put their case in the following way. He submitted, first, that the quarterly
interim payments made by the claimants under their respective leases are no
more, and no less, than payments on account of the service charge. The leases contain express provision for a
final account to be taken of the lessor’s expenditure in respect of each year,
and, he submitted, it is only when such a final account is prepared that the
payment on account is converted into a payment for the actual service
charge. He emphasised, as part of this
analysis, that the quarterly payments on account are not, when made, formally
appropriated to any particular expenditure, in the sense that the lessor is
restricted to applying the payments on account only for the specified
expenditure in the budget. The lessor is
entitled to apply such payments on any item of expenditure within cl 5(4) of
the leases, whether or not it was envisaged and specified in the budget.
[17] There are, in effect, he submitted, two service charges
for the year: first, the interim service charge, and then the actual service
charge once the actual expenditure has been incurred. Section 19(1) of the 1985 Act concerns the
actual service charge, that is to say related to the actual expenditure
incurred by the lessor. That subsection
permits the tenant to challenge the whole of the lessor’s account of his
expenditure. Section 20B, Mr Dutton
submitted, is looking at that same process, that is to say the account of the
lessor’s actual expenditure for the relevant accounting period.
[18] He submitted that the issue and supply to the
claimants, under cl 4(2) of the leases, of the account and certificate for the
relevant year constitutes the ‘demand for payment of the service charge’ within
s 20B(1).
ANALYSIS
[19] Notwithstanding Mr Dutton’s eloquence and
persuasiveness, the conclusion of Master Price was, in my judgment, plainly
right.
[20] I accept the primary submission of Ms Amanda Eilledge,
counsel for the defendants, that s 20B of the 1985 Act has no application where
(a) payments on account are made to the lessor in respect of service charges,
(b) the actual expenditure of the lessor does not exceed the payments on
account and (c) no request by the lessor for any further payment by the tenant
needs to be or is in fact made.
[21] In the first place, it is quite clear that s 20B(1)
operates only where the relevant costs were incurred more than 18 months before
a ‘demand for payment’. Mr Dutton’s
interpretation requires the supply of the accounts and certificates under cl
4(2) of the leases to be treated as a ‘demand for payment’. They were not, however, in substance or form,
a demand for payment. There was nothing
to demand from the claimants since the interim sums paid under the leases
exceeded the actual expenditure in the two years in question.
[22] Further, I do not accept Mr Dutton’s submission that
there was no actual payment of the service charge until the final accounts and
certificates were issued under cl 4(2) of the leases. For the purposes of s 20B of the Act, s 18 of
the Act defines the meaning of ‘service charge’. It is ‘an amount’ payable in respect of the
matters specified in s 18(1). The
quarterly payments on account were payable in respect of such matters, and
were, therefore, undoubtedly payments of ‘a[ny] service charge’ within s
20B. There was no metamorphosis of those
payments once the final accounts and certificates were prepared.
95
[23] As Ms Eilledge pointed out, the terms of cl 4(2) of the
leases, which I have already quoted, expressly provide: ‘The liability of the
Lessee [to pay for the expenditure of the Lessor] shall be discharged … (a) By
the payment on account …’ Only if the
expenditure of the lessor exceeds that amount is the tenant obliged to pay the
balance, in which case: ‘(b) … the balance shall be paid by the Lessee within
twenty-one days after receiving a demand for the same.’
[24] The account and certificate under cl 4(2) of the leases
are required by cl 4(2) and are in practice drawn up so as to relate to the
lessor’s expenditure as a whole and not to the liability of any particular
lessee. As cl 4(2) expressly envisages,
if, but only if, the certificate and account disclose that the actual
expenditure of the lessor exceeds the payment on account, then a demand will be
made of a particular tenant to pay a specific balance outstanding. The issue of the certificate and account
themselves are neither expressly nor implicitly a demand for the payment of any
sum by any particular tenant.
[25] Further, if Mr Dutton’s interpretation of s 20B is
correct, I would have expected the draftsman of the Landlord and Tenant Act
1987 (which inserted s 20B into the 1985 Act) to have added what Mr Dutton
claims is the substance of this section to s 19(1) of the 1985 Act which deals
with the challenge to service charges after expenditure has been incurred. In this connection, it is to be borne in mind
that the legislation expressly contemplates the payment of service charges on
account, and provides an express mechanism in s 19(2) for challenging such
payment on account if and in so far as the demand for such payment is
unreasonable. Against that background,
the failure to insert the 18-month limitation as an extra qualification under s
19(1) is extremely poor drafting if it was intended that the limitation is to
apply to all costs falling within s 19(1) even where the payments on account,
subject to the provisions of s 19(2), exceed the final expenditure of the
lessor.
[26] Further, I agree with Ms Eilledge that the provisions
of s 20B fit extremely uncomfortably with the application of that section to
payments on account. Such payments must
necessarily, by virtue of s 19(2), be related to particular contemplated costs
of which the tenant is notified in advance.
While Mr Dutton is, strictly speaking, correct that the lessor is not
restricted to expenditure of the interim payments only on those anticipated
items of expenditure, the fact that the draftsman appears to make no allowance
in s 20B(2) for the situation (expressly anticipated in s 19(2)) where the
expenditure has been notified in advance and payments on account have been
made, indicates that he did not have such a situation in mind as falling within
the ambit of s 20B(1).
[27] Finally, I agree with Ms Eilledge that, so far as
discernible, the policy behind s 20B of the 1985 Act is that the tenant should
not be faced with a bill for expenditure of which he or she was not
sufficiently warned to set aside provision.
It is not directed at preventing the lessor from recovering any
expenditure on matters, and to the extent, of which there was adequate prior
notice. This does not leave the tenant
without a remedy for the failure of the lessor to prepare a final account. In the event of wrongful delay by the lessor,
the tenant can apply to the court for the taking of an account and, if the
lessor’s delay is culpable, the lessor will have to pay the costs.
DECISION
[28] For all these reasons, I dismiss this appeal.
Appeal dismissed.
Celia Fox
Barrister.
96
[2004] 1 All ER 97
R (on the application of G) v Barnet London
Borough Council
R (on the application of W) v Lambeth London Borough Council
R (on the application of A) v Lambeth London Borough Council
R (on the application of W) v Lambeth London Borough Council
R (on the application of A) v Lambeth London Borough Council
[2003]
UKHL 57
LOCAL GOVERNMENT:
FAMILY; Children
HOUSE OF LORDS
LORD NICHOLLS OF BIRKENHEAD, LORD STEYN, LORD HOPE OF
CRAIGHEAD, LORD MILLETT AND LORD SCOTT OF FOSCOTE
12–14 MAY, 23 OCTOBER 2003
Local authority –
Statutory powers – Children – Provision of services for children in need –
Whether local social services authority having duty to provide accommodation
for entire family of child in need requiring residential accommodation –
Whether local social services authority looking after child having duty to
provide accommodation for child’s parent – Children Act 1989, ss 17(1), 23(6).
Three conjoined appeals
before the House of Lords concerned the responsibilities of local social
services authorities for the accommodation of children in need. Section 17(1)
of the Children Act 1989 provided that it was the general duty of every
local social services authority, in addition to other duties imposed on them by
Pt III of the 1989 Act to safeguard and promote the welfare of children within
their area who were in need, and so far as it was consistent with that duty, to
promote the upbringing of such children by the families, by providing a range
and level of services appropriate to those children’s needs. In Pt III and in Sch 2 to the 1989 Act there
were provisions dealing with investigations and assessments of needs of
children and duties to provide various particular kinds of support
services. In A’s appeal, two of her
three children were in need because they were disabled. Assessments of the needs of A’s children
under the Children Act 1989 were to the effect that the family needed to be
re-housed. A sought an order compelling
the local social services authority to find and provide suitable accommodation
within the children’s assessed needs.
The High Court and the Court of Appeal held that the court had no power
to intervene. G’s application for
assistance with housing had been refused.
The local social services authority assessed her child’s needs as best
served by the return of G and her child to the country of her citizenship where
they would be entitled to accommodation and other benefits. G applied for judicial review. It was common ground that it was not in the
child’s best interests to be removed from her care and that if she refused to
return to her country of citizenship the local social services authority
intended to place the child with foster parents and provide no accommodation
for G. The judge granted relief, the
local authority appealed and the Court of Appeal allowed its appeal. W was intentionally homeless. Her application for judicial review of the
refusal of the local social services authority to provide assistance with
accommodation was dismissed. The
97
Court of Appeal
dismissed her appeal. The local social
services authority decided to explore placing W’s children with extended family
members as a short term measure while W sought alternative accommodation. But if the need arose, the authority would
make provision for the children alone.
In all three appeals to the House of Lords the parents contended that the
effect of s 17(1) of the 1989 Act was that, once there had been an assessment
of the needs of an individual child in need, there was a specific duty on the
local social services authority to provide services to meet the child’s
assessed needs and that it followed that, if the identified need was the
provision of residential accommodation, the child had an absolute right to that
accommodation. In G’s and W’s appeals the parents contended that the effect of
s 23(6) of the 1989 Act, which required
a local social services authority looking after a child to make arrangements to
enable him to live with a parent or other specified persons, such as relatives
or friends, was to put the authority under a duty to make arrangements to
enable the child to live with his parent.
Held – (1) (Lord Nicholls and Lord Steyn dissenting)
Section 17(1) of the 1989 Act set out duties of a general nature only which
were not intended to be enforceable as such by individuals. The ‘general duty’ was owed to all the
children who were in need within the area of the local social services
authority and not to each child in need individually. It provided the broad aims which the local
social services authority was to bear in mind when it was performing the ‘other
duties’ set out in Pt III of the 1989 Act and the ‘specific duties’ set out in
Pt I of Sch 2 to the 1989 Act as to which it had a discretion as to how it
should meet the needs of each individual child in need. Although the services which the local social
services authority provided could include the provision of accommodation, the
provision of residential accommodation to rehouse a child in need so that he
could live with his family was not the principal or primary purpose of the
legislation. Housing was the function of
the local housing authority (see [80], [82], [83], [85], [91], [92], [94],
below).
(2) Section 23(6) of
the 1989 Act did not impose an obligation on a local social services authority
to provide accommodation for the parent or other persons. Section 23(6) was concerned with the way a
local social services authority was to discharge its obligation to provide
accommodation for a child whom it was looking after. It required the local social services
authority to make arrangements to allow the child to live with a parent or
other specified person unless that would not be reasonably practicable or
consistent with his welfare. The provision assumed the parent of the child
already had accommodation which the child could enter and share so as to live
there with his parent, or other persons, such as relatives and friends. It was
concerned with placement, not housing.
Accordingly, the appeals would be dismissed (see [38], [58], [64],
[102]–[106], [111], [129], [135], [142], [143], below).
Notes
For a local authority’s duty
to provide for children in need, and for its duty to preserve family links, see
5(3) Halsbury’s Laws (4th edn reissue) paras 1301, 1325.
For the Children Act
1989, ss 17(1), 23(6), see 6 Halsbury’s Statutes (4th edn) (2003
reissue) 415, 428.
Cases referred to in
opinions
A v Lambeth London BC [2001] EWCA Civ 1624, [2001] 3 FCR 673.
98
A-G (ex rel
Tilley) v Wandsworth London BC [1981] 1 All ER 1162, [1981] 1 WLR
854, CA.
K and T v Finland [2001] 2 FCR 673, ECt HR.
KA v Finland [2003]
1 FCR 201, ECt HR.
Kutzner v Germany [2003] 1 FCR 249, ECt HR.
R (on the
application of AB and SB) v Nottingham City Council [2001] EWHC
Admin 235, [2001] 3 FCR 350.
R v Barnet London BC, ex p B [1994] 2 FCR 781.
R v East Sussex CC, ex p Tandy [1998] 2 All ER 769, [1998] AC 714, [1998] 2 WLR 884,
HL.
R v Gloucestershire CC, ex p Barry [1997] 2 All ER 1, [1997] AC 584, [1997] 2 WLR 459, HL.
R v Inner London Education Authority, ex p Ali (1990) 2 Admin LR 822, DC.
R v Northavon DC, ex p Smith [1994] 3 All ER 313, [1994] 2 AC 402, [1994] 3 WLR 403,
HL.
R v Oldham Metropolitan BC, ex p Garlick [1993] 2 All ER 65, [1993] AC 509 [1993] 2 WLR 609,
HL.
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.
R v Tower Hamlets London BC, ex p Bradford [1998] 1 FCR 629.
R v Wigan MBC, ex p Tammadge (1998) 1 CCLR 581.
Z and E v Austria (1986) 49 DR 67, E Com HR.
Cases referred to in
list of authorities
Abdulaziz v UK
(1985) 7 EHRR 471, [1985] ECHR 9214/80, ECt HR.
Akinbolu v Hackney London BC (1996) 29 HLR 259, CA.
Chapman v UK (2001)
10 BHRC 48, ECt HR.
Glaser v UK [2000]
3 FCR 193, ECt HR.
J v C [1969] 1
All ER 788, [1970] AC 668, [1969] 2 WLR 540, HL.
KD (a minor)
(ward: termination of access), Re [1988] 1 All ER 577, [1988] AC 806, [1988] 2
WLR 398, HL.
M (a minor)
(secure accommodation order), Re [1995] 3 All ER 407, [1995] Fam 108, [1995] 2
WLR 302, CA.
Olsson v Sweden
(1988) 11 EHRR 259, ECt HR.
Poplar Housing and Regeneration Community Association
Ltd v Donoghue [2001] EWCA Civ 595,
[2001] 4 All ER 604, [2002] QB 48, [2001] 3 WLR 183.
R (on the
application of Alconbury Developments Ltd) v Secretary of State for the
Environment, Transport and the Regions [2001] UKHL 23, [2001] 2 All ER 929,
[2001] 2 WLR 1389.
R (on the
application of Ali) v Birmingham City Council [2002] EWHC 1511 (Admin), [2003]
LGR 238.
R (on the
application of Batantu) v Islington London Borough [2000] All ER (D) 1744.
R (on the
application of J) v Enfield London BC [2002] EWHC 432 (Admin), [2002] LGR 390.
R (on the
application of L) v Manchester City Council [2001] EWHC Admin 707, [2002] 1 FLR
43.
R (on the
application of Wahid) v Tower Hamlets London BC [2002] EWCA Civ 287, [2002] All
ER (D) 74 (Mar).
R v Bradford Metropolitan DC, ex p Parkinson [1997] 2 FCR 67.
R v Bristol City Council, ex p Penfold (Alice) (1998) 1 CCLR 315.
R v Hammersmith and Fulham London BC, ex p D [1999] 2 FCR 401.
99
R v Lambeth London BC, ex p K (1999) 3 CCLR 141.
R v Lambeth London BC, ex p P [1997]
1 CCLR 85, CA.
R v Tower Hamlets London Borough, ex p Monaf (1988) 20 HLR 529, CA; rvsg in part (1987) 19
HLR 577, DC.
R v Wandsworth London BC, ex p O, R v Leicester City
Council, ex p Bhikha [2000] 4 All ER
590, [2000] 1 WLR 2539, CA.
S (children:
care plan), Re, Re W (children: care plan) [2002] UKHL 10, [2002] 2 All ER 192,
[2002] 2 AC 291, [2002] 2 WLR 720.
Sheffield and Horsham v UK [1998] 3 FCR 141, ECt HR.
W (a minor)
(medical treatment), Re [1992] 4 All ER 627, [1993] Fam 64,
[1992] 3 WLR 758, CA.
X and ors (minors)
v Bedfordshire CC, M (a minor) v Newham London BC, E (a
minor) v Dorset CC [1995] 3 All ER 353, [1995] 2 AC 633, [1995] 3
WLR 152, HL.
Appeals
R
(on the application of G) v Barnet
London Borough Council
The claimant, G, appealed
with leave of the Appeal Committee of the House of Lords given on 20 June 2002
from the decision of the Court of Appeal (Ward, May and Rix LJJ) on 11 April
2001 ([2001] EWCA Civ 540, [2001] 2 FCR 193) allowing the appeal of the
defendant, Barnet London Borough Council) from the decision of Hooper J on 18
January 2001 ([2001] EWHC Admin 5, [2001] 1 FCR 743) allowing the claimant’s
application for judicial review of the decision of the defendant on 9 October
2000 to cease to make her weekly payments for accommodation and subsistence for
herself and her infant child. The facts
are set out in the opinion of Lord Nicholls.
R
(on the application of W) v Lambeth
London Borough Council
The claimant, W, appealed
with leave of the Appeal Committee of the House of Lords given on 20 June 2002
from the decision of the Court of Appeal (Brooke, Laws and Keene LJJ) on 29 May
2002 ([2002 EWCA Civ 613, [2002] 2 All ER 901) dismissing her application for
judicial review of the assessment made by the defendant, Lambeth London Borough
Council, under Pt III of the Children Act 1989.
On 24 January 2002 Maurice Kay J had refused the claimant permission to
apply for judicial review of an earlier decision by the council to the same
effect, but the Court of Appeal granted permission on 8 March 2002 and directed
that it would hear the substantive application. The facts are set out in the
opinion of Lord Nicholls.
R
(on the application of A) v Lambeth
London Borough Council
The claimant, A, appealed
with leave of the Appeal Committee of the House of Lords given on 15 May 2002
from the decision of the Court of Appeal (Chadwick, Laws LJJ, and Sir Philip
Ottton) on 5 November 2001 ([2001] EWCA Civ 1624, [2001] 3 FCR 673) dismissing
her appeal from the decision of Scott Baker J on 25 May 2001, dismissing her
application for judicial review of the failure of the defendant, Lambeth London
Borough Council, to rehouse herself and her family in appropriate
accommodation. The facts are set out in
the opinion of Lord Nicholls.
John Howell QC
and Stephen Knafler (instructed by Bindman & Partners) for G.
James Goudie QC
and Charles Béar QC (instructed by Jeff Lustig) for Barnet
council.
100
John Howell QC and Stephen Knafler (instructed by Flack & Co) for W.
James Goudie QC
and Charles Béar QC (instructed by Sternberg Reed Taylor Gill)
for Lambeth council.
Richard Gordon QC and Stephen Cragg (instructed by Fisher Meredith) for A.
James Goudie QC
and Charles Béar QC (instructed by Sternberg Reed Taylor Gill)
for Lambeth council.
Their Lordships took
time for consideration.
23 October 2003. The following opinions were delivered.
LORD NICHOLLS OF
BIRKENHEAD.
[1] My Lords, these
three appeals concern the responsibilities of local authorities for the
accommodation of children who are in need.
The first and principal legal issue relates to the nature and extent of
the duty imposed on local authorities by s 17 of the Children Act 1989. The claimants’ case is that s 17(1) requires
a local authority to assess the needs of a child who is in need and to meet his
needs when they have been assessed. The
defendant local authorities refute both limbs of this claim. A second issue is whether a local authority
may insist on providing accommodation for a child alone, as distinct from a
child and his mother, when a child is in need of accommodation and it would
cost no more to provide accommodation for both of them.
[2] In two of the
cases the accommodation problems of the claimants have been resolved since the
proceedings started. In the third case,
involving two disabled children, there is an issue between the parties on the
quality of the accommodation currently provided for the children and their
family. I must first outline the facts
and history of the three cases. In each
case the claimant was a mother as a single parent. The three claimants are G, A and W.
THE THREE CASES
[3] The first case,
in chronological sequence is G’s case: R (on the application
of G) v London Borough of Barnet.
G is a person from abroad who, until recently, was not eligible for
housing assistance. She is a Dutch
national of Somali origin. She has a
son, born in May 1999. She entered this
country on a Dutch passport. She
claimed she left the Netherlands because of social ostracism encountered there
in the Somali community on account of her child’s illegitimacy, and that she
came to this country to look for the child’s father. An application for income support, and an
application to the London Borough of Barnet for assistance with housing, were
refused because G did not satisfy the habitual residence test. She then sought assistance from Barnet
council as the local social services authority.
The council assessed the child’s needs as best served by the return of
both mother and child to Holland where they were entitled at once to
accommodation and other benefits. The
council did not accept the mother’s account of her reasons for coming to
London. By a decision letter of 9
October 2000 the council told her that her weekly payments for accommodation
and subsistence would stop in a week’s time.
[4] G applied for
judicial review of this decision. It was
common ground she was suitable to look after her boy, and that it was not in
the boy’s best interests to be removed from her care. It was also common ground that if, as
happened, the mother refused to return to the Netherlands, the council intended
to place the child with foster parents, and to provide no accommodation for the
mother. In
101
the event interim
relief was granted in the judicial review proceedings. On 18 January 2001 Hooper J quashed the
decision of 9 October 2000: see [2000] EWHC Admin 5, [2001] 1 FCR 743. The child was in need, and it was in the best
interests of the child to live with his mother.
Given the duties imposed on the local authority by s 17(1) of the 1989
Act, and the powers granted to it by s 23, the local authority ‘has no
alternative’ but to place the child with his mother assuming it is reasonably
practicable to do so. This was so even
though the mother was, in the view of the local authority, acting unreasonably:
see [18].
[5] The council
appealed. On 11 April 2001 the Court of
Appeal, comprising Ward, May and Rix LJJ, allowed the appeal and dismissed the
judicial review application: [2001] EWCA Civ 540, [2001] 2 FCR 193. Ward LJ said the duty imposed by s 17(1) was
met by providing financial assistance for the return of the mother and child to
Holland. The local authority did not act
unlawfully in refusing to provide assistance in cash or in kind to assist in
the provision of accommodation for the mother and her child. Section 17(3) and (6) imposed no such duty on
the local authority. Section 20 imposed
a duty to provide accommodation for the child, not for the parent and the
child.
[6] The second
appeal is A’s case: R (on the application of A) v
London Borough of Lambeth. This concerns a family who have been housed but
whose accommodation is not suitable for the children’s needs. A is the mother of three children. Unhappily two of the children, aged nine and
seven, are autistic. They have severe
learning difficulties and require constant supervision. The family’s accommodation is a ground floor
two-bedroom local authority flat, rented from the London Borough of
Lambeth. The flat has no garden or
outside play area. The two disabled
children are prone to run out of the front door and climb through the
windows. This is dangerous because the
flat is very close to the road. The
accommodation poses severe disadvantages to the children’s health and
wellbeing. Core assessments of the needs
of the children under the 1989 Act were to the effect that the family need to
be re-housed away from the road, to have a safe outside play area and to have
four bedrooms
[7] A challenge by
the mother to the decision of the council as housing authority was
abandoned. The mother now seeks, against
the council as local social services authority, a mandatory order compelling
the council to find and provide suitable accommodation in line with the children’s
assessed needs. Both the judge at first instance, Scott Baker J, and the Court
of Appeal, comprising Chadwick and Laws LJJ and Sir Philip Otton, held the
court has no power to intervene even though, even in the words of Scott Baker
J, the family have been ‘less than satisfactorily treated’ by Lambeth council:
[2001] EWCA Civ 1624, [2001] 3 FCR 673.
[8] The third case
is W’s case: R (on the application of W) v London
Borough of Lambeth. W had become
homeless intentionally within the meaning of that expression in the
homelessness legislation. She has two
children, aged 16 and seven. She sought
assistance for accommodation from the London Borough of Lambeth as local social
services authority. This was
refused. Maurice Kay J dismissed an
application for judicial review of the council’s decision. The decision of the Court of Appeal in A’s
case obliged him to do so. By a further
assessment, dated 9 April 2002, the council decided it should explore placing
the children with extended family members as a short term measure while the
mother sought alternative accommodation.
Should the need arise provision could be made for the children alone
under s 20 of the 1989 Act.
102
[9] On appeal the
Court of Appeal, comprising Brooke, Laws and Keene LJJ ([2002] EWCA Civ 613,
[2002] 2 All ER 901) dismissed an appeal in respect of the council’s decision
of 9 April 2002. The court considered there were not sufficient grounds for
interfering with the council’s decision.
Section 17 imposes a ‘target’ duty on the council, but in relation to
individual children the council only has a power. The council had given intelligible and
adequate reasons why it was not willing to exercise its power in this case,
given all the other pressures on its resources.
Where all else failed the local authority has power to help under s 17,
but it is entitled, if it sees fit, to reserve this power for extreme cases
which the instant case had not yet become: see [83].
ALLOCATION OF RESOURCES
[10] Behind the
legal questions arising in these appeals is the seemingly intractable problem
of local authorities’ lack of resources.
Local authorities discharge a wide range of functions, from education to
housing, upkeep of roads to disposal of waste.
All these activities call for money, of which there is never enough to
go round. Often there is also a
shortage, sometimes acute, of other resources such as trained staff.
[11] The financial
resources of local authorities are finite.
The scope for local authorities to increase the amount of their revenue
is strictly limited. So, year by year,
they must decide what priority to give to the multifarious competing demands on
their limited resources. They have to
decide which needs are the most urgent and pressing. The more money they allocate for one purpose
the less they have to spend on another.
In principle, this decision on priorities is entrusted to the local
authorities themselves. In respect of
decisions such as these council members are accountable to the local
electorate.
[12] The ability of
a local authority to decide how its limited resources are best spent in its
area is displaced when the authority is discharging a statutory duty as
distinct from exercising a power. A
local authority is obliged to comply with a statutory duty regardless of
whether, left to itself, it would prefer to spend its money on some other
purpose. A power need not be exercised,
but a duty must be discharged. That is
the nature of a duty. That is the
underlying purpose for which duties are imposed on local authorities. They leave the authority with no choice.
[13] The extent to
which a duty precludes a local authority from ordering its expenditure
priorities for itself varies from one duty to another. The governing consideration is the proper
interpretation of the statute in question.
But identifying the precise content of a statutory duty in this respect
is not always easy. This is perhaps
especially so in the field of social welfare, where local authorities are
required to provide services for those who need them. As a general proposition, the more specific
and precise the duty the more readily the statute may be interpreted as
imposing an obligation of an absolute character. Conversely, the broader and more general the
terms of the duty, the more readily the statute may be construed as affording
scope for a local authority to take into account matters such as cost when
deciding how best to perform the duty in its own area. In such cases the local authority may have a
wide measure of freedom over what steps to take in pursuance of its duty.
[14] Towards one
edge of this spectrum are instances such as s 23(1) of the 1989 Act. Under this subsection it is the duty of a
local authority looking after a child to provide accommodation for him while he
is in the authority’s care. This is a
duty of an absolute character. An
example of the opposite edge of the
103
spectrum, taken from
the field of education, is the broad duty imposed on a local education
authority by s 8 of the Education Act 1944, now s 14 of the Education Act 1996,
‘to secure that there shall be available for their area sufficient schools º
for providing primary education’. In
R v Inner London Education Authority, ex p Ali (1990) 2 Admin LR 822 at
828, Woolf LJ described this as a ‘target duty’.
[15] Often the duty
is expressed in more specific terms than this, but the terms themselves give
the local authority an area of discretion.
Paragraph 9 of Sch 2 to the 1989 Act imposes upon every local authority
a duty to provide such family centres ‘as they consider appropriate’ in relation
to children in need within their area.
Another form of words apt to give considerable latitude to a local
authority is where the duty is ‘to take reasonable steps’ to achieve a stated
object. Paragraph 4 of Sch 2 to the 1989
Act is an illustration of this. A local
authority is required to take reasonable steps to prevent children within its
area suffering ill-treatment or neglect.
Again, although not explicitly stated, a statute may implicitly afford a
local authority considerable latitude.
Section 18(1) of the 1989 Act provides that every local authority shall
provide such day care for pre-school children in need within its area ‘as is
appropriate’. In deciding what is
appropriate the local authority may properly take into account a wide range of
matters including cost.
[16] The primary
question raised by these appeals is the proper interpretation, in this context,
of s 17(1) of the 1989 Act.
PART III OF THE
CHILDREN ACT 1989
[17] Part III of the
1989 Act, comprising ss 17–30, concerns the provision of local support for
children and their families. Before the
passing of this Act, child care law was widely criticised as confusing,
unnecessarily complex and in places unjust.
The responsibilities of local authority social service departments
towards families with children were set out in two different sets of
legislation. Child care law provided for
children to be supported within the family in certain circumstances. Thus, s 1 of the Child Care Act 1980 imposed
on local authorities the duty to make available such assistance as might
promote the welfare of children by diminishing the need to receive children
into care or to bring them before a juvenile court. Section 2 of the same Act imposed a duty on
local authorities to receive a child into voluntary care in certain
circumstances. Quite separate from this
child care legislation, health and welfare legislation made provision for
services for children as part of local authorities’ responsibilities for
particular groups of people of all ages, such as those who were mentally
handicapped or physically disabled. The
principal statutes were the National Health Service Act 1977, the National
Assistance Act 1948 and the Chronically Sick and Disabled Persons Act 1970.
[18] One object of
Pt III of the 1989 Act was to unify these two sets of legislation. The intention of the government was to ensure
that in all cases the children concerned should receive the standard of care
and protection and professional review appropriate to their needs. Local authorities were to be given a broad
‘umbrella’ power to provide services to promote the care and upbringing of
children. The government White Paper, The
Law on Child Care and Family Services (1987) (Cm 62), explained that
broadly speaking all existing powers and duties to provide services to children
were to be maintained and amalgamated, sometimes with modifications. This would involve the amalgamation of ss 1
and 2 of the 1980 Act, and the addition of provisions from the health and
welfare legislation: see ch 2, paras 14–19.
104
[19] I turn to the
relevant legislative provisions. Section
17 of the 1989 Act is the first section in a small group of sections concerning
provision of services for children ‘in need’ and their families. A child is taken to be in need if he is
disabled or if, without the provision of local authority services, he is
unlikely to achieve or maintain ‘a reasonable standard of health or
development’ or his health or development is ‘likely to be significantly
impaired’: s 17(10). A child without
accommodation is a child in need: R v Northavon DC, ex p Smith [1994] 3
All ER 313 at 320, [1994] 2 AC 402 at 406 per Lord Templeman. Section 17(11) defines disability,
‘development’ and ‘health’ in wide terms.
[20] Section 17(1)
prescribes the ‘general duty’ of local authorities regarding children in
need. The general duty of every local
authority is to provide a range and level of services appropriate to the needs
of such children:
‘It shall be the general duty of every local authority (in addition to
the other duties imposed on them by this Part)—(a) to safeguard and promote the
welfare of children within their area who are in need; and (b) so far as is
consistent with that duty, to promote the upbringing of such children by their
families, by providing a range and level of services appropriate to those
children’s needs.’
[21] This general
duty is augmented by a motley collection of ‘specific duties and powers’ set
out in Pt I of Sch 2 (see s 17(2)).
Local authorities are given these specific duties and powers principally
for the purpose of facilitating the discharge of the general duty imposed by s
17(1). Some of these specific duties and
powers are general in their impact on children, such as the duty to produce and
keep under review plans for the provision of children’s services under Pt III
of the Act (see Pt I, Sch 2, para 1A).
Others relate to the circumstances of a particular child. Two examples will suffice, one of a power,
the other of a duty. A local authority
is empowered to assess the needs of a child in need under the 1989 Act at the
same time as any assessment of his needs is made under other enactments, such
as the Chronically Sick and Disabled Persons Act 1970 (para 3). A local authority is under a duty to take
such steps as are reasonably practicable to enable a child who is not living
with his family to live with them or promote contact between them if that is
necessary to safeguard or promote his welfare (para 10).
[22] Two other
provisions in s 17 call for mention.
Both are enabling powers in respect of any service provided by an
authority in the exercise of functions conferred on the authority by s 17. If provided with a view to safeguarding or
promoting the child’s welfare, the service may be provided for the family of a
particular child in need, or any member of his family (see s 17(3)). The service may include providing
accommodation and giving assistance in kind or, in exceptional circumstances,
in cash (see s 17(6)). The reference to accommodation in this subsection was
inserted by s 116 of the Adoption and Children Act 2002 to lay at rest doubts
arising from the Court of Appeal decision in A’s case.
[23] Section 17
covers a wide range of services. Section
20 is focused more narrowly. It is
concerned specifically with the accommodation needs of children in need. Section 20 obliges every local authority to
provide accommodation for children in need who appear to need accommodation:
‘(1) Every local authority shall
provide accommodation for any child in need within their area who appears to
them to require accommodation as a result of—(a) there being no person who has
parental responsibility for him; (b) his being lost or having been abandoned;
or (c) the person who has been
105
caring for him being prevented (whether or not permanently, and for
whatever reason) from providing him with suitable accommodation or care.’
[24] ‘Prevented …
for whatever reason’ in para (c) is to be interpreted widely. It includes a case where the person caring
for the child is intentionally homeless.
A child is not to be visited with the shortcomings of his parents. A similarly wide interpretation was given to
the comparable provision in s 1 of the Children Act 1948, the predecessor to s
2(1) of the 1980 Act: see A-G (ex rel Tilley) v Wandsworth
London BC [1981] 1 All ER 1162, [1981] 1 WLR 854.
SECTION 17(1) OF THE
CHILDREN ACT 1989
[25] I turn to the
interpretation of s 17(1). Section 17(1)
is not just a statement of general principle, important though it is in that
regard. Nor does it merely confer a new
or enlarged function on local authorities.
It imposes a duty. It imposes a
duty expressed to be additional to the other duties imposed by Pt III of the
1989 Act. By definition, the additional
obligation thus imposed on local authorities is enforceable by the court in
appropriate circumstances on the application of a person with sufficient
interest. The crucial issue is to
identify the content of this additional duty.
[26] At first sight
s 17(1) does not seem to impose a duty in respect of the particular needs of an
individual child. The duty is expressed
in general, overall terms regarding the collective needs of children in need in
the local authority’s area. It is not
expressed by reference to the needs of any one child. This generality, however, is not
conclusive. The generality of an
obligation regarding children in a local authority’s area is not of itself
inconsistent with the obligation being a duty in relation to the needs of
individual children in the area. An obligation
in respect of the general may include an obligation in respect of the
particular. A duty in respect of an
entire class or group as a whole may include a duty in respect of the
individual members of the class or group.
It all depends upon the language read in its context.
[27] So I turn to
the language of s 17(1). The starting
point is to note the statutory description of the duty as a ‘general’
duty. Read in context, this description
is not, of itself, of much value as a pointer on the issue now under
consideration. This description is used
by way of contrast to the ‘specific’ duties and powers mentioned in s
17(2). The latter duties and powers are
specific because they relate to particular, limited aspects of the general duty
imposed by s 17(1). The purpose of s
17(1) is wider. The purpose is to set
out, at the very forefront of Pt III and by way of contrast to the specific
duties and powers, a primary additional duty of a more comprehensive character.
[28] Next, the
nature of the general duty imposed on a local authority by s 17(1): this is
twofold. The duty is to safeguard and
promote the welfare of children within its area who are in need, and to promote
the upbringing of such children by their families. ‘Safeguard’ and ‘promote’ are broad terms;
necessarily so, in the context of the welfare of a child. There is nothing in the use of these terms to
suggest the duty is not a duty in respect of each child within the local
authority’s area who is in need. The
phrase ‘children within their area who are in need’ refers to all the children
in need within the local authority’s area.
But the duty to promote the welfare and upbringing of all such children
makes little sense unless it is a duty in respect of the welfare and upbringing
of each such child. Indeed, if this were
not so s 17(1) would be a poor sort of additional general duty. Section 22 is another example of a duty,
described as a general duty, to safeguard
106
and promote the welfare
of children. A local authority ‘looking
after any child’ is obliged ‘to safeguard and promote his welfare’. It cannot be doubted that this duty under s
22(3), although described as a general duty and although expressed in broad
terms, is a duty which relates to the individual child and is enforceable as
such.
[29] Section 17(1)
then proceeds to state the means by which this duty is to be discharged: Լ by
providing a range and level of services appropriate to those children’s
needs.’ This, again, is the language of
generality. But, here also, the language
could hardly be otherwise, given the comprehensive nature of the obligation
imposed. Section 17(1) deliberately
eschews references to particular types of services. Section 17(1) is intended to be wide in its
scope because the needs of children vary widely. So local authorities must provide an
appropriate range and level of services, whatever those services may be. Section 17(3) and (6) make clear that the
types of services mentioned in those two subsections are among the services a
local authority may provide in carrying out its duty under s 17.
[30] Thus far I am
broadly in agreement with the interpretation urged by the claimants. But I stop short of the conclusion submitted
by them. In my view s 17(1) does not
impose an absolute, or near absolute, duty on local authorities to meet the
specific needs of every child who is in need, whatever those needs may be. There is no place for absolutes in such a
wide-ranging duty regarding the welfare of children. Nor would that be consistent with the
qualified nature of some of the specific duties imposed in Pt I of Sch 2. The ‘needs’ of a child for services is itself
an inherently imprecise concept. ‘Needs’
are open-ended. Some limit can be placed
on what are to be regarded as the needs of a child for the purposes of this
legislation if the legislation is read, as it should be, as a reference to
reasonable needs. Even so, this leaves
much scope for differing views. Questions
of degree will often arise. Likewise,
the statutory obligation to provide a range and level of services ‘appropriate’
to the needs of children in need gives a local authority considerable latitude
in determining what is ‘appropriate’ in an individual case in all the
circumstances. In some cases the type
and level of service provided may properly fall short of meeting all the
child’s needs as assessed. The extent of
the latitude in each case depends upon the circumstances, prominent among which
are the nature of the service in question and the nature and extent of the
needs of the child. Cost is also an
element which may properly be taken into account in deciding what is
‘appropriate’ in a particular case. The
extent to which cost, and hence the resources of a local authority, may be
taken into account depends upon all the circumstances including how basic is
the assessed need, the ease or difficulty with which it may be met, and the
consequences of not meeting it. In a
word, despite this latitude the council must act reasonably.
[31] The degree of
latitude thus afforded to a local authority may make it difficult for a
claimant to establish a breach of this duty.
But this is not a sufficient reason for denying the existence of the
duty. Nor are the default powers of the
Secretary of State under s 84 of the 1989 Act an adequate substitute for the
ability to have recourse to the court.
These default powers cannot be expected to provide an adequate remedy in
individual cases.
[32] I am fortified
in my view that s 17 imposes a duty in respect of the individual child by noting
the consequences of the alternative approach.
On the local authorities’ approach, since s 17(1) does not impose a duty
in relation to an individual child, it follows that a local authority is not
under a duty to assess the
107
needs of a child in need
under s 17(1). That cannot be
right. That would go far to stultify the
whole purpose of Pt III of the 1989 Act.
The first step towards safeguarding and promoting the welfare of a child
in need by providing services for him and his family is to identify the child’s
need for those services. It is implicit
in s 17(1) that a local authority will take reasonable steps to assess, for the
purposes of the Act, the needs of any child in its area who appears to be in
need. Failure to carry out this duty may
attract a mandatory order in an appropriate case, as occurred in R (on
the application of AB and SB) v Nottingham City Council [2001] EWHC
Admin 235, [2001] 3 FCR 350. Richards J
ordered a local authority to carry out a full assessment of a child’s needs in
accordance with the guidance given by the Secretary of State in ‘Framework for
the Assessment of Children in Need and their Families’ (March 2000).
[33] Where does such
an assessment lead? According to the
local authorities, nowhere as a matter of legal obligation, so far as an
individual child is concerned beyond, presumably, an obligation on the part of
the authority to consider the assessment and decide whether to exercise any of
its statutory powers. That would be a
surprisingly weak outcome. That would
represent a lacuna in the law relating to children in need. I cannot think Parliament intended this
should be so. I prefer a different
approach. If s 17(1) is apt to impose a
duty on a local authority to take reasonable steps to assess the needs of an
individual child in need, it is equally apt to impose the duty mentioned above
to provide a range and level of services ‘appropriate’ to those needs.
[34] In several
cases it has been assumed, or conceded, that s 17(1) imposes an obligation in
respect of the needs of an individual child; for instance, in R v Tower
Hamlets London BC, ex p Bradford [1998] 1 FCR 629 per Kay J, and R v
Wigan MBC, ex p Tammadge (1998) 1 CCLR 581 at 584 per Forbes J. In other cases, where the point has been
argued, the contrary view has been preferred.
These cases culminated in the decision of the Court of Appeal in the
instant case involving A and her two disabled children: A v Lambeth London
BC [2001] EWCA Civ 1624, [2001] 3 FCR 673.
The Court of Appeal held that an assessment of needs under s 17 does not
give rise to a duty enforceable at the suit of an individual, although a
decision by a local authority not to exercise its powers under s 17 is open to
judicial review on ordinary principles.
For the reasons I have given I respectfully consider that the
responsibilities of local authorities under s 17(1), although far from
absolute, are of a higher order than this.
[35] I should add a
further comment regarding the assessment of needs under s 17. In R v Gloucestershire CC, ex p Barry [1997]
2 All ER 1, [1997] AC 584 a question about the relevance of cost arose in the
context of a duty to make certain arrangements where a local authority is
satisfied this is ‘necessary’ in order to meet the ‘needs’ of disabled persons. The majority of the House held that on the
proper interpretation of s 2(1) of the 1970 Act the local authority is entitled
to have regard to its resources when performing this duty. Whether, under that section, resources should
be taken into account when assessing ‘needs’ as distinct from when the
authority is deciding whether it is ‘necessary’ to meet those needs, is not a
matter which arose in Ex p Barry.
In Ex p Barry the local authority had merged the two stages into
one by providing services in accordance with elaborate ‘eligibility
criteria’. What was in issue was whether
the authority could lawfully raise the eligibility criteria because of shortage
of money. Later cases, such as R v
Sefton Metropolitan BC, ex p Help the Aged [1997] 4 All ER 532 and R v
East Sussex CC, ex p Tandy [1998] 2 All ER 769, [1998] AC 714 show it is
desirable to keep these two stages separate.
Ordinarily cost, where relevant, will be a
108
matter to be taken into
account by a local authority when considering its response to an assessed need
rather than at the stage of assessment.
That is the position under s 17(1) of the 1989 Act.
ACCOMMODATING A CHILD
WITH HIS PARENTS
[36] I now turn to
the second principal issue. This
concerns one particular facet of the problem of providing accommodation for
families with children. This problem
arises in G’s case R (on the application of G) v London
Borough of Barnet) [2001] 2 FCR 193) and W’s case (R (on
the application of W) v London Borough of Lambeth [2002] 2 All ER
901). These two appeals raise a question
solely of principle. As already noted,
the accommodation problems of these claimants have been resolved since the
proceedings started. The appeals are
being pursued because the question of principle is of everyday importance. The question concerns the circumstances in
which a local social services authority may be obliged to provide accommodation
and subsistence for a child together with his mother, as distinct from the
child alone, under ss 17 or 23 of the 1989 Act.
[37] In the cases of
G and W the local authority was minded, if necessary, to provide
accommodation for the children under s 20 of the 1989 Act but not their
mothers. This raises an acutely
difficult problem. Before considering
this I must first mention, and reject, a point made by Mr Howell QC based on s
23 of the 1989 Act. Mr Howell submitted
that if a local authority provides a child in need with accommodation in
fulfilment of its duty under s 20, the local authority is under a duty to make
arrangements to enable the child to live with his mother. If necessary, the local authority must
provide accommodation for the mother as well as the child. The source of this duty, he submitted, is s
23(6) of the Act.
[38] I cannot accept
this submission. Section 23(6) is one of
the provisions in s 23 concerned with the way a local authority is to discharge
its obligation to provide accommodation for a child whom it is looking
after. The section is not concerned with
providing accommodation for anyone else.
The relevant effect of s 23(6) is to require a local authority looking
after a child to ‘make arrangements to enable him to live’ with a parent or
other specified person unless that would not be reasonably practicable or
consistent with his welfare. This
provision assumes the mother or father of the child already has accommodation
which the child may enter and share so as to live there with his parent. Similarly with the other persons, such as
relatives and friends, mentioned in paras (a) and (b) of s 23(6). Section 23(6) does not impose an obligation
on a local authority to provide accommodation for the parent or other
persons. It is concerned with placement,
not housing. Section 23 does not assist
the claimants. On this I agree with the
decision of the Court of Appeal in R (on the application of G)
v Barnet London BC [2001] 2 FCR 193.
[39] The setting in
which the problem now under consideration arises is this. In the ordinary course the essential
accommodation needs of most families with children are met, where necessary,
under the housing legislation. Part VI
of the Housing Act 1996 makes provision regarding the allocation of housing
accommodation. Every local housing
authority must have a scheme for determining priorities in the allocation of
housing accommodation. The scheme must
give reasonable preference to, among others, people living in unsatisfactory
housing conditions and families with dependent children. Housing accommodation
must be allocated only in accordance with the housing authority’s published
scheme (s 167).
109
[40] Part VII of the
1996 Act makes provision for cases of homelessness. A local housing authority must make inquiries
into cases of homelessness or threatened homelessness (s 184). The authority must provide accommodation on an
interim basis (s 188) and thereafter (s 193) if the applicant is homeless,
eligible for assistance and has a priority need. A person living with dependent children has a
priority need (s 189).
[41] Certain classes
of persons from abroad are not eligible for this assistance. They fall into two broad categories (there
are exceptions). First are persons who
are subject to immigration control under the Asylum and Immigration Act
1996. The second category consists of
persons not yet habitually resident in the Common Travel Area: s 185, and the
Homelessness (England) Regulations 2000, SI 2000/701.
[42] A further class
of persons is also excluded from the scope of the homelessness provisions. This comprises persons who have become
homeless intentionally. Where a person
is homeless, eligible for assistance and has a priority need but has become
homeless intentionally, the authority’s obligation is limited to providing
accommodation for a period which will give the applicant a reasonable
opportunity to secure accommodation for his occupation, together with advice
and appropriate assistance (s 190). A
person becomes homeless intentionally if he deliberately does or fails to do
anything in consequence of which he ceases to occupy accommodation available
for him and which it would have been reasonable for him to continue to occupy
(s 191).
[43] In the ordinary
way it is in cases of ineligibility and intentional homelessness that parents
with children have recourse to their local social services authority for assistance
with accommodation under the 1989 Act.
Housing assistance not being forthcoming from their local housing
authority under the housing legislation, parents turn to another potential
source of assistance. Sometimes the
local social services authority will be the same local authority as the local
housing authority, sometimes not.
Typically, in England, outside the metropolitan areas and leaving aside
unitary authorities, the county council is the local social services authority
and the district council is the local housing authority. Elsewhere, as in the cases involved in the
three appeals before the House, a local authority may be both local social
services authority and local housing authority.
This should not, however, be allowed to obscure the fact that in acting
in one or other of these capacities a local authority is exercising different
statutory functions. The manner in which
the functions of a local housing authority and those of a local social services
authority are discharged does not differ according to whether two local
authorities are involved or only one.
[44] One further
point should be noted. Parliament has
now specifically addressed the problem arising in cases where a child normally
lives with a parent who is ineligible for housing assistance or has become
homeless intentionally. Section 12 of
the Homelessness Act 2002 has inserted an additional section, s 213A, into the
1996 Act with effect from October 2002.
The effect of s 213A is that in these cases the local housing authority
must ensure the local social services authority is made aware of the case, if
the applicant agrees. Then, if the
social services authority requests the housing authority to provide advice and
assistance in exercise of its functions under Pt III of the 1989 Act, the
housing authority is obliged to provide the social services authority ‘with
such advice and assistance as is reasonable in the circumstances’. In the case of a unitary authority the
housing department must provide the social services department with such advice
and assistance as the social services department may reasonably request.
110
[45] I can now
identify the difficulty. As already
noted, a local authority is under a duty to provide accommodation for a
homeless child under s 20 of the 1989 Act.
Children are vulnerable, and the 1989 Act makes special provision for
this vulnerable sector of the community.
Frequently the cost of providing accommodation for parent and child
together, in the form of bed and breakfast accommodation or by way of a deposit
in respect of rented private accommodation, is less than the cost of
accommodating the child alone with a foster parent or in a residential
institution. This suggests that, at
least in such cases, the obviously sensible and desirable course is for the
local authority to provide for the accommodation of both parent and child. In the usual way this course will be in the
best interests of the child, and the local authority has power to take this
course under s 17(3).
[46] But there is a
snag. Taking this course with some
homeless families would have a knock-on effect.
Like cases must be treated alike.
If this course were followed the inevitable effect, it is said, would be
that social services authorities would find themselves inundated with family
accommodation applications. They would
find themselves having to provide for the housing needs of many or most
families with dependent children where the parents are intentionally homeless
or ineligible for housing assistance under the homelessness provisions of Pt
VII of the 1996 Act. W’s case and
G’s case are examples. In W’s
case the mother was found to be homeless intentionally. She had been evicted for persistent
non-payment of rent. In G’s case
the mother was newly arrived from Holland.
[47] Providing
accommodation for these families, it is said, is not the function of a local
social services authority. Nor does a
local social services authority have the means to discharge this function, akin
to that of a surrogate housing authority.
The function of a social services authority under the 1989 Act is to
provide accommodation for homeless children, not homeless families. Parliament has devised a detailed and carefully
balanced structure regulating the supply of local authority housing. That scheme is administered by local housing
authorities. Parliament has regulated
when a parent with dependent children is entitled to housing accommodation. Families with dependent children should not
be allowed to jump the housing queue.
The statutory housing provisions cannot be circumvented by making an
application in the name of a dependent child: R v Oldham Metropolitan BC, ex
p Garlick [1993] 2 All ER 65, [1993] AC 509. Nor should families be permitted to
circumvent these provisions by relying on the duties of local social services
authorities to meet the accommodation needs of children.
LAMBETH’S POLICY
[48] Latterly some
social services authorities, it seems, have sought to contain the scale of the
financial problem associated with meeting the accommodation needs of homeless
children by making accommodation available for children in these cases but not
their parents. This approach was
prompted, or confirmed, by the High Court decision in A’s case in May
2001 that s 17 of the 1989 Act imposes no duty on a local authority in respect
of an individual child.
[49] In September
2001 the social services department of Lambeth council, whose territory
includes many deprived inner city areas and whose resources are under severe
strain, adopted a general policy along these lines. The council would accommodate homeless
children, as required by s 20 of the 1989 Act.
But it would not provide accommodation under s 17 for families applying
to it on the
111
ground of
homelessness. Providing accommodation
for the families of homeless children would divert funds and manpower resources
away from other social services which should have priority. Lambeth considered that child protection, and
the need to ensure children in its care are appropriately looked after, were
the core activities to which it should give priority. A helpful description of the financial
pressures besetting Lambeth council appears as App 3 to the judgment of Brooke
LJ in (R (on the application of W) v London Borough of Lambeth
[2002] 2 All ER 901 at [124]–[126].
[50] The reason why
this new policy contains the scale of the problem is that, not surprisingly,
faced with the prospect of being separated from their children, most mothers
make further efforts at self-help and, in a high percentage of cases, their
efforts are successful. The experience
of Lambeth council is that most potentially homeless families find
accommodation for themselves by one means or another. Indeed in W’s case Lambeth’s evidence
was that since adopting its new policy it had not been asked to accommodate a
child alone pursuant to its duty under s 20 of the 1989 Act. Thus, by refusing to accommodate the parent,
the overall cost to the social services authority is considerably less than it
would otherwise be. The authority ends
up not having to accommodate either child or parent. A procedure along these lines was
countenanced by the Court of Appeal in R (on the application of G)
v London Borough of Barnet) [2001] 2 FCR 193 at [24], [25].
[51] The propriety
of this general policy is now being challenged before your Lordships’
House. The claimants contend it is not
lawful for a local authority to offer to accommodate a child alone in the hope
or expectation that the parent will refuse to be separated from her child. In G’s case the child was 14 months
old at the time of the initial decision.
The mother adamantly refused to return to the Netherlands. The council decided to end the arrangements whereby
G lived with her young child in bed and breakfast accommodation. The council
offered instead to accommodate the child with foster parents, even though this
would have been more expensive than the existing arrangements.
[52] This challenge
is sought to be buttressed by reference to the obligation, inherent in art 8(1)
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), to take
positive steps to secure or protect an effective respect for family life.
Mutual enjoyment by parent and child of each other’s company is a fundamental
element of family life: K and T v Finland [2001] 2 FCR 673 at 700 (para
151). The state must act in a manner
calculated to allow those concerned to lead a normal family life: Z and E v
Austria (1986) 49 DR 67, a decision of the European Commission on Human
Rights. If in the particular case it is
no more expensive to accommodate parent and child together, and if it is in the
child’s best interests to live with his parent, this positive duty requires
that the accommodation provided for the child should be for the child together
with his parent. Choosing to accommodate
the child only in such a case would, it was submitted, be a decision which does
not respect the family life of the child or his parent. Such a decision by a local authority would be
unlawful: s 6(1) of the Human Rights Act 1998.
[53] At the heart of
this issue lies the insoluble practical problem of separating those whose needs
are genuine from those who are abusing the special protection afforded to
children by the 1989 Act. But the
solution adopted by Lambeth council and others does not solve this
problem. It does not distinguish the
genuine case from the non-genuine. The
solution which has been adopted is of
112
universal, or near
universal, application. It relies for
its success on an expressed intention to offer to accommodate the child alone
in virtually all cases. Moreover, this
is not just a question of stated intention.
Lambeth’s policy will not work unless the council thereafter adheres to
its stated intentions.
[54] In considering
this issue each case must always be considered on its own merits. The facts in every case differ. But without detracting from this overriding
principle, a recognisable distinction is discernible here between two broad
types of cases: (1) cases where a child is old enough to understand what is
happening and is not likely to be significantly upset by being accommodated
away from his parent; and (2) cases where this is not so. In the former type of cases the policy
adopted by Lambeth council is, in principle, reasonable. The social services authority is not under a
duty to accommodate the parent of a child in need although it has power to do
so. In this type of case, where the only
need of the child is for short term accommodation, accommodating the child
alone will safeguard the child’s immediate welfare. It would be preferable if
accommodation were provided for the parent as well. But this would have the seriously adverse
financial repercussions mentioned above.
This is a factor the council may properly take into account.
[55] Matters stand
differently where the child is not old enough to understand what is going on
or, if he is, he would be likely to be
significantly upset at being separated from his parent. Providing accommodation for the child alone
in this type of case may satisfy the authority’s duty under s 20 of the 1989
Act. But in this type of case the
child’s immediate need is for accommodation with his parent. This is a basic need. It is difficult to see how the local
authority can be said to fulfil its duty under s 17(1) of the 1989 Act by
accommodating the child alone in such circumstances. It cannot be reasonable in this type of case
to give greater weight to the wider financial repercussions than to the adverse
consequences to the individual child in the particular case. Parliament cannot have intended that the
latitude afforded to local authorities by s 17(1) should embrace such a highly
unsatisfactory result regarding the accommodation needs of a child in need.
[56] A social
services authority is of course not a housing authority. But s 213A of the 1996 Act, mentioned above,
goes some way towards providing an answer on this. Where necessary a social services authority
should now exercise its power under s 213A to request assistance from the local
housing authority. If assistance is not
forthcoming the court will scrutinise the housing authority’s reasons with
rigour in a case where the consequence is that a homeless dependent child, not
old enough to understand what is going on or likely to be significantly upset
by being separated from his parent, would be accommodated separately from his
parent.
[57] If this is the
correct approach, as I believe it is, it must follow that in this type of case
a local authority should not, expressly or tacitly, threaten a parent that the
most it will do is to accommodate the child alone. The authority should not express an intention
it cannot properly implement. If a local
authority may not properly accommodate a child alone in this type of case where
the parent and child could be accommodated together without significant
additional cost, then by telling a parent that, if necessary, it will consider
taking this course the authority would be putting improper pressure on the
parent.
[58] For these
reasons I consider Lambeth’s existing general policy needs adjustment. In its present form Lambeth’s policy goes
outside the latitude afforded to a local authority by s 17(1) of the 1989
Act. In so far as the London
113
Borough of Barnet has
adopted a similar policy, its policy likewise needs adjustment. So do similar policies of all other social
services authorities and departments which are currently proceeding on a
similar basis. But no relief is now
called for in W’s case or G’s case. So I would dismiss these two appeals.
A’s CASE
[59] In A’s
case the problem is different. It is not
a case of homelessness. As will be
recalled, in A’s case the two children suffering from autism are
accommodated with their mother and brother.
In this case the problem relates to the quality of the accommodation
provided for the family. The core needs
of the children are for a flat with four bedrooms away from the road and with a
secure outside garden or play area. At
first instance Scott Baker J rightly described this as ‘a tall order for any
council to meet in the light of the limited physical and financial resources
and the needs of other families’. This
is especially so for an inner city authority such as Lambeth.
[60] In rejecting
A’s claim both courts below proceeded on the basis that no enforceable duty
exists under s 17. In the Court of
Appeal Sir Philip Otton described this as a distressing case. He expressed the hope that the housing
authority would reconsider it on its merits as soon as possible. He shared Laws LJ’s surprise, even unease, at
the category in which the family were placed: this ‘desperate and devoted
mother needs improved accommodation as well as services for her two autistic
children’: [2001] 3 FCR 673 at [47].
That was in November 2001. The
needs of the children and their mother have not lessened with the passage of
time.
[61] The present
position, therefore, is that neither court below considered whether, if s 17(1)
of the 1989 Act gives rise to an enforceable duty of the character I have
described, Lambeth council is in breach of its duty in this case. Your Lordships heard no submissions on this
point. The present position may be
summarised as follows. The children do
not need short-term accommodation. The
family need permanent re-housing, because of the special needs of the two
autistic children. The social services
department is subject to particular statutory obligations regarding the needs
of disabled children but it does not possess a stock of housing. The housing department, on the other hand,
has a stock of housing but is not subject to a like statutory obligation in
respect of the needs of disabled children.
[62] Disabled
children, with their special housing needs, cannot be permitted to fall between
these two stools. When enacting the 1989
Act Parliament envisaged that a local authority might need to seek help from
other authorities, such as a local housing authority, in discharging its
functions under Pt III of the Act.
Section 27 of the 1989 Act provides that the requested authority must
comply with the request if it is compatible with its own duties and does not
‘unduly prejudice’ the discharge of its own functions. The relevant authorities are obliged to co-operate
with each other. So in discharging its
duty under s 17(1) Lambeth council’s social services department, as the local
social services authority, may request help from the housing department, as the
local housing authority, in re-housing A and her family. The housing department must comply with the
request if it is compatible with its own duties and does not unduly
prejudice the discharge of any of its functions. I emphasise the word ‘unduly’. If such a request is made the housing
department, much pressed as it undoubtedly is, must none the less take note
that the department responsible for safeguarding the welfare of children has
decided that these two children need better housing.
114
The housing department
will wish to consider the practicability of accelerating the provision of
accommodation which at least in some respects is more suitable for the acute
needs of these two disabled children.
[63] In the
circumstances the appropriate course is for these judicial review proceedings
to be remitted to the Administrative Court for further hearing in the light of
the judgments of the House. Before the
proceedings are restored for further hearing Lambeth council will no doubt
reconsider its position. I would allow
this appeal accordingly.
LORD STEYN.
[64] My Lords, I
have had the privilege of reading the opinion of Lord Nicholls of
Birkenhead. For the reasons he has given
I would also make the orders which he proposes.
LORD HOPE OF
CRAIGHEAD.
[65] My Lords, the
facts of these cases have been fully set out by my noble and learned friend
Lord Nicholls of Birkenhead, whose speech I have had the advantage of reading
in draft. I gratefully adopt his account
of them, and I proceed at once to the important and difficult issues of law
which they have raised.
BACKGROUND
[66] The purpose of
the Children Act 1989, as its long title indicates, was to reform the law
relating to children. The aim was to
provide a clear and consistent code for the whole area of child law. Reforms had been made hitherto in a piecemeal
way, resulting in a complex series of provisions in different statutes some of
which were contradictory. The framework
which had been created had been shown by the DHSS Review of Child Care Law
(1985) to be inadequate. Major changes
to the law were recommended as a result of this review, and many of them were
accepted by the government: The Law on Child Care and Family Services
(1987) (Cm 62). Among the issues that
required attention were the role of local authorities in supporting families
who were in difficulty and the role of parents when their children were being
looked after by a local authority. The
control of social work decision-taking was another area of concern, following
the Report of the Inquiry into child abuse in Cleveland 1987 (Cm 412).
But that is not the area of the law with which these three cases are
concerned. We are concerned here with
local authority support for children and their families. The reforms in this area of child law are set
out in Pt III of the Act.
[67] The theme to
which the provisions in Pt III of the Act are devoted is identified at the very
outset in s 17(1). It provides that it
shall be the general duty of every local authority, in addition to the other
duties imposed on them by that part of the Act:
‘(a) to safeguard and promote the welfare of children within their area
who are in need; and (b) so far as is consistent with that duty, to promote the
upbringing of such children by their families, by providing a range and level
of services appropriate to those children’s needs.’
There then follow, in the
remainder of Pt III and in Sch 2, provisions dealing with investigations and
assessments of needs of children and duties to provide various particular kinds
of support services.
115
[68] Section
17(1)(b) emphasises the importance which is to be attached to the promotion of
the upbringing of children in need by their families. As Judith Masson (now Professor Masson, of
Warwick University) noted in her general note on s 17 in Current Law
Statutes, this subsection represented a fundamental shift in the provision
of social services where children were concerned. It laid down a new statutory framework for
all preventive work in child care. It
recognised that, while local authority care may have a positive contribution to
make in this field, family life too makes a valuable contribution to a child’s
welfare. John Murphy, ‘Children in need: the limits of local authority
accountability’ (2003) 23 Legal Studies 103 at 104 makes the same point:
‘Since Part III of the Children Act 1989 is a central plank in that
legislation’s endeavour to reduce state intervention in the essentially private
domain in family life, the duties it contains are designed to help to keep the
use of compulsory measures under subsequent Parts of the Act to a minimum by
providing support services that avoid the need to have recourse to those
compulsory measures.’
As John Murphy observes in
his paper at p 104, note 5, Pt III was intended to reflect the obligation in
art 18(2) of the United Nations Convention on the Rights of the Child 1989 (New
York, 20 November 1989; TS 44 (1998); Cm 1976) which was adopted on 20 November
1989 and entered into force on 2 September 1990 to render appropriate
assistance to parents and legal guardians in the performance of their
child-rearing responsibilities and to ensure the development of institutions,
facilities and services for the care of children: see The United Kingdom’s
First Report to the UN Committee on the Rights of the Child (HMSO, 1994) p
2.
[69] Article 8(1) 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) guarantees to
everyone respect for his private and family life. Article 8(2) provides:
‘There shall be no interference by a public authority with the exercise
of this right except such as is in accordance with the law and is necessary in
a democratic society in the interests of national security, public safety or
the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the
rights and freedoms of others.’
The mutual enjoyment by
parent and child of each other’s company constitutes a fundamental element of
family life, and the placement of children in foster homes or other
accommodation which they do not share with their parents constitutes an
interference with the right protected by art 8: Kutzner v Germany [2003]
1 FCR 249 at 259 (paras 58–59). But the
contracting states have a wide margin of appreciation to determine the
necessity of any measures taken in pursuit of the legitimate aim of protecting
the child’s health and rights, which may vary according to the nature of the
issues and interests at stake: KA v Finland [2003] 1 FCR 201. It has not been suggested that Pt III of the
1989 Act fails, in principle, to meet the requirements of art 8(2). The general duties set out in s 17(1) would seem
to be plainly in keeping with these requirements. The question whether decisions taken under Pt
III are compatible with the child’s art 8 convention rights must, of course,
depend on the facts of each case.
116
[70] The range of
support services that may be provided under Pt III and Sch 2 is very wide. Among these services is the provision of
accommodation, and it is the refusal of the respondents to provide
accommodation which has given rise to these appeals. But it must be noted, as part of the
background, that the functions which a local social services authority performs
under the 1989 Act are different from those performed by the local education
authority and the local housing authority.
All the social services functions of a local authority under the 1989
Act are vested in the social services committee established under s 2 of the
Local Authority Social Services Act 1970: see Sch 1 to that Act, as amended by
para 26 of Sch 13 to the 1989 Act.
Responsibility for the provision of support for children and their
families was placed on county councils in those areas which are not served by
metropolitan districts, the London boroughs and unitary authorities created
under Pt II of the Local Government Act 1992: see the definition of ‘local
authority’ in s 105(1) of the 1989 Act.
[71] Different
authorities are involved in the provision of housing accommodation in the areas
not served by metropolitan districts, London boroughs and the unitary
authorities. Section 1 of the Housing
Act 1985 provides that in these areas the district council, not the county
council, is the local housing authority.
Section 8(1) of the 1985 Act provides that it is the duty of every local
housing authority to consider housing conditions in their district and the
needs of the district with respect to the provision of further housing
accommodation, and s 21 of that Act vests the general management, regulation
and control of a local authority’s houses in the local housing authority. Among the duties allocated to the local
housing authority are the allocation of housing accommodation and duties with
regard to the housing of the homeless: see Pts VI and VII of the Housing Act
1996. The social services and housing
functions are both vested in the metropolitan districts, London boroughs and
the unitary authorities, but different officials and different committees are
involved and separate accounts must be kept for each function. The statutory duties and functions of the
local social services authority in the provision of child care are thus
separated from those of the local housing authority which is responsible for
the provision of housing accommodation in the area.
THE SECTION 17(1) ISSUE
[72] The three cases
which are before your Lordships in these appeals are all concerned with
children who are in need, and they are all concerned with children who at the
date of the relevant decisions were still living with their parents in the same
household. The general duties which are
set out in s 17(1) are therefore directly in point in each case. In A’s case the family consists of
three children, two of whom are in need because they are disabled children: s
17(10)(c). They are disabled because
they suffer from autism. In the cases of
G and W, the children were in need because the parents with whom
they were living (who were their mothers only, in both cases) were
homeless. Their health or development
was likely to be significantly impaired without the provision of services by
the local authority under Pt III of the Act: s 17(10)(b). In all three cases the children were, at the
relevant date, living with their mothers in the same family.
[73] There is
another characteristic which these three cases shared. It was the lack of residential accommodation
which was suited to the needs of the children if they were to remain within the
family unit without the risk of significant impairment to their welfare. Section 17(6) provides that the services
provided by
117
a local social services
authority in the exercise of functions conferred on them by that section may
include giving assistance in kind or, in exceptional circumstances, in
cash. Among the forms of assistance in
kind that may be given under this subsection is assistance in the form of
accommodation. This is now the subject
of express provision, as a result of an amendment which was made to s 17(6)
with effect from 7 November 2002 by s 116(1) of the Adoption and Children Act
2002. But it was already the practice
for short-term residential accommodation to be provided under that subsection
before it was amended.
[74] It has not been
suggested in any of these cases that it would have been beyond the power
of the local authorities at the date when these decisions were taken to provide
assistance in the form of residential accommodation if this was needed to
enable the children to live with their families. But it is not enough for it to be shown that
the local authorities had power to provide the accommodation. The appellants’ case is that the effect of s
17(1) is that the respondents owed a duty to each individual child in
need to provide that child with residential accommodation to enable the child
to live with his or her mother in the same family if an assessment of that
child’s needs shows that this is what is required to meet these needs. My noble and learned friend Lord Nicholls has
said that the issue is whether a local authority may insist on providing
accommodation for a child alone as distinct from accommodation for the child
and the mother. It should be appreciated
however that the alternative to providing accommodation for the child and the
mother is that the child would be looked after by the local authority: see s
22(1). There are various ways in which a
local authority may provide accommodation for a child whom they are looking
after, none of which involve requiring the child to live alone: see s 23(2).
[75] The respondents
in each of these three cases are London boroughs, so they are the local housing
authority as well as the local social services authority for their areas. It is in their capacity as the local social
services authority that they are charged with the responsibility of performing
functions under Pt III of the 1989 Act.
The cost of providing accommodation for children in need under Pt III
must be met out of the funds which are set aside in their accounts for the
provision of social services. As I have mentioned, the provision of
accommodation is only one of the many services which may be provided in the
performance of the general duty which is owed by the local social services
authority under s 17(1). It is an
inescapable fact of life that the funds and other resources available for the
performance of the functions of a local social services authority are not
unlimited. It is impossible therefore
for the authority to fulfil every conceivable need. A judgment has to be exercised as to how
needs may best be met, given the available resources. Parliament must be taken to have been aware
of this fact when the legislation was enacted.
[76] That is the
background to the question of law which lies at the heart of all three
appeals. Does s 17(1) require a local
social services authority to meet every need which has been identified by an
assessment of the needs of each individual child in need within their
area? For the appellants it is maintained
that, once there has been an assessment of the needs of an individual child in
need, there is a specific duty on the local social services authority under
this subsection to provide services to meet the child’s assessed needs. It follows that the child has an absolute
right to the provision of residential accommodation, if this is the need which
has been identified by the assessment.
If this approach is right, neither the cost of providing these services
nor the availability of resources can play any part
118
in the assessment of
the child’s need by the local social services authority or in its decision as
to whether, and if so how, it should meet that need.
[77] My noble and
learned friend Lord Nicholls has said that, on the respondents’ approach to the
construction of s 17(1), it follows that a local authority is not under a duty
to assess the needs of a child in need under s 17(1) and that this would go far
to stultify the purpose of Pt III of the Act.
I should make it clear, before I embark on my analysis, that I am unable
to agree that this conclusion follows from the respondents’ argument. Section 17(2) provides that, for the purpose
of facilitating the discharge of the general duty under that section, every
local authority shall have the specific duties and powers set out in Pt I of Sch
2. The duty of the local authority to
take reasonable steps to identify the extent to which there are children in
need in their area is to be found in para 1 of the Schedule. That will involve assessing the needs of each
child who is found to be in need in their area as para 3 makes clear.
A v LAMBETH: SECTION 17(1)
[78] The situation
in this case raises the question which these cases have identified under s
17(1) in its most acute form. The needs
of the appellant’s two disabled children were assessed by the respondent in the
exercise of their functions as the local social services authority. It was found that the flat in which they were
living was overcrowded and damp and that the bedroom windows and kitchen units
were broken. It was also found that the
flat was in a location which was very dangerous to them as it was very close to
the road and one of the children had a fixation with climbing out of the window
and running out of the front door. The
conclusion was that the children should continue to live with the family but
that the family needed to be ‘re-housed’ to an appropriate accommodation. The appellant maintains that it is the duty
of the respondent under s 17(1) of the Act as the local services authority to
meet the assessed need, and she seeks an order to that effect.
[79] The duty which
has been placed on the local social services authority by s 17(1) to provide a
range and level of services appropriate to the children’s needs is described by
the subsection as a ‘general duty’. This
duty is said by the opening words of the subsection to be in addition to the
other duties imposed on them by Pt III of the Act. And s 17(2) provides that, for the purpose
principally of facilitating the discharge of their general duties under that
section, every local authority shall have the specific duties and powers set
out in Pt I of Sch 2. The duty on which
the appellant seeks to rely in this case is not one of the other duties imposed
on the respondents by Pt III of the Act, nor is it one of the specific duties
set out in Pt I of Sch 2. Her case rests
therefore fairly and squarely on the propositions that the general duties
described in s 17(1) are owed to each and every child in need individually, and
that they are enforceable against them by or on behalf of each individual child
accordingly. The contrary view is that s
17(1) is designed to set out the general principles which the local services
authority must apply when providing services to children in need in their area.
[80] An examination
of the range of duties mentioned elsewhere in Pt III of the Act and Pt I of Sch
2 tends to support the view that s 17(1) is concerned with general principles
and is not designed to confer absolute rights on individuals. These other duties appear to have been carefully
framed so as to confer a discretion on the local services authority as to how
it should meet the needs of each individual child in need.
119
[81] Section 18(1),
which imposes a duty to provide day care for pre-school children, provides that
the local authority shall provide such day care ‘as is appropriate’. Section 20(1), which imposes a duty to
provide accommodation for a child for whom no person has parental
responsibility, who is lost or abandoned or whose carer has been prevented from
providing him with suitable accommodation or care, and s 20(3), which imposes a
duty to provide accommodation for children over 16, leave important matters to
the judgment of the local authority: ‘appears to them to require accommodation’
in s 20(1); ‘whose welfare the authority consider is likely to be seriously
prejudiced’ in s 20(3). So too does s
22, which imposes a duty on the local authority (described in the side-note,
but not in the section itself, as a ‘general’ duty) before making a decision
with respect to a child whom they are looking after to ascertain the wishes and
feelings of the child and various other people ‘so far as is reasonably
practicable’ and to give ‘due consideration’ to such wishes and feelings as
they have been able to ascertain. So too
does s 23, which imposes a duty on the local authority to provide accommodation
for children whom they are looking after, as s 23(2) sets out a range of
options which includes in sub-s (2)(f)(i) such other arrangements as ‘seems
appropriate to them’. The duties in Sch
2 follow the same pattern. The duties in
paras 6 and 7 also leave important matters to the judgment of the local
authority: ‘designed’ to ‘minimise’ the effect in para 6; ‘designed’ to
‘reduce’, to ‘encourage’ and to ‘avoid’ in para 7. Those in paras 8 and 9(1) are qualified by the
expression ‘as they consider appropriate’, and the duty in para 10 is qualified
by the words ‘take such steps as are reasonably practicable’.
[82] The discretion
which is given by these provisions to the local authority is framed in various
ways, but the result is the same in each case.
Where a discretion is given, the child in need does not have an absolute
right to the provision of any of these services.
[83] The use of the
expression ‘general duty’ in s 17(1), too, suggests that the purpose of the
subsection was to set out duties of a general nature only and that they were
not intended to be enforceable as such by individuals. The DHSS Review of Child Care Law
(1985) contained the following recommendations:
‘5.7 Local authority powers and
duties regarding children living with their families could be regarded as
having two main aims: to provide “family support” to help parents bring up their children; and to seek to
prevent admission to care or court proceedings except where this is in the best
interests of the child º
5.8 We believe the provisions
should be stated clearly in general terms of making services available at an
appropriate level to the needs of the area rather than in terms of duties owed to
individual children or families, in order to leave local authorities a wide
flexibility to decide what is appropriate in particular cases while providing
for a reasonable overall level of provision.
It is for local authorities to decide on their priorities within the
resources available to them.’
[84] The
recommendations of the DHSS Working Party on Child Care Law were taken into
account in the White Paper, The Law on Child Care and Family Services,
which preceded the introduction of the Bill which became the 1989 Act. Chapter Two of the White Paper deals with
services to families with children. In
para 14 it was explained that the powers and duties of local authorities to provide
services to promote the care and upbringing of children and to diminish the
need
120
to take them
compulsorily into local authority care were to be revised, and that there was
to be a new focus on the provision of services in voluntary partnership with
parents. In para 18 the proposals for
promoting the care and upbringing of children in their families were introduced
in this way (emphasis as printed in the White Paper):
‘It is proposed to give local authorities a broad “umbrella” power
to provide services to promote the care and upbringing of children, and to help
prevent the breakdown of family relationships which might eventually lead to a
court order committing the child to the local authority’s care. Within this power the local authority will be
able to provide services to a child at home, for example a family aide to
assist within the home; at a day centre, for example a day nursery for
pre-school children, an after school scheme for school age children or
placement with a childminder; or residential facilities allowing a child
to stay for short or long periods away from home, say with a foster family or
in a children’s home. The local
authority will also be able to offer financial assistance in exceptional
circumstances. This is not an exclusive
list …’
[85] This
legislative background serves to reinforce the impression which the structure
and language of the legislation itself gives, that the so-called ‘general duty’
in s 17(1) is owed to all the children who are in need within their area and
not to each child in need individually.
It is an overriding duty, a statement of general principle. It provides the broad aims which the local
authority is to bear in mind when it is performing the ‘other duties’ set out
in Pt III (see the words in parenthesis in s 17(1)) and the ‘specific duties’
for facilitating the discharge of those general duties which are set out in Pt
I of Sch 2 (see s 17(2)). A child in
need within the meaning of s 17(10) is eligible for the provision of those
services, but he has no absolute right to them.
[86] The appellants
submit that the correct analysis of s 17(1) is that the general duty which it
sets out is made ‘concrete and real’ for a specific person when that person is
assessed as being in need of the services which are available by way of the
general duty. In other words, the
process of assessment ‘crystallises’ the general duty so that it becomes a
specific duty which the local social services authority now owes to the
individual whose needs have been assessed.
[87] This argument
is based on the approach which was taken by the Court of Appeal in R v Royal
Borough of Kensington and Chelsea, ex p Kujtim [1999] 4 All ER 161 to the
case of a person who had been assessed by the local authority under s 47 of the
National Health Service and Community Care Act 1990 as being a person in urgent
need of care and attention which was not otherwise available to him, so that he
satisfied the criteria laid down in s 21(1)(a) of the National Assistance Act
1948. It was submitted in that case
that, in consequence of that assessment, the local authority were under a
continuing duty to meet these needs by providing him with residential
accommodation until, upon a reassessment, it was decided that his needs had
changed. That argument was accepted by
the Court of Appeal. The contrary
argument, that this was no more than a ‘target’ duty in the sense of the label
used by Woolf LJ in R v Inner London Education Authority, ex p Ali
(1990) 2 Admin LR 822 at 828 in relation to s 8 of the Education Act 1944, was
rejected. Potter LJ said in Ex p
Kujtim [1999] 4 All ER 161 at 175 (para 30) that the position was as
follows:
121
‘Once a local authority has assessed an applicant’s needs as satisfying
the criteria laid down in s 21(1)(a), the local authority is under a duty to
provide accommodation on a continuing basis so long as the need of the
applicant remains as originally assessed, and if, for whatever reason, the
accommodation, once provided, is withdrawn or otherwise becomes unavailable to
the applicant, then (subject to any negative assessment of the applicant’s
needs) the local authority has a continuing duty to provide further
accommodation.’
[88] In the Court of
Appeal in A v Lambeth London BC [2001] EWCA Civ 1624 at [26], [2001] 3
FCR 673 at [26] Laws LJ, with whose opinion on this point Chadwick LJ and Sir
Phillip Otton agreed, said that he was willing to accept that the approach
taken by Potter LJ in Ex p Kujtim might be characterised or described as
demonstrating that the operation in practice of s 21 of the National Assistance
Act 1948 involves the notion of a ‘target’ duty which becomes ‘crystallised’
and thus enforceable upon the happening of an event, namely a needs
assessment. But he went on to say that
this analysis of s 21 of the 1948 Act could not conclude the question whether a
like result could be got out of s 17 of the 1989 Act. Having examined the differences of language
between these two provisions, he concluded, at [29], that neither the terms of
s 21 of the 1948 Act nor the reasoning of the court in Ex p Kujtim could
support a construction of s 17 of the 1989 Act which would in practice produce
an analogous result.
[89] It is necessary
to pay close attention to the differences between the wording and structure of
these two provisions and the context in which they are placed by the respective
statutes. Section 21 of the 1948 Act (as
amended by s 195 of and Sch 23 to the Local Government Act 1972, s 108(5) of
and Sch 13 to the 1989 Act and s 42 of the National Health Service and
Community Care Act 1990) provides:
‘Subject to and in accordance with the provisions of 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 eighteen 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.’
[90] I respectfully
agree with Laws LJ’s comment, at [27], that, where (as in Ex p Kujtim)
the Secretary of State has given mandatory directions under s 21(1), it is
difficult to see how this provision can be read otherwise than as imposing a
concrete duty on the authority to see to it that accommodation is provided for
persons assessed as falling within one or other of the classes specified. But the contrast between the wide and general
language of s 17(1) of the 1989 Act and the way in which the various other
duties in Pt III and the specific duties set out in Pt I of Sch 2 which I have
discussed above are qualified so as to leave matters to the discretion of the
local authority is very marked.
[91] I think that
the correct analysis of s 17(1) is that it sets out duties of a general
character which are intended to be for the benefit of children in need in the local
social services authority’s area in general.
The other duties and the specific duties which then follow must be
performed in each individual case by reference to the general duties which s
17(1) sets out. What the subsection does
is to set out the duties owed to a section of the public in general by which
the authority must be guided in the performance of those other duties: see R
v Barnet
122
London BC, ex p B [1994] 2 FCR 781.
In that case Auld J considered the guidance issued under s 7 of the Local
Authority Services Act 1970 entitled The Children Act 1989 Guidance and
Regulations, vol 2: Family Support, Day Care and Educational Provision for
Young Children. He observed that the
duties under Pt III of the 1989 Act fell into two groups, those which are
general and those which are particular, and that the general duties are
concerned with the provision of services overall and not to be governed by
individual circumstances. He referred to
the way this point is made in para 2.11 of the Guidance in relation to
the duties set out in ss 17 and 18 (at 786):
‘Local authorities are not expected to meet every individual need, but
they are asked to identify the extent of need and then make decisions on the
priorities for service provision in their area in the context of that
information and their statutory duties.’
As Mr Goudie QC for the
respondents accepted, members of that section of the public have a sufficient
interest to enforce those general duties by judicial review. But they are not particular duties owed to
each member of that section of the public of the kind described by Lord Clyde
in R v Gloucestershire CC, ex p Barry [1997] 2 All ER 1 at 16, [1997] AC
584 at 610 which give a correlative right to the individual which he can
enforce in the event of a failure in its performance.
[92] A further point
is particularly relevant to this case, as the service which is sought is the
provision of residential accommodation.
The need which the assessment has identified is not for the provision of
temporary accommodation only. As the
recommendation at the end of the assessment puts it, what this family needs is
to be ‘re-housed’. Section 17 refers to
a range and level of services appropriate to the children’s needs. It is broadly expressed, with a view to
giving the greatest possible scope to the local social services authority as to
what it chooses to do in the provision of these services. Although the services which the authority
provides may ‘include’ the provision of accommodation (see s 17(6)), the provision
of residential accommodation to re-house a child in need so that he can live
with his family is not the principal or primary purpose of this
legislation. Housing is the function of
the local housing authority, for the acquisition and management of whose
housing stock detailed provisions are contained in the Housing Acts. Provisions of that kind are entirely absent
from this legislation.
[93] We were
informed that this is far from being an isolated case of its kind, as about 200
such cases involving children in need had been identified by the respondents in
their area in the past five months. The
expenditure of limited resources on the provision of residential accommodation
for housing these children with their families would be bound to mean that
there was less available for expenditure on other services designed for the
performance of the general duty which s 17(1) has identified. A reading of that subsection as imposing a
specific duty on the local social services authority to provide residential
accommodation to individual children in need who have been assessed to be in
need of such accommodation would sit uneasily with the legislation in the
Housing Acts. As Mr Goudie pointed out,
it could have the effect of turning the social services department of the local
authority into another kind of housing department, with a different set of
priorities for the provision of housing for the homeless than those which s 59
of the Housing Act 1985 lays down for the local housing authority.
[94] There was no
failure in this case to assess the needs of the appellant’s children: contrast
R (on the application of AB and SB) v Nottingham City Council
123
[2001] EWHC Admin 235,
[2001] 3 FCR 350. The failure which is
alleged is a failure to purchase residential accommodation which is suitable
for the children’s needs. The order
which the appellant seeks is an order that the respondent must provide services
pursuant to s 17 to meet their assessed needs and a declaration that the
respondent has acted in breach of its statutory duties. Her argument is entirely dependent upon the
proposition that the effect of that assessment has been to crystallise the
general duty under s 17(1) so that it has become a specific duty owed to A’s
children as individuals. Troublesome
though A’s case is in view of the difficulties which the assessment has
so carefully identified, I am unable to accept that this approach is consistent
with the language of the statute. I
would therefore reject the argument which has been advanced under s 17(1), in
all three cases.
G v BARNET; W v
LAMBETH: SECTION 23(6)
[95] These cases
concern children whose mothers were unable to provide them with accommodation
unless assisted to do so by the respondents in their capacity as their local
social services authority. This is
because the local housing authority were under no duty to assist the mothers
under the homelessness legislation. The
respondents offered to meet the needs of G’s child by offering to provide
financial assistance to G so that they could return to Holland, but G would not
accept this. As a result of interim
orders made in these proceedings, the respondents arranged for the family to be
provided with bed and breakfast accommodation when it became clear that W and
her two children could no longer live in her niece’s flat. No formal assessment establishing the needs
of the children was made in W’s case, but in G’s case a child in
need assessment form was completed. The appellants’ contention is that the
respondents were under a duty to meet the children’s needs under s 17(1) by
enabling them to be brought up by their parents in the same family. They also contend that the respondents were
under a duty under s 20(1) to provide accommodation for their children, and
that in fulfilment of this duty they were required by s 23(6) to provide the
mothers with accommodation so that their children could live with them.
[96] Section 23(6)
provides:
‘Subject to any regulations made by the Secretary of State for the
purposes of this subsection, any local authority looking after a child shall
make arrangements to enable him to live with—(a) a person falling within
subsection (4); or (b) a relative, friend or other person connected with him,
unless that would not be reasonably practicable or consistent with his
welfare.’
[97] The expression
‘any local authority looking after a child’ in s 23(6) has to be read together
with s 22(1), which (as amended by s 107 of and Sch 5 to the Local Government
Act 2000) provides:
‘In this Act, any reference to a child who is looked after by a local
authority is a reference to a child who is—(a) in their care; or (b) provided
with accommodation by the authority in the exercise of any functions (in
particular those under this Act) which are social services functions within the
meaning of the Local Authority Social Services Act 1970.’
[98] The reference
in s 22(1)(b) to children provided with accommodation by the local authority
has to be read together with s 20(1), which provides:
124
‘Every local authority shall provide accommodation for any child in need
within their area who appears to them to require accommodation as a result
of—(a) there being no person who has parental responsibility for him; (b) his
being lost or having been abandoned; or (c) the person who has been caring for
him being prevented (whether or not permanently, and for whatever reason) from
providing him with suitable accommodation or care.’
[99] There are,
then, four hurdles that the appellants must cross if they are to succeed in
their argument. First, they must show
that their children are children in need within the meaning of s 17(10). It was not suggested that there would have
been any serious room for doubt on this point.
Their mothers were unable to provide them with accommodation, and in
both cases the children were at serious risk of having no roof over their heads
at all. Leaving them to sleep in
doorways was not an option in their case.
Children who are reduced to this level of destitution are plainly
children in need. Their health or
development is likely to be significantly impaired if they are not provided
with services by the local social services authority: s 17(10)(b).
[100] The appellants
must show, in the second place, that the respondents were under a duty to
provide their children with accommodation.
Local social services authorities are under a duty to provide
accommodation for a child in need within their area who appears to them to
require accommodation as a result, among other things, of the person who has
been caring from him being prevented (whether or not permanently, and for
whatever reason) from providing him with suitable accommodation or care: s
20(1)(c). This provision must be read in
the light of the general duties set out in s 17(1). Among these duties there is the duty to
safeguard and promote the welfare of the child.
At first sight the concept of the carer being prevented from providing
the child with suitable accommodation or care does not sit easily with the situation
where the carer has chosen to refuse offers of accommodation or other forms of
assistance by the relevant local authority.
But the words ‘for whatever reason’ indicate that the widest possible
scope must be given to this provision.
The guiding principle is the need to safeguard and promote the child’s
welfare. So it makes no difference
whether the reason is one which the carer has brought about by her own act or
is one which she was resisting to the best of her ability. On the facts, it is plain that the
respondents were under a duty to provide accommodation for the appellants’
children under s 20(1).
[101] The appellants
must then show, in the third place, that s 23(6) applies to their case. That subsection applies where a local social
services authority ‘are looking after a child’.
This expression is defined in s 22(1), which provides that any reference
in the Act to a child ‘who is looked after by a local authority’ is a reference
to a child who is either in their care or is provided with accommodation by the
authority in the exercise of any functions referred to the social services
committee, including the functions under the Act. As it happens, the situation described in
this subsection had not yet been reached in either of these two cases. W had been provided with bed and breakfast
accommodation for herself and her children, but this was not accommodation
provided to the children themselves within the meaning of this provision. The reference in s 22(1) to the provision of
accommodation is a reference to the provision of accommodation for children
themselves under either s 20(1) or s 22(1).
Nevertheless it is clear that if the stage had been reached where the
respondents were fulfilling their duty to provide
125
accommodation for them
under s 20(1)(c), the children would have been children who were being looked
after the local authority within the meaning of s 22(1).
[102] This brings me
to the crucial point in this part of the case, which is whether a local
authority looking after a child is under a duty to provide accommodation to any
of the persons mentioned in s 23(6)(a) and (b), who include the child’s parent,
to enable the child to live with that person.
The duty, as expressed in the subsection, is to ‘make arrangements to
enable’ the child to live with any one of the person mentioned. It is qualified by the words ‘unless that
would not be reasonably practicable and consistent with his welfare’. The appellants’ argument is that among the
arrangements that may be made in the performance of this duty is the provision
of accommodation to the person mentioned so that the child will be able to live
with that person. They also submit,
relying on Lord Browne-Wilkinson’s observation in R v East Sussex CC,
ex p Tandy [1998] 2 All ER 769 at 777, [1998] AC 714 at 749 that neither the
cost of doing this nor the availability of resources have any bearing on what
is or is not reasonably practicable as to permit this would downgrade the duty
into a discretionary power.
[103] Section 23
deals with children who are being looked after by a local social services
authority either because they in the care of the authority (that is to say, by
virtue of a care order under s 31(1) or are being provided with accommodation
by it. Detailed provisions are made in s
23(2) as to the various ways in which accommodation may be provided for the
child, which include placing the child with a family, a relative or any other
suitable person. Section 23(5) provides
that, where a child is in the care of a local authority, the authority may only
allow the child to live with a parent, a person who has parental responsibility
for him or a person in whose favour a residence order was in force before the
care order was made in accordance with regulations made by the Secretary of
State. These provisions all assume that
the person with whom the child is to be placed or the person with whom the
child may be allowed to live under s 23(5) already has accommodation which will
enable the child to live with that person.
[104] Section 23(6)
appears to have been framed on the same assumption. The context in which it appears suggests that
this is so. But the wording of the
subsection, and its content, reinforce the argument. The arrangements to which it refers are
arrangements enabling the child to live with that person. Nothing is said about providing that person
with accommodation. Moreover the duty to
make the arrangements to which it refers is not restricted to enabling the
child to live with his family. If it had
been so restricted there might have been some force in the argument that the
duty in this subsection was to be read together with the general duty in s
17(1) to promote the upbringing of the child by his family. But the person with whom the child may be
enabled to live under this subsection include relatives other than his parents,
friends and other person connected with him: s 23(6)(b). The width of this class of persons indicates
that what Parliament had in mind when it was enacting this provision was that
these were persons who already had accommodation of their own. The fact that the duty is qualified by
reference to what is reasonably practicable and consistent with the child’s
welfare is entirely consistent with this approach. It permits the local authority to have regard
to the nature of the accommodation which that person is able to provide before
it takes its decision as to whether, and if so with whom, the child is to be
accommodated under this subsection. It
is not concerned with the resources of the local authority, because the duty
does not extend to the provision of accommodation for that person at its own
cost or from its own resources.
126
CONCLUSION
[105] I would dismiss
these appeals.
LORD MILLETT.
[106] My Lords, I
have had the advantage of reading in draft the speech of my noble and learned
friend Lord Hope of Craighead, with which I am in full agreement. I add a few words of my own in order to
explain why I am unable to accept the conclusion of my noble and learned friend
Lord Nicholls of Birkenhead that s 17(1) of the Children Act 1989 imposes a
duty on the social services authority in respect of the needs of a particular
child. In my opinion it imposes a
general and overriding duty to maintain a level and range of services
sufficient to enable the authority to discharge its functions under Pt III of
the Act.
[107] Section 17(1)
contains three indications of the nature of the duty which it imposes. The first is that it is described as a
general duty. I agree that this is not
decisive by itself. It may be contrasted
with the specific duties and powers mentioned in s 17(2). But it does suggest that what is to follow is
a general and comprehensive duty owed to all persons within the authority’s
area rather than a duty which is owed to particular individuals.
[108] The second indication
is that it is a duty to safeguard and promote the welfare of ‘children within
their area who are in need’ and to promote the upbringing of such children by
their families. This is couched in terms which suggest that it is a broad and
general duty to cater for the needs of all the children concerned,
rather than a duty to meet the needs of any particular child. This feature,
too, cannot be decisive, for the words can be read as involving a duty in
respect of the welfare and upbringing of each child. But it cannot be assumed that they do involve
such a duty, for this is the very question to be decided.
[109] In my opinion,
however, the third indication is decisive.
The duty is not a duty to safeguard and promote the welfare of the
children concerned simpliciter, but to do so ‘by providing a range and level of
services appropriate to those children’s needs’. A social services authority which provides a
range and level of services appropriate to meet the various needs of children
in its area has discharged its duty under s 17(1). This cannot be read as a duty to meet the
needs of any particular child. It is
sufficient that the authority maintains services for which his particular needs
make him eligible.
[110] It does not
follow that the social services authority is not obliged to assess the needs of
the individual child. The existence of a
power to provide assistance to a class involves a duty to consider whether a
particular individual is eligible for such assistance; and in the present
context that involves assessing the needs of the child in order to decide
whether and the extent to which the authority will meet his needs. But there is no need to invoke this implied
duty; as my noble and learned friend Lord Hope has explained, the relevant duty
is expressly provided by paras 1 and 3 of Sch 2.
[111] I would dismiss
the appeals.
LORD SCOTT OF
FOSCOTE.
[112] My Lords, the
three appeals before the House require a view to be taken as to the intended
function and effect of s 17(1) of the Children Act 1989. The issue, expressed in general terms, is
whether the ‘general duty’ imposed by the subsection on local authorities can,
in appropriate circumstances, be treated as a targeted and specific duty owed
by the local authority to an individual child. It may well be that the issue thus expressed
will not lead to any useful answer. An
127
answer such as
‘sometimes’ or ‘it depends’ would neither resolve the three appeals nor provide
any guidance to those involved in other cases which throw up the same
issue. None the less I think it is
necessary to start by briefly considering the issue in general terms before
considering it in the context of the facts of the three particular cases.
[113] Section 17(1)
says that:
‘It shall be the general duty of every local authority (in addition to
the other duties imposed on them by this Part)—(a) to safeguard and promote the
welfare of children within their area who are in need; and (b) so far as it
consistent with that duty, to promote the upbringing of such children by their
families, by providing a range and level of services appropriate to those
children’s needs.’
The language of this
provision seems to me to provide very infertile soil for the extraction of a
targeted, specific duty owed to an individual child.
[114] First, the
adjective ‘general’, qualifying the ‘duty’, is indicative of an overarching
duty applying to a class rather than to individuals and of a ‘framework’ duty
under the umbrella of which specific duties imposed by other statutory
provisions may from time to time come into existence in relation to specific
children. The point is underlined by
sub-s (2) which says that:
‘For the purpose principally of facilitating the discharge of their
general duty under this section, every local authority shall have the specific
duties and powers set out in Part 1 of Schedule 2.’
The contrast in sub-s (2)
between the ‘general duty’ imposed by sub-s (1) and the ‘specific duties’ to be
found elsewhere is explicit.
[115] Second, the
context of the sub-s (1) ‘general duty’ is expressed in broad aspirational
terms that would not easily lend themselves to mandatory enforcement. The local authority must ‘safeguard and
promote the welfare’ of the children. It
must ‘promote the upbringing of such children by their families’. Nothing could be less specific.
[116] Third, sub-s
(1) specifies, again in very broad terms, the manner in which the ‘general
duty’ is to be discharged, namely, ‘by providing a range and level of services
appropriate to those children’s needs’.
This language is contemplating the children, the objects of the general
duty, as a class.
[117] Part I of Sch 2
to the Act, as s 17(2) has led one to expect, imposes specific duties and
confers specific powers on local authorities.
Paragraph 1(1) says that: ‘Every local authority shall take reasonable
steps to identify the extent to which there are children in need within their
area.’ This obligation is not expressed
in absolute terms. The local authority
will have discharged its mandatory duty if it has taken ‘reasonable
steps’. Having identified a child ‘in
need’ it will often be necessary for the local authority to assess the actual
needs of the child. Somewhat surprisingly
the requirement for the local authority to do so is nowhere expressly spelt
out. Paragraph 3 of the schedule says
that:
‘Where it appears to a local authority that a child within their area is
in need, the authority may assess his needs for the purposes of this Act at the
same time as any assessment of his needs is made under—(a) the Chronically Sick
and Disabled Persons Act 1970; (b) Part IV of the Education Act 1996; (c) the
Disabled Persons (Services, Consultation and Representation) Act 1986; or (d)
any other enactment.’
128
It is, I think, implicit in
this provision that the local authority will assess the actual needs of a child
in need whenever it appears necessary to do so.
[118] Most of the
specific duties imposed on local authorities under Pt 1 of Sch 2 are expressed
in proportionate rather than absolute terms.
Thus, para 4(1) requires every local authority to ‘take reasonable
steps … to prevent children within their area suffering ill-treatment or
neglect’. Paragraph 7 requires every
local authority to ‘take reasonable steps designed’ to benefit the
children in various specified ways (emphasis in each case added). Paragraph 8 requires every local authority to
‘make such provision as they consider appropriate’ for specified types of
services to be made available to children in need who are living with their
families. Paragraph 10 requires every
local authority to ‘take such steps as are reasonably practicable’ to
enable a child in need living apart from his family to live with his family
(emphasis again added). It is plain, in
my opinion, that in relation to each of these specific duties the local
authority can take into account among other things, its overall financial
resources and, in particular, the cost of taking a specific step that, if
taken, would benefit the child and meet some need. Whether the taking of a particular step is
‘reasonable’ or ‘reasonably practicable’ cannot be divorced from the financial
implications of taking the step.
[119] Viewed in the
context of these specific duties imposed on local authorities under Pt 1 of Sch
2 to the Act it would be odd to find that the s 17(1) general duty had imposed
on a local authority a mandatory obligation to take some specific step in
relation to the child irrespective of the local authority’s financial resources
and of the cost of the step in question. But that is the result for which counsel for
the appellants in these three appeals contend.
[120] It is time, I
think, to consider the point in the context of the particular facts of the
three cases. Let me start with the case
of A. She is the mother of three
children, two of whom suffer from autism.
They are unquestionably children ‘in need’. They live in a two-bedroom ground floor local
authority flat with no outside play area.
The two autistic children, both boys, are now aged nine and seven. In May 2000 assessments of the two children
for the purposes of the 1989 Act took place.
There was particular emphasis on their housing needs. The assessments were, among other things,
that the family’s existing accommodation had a number of unacceptable risk
factors so far as the two boys were concerned and that the family needed to be
re-housed in a four-bedroom flat with access to a garden.
[121] In September
1998 the council had given the family an overriding priority for re-housing but
nothing suitable had been offered.
Following the May 2000 assessments the council were still unable to give
a date by which suitable accommodation meeting the standards required by the
assessment might be available. A
shortage of suitable houses or flats in the council’s housing stock and limited
financial resources were the problem. So
proceedings were started. The appellant
sought a mandatory order requiring the council to ‘identify a suitable property
and provide appropriate support in line with assessed needs’.
[122] Mr Gordon QC’s
core contention on behalf of A is short and simple. He accepts that s 17(1) starts by imposing a
general duty. But, he says, once the
actual needs of a child in need have been identified by a needs assessment, the
council comes under a targeted, specific duty to meet the assessed needs. Lack of resources, or perhaps, putting the
point more accurately, competition for limited resources, is irrelevant. The council’s s 17(1) duty has become a
mandatory and absolute duty to provide the specific services to A and her
children identified by the needs assessment.
129
[123] The issue in
both the G case and the W case is whether s 17(1) imposes a mandatory duty on a
local authority to provide housing to the parent of a child in need so as to enable
the child to live with his or her parent.
[124] W lives with
her two children. She lost her
accommodation in March 2000 in circumstances that led the council to conclude
that she had become intentionally homeless and was not entitled under the homeless
persons legislation (Pt VII of the Housing Act 1996) to council housing. She appealed against the council’s decision
but the Court of Appeal dismissed her appeal.
The needs of her two children were assessed in April 2002. The assessment identified a need for
accommodation as their only need.
[125] G comes from
Holland. She has a son who was born in
May 1999. In June 2000 G and her son
came to England and applied to the council for assistance with housing. Her application was initially refused on the
ground that she was not ‘habitually resident’ in this country. After subsequent interviews with council
officials the council offered to pay the cost of G’s return to Holland with her
son and to provide temporary accommodation and financial assistance in the
meantime. But G refused to return to
Holland and insisted that the council’s duty to her son, a ‘child in need’,
obliged the council to provide her with permanent housing accommodation where
she and her son could live together.
Whether or not there has been a formal assessment of the needs of G’s
child, it is obvious that the child’s needs include the need to live with his
mother and the need to have accommodation appropriate to his tender age.
[126] Both G’s
case and W’s case have, therefore, the common feature that the
children’s need for suitable housing and their need to live with their mothers,
needs that the council is said to be under a mandatory, statutory obligation to
meet, are being used by the mothers as a stepping stone by means of which the
mothers can obtain housing to which they would not otherwise be entitled.
[127] Mr Howell QC,
who appeared both for G and W, based his case not only on s 17(1) of the 1989
Act but also, and I think mainly, on s 23(6) of the Act. Section 23 specifies a number of specific
duties resting on a local authority in relation to any child ‘whom they are
looking after’. Section 22(1) (as
amended) says that references to a child whom a local authority is looking after
are references either to a child in the local authority’s care (para (a)) or to
a child who is ‘provided with accommodation by the authority in the exercise of
any functions (in particular those under this Act) which are social services
functions within the meaning of the Local Authority Social Services Act 1970’
(para (b)). Section 23(6) says that ‘any
local authority looking after a child shall make arrangements to enable him to
live with—(a) [the parent of that child] unless that would not be reasonably
practicable or consistent with his welfare’.
[128] A short answer
to Mr Howell’s s 23(6) case is, in my opinion, that none of the G or W children
was a child whom the council was ‘looking after’ within the meaning ascribed to
that expression by s 22(1). None was a
child in the local authority’s care. And
although each, with his mother, was in temporary accommodation provided by the
council, the temporary provision of accommodation while a local authority is
considering a housing or support application made by the parent who is looking
after the child does not, in my opinion, constitute the ‘provision of
accommodation’ referred to in s 22(1)(b).
A contrary conclusion would, in my view, be inconsistent with the
content of sub-ss (1) and (2) of s 23.
[129] But, in any
event, s 23(6) does not oblige a local authority to provide housing to the
person with whom the child being looked after by the local
130
authority is to
live. As it was put by my noble and
learned friend Lord Nicholls, s 23(6) is concerned with placement of the child,
not with housing (see [38], above).
[130] Accordingly, Mr
Howell’s case for G and W comes to depend on the same point as Mr Gordon’s case
for A. Does s 17(1) impose a mandatory
duty on a local authority to take specific steps that the assessed, or obvious,
needs of a child in need require to be taken regardless of the financial
resources of the council or the cost of those steps? It is accepted that nowhere in the 1989 Act
is it expressly stated that if a child’s assessed needs include the provision
of proper accommodation, and that he or she continue living with his parent (or
parents), the local authority must, regardless of cost, provide the parent (or
parents) with the requisite accommodation.
Is that obligation to be implied?
[131] Somewhat
similar questions have arisen in other contexts. The decision of this House in R v East
Sussex CC, ex p Tandy [1998] 2 All ER 769, [1998] AC 714 was relied on by
the appellants. The case concerned
educational needs. Some children have
special educational needs. A statement
of the special educational needs of the Ex p Tandy child said that she
needed five hours of home tuition per week.
The local authority decided, for cogent financial reasons, to reduce the
home tuition to three hours per week. The
issue was whether that decision was lawful.
Section 298(1) of the Education Act 1993 said that each local education
authority—
‘shall make arrangements for the provision of suitable … education at
school or otherwise than at school for those children of compulsory school age
who, by reason of illness, exclusion from school or otherwise, may not for any
period receive suitable education unless such arrangements are made for them.’
And sub-s (7) said that
‘suitable education’ meant education ‘suitable to [the child’s] age, ability
and aptitude and to any special educational needs he may have’.
[132] It was accepted
before the House that s 298(1) imposed a duty on the council owed to each
individual child in its area to provide that child with ‘suitable
education’. ‘Suitable education’ was
defined by reference to wholly objective educational criteria that did not
include the cost of the provision of the education. Lord Browne-Wilkinson, with whose opinion
each of the other members of the Appellate Committee agreed, said ([1998] 2 All
ER 769 at 776–777, [1998] AC 714 at 749):
Լ the county council has as a matter of strict legality the resources
necessary to perform its statutory duty under s 298. Very understandably it does not wish to bleed
its other functions of resources so as to enable it to perform the statutory
duty under s 298 … The argument is not one of insufficient resources to
discharge the duty but of a preference for using the money for other
purposes. To permit a local authority to
avoid performing a statutory duty on the grounds that it prefers to spend the
money in other ways is to downgrade a statutory duty to a discretionary power …
Parliament has chosen to impose a statutory duty, as opposed to a power,
requiring the local authority to do certain things. In my judgment the courts should be slow to
downgrade such duties into what are, in effect, mere discretions over which the
court would have very little real control.’
131
[133] This approach
was urged strongly on your Lordships by counsel for the appellants. In my opinion, however, there is a key
difference between s 298(1) of the Education Act 1993 and s 17(1) of the 1989
Act. Section 298 did impose a specific
duty owed to each individual child. The
duty to each child was to make arrangements for the provision of ‘suitable
education’, as defined, to that child.
Arrangements for the provision of something less was not a discharge of
the statutory duty. In the present case,
by contrast, the fundamental issue is whether s 17(1) imposes on a local authority
a specific duty to an individual child in need to meet every assessed, or
obvious, need of that child. Reliance on Lord Browne-Wilkinson’s remarks in
Ex p Tandy begs that question. No doubt it is right that a statutory duty
must not be downgraded to a mere discretionary power. But before complaints can be made that that
is what the councils are contending for in the present cases, it is necessary
to identify the statutory duty. If the
appellants are correct that the councils owed them a statutory duty under s
17(1) to provide them and their children with the requisite housing, there is
an end of the respondent councils’ cases.
No question of downgrading the duty would arise.
[134] R v Royal
Borough of Kensington and Chelsea, ex p Kujtim [1999] 4 All ER 161 was a decision of the Court of
Appeal concerning the effect of s 21(1) of the National Assistance Act 1948, as
amended. The court concluded that s
21(1)(a) of the 1948 Act, coupled with para 2 of the Secretary of State’s
Approvals and Directions made under s 21(1), imposed a continuing duty on the
respondent council to meet the appellant’s assessed need for accommodation but
that, in the circumstances, the council had discharged its duty. I do not think this case is of assistance to
the present appellants. Section 21(1),
as amended, said that—
‘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 eighteen 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 …’
and under para 2(2) of the
Approvals and Directions the Secretary of State directed local authorities to
make arrangements to provide residential accommodation to certain persons in
certain circumstances. A person able to
bring himself within the specified category was plainly, in my opinion, owed a
statutory duty. There is no equivalent
in the present case to the statutory direction given by the Secretary of State
under which the specific duty owed to Mr Kujtim arose.
[135] In my opinion,
in agreement with my noble and learned friend Lord Hope of Craighead, s 17(1)
does not impose a mandatory duty on a local authority to take specific steps to
satisfy the assessed needs of a child in need.
If a mandatory order against a local authority to take some specific
step is sought the applicant must either point to a specific duty to take the
step imposed elsewhere in the Act (or in other legislation) or must invalidate
the local authority’s decision to decline to take the step on the usual
reasonableness and proportionality grounds available in judicial review
challenges. In my opinion, the
appellants’ appeals, in so far as they are based on a mandatory duty arising
under s 17(1), should be dismissed. I am
in full and respectful agreement with the reasons given by my noble and learned
friend Lord Hope on this issue.
[136] It is accepted
by the respondent councils that they have the requisite power to provide
housing to the appellants in order to meet the needs of their
132
respective
children. The question, therefore,
arises whether the councils’ decisions not to exercise this power in the manner
requested by A, G and W can be impugned.
Different considerations apply to the cases of G and W on the one
hand and of A on the other hand.
[137] My noble and
learned friend Lord Nicholls of Birkenhead has carefully and lucidly analysed
the general policy adopted by Lambeth Borough Council, and no doubt of other
councils, of dealing with the accommodation needs of homeless children by
making accommodation available for the children but not for their parents as
well (see [48], above). There is an
undoubted duty, imposed by s 20 of the 1989 Act on local authorities, to
provide accommodation for homeless children.
A situation in which children may be sleeping rough in the streets or in
cars or in garden sheds cannot be tolerated.
Local authorities accept that this is so and, where necessary, accept
the obligation to provide accommodation for any such children. But, so many councils believe, the provision
of housing accommodation to the families of children in order to prevent the
children from becoming homeless, would place an unacceptable financial burden
on council resources. It is pointed out,
in answer, that the cost of providing family accommodation to a child and his
or her family may often be less, or at least not significantly more, than the
cost of accommodating the child in a council home or with foster parents. So, given the child’s need to go on living
with his or her family and in particular with his or her parents if at all
possible, the general policy of offering accommodation to the child alone is,
it is argued, an unreasonable one that it is not lawful for a council to adopt.
[138] The council’s
response to this argument, based as it is on the comparative cost of
accommodating only the children of the family as against the cost of providing
accommodation for the children with their family, is that in most cases an
indication given by the council that the children will be removed from their
family and accommodated separately leads to the parents managing to find family
accommodation for themselves and their children. If intentionally homeless parents, or other
parents with no right to council housing, knew that, if they did nothing, the
council would find itself obliged to provide them and their family with accommodation
in order to discharge its obligation to safeguard the children of the family
from homelessness, a large number of these parents would do nothing. A coach and horses would be driven through
the housing legislation under which those who have become intentionally
homeless cannot call upon the council to re-house them.
[139] It is, of
course, correct that each case must be considered on its merits but, in
general, the council’s response is, in my opinion, a reasonable one. It is suggested that a distinction might be
drawn between cases where the child is old enough not to be significantly upset
at being separated from his or her parents and cases where the child would be
significantly upset by the separation.
The general policy referred to could be endorsed for the former class
but not, it is suggested, for the latter class.
I do not believe that the suggested distinction is either a practicable
or a reasonable one. Your Lordships have
not been referred to any expert evidence identifying the criteria which would
be applied in order to decide into which class a particular child fell and, in
its absence, I regard it as legitimate to draw upon my own experience of
children. That experience leads me to
believe that the class intended to contain children old enough not to be
significantly upset at being separated from their parents against their and
their parents’ wishes would be a class with very few members.
133
[140] Moreover, on
what sort of evidence would a local authority, or a judge, be expected to
decide whether or not a child would be significantly upset at being separated
from its parents? The parents would be
bound to say that the child would be very significantly upset. So would the child, if it was of an age to be
asked. And what child expert or other
witness would contradict them? On what
basis could a local authority or judge decide that the parents’ evidence to
that effect should not be accepted?
[141] The distinction
that it is suggested should be drawn is, in my opinion, simply a concealed
means of outlawing the general policy adopted by Lambeth and other
councils. For my part I can see nothing
the matter with that general policy. If
a parent or parents have become intentionally homeless or for any other reason
are not entitled to look to the local authority for housing accommodation, the
local authority is entitled, in my opinion, to adopt a general policy under
which it is made clear that it will make accommodation available to the
children of the family in order to prevent the children becoming homeless, but
will not permit the parents to use the children as stepping stones by means of
which to obtain a greater priority to be re-housed than that to which they
would otherwise be entitled.
[142] There is
general agreement among your Lordships that the appeals of G and W should be
dismissed. But, for my part, I do not
consider that the general policy referred to above needs adjustment.
[143] As to A, the
local authority has, some time ago, accepted her priority need for
rehousing. But suitable accommodation
has not yet been found. No case has been
presented to the courts below or to your Lordships to justify the conclusion
that either the social services department or the housing department of the
local authority has unreasonably failed to exercise any of the relevant powers
available to them. The case presented
was that the council was under a mandatory duty under s 17(1) to provide
accommodation to the family in accordance with the assessed needs of the
autistic children. That case, in my
opinion, fails and there is no other case that has been presented. I would dismiss the appeal in A’s case
for the reasons given by my noble and learned friend, Lord Hope of Craighead
with which I am in complete and respectful agreement.
Appeals dismissed.
Kate O’Hanlon
Barrister.
134
[2004] 1 All ER 135
Marcic v Thames Water Utilities Ltd
[2003]
UKHL 66
TORTS; Nuisance:
INDUSTRY: HUMAN RIGHTS; Other
HOUSE OF LORDS
LORD NICHOLLS OF BIRKENHEAD, LORD STEYN, LORD HOFFMANN,
LORD HOPE OF CRAIGHEAD, LORD SCOTT OF FOSCOTE
27–29 OCTOBER, 4 DECEMBER 2003
Nuisance – Sewer –
Overflow – Flooding of neighbouring premises – Overloading of sewer resulting
in repeated flooding of claimant’s property – Statutory sewerage undertaker
failing to take steps to prevent flooding – Whether sewerage undertaker liable
at common law for failure to prevent flooding – Whether failure infringing
claimant’s right to respect for home and right to peaceful enjoyment of
possessions under human rights convention – Water Industry Act 1991 – Human
Rights Act 1998, Sch 1, Pt I, art 8, Pt II, art 1.
The defendant company
was a statutory sewerage undertaker, responsible under the Water Industry Act
1991 for providing sewers for the removal of sewage and surface water in the
area in which the claimant’s house was situated. When constructed, those sewers had been
sufficient to meet the foreseeable needs of removing surface and foul water,
but they had become inadequate because of subsequent housing development in the
area. As a result, from June 1992, the
claimant had endured serious and repeated external sewer flooding on his
property. His house was affected by damp
and subsidence and was possibly damaged structurally. Under the 1991 Act, it was the general duty
of a sewerage undertaker to provide a system of public sewers so as to ensure
that its area was effectually drained.
The 1991 Act also provided for a regulator of the water industry in
England and Wales. The regulator was
required to exercise and perform his statutory powers in duties in the manner
he considered best calculated to secure that the functions of water undertakers
and sewerage undertakers were properly carried out. His duty included ensuring that companies
appointed as sewerage undertakers were able to finance the proper carrying out
of their functions. He was also required
to protect the interests of customers of sewerage undertakers. The regulator had power to enforce the
obligations of a sewerage undertaker by means of enforcement orders. Where a contravention of a statutory
requirement was enforceable, the 1991 Act limited the availability of other
remedies so that a person who sustained loss or damage as a result of a
sewerage undertaker’s contravention of his general duty had no direct remedy
under the 1991 Act; such a person could, however, bring proceedings against a
sewerage undertaker in respect of its failure to comply with an enforcement
order, if one had been made. The claimant commenced proceedings against the
company, seeking inter alia a mandatory order compelling the company to improve
its sewerage system and damages. He
relied, inter alia, on a common law cause of action in nuisance, and on two
provisions 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),
namely the right to respect for a person’s home under art 8(1)a and the right to peaceful enjoyment of
possessions under art 1b of the First Protocol
to the convention. The judge found that
under the system of priorities then prevailing
________________________________________
a Article 8, so far as material, provides:
‘Everyone has the right to respect for his private and family life, his home
and his correspondence …’
b Article 1, so far as material, provides:
‘Every … person is entitled to the peaceful enjoyment of his possessions …’
________________________________________
135
in the company’s area
there was no prospect of any work being carried out in the foreseeable future
to prevent flooding of the claimant’s property.
He concluded that the company had infringed the claimant’s convention
rights but rejected the claim in nuisance.
The company appealed and the claimant cross-appealed. The Court of Appeal held, inter alia,
dismissing the appeal and allowing the cross appeal, that the claimant had a
valid claim in nuisance under the principle that ownership of land carried with
it a duty to do whatever was reasonable in all the circumstances to prevent
hazards on land from causing damage to a neighbour. The company appealed. The issues before the House of Lords were:
(i) whether the claimant had a common law action in nuisance; and (ii) whether
the statutory scheme of the 1991 Act as a whole complied with the convention.
Held – (1) The common law of nuisance did not impose
obligations on a statutory sewerage undertaker inconsistent with the statutory
scheme of the 1991 Act. In the instant
case the cause of action in nuisance asserted by the claimant ignored the
statutory limitations on the enforcement of sewerage undertakers’ drainage
obligations. An important purpose of the
enforcement scheme in the 1991 Act was that individual householders should not
be able to launch proceedings in respect of failure to build sufficient sewers.
Individual householders could bring proceedings in respect of inadequate
drainage only when the undertaker had failed to comply with an enforcement
order. The existence of a parallel
common law right would set at naught the statutory scheme, effectively
supplanting the role the independent regulator was intended to discharge (see
[34]–[36], [48], [70], [73], [88], below); Goldman v Hargrave [1966] 2
All ER 989 and Leakey v National Trust for Places of Historic Interest or
Natural Beauty [1980] 1 All ER 17 distinguished.
(2) The scheme of the
1991 Act was not unreasonable in its impact on householders whose properties
were periodically subject to sewer flooding.
A fair balance had to be struck between the interests of the individual
and of the community as a whole. The
balance struck by the statutory scheme was to impose a general drainage
obligation on a sewerage undertaker but to entrust enforcement of that
obligation to an independent regulator who had regard to all the different
interests involved and whose decisions were subject to judicial review. While, in the instant case, matters had
plainly gone awry, and it had not been acceptable that several years after the
sewerage undertaker knew of the claimant’s serious problems, there had still
been in the foreseeable future no prospect of the necessary work being carried
out, the malfunctioning of the statutory scheme on that occasion did not cast
doubt on its overall fairness as a scheme.
Accordingly, the scheme set up by the 1991 Act complied with the
convention and the company’s appeal would therefore be allowed (see [41]–[43],
[47], [48], [71], [72], [73], [77], [87], [88], below); Hatton v UK [2003]
All ER (D) 122 (Jul) considered.
Decision of the Court
of Appeal [2002] 2 All ER 55 reversed.
136
Notes
For the duties of the
Director General of Water Services, and for the right to respect for home and
the right to property, see, respectively 49(2) Halsbury’s Laws
(4th edn reissue), paras 153, 202–230 and 471–476, and 8(2) Halsbury’s Laws
(4th edn reissue) paras 152, 165.
For the Water Industry
Act 1991, see 49 Halsbury’s Statutes (4th edn) (1999 reissue), 355.
For the Human Rights
Act 1998, Sch 1, Pt I, art 8, Pt II, art 1, see 7 Halsbury’s Statutes (4th
edn) (2002 reissue) 555, 556.
Cases referred to in
opinions
A-G v Guardians of the Poor of Union of Dorking (1881) 20 Ch D 595, [1881–5] All ER Rep 320, CA.
Baron v Portslade UDC [1900] 2 QB 588, CA.
Bryan v UK (1996)
21 EHRR 342, [1995] ECHR 19178/91, ECt HR.
Buckley v UK (1997)
23 EHRR 101, [1996] ECHR 20348/92, ECt HR.
Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55, [2001] 4 All ER 737, [2002] 1 AC 321,
[2001] 3 WLR 1007.
Glossop v Heston and Isleworth Local Board (1879) 12 Ch D 102, [1874–80] All ER Rep 836, CA.
Goldman v Hargrave [1966] 2 All ER 989, [1967] 1 AC 645, [1966] 3 WLR 513, PC.
Handyside v UK (1976)
1 EHRR 737, [1976] ECHR 5493/72, ECt HR.
Hatton v UK [2003]
All ER (D) 122 (Jul), ECt HR.
Hesketh v Birmingham Corp [1924] 1 KB 260, [1922] All ER Rep 243, CA.
Holbeck Hall Hotel Ltd v Scarborough BC [2000] 2 All ER 705, [2000] QB 836, [2000] 2 WLR 1396,
CA.
James v UK (1986)
8 EHRR 123, [1986] ECHR 8795/79, ECt HR.
Kingsley v UK (2002)
35 EHRR 177, [2002] ECHR 35605/97, ECt HR.
Leakey v National Trust for Places of Historic Interest
or Natural Beauty [1980] 1 All ER 17,
[1980] QB 485, [1980] 2 WLR 65, CA.
Pasmore v Oswaldtwistle UDC [1898] AC 387, [1895–99] All ER Rep 191, HL.
Pride of Derby and Derbyshire Angling Association Ltd v
British Celanese Ltd [1953] 1 All ER
179, [1953] Ch 149, [1953] 2 WLR 58, CA.
R v Shayler
[2002] UKHL 11, [2002] 2 All ER 477, [2003] 1 AC 247, [2002] 2 WLR 754.
Robinson v Workington Corp [1897] 1 QB 619, CA.
Sedleigh-Denfield v O’Callaghan (Trustees for St Joseph’s Society for Foreign
Missions) [1940] 3 All ER 349, [1940] AC 880, HL.
Smeaton v Ilford Corp [1954] 1 All ER 923, [1954] Ch 450, [1954] 2 WLR 668.
Cases referred to in
list of authorities
Air Canada v UK
(1995) 20 EHRR 150, [1995] ECHR 18465/91, ECt HR.
Allen v Gulf Oil Refining Ltd [1981] 1 All ER 353, [1981] AC 1001, [1981] 2 WLR 188,
HL.
Brown v Stott (Procurator
Fiscal, Dunfermline) [2001] 2 All ER 97, [2003] 1 AC 681, [2001] 2 WLR 817,
PC.
Buckley v UK (1996)
23 EHRR 101, [1996] ECHR 20348/92, ECt HR.
Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 1 All ER 53, [1994] 2 AC 264, [1994] 2 WLR 53,
HL.
Chapman v UK (2001)
10 BHRC 48, ECt HR.
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1.
137
Graham Barclay Oysters v Ryan (2002) 194 ALR 337, Aust HC.
Green v Lord Somerleyton [2003] EWCA Civ 198, [2003] All ER (D) 426 (Feb).
Guzzardi v Italy (1980) 3 EHRR 333, [1980] ECHR 7367/76, ECt HR.
Job Edwards Ltd v Co of Proprietors of the Birmingham
Navigations [1924] 1 KB 341, CA.
Jones (LE)
(Insurance Brokers) Ltd v Portsmouth City Council [2002] EWCA
Civ 1723, [2003] 1 EGLR 99, [2003] 1 WLR 427.
M (a minor)
v Newham London BC, X and ors (minors) v Bedfordshire CC [1994] 4
All ER 602, [1995] 2 AC 633, [1994] 2 WLR 554, CA; affd sub nom X and
ors (minors) v Bedfordshire CC, M (a minor) v
Newham London BC, E (a minor) v Dorset CC [1995] 3 All ER
353, [1995] 2 AC 633, [1995] 3 WLR 152, HL.
Miller v Jackson
[1977] 3 All ER 338, [1977] QB 966, [1977] 3 WLR 20, CA.
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty, The Wagon Mound (No
2) [1966] 2 All ER 709, [1967] AC 617, [1966] 3 WLR 498, PC.
Poplar Housing and Regeneration Community Association
Ltd v Donoghue [2001] EWCA Civ 595,
[2001] 4 All ER 604, [2002] QB 48, [2001] 3 WLR 183.
Powell v UK (1990)
12 EHRR 355, [1990] ECHR 9310/81, ECt HR.
Pyrenees v Day (1998)
192 CLR 375.
R (on the
application of Alconbury Developments Ltd) v Secretary of State for the
Environment, Transport and the Regions [2001] UKHL 23, [2001] 2 All ER 929,
[2001] 2 WLR 1389.
R (on the
application of KB) v Mental Health Review Tribunal, R (on the application
of B) v Mental Health Review Tribunal [2003] EWHC 193 (Admin),
[2003] 2 All ER 209, [2003] 3 WLR 185.
R (on the
application of Medway Council) v Secretary of State for
Transport, Local Government and the Regions [2002] EWHC 2516 (Admin).
R v DPP ex p Kebeline, R v DPP, ex p Rechachi [1999] 4 All ER 801, [2000] 2 AC 326, [1999] 3 WLR 972,
HL.
R v Lichniak, R v Pyrah [2002] UKHL 47, [2002] 4 All ER 1122, [2003] 1 AC 903,
[2002] 3 WLR 1834.
R v Secretary of State for Transport, ex p Factortame
Ltd (No 2) Case
C-213/89) [1991] 1 All ER 70, [1991] 1 AC 603, [1990] 3 WLR 818, ECJ and HL.
Runa Begum v
Tower Hamlets London BC [2003] UKHL 5, [2003] 1 All ER 731, [2003] 2 AC
430, [2003] 2 WLR 388.
S v France (1990)
65 DR 250, E Com HR.
Sporrong v Sweden (1982) 5 EHRR 35, [1982] EHRR 7151/75, ECt HR.
Stovin v Wise
(Norfolk CC, third party) [1996] 3 All ER 801, [1996] AC 923, [1996] 3
WLR 388, HL.
Thompson-Schwab v Costaki [1956] 1 All ER 652, [1956] 1 WLR 335, CA.
Walford v Miles
[1992] 1 All ER 453, [1992] 2 AC 128, [1992] 2 WLR 174, HL.
Appeal
The defendant, Thames Water
Utilities Ltd (Thames Water) appealed, with permission of the Appeal Committee
of the House of Lords, given on 18 July 2002 from the decision of the Court of
Appeal (Lord Phillips of Worth Matravers MR, Aldous and Ward LJJ) on 7 February
2002 ([2002] EWCA Civ 64, [2002] 2 All ER 55, [2002] QB 929) (i) dismissing
Thames Water’s appeal (a) from part of the order of Judge Richard Havery QC
made in the Technology and Construction Court on 14 May 2001 ([2001] 3 All ER
698, [2002] QB 929), whereby he held, on the determination of preliminary
issues, that the failure of Thames Water to execute works necessary to prevent
flooding to the property of the claimant,
138
Peter Marcic, at 92 Old
Church Lane, Stanmore, Middlesex, was in breach of s 6(1) of the Human Rights
Act 1998, and (b) from the judge’s order of 10 July 2001 ([2001] 4 All ER 326,
[2002] QB 1003) that Mr Marcic would be awarded damages for that breach and
(ii) allowing Mr Marcic’s cross-appeal from those parts of the judge’s order on
14 May 2001 which dismissed his claim against Thames Water for nuisance. The facts are set out in the opinion of Lord
Nicholls of Birkenhead.
Stephen Hockman QC and Peter Harrison (instructed by Balogun Kirvan South)
for the claimant.
Jonathan Sumption QC, David Pannick QC and Michael Daiches (instructed by Beale
& Co as agents for Simon Byrne, Thames Water Utilities) for the
defendant.
Their Lordships took
time for consideration.
4 December 2003. The following opinions were delivered.
LORD NICHOLLS OF
BIRKENHEAD.
[1] My Lords, this appeal concerns flooding of a
particularly unpleasant kind: from foul water sewers as well as surface water
sewers. Sewer flooding is a nationwide
environmental problem, arising largely from the building of ever more houses to
meet the housing demand. Sewers and
drains, sufficient when laid in the nineteenth century or later, are no longer
adequate to cope with the volume of surface water entering the public drainage
system in times of heavy rainfall.
Overloaded surface water sewers spill into the foul water sewers. As a result, all too often water and
untreated sewage overflow at the lower levels of the drainage system, causing
misery for the people living there.
[2] The risk of this happening has been reduced over the
last ten years, but many thousands of people, with varying degrees of
frequency, still suffer in this way.
Currently 6,000 properties in England and Wales suffer internal sewer
flooding each year. The water floods
into the houses and buildings. Half
these incidents arise from ‘one-off’ causes such as blocked or collapsed sewers
or pumping station failures. The other
half arise from overloaded sewers. The
flow of water is greater than the sewer’s hydraulic capacity. But the number of properties affected by this
problem is not confined to 6,000. The
properties flooded are not the same every year.
Currently about 15,000 properties are at risk of internal sewer flooding
at least once every ten years. Many
properties are at risk in this way twice or more in ten years.
[3] Additionally, the limited information available
suggests that between 15,000 and 20,000 properties are affected by external
sewer flooding. External flooding
affects gardens, driveways and yards, but does not permeate into the houses or
buildings themselves.
THE FLOODING IN OLD
CHURCH LANE
[4] Mr Peter Marcic is one person who has endured serious
and repeated external sewer flooding arising from overloaded sewers. He lives at Stanmore. He owns and occupies 92 Old Church Lane as
his home. This is a substantial family
house with front and rear gardens. Mr
Marcic has lived there for over 20 years and is now in his mid-60s.
[5] The house is served by two public sewers passing under
Old Church Lane, one for surface water, the other for foul water. They are part of the public
139
sewerage system for
draining the London Borough of Harrow.
When laid, probably in the 1930s, the surface water sewer was
constructed to the standard then generally accepted and its capacity was
sufficient to meet any usage which could reasonably be anticipated. Because of subsequent housing development in
the area, for some years now whenever there is heavy rain the surface water sewer
in Old Church Lane becomes overloaded as a result of the volume of water
entering surface water sewers higher up the catchment area.
[6] When this occurs Mr Marcic’s house, which is at the low
point of the drainage system, suffers badly.
From June 1992 his property has been regularly and seriously affected by
flooding of surface water and also by back flow of foul water from the two
sewers in Old Church Lane. There were
two such incidents in 1992, one in each year from 1993 to 1996, two in 1997,
none in 1998, four in 1999 and four or five in 2000. When these incidents occur the surface water
sewer in Old Church Lane becomes so full that effluent overflows through
gullies and onto Mr Marcic’s property.
Surface water also enters the public foul water sewer under Old Church
Lane. So it too becomes overloaded,
causing effluent to flow back into Mr Marcic’s property through the drain
connecting his house to the public sewer in the lane. Initially, in 1992, it took half an hour of
heavy rainfall to bring about one of these flooding incidents. But the position deteriorated. By 2001, 15 minutes of heavy rain or some
hours of steady drizzle were sufficient.
[7] When these flooding incidents occur the water reaches
the brick walls of Mr Marcic’s house, above as well as below the level of the
damp course, often rising to within an inch of the level of the front door
threshold. The house is affected by damp
and subsidence and may have been damaged structurally. Mr Marcic constructed his own flood defence
system in his front garden, at a cost of £16,000. To an extent this alleviated the damage. It is these works alone which prevented
floodwater from entering his home. But
the only effective solution is enlarging or extending the existing public
sewerage system. New public surface
water sewers are needed to provide additional capacity to cope with heavy
rainfall.
[8] Mr Marcic complained to his local authority in June
1992. Thereafter, despite repeated
efforts by him to get something done, no steps were taken to remedy the
underlying cause. The history is
summarised by Judge Richard Havery QC: [2001] 3 All ER 698 at [12]–[16], [2002]
QB 929 at [12]–[16]. Mr Marcic started
these court proceedings in May 1998. The
defendant, Thames Water Utilities plc, is the statutory sewerage undertaker for
the area which includes Old Church Lane.
Mr Marcic sought an injunction restraining Thames Water from permitting
the use of its sewerage system in such a way as to cause flooding to 92 Old
Church Lane, a mandatory order compelling Thames Water to improve the sewerage
system, and damages.
[9] Thames Water operates its sewerage system under
statutory powers and subject to statutory duties. In these proceedings, for a reason which will
become apparent, Mr Marcic has not sought to rely directly on any alleged contraventions
by Thames Water of its statutory obligations.
Instead Mr Marcic asserts: (1) a common law claim in nuisance; and (2) a
claim under the Human Rights Act 1998 that Thames Water as a public authority
has acted incompatibly with his rights under art 8 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in
Sch 1 to the 1998 Act) (respect for family life and home) and art 1 of the
First Protocol (protection of property).
At a trial of preliminary issues Judge Richard Havery QC, sitting in the
Technology and Construction Court, rejected the former claim and others (not
now pursued)
140
but upheld the
latter. On appeal the Court of Appeal,
comprising Lord Phillips of Worth Matravers MR, Aldous and Ward LJJ, found in
favour of Mr Marcic on both claims (1) and (2): [2002] EWCA Civ 64, [2002] 2
All ER 55, [2002] QB 929. Thames Water
has appealed against that decision.
THE STATUTORY SCHEME
[10] The starting point for any consideration of Thames
Water’s obligations and liabilities must be the statutory scheme under which it
operates the sewers in question. Sewage
disposal and drainage have been the subject of statutory regulation for 500
years. The first public general Act was
the Statute of Sewers 1531. But the
systematic construction of extensive networks of public sewers dates largely
from the middle of the nineteenth century and was the responsibility of public
water undertakers. Until comparatively
recently public water undertakers were usually local authorities. The Water Act 1989 provided for the transfer
of most of the statutory functions of the existing public water authorities to
privatised water and sewage undertakers.
These were regulated commercial companies, having broadly the same statutory
powers and duties as the authorities they replaced.
[11] The current legislation comprises the Water Industry
Act 1991. This statute consolidated the
relevant provisions of the Water Act 1989.
The 1991 Act sets out the powers and duties of both water undertakers
and sewerage undertakers. The exercise
of these functions is subject to supervision and control by the Director
General of Water Services. Thames Water
is a commercial company carrying on business as a public sewerage undertaker
within this statutory framework. It is
one of ten appointed sewerage undertakers.
Its appointed area is huge, extending from Cirencester to Brentwood and
from Banbury to Crawley. It is
responsible for 80,000 km of public sewers of varying sizes, serving 5·4 million
connected properties and a population of 12 m.
[12] The 1991 Act is extensive and I shall mention only the
provisions of direct relevance to the issues arising in these proceedings. Part I of the Act makes provision for the
office of Director General of Water Services.
He is appointed by the Secretary of State. Section 2 imposes on the Secretary of State
and on the Director, to use the statutory abbreviation of his title, wide-ranging
duties of a general character regarding the water industry. In short, the Director is the regulator of
the water industry in England and Wales.
He is required to exercise and perform his statutory powers and duties
in the manner he considers best calculated to secure that the functions of a
water undertaker and a sewerage undertaker are properly carried out. This duty includes ensuring that companies
appointed as sewerage undertakers are able, by securing reasonable returns on
their capital, to finance the proper carrying out of their functions. Commercial companies cannot be expected to
take up appointments as sewerage undertakers unless there is a prospect of
obtaining a reasonable rate of return on their invested capital. The Director is also required to protect the
interests of customers of sewerage undertakers in respect of sewerage
undertakers’ drainage charges and in other respects.
[13] Sections 18–22 of the Act make provision for
enforcement orders. Enforcement orders
are a means by which the Secretary of State and the Director enforce the
obligations of a sewerage undertaker.
These provisions are of central importance in the present case. So far as the present case is concerned their
effect is as follows. Where the Director
is satisfied that a sewerage undertaker is contravening a statutory requirement
enforceable under s 18 he ‘shall’ by a final
141
enforcement order make
requisite provision for the purpose of securing compliance with that
requirement: see s 18(1). In certain
circumstances, instead of taking steps towards making a final enforcement order,
the Director has power to make a provisional enforcement order: see s 18(2),
(3). A company is required to comply
with an enforcement order, whether final or provisional: see s 18(5).
[14] Where contravention of a statutory requirement is
enforceable under s 18, s 18(8) limits the availability of other remedies:
‘Where any act or omission constitutes a contravention of … a statutory
or other requirement enforceable under this section, the only remedies for that
contravention, apart from those available by virtue of this section, shall be
those for which express provision is made by or under any enactment and those
that are available in respect of that act or omission otherwise than by virtue
of its constituting such a contravention.’
[15] The Director is not required to make an enforcement
order if satisfied that the contravention is trivial, or that the company has
given and is complying with an appropriate undertaking, or that the duties
imposed on him by Pt I of the Act preclude the making of the order: see s
19. This last exception would cover a
case where the Director considers that making an order would be incompatible
with the policy objectives mentioned in s 2, such as securing that an
undertaker is able, by securing a reasonable return on its capital, to finance
the proper discharge of its functions.
The Director is required to give notice if he proposes to make a final
enforcement order or confirm a provisional enforcement order: see s 20. The notice must be served on the company and
also published. The Director must
consider any representations or objections made to him.
[16] Thus, a contravention of a statutory requirement to
which s 18 applies does not necessarily result in an enforcement order. The sewerage undertaker may put matters right
pursuant to an undertaking. Or other
considerations, to which the Director is obliged to have regard, may be
inconsistent with him making an enforcement order and thereby compelling the
undertaker to rectify the breach.
[17] Section 22 contains important provisions regarding the
effect of an enforcement order. A
company’s obligation to comply with an enforcement order, whether final or
provisional, is ‘a duty owed to any person who may be affected by a contravention
of the order’. A breach of this duty
causing loss or damage to the person to whom the duty is owed is actionable at
the suit of that person. In any ensuing
court proceedings the company has a ‘due diligence’ defence. An enforcement order is also enforceable by
civil proceedings brought by the Director for an injunction or other
appropriate relief.
[18] Part IV of the Act is concerned with sewerage
services. Section 94 sets out the
principal general duty of every sewerage undertaker: to ensure its area is
properly drained. To this end the
undertaker must provide an appropriate system of sewers:
‘(1) It shall be the duty of every sewerage undertaker—(a) to provide,
improve and extend such a system of public sewers (whether inside its area or
elsewhere) and so to cleanse and maintain those sewers as to ensure that that
area is and continues to be effectually drained …’
[19] On its face this duty is of an absolute character. This is not to say that ‘effectually drained’
sets an absolute standard. Flood water
lying on a water meadow, for instance, is not of itself an indication that an
area is not being
142
properly drained. Effectual drainage is a question of
degree. There will always be flooding
caused by exceptional weather. Current
sewerage systems are generally designed to cope with storms which may be
expected to occur once in 30 years. The
cost of improving systems beyond this, so as to cope with rarer events, would
be excessive.
[20] A freak event of this sort is not the explanation for
the flooding in the present case. No one
could suppose that external sewer flooding of residential property of the
character and frequency suffered by Mr Marcic in recent years is compatible
with Old Church Lane being effectually drained.
Mr Marcic’s difficulty on this point lies elsewhere.
[21] Mr Marcic’s difficulty is this. Section 94(4) provides, so far as relevant,
that a sewerage undertaker’s duty to provide an adequate system of public
sewers under s 94(1) is enforceable by the Director under s 18, in accordance
with a general authorisation given by the Secretary of State. Hence, as provided in s 18, the remedy in
respect of a contravention of the sewerage undertaker’s general drainage
obligation lies solely in the enforcement procedure set out in s 18. Thus, a person who sustains loss or damage as
a result of a sewerage undertaker’s contravention of his general duty under s
94 has no direct remedy in respect of the contravention. A person in the position of Mr Marcic can
bring proceedings against a sewerage undertaker in respect of its failure to
comply with an enforcement order if such an order has been made. In the absence of an enforcement order his
only legal remedy is, where appropriate, to pursue judicial review proceedings
against the Director or the Secretary of State, who has similar enforcement
functions regarding s 94, in respect of any alleged failure by the Director or
the Secretary of State to make an enforcement order as required by s 18(1).
[22] In the present case no enforcement order has been made
against Thames Water in respect of the inadequate drainage of Mr Marcic’s
property. Nor has Mr Marcic advanced a
complaint that by not making such an order the Director is in dereliction of
his duty under s 18. Indeed, Mr Marcic
seems to have made no complaint of any sort to the Director, although his
opportunities in this regard were drawn to his solicitors’ attention early in
1998. Rather, in advancing claims based
on common law nuisance and under the 1998 Act, Mr Marcic seeks to sidestep the
statutory enforcement code. He asserts
claims not derived from s 94 of the 1991 Act.
Since the claims asserted by him do not derive from a statutory
requirement, s 18(8) does not rule them out even though the impugned conduct,
namely, failure to drain the district properly, is on its face a contravention
of Thames Water’s general statutory duty under s 94. The closing words of s 18(8) expressly
preserve remedies for any causes of action which are available in respect of an
act or omission otherwise than by virtue of its being a contravention of a
statutory requirement enforceable under s 18.
PROVIDING MORE SEWERS
[23] The House has had the advantage of receiving written
submissions from the Director on the financial implications of carrying out
remedial work. The cost per property of
removing the risk of sewer flooding varies widely, from as little as £5,000 to
more than £200,000, depending on the scale and nature of the necessary
work. On average the cost per property
is between £50,000 and £70,000. The
trial judge found that the cost of alleviating the flooding problems of all
customers in Thames Water’s area who are in a similar position to Mr Marcic or
whose properties are at risk of internal sewer flooding at least once
143
every ten years would
be £1bn. That estimate takes no account
of future house building. The trial
judge also found that under the prevailing system of priorities there was no
prospect of any work being carried out in the foreseeable future to prevent
flooding of Mr Marcic’s property.
[24] Sewerage undertakers receive no subsidy from public
funds for works of this nature. The cost
has to be met out of money received from customers by way of sewerage
charges. But sewerage undertakers are
not at liberty to fix the amount of sewerage charges at whatever amount they
wish. The Director sets limits on these
charges. Sewerage charges in respect of
dwellings are the subject of charges schemes which require the approval of the
Director: see ss 142 and 143(6). In
setting the limits on charges the Director proceeds on the basis that companies
are expected to maintain current service levels. They are expected to ensure that, subject to
annual variations in the weather, there is no increase in the number of
properties at risk of internal sewer flooding and no increase in the number of
actual incidents. Additionally the
Director makes allowance for the cost of defined improvements. The current price limits, for the five-year
period commencing 1 April 2000, included provision for reducing within that
period the number of properties at risk of internal sewer flooding from
overloaded sewers. The planned reduction
for the industry as a whole was 3,500 properties and for Thames Water 1,500
properties. No separate allowance was
made for reducing the number of properties at risk of external sewer flooding.
[25] In fixing charging limits the Director balances the
need to alleviate sewer flooding, the cost of doing so and the consequent
increase in sewerage charges. He also
has to take into account further needs such as the need for investment to meet
other environmental standards set by the government, often pursuant to EU
directives, and the need to maintain the sewerage infrastructure as a
whole. It seems that in the past a
cautious approach has been adopted by the Director, partly because of the lack
of reliable information about the scale of the sewer flooding problem and the
cost of dealing with it.
[26] Prompted by the widespread floods of October 2000 the
Director carried out further studies. For some time Thames Water and other
sewerage undertakers, together with customer representatives, had been anxious
to speed up the sewer flooding relief programme. Customer representatives were concerned that
some customers faced repeated flooding.
The sewerage undertakers said that current price limits prevented them
from meeting customers’ expectations. In
March 2002 the Director issued a consultation paper Flooding from Sewers—a
Way Forward proposing that sewerage companies should deal more speedily
with the more serious sewer flooding problems.
In future they should include severe external flooding cases in their
investment programmes. By March 2002 the
Court of Appeal had given judgment in the present case. The consultation paper commented (para 2.9):
‘Mr Marcic did not bring his case to Ofwat [the Office of Water
Services]. Although the flooding was
solely external, it was repeated and extreme.
To this extent, the Court of Appeal’s judgement that Thames Water could
have done more to resolve the problem is consistent with the approach to
priorities proposed in this paper.’
THE WORK IS DONE
[27] In March 2002 Thames Water agreed with the Director
that it would carry out further works at once.
These works would free an additional
144
250 properties from the
risk of internal sewer flooding and 250 other properties from frequent external
flooding. For his part the Director
would take into account the cost of these works, totalling £27m, when fixing
sewerage charges for the period 2005–2010.
Thames Water then selected the schemes to which to apply this additional
funding. The company used criteria,
approved by the Director, based on the severity and frequency of the risk of
flooding. One of the selected schemes
related to Old Church Lane, Stanmore.
This scheme would alleviate sewer flooding to ten properties, seven
suffering from the risk of internal sewer flooding and three from the risk of
external flooding. Mr Marcic’s property
was one of these. Work on this scheme
began in April 2003 and was completed in late June 2003 at a cost of £731,000.
[28] So, five years after Mr Marcic initiated his court
proceedings the necessary work was done.
As the Director noted in his consultation paper, Mr Marcic’s case ‘has
highlighted the importance of robust and rational prioritisation schemes’: para
5.25. There remains the question whether Mr Marcic can recover damages.
THE CLAIM IN NUISANCE
[29] Problems arising from failure to carry out statutory
drainage obligations are not new.
Section 15 of the Public Health Act 1875 obliged local authorities to
make ‘such sewers as may be needed for effectually draining their
district’. On several occasions the
courts considered what remedies were available for breach of this obligation.
[30] One such case is Robinson v Workington Corp [1897]
1 QB 619, where the facts were strikingly similar to the present case. Mr Robinson’s houses were damaged by water
overflowing from the council’s public sewers.
The sewers were adequate for the district until new houses were
built. Mr Robinson claimed damages in
respect of the council’s failure to build a new sewer of sufficient dimensions
to carry off the increased volume of sewage.
The Court of Appeal dismissed the claim, following earlier cases such as
Glossop v Heston and Isleworth Local Board (1879) 12 Ch D 102, [1874–80]
All ER Rep 836. The 1875 Act expressly
provided a mechanism for enforcing performance of the statutory drainage
obligation. Thus the question of what
remedy was available for breach of the drainage obligation was a question of
interpretation of the statute. Section
299 of the 1875 Act provided that in cases of default the local government
board should make an appropriate order which, if not complied with, was
enforceable by a writ of mandamus. Was
this intended by Parliament to be the only remedy for breach of the drainage
obligation? Lord Esher MR said (at 621):
‘It has been laid down for many years that, if a duty is imposed by
statute which but for the statute would not exist, and a remedy for default or
breach of that duty is provided by the statute that creates the duty, that is
the only remedy. The remedy in this case
is under s. 299, which points directly to s. 15, and shews what is to be done
for default of the duty imposed by that section. That is not the remedy sought for in this
action, which is brought to recover damages.’
[31] The existence of this general principle of statutory
interpretation, and the correctness of this application of the principle to the
1875 Act, were confirmed by your Lordships’ House in Pasmore v Oswaldtwistle
UDC [1898] AC 387, [1895–99] All ER Rep 191. The courts have consistently followed this
view of the law in relation to the 1875 Act and in relation to the Public
Health Act 1936: see, for
145
instance, Hesketh v
Birmingham Corp [1924] 1 KB 260, [1922] All ER Rep 243 and Smeaton v
Ilford Corp [1954] 1 All ER 923, [1954] Ch 450. In both these cases the court expressly
rejected a claim for nuisance: see Scrutton LJ in the Birmingham case
([1924] 1 KB 260 at 271–272, [1922] All ER Rep 243 at 249) and Upjohn J in the
Ilford case ([1954] 1 All ER 923 at 927–928, [1954] Ch 450 at 463).
[32] In the present case the Court of Appeal felt able to
reach a different conclusion on the scope of the remedies available to Mr
Marcic. They held that the Glossop
line of cases, if and in so far as they dealt with claims in nuisance, cannot
survive recent developments in the common law of nuisance. The old distinction between misfeasance and
non-feasance no longer rules the day. Goldman
v Hargrave [1966] 2 All ER 989, [1967] 1 AC 645 and Leakey v National
Trust for Places of Historic Interest or Natural Beauty [1980] 1 All ER 17,
[1980] QB 485, building on the decision in the leading case of
Sedleigh-Denfield v O’Callaghan (Trustees for St Joseph’s Society for
Foreign Missions) [1940] 3 All ER 349, [1940] AC 880, establish that
occupation of land carries with it a duty to one’s neighbour. An occupier must do whatever is reasonable in
all the circumstances to prevent hazards on his land, however they may arise,
from causing damage to a neighbour. In
Goldman’s case a redgum tree in Western Australia was struck by lightning
and set on fire. The fire spread to
neighbouring property. In Leakey’s
case natural causes were responsible for soil collapsing onto neighbouring
houses in Bridgwater, Somerset. In both
cases the landowners were held liable to their neighbours for the damage
caused. A similar approach was adopted
regarding loss of support due to a land slip in Holbeck Hall Hotel Ltd v
Scarborough BC [2000] 2 All ER 705, [2000] QB 836, [2000] 2 WLR 1396 and
incursion of tree roots in Delaware Mansions Ltd v Westminster City Council
[2001] UKHL 55, [2001] 4 All ER 737, [2002] 1 AC 321, [2001] 3 WLR 1007. In the present case the Court of Appeal said
([2002] 2 All ER 55 at [83], [2002] QB 929 at [83]):
‘The sewers form part of a system which Thames are operating as a
commercial venture in order to make profits for their shareholders. Thames are in no more favourable position
than a landowner on whose property a hazard accumulates by the act of a
trespasser or of nature. At all material
times Thames have had, or should have had, knowledge of the hazard. If the principles identified in Goldman v
Hargrave [1966] 2 All ER 989, [1967] 1 AC 645 and Leakey’s case [1980]
1 All ER 17, [1980] QB 485 are applied, these facts placed Thames under a duty
to Mr Marcic to take such steps as, in all the circumstances, were reasonable
to prevent the discharge of surface and foul water onto Mr Marcic’s property.’
[33] I must respectfully part company with the Court of
Appeal. The Goldman’s case and
Leakey’s case exemplify the standard of conduct expected today of an
occupier of land towards his neighbour.
But Thames Water is no ordinary occupier of land. The public sewers under Old Church Lane are
vested in Thames Water pursuant to the provisions of s 179 of the 1991 Act, as
a sewerage undertaker. Thames Water’s
obligations regarding these sewers cannot sensibly be considered without regard
to the elaborate statutory scheme of which s 179 is only one part. The common law of nuisance should not impose
on Thames Water obligations inconsistent with the statutory scheme. To do so would run counter to the intention
of Parliament as expressed in the 1991 Act.
[34] In my view the cause of action in nuisance asserted by
Mr Marcic is inconsistent with the statutory scheme. Mr Marcic’s claim is expressed in various
ways but in practical terms it always comes down to this: Thames Water ought
146
to build more
sewers. This is the only way Thames
Water can prevent sewer flooding of Mr Marcic’s property. This is the only way because it is not
suggested that Thames Water failed to operate its existing sewage system
properly by not cleaning or maintaining it.
Nor can Thames Water control the volume of water entering the sewers
under Old Church Lane. Every new house
built has an absolute right to connect.
Thames Water is obliged to accept these connections: see s 106 of the
1991 Act. A sewerage undertaker is
unable to prevent connections being made to the existing system, and the
ingress of water through these connections, even if this risks overloading the
existing sewers. But, so Mr Marcic’s
claim runs, although Thames Water was operating its existing system properly,
and although Thames Water had no control over the volume of water entering the
system, it was within Thames Water’s power to build more sewers, as the company
now has done, to cope with the increased volume of water entering the system. Mr Marcic, it is said, has a cause of action
at law in respect of Thames Water’s failure to construct more sewers before it
eventually did in June 2003.
[35] The difficulty I have with this line of argument is
that it ignores the statutory limitations on the enforcement of sewerage
undertakers’ drainage obligations. Since
sewerage undertakers have no control over the volume of water entering their
sewerage systems it would be surprising if Parliament intended that whenever
sewer flooding occurs, every householder whose property has been affected can
sue the appointed sewerage undertaker for an order that the company build more
sewers or pay damages. On the contrary,
it is abundantly clear that one important purpose of the enforcement scheme in
the 1991 Act is that individual householders should not be able to launch
proceedings in respect of failure to build sufficient sewers. When flooding occurs the first enforcement
step under the statute is that the Director, as the regulator of the industry,
will consider whether to make an enforcement order. He will look at the position of an individual
householder but in the context of the wider considerations spelled out in the
statute. Individual householders may
bring proceedings in respect of inadequate drainage only when the undertaker
has failed to comply with an enforcement order made by the Secretary of State
or the Director. The existence of a
parallel common law right, whereby individual householders who suffer sewer
flooding may themselves bring court proceedings when no enforcement order has
been made, would set at nought the statutory scheme. It would effectively supplant the regulatory
role the Director was intended to discharge when questions of sewer flooding
arise.
[36] For this reason I consider there is no room in this case
for a common law cause of action in nuisance as submitted by Mr Marcic and held
by the Court of Appeal. On this point I
agree with the decision of Judge Richard Havery.
THE CLAIM UNDER THE
HUMAN RIGHTS ACT 1998
[37] I turn to Mr Marcic’s claim under the 1998 Act. His claim is that as a public authority
within the meaning of s 6 of the 1998 Act Thames Water has acted
unlawfully. Thames Water has conducted
itself in a way which is incompatible with Mr Marcic’s convention rights under
art 8 of the convention and art 1 of the First Protocol to the convention. His submission was to the following
effect. The flooding of Mr Marcic’s
property falls within the first paragraph of art 8 and also within art 1 of the
First Protocol. That was common ground
between the parties. Direct and serious
interference of this nature with a person’s home is prima facie a violation of
a person’s right to respect for his
147
private and family life
(art 8) and of his entitlement to the peaceful enjoyment of his possessions
(art 1 of the First Protocol). The
burden of justifying this interference rests on Thames Water. At the trial of the preliminary issues Thames
Water failed to discharge this burden.
The trial judge found that the system of priorities used by Thames Water
in deciding whether to carry out flood alleviation works might be entirely
fair. The judge also said that on the
limited evidence before him it was not possible to decide this issue, or to
decide whether for all its apparent faults the system fell within the wide
margin of discretion open to Thames Water and the Director: [2001] 3 All ER 698
at [102].
[38] To my mind the fatal weakness in this submission is the
same as that afflicting Mr Marcic’s claim in nuisance: it does not take
sufficient account of the statutory scheme under which Thames Water is
operating the offending sewers. The need
to adopt some system of priorities for building more sewers is
self-evident. So is the need for the
system to be fair. A fair system of
priorities necessarily involves balancing many intangible factors. Whether the system adopted by a sewerage
undertaker is fair is a matter inherently more suited for decision by the
industry regulator than by a court. And
the statutory scheme so provides.
Moreover, the statutory scheme provides a remedy where a system of
priorities is not fair. An unfair system
of priorities means that a sewerage undertaker is not properly discharging its
statutory drainage obligation so far as those who are being treated unfairly
are concerned. The statute provides what
should happen in these circumstances.
The Director is charged with deciding whether to make an enforcement
order in respect of a sewerage undertaker’s failure to drain property
properly. Parliament entrusted this
decision to the Director, not the courts.
[39] What happens in practice accords with this statutory
scheme. When people affected by sewer
flooding complain to the Director he considers whether he should require the
sewerage undertaker to take remedial action.
Before doing so he considers, among other matters, the severity and
history of the problem in the context of that undertaker’s sewer flooding
relief programme, as allowed for in its current price limits. In many cases the company agrees to take
action, but sometimes he accept thats a solution is not possible in the short
term.
[40] So the claim based on the 1998 Act raises a broader
issue: is the statutory scheme as a whole, of which this enforcement procedure
is part, convention-compliant? Stated more specifically and at the risk of
over-simplification, is the statutory scheme unreasonable in its impact on Mr
Marcic and other householders whose properties are periodically subjected to
sewer flooding?
[41] The recent decision of the European Court of Human
Rights, sitting as a Grand Chamber, in Hatton v UK [2003] All ER (D) 122
(Jul) confirms how courts should approach questions such as these. In Hatton’s case the applicants lived
near Heathrow airport. They claimed that
the government’s policy on night flights at Heathrow violated their rights
under art 8. The court emphasised ‘the
fundamentally subsidiary nature’ of the convention. National authorities have ‘direct democratic
legitimation’ and are in principle better placed than an international court to
evaluate local needs and conditions. In
matters of general policy, on which opinions within a democratic society may
reasonably differ widely, ‘the role of the domestic policy maker should be
given special weight’. A fair balance
must be struck between the interests of the individual and of the community as
a whole.
148
[42] In the present case the interests Parliament had to
balance included, on the one hand, the interests of customers of a company
whose properties are prone to sewer flooding and, on the other hand, all the
other customers of the company whose properties are drained through the
company’s sewers. The interests of the
first group conflict with the interests of the company’s customers as a whole
in that only a minority of customers suffer sewer flooding but the company’s
customers as a whole meet the cost of building more sewers. As already noted, the balance struck by the
statutory scheme is to impose a general drainage obligation on a sewerage
undertaker but to entrust enforcement of this obligation to an independent
regulator who has regard to all the different interests involved. Decisions of the Director are of course
subject to an appropriately penetrating degree of judicial review by the
courts.
[43] In principle this scheme seems to me to strike a
reasonable balance. Parliament acted
well within its bounds as policy maker.
In Mr Marcic’s case matters plainly went awry. It cannot be acceptable that in 2001, several
years after Thames Water knew of Mr Marcic’s serious problems, there was still
no prospect of the necessary work being carried out for the foreseeable
future. At times Thames Water handled Mr
Marcic’s complaint in a tardy and insensitive fashion. But the malfunctioning of the statutory
scheme on this occasion does not cast doubt on its overall fairness as a
scheme. A complaint by an individual
about his particular case can, and should, be pursued with the Director
pursuant to the statutory scheme, with the long stop availability of judicial
review. That remedial avenue was not
taken in this case.
[44] I must add that one aspect of the statutory scheme as
presently administered does cause concern.
This is the uncertain position regarding payment of compensation to
those who suffer flooding while waiting for flood alleviation works to be
carried out. A modest statutory
compensation scheme exists regarding internal flooding: see para 7B of the
Water Supply and Sewerage Services (Customer Service Standards) Regulations
1989, SI 1989/1159, as amended by SI 1993/500 and SI 2000/2301. There seems to be no statutory provision
regarding external sewer flooding. Some
sewerage undertakers make payments, others do not. They all provide a free clean up and
disinfecting service, including removal of residual effluent.
[45] It seems to me that, in principle, if it is not
practicable for reasons of expense to carry out remedial works for the time
being, those who enjoy the benefit of effective drainage should bear the cost
of paying some compensation to those whose properties are situate lower down in
the catchment area and, in consequence, have to endure intolerable sewer
flooding, whether internal or external.
As the Court of Appeal noted, the flooding is the consequence of the
benefit provided to those making use of the system: [2002] 2 All ER 55 at
[114], [2002] QB 929 at [113]. The
minority who suffer damage and disturbance as a consequence of the inadequacy
of the sewerage system ought not to be required to bear an unreasonable burden. This is a matter the Director and others should
reconsider in the light of the facts in the present case.
[46] For these reasons I consider the claim under the 1998
Act is ill-founded. The scheme set up by
the 1991 Act is convention-compliant.
The scheme provides a remedy for persons in Mr Marcic’s unhappy
position, but Mr Marcic chose not to avail himself of this remedy.
[47] Accordingly this appeal should be allowed. Save as to costs, the order of the Court of
Appeal should be set aside and the order of the trial judge varied so as to
answer all the preliminary issues in the negative. As to costs, the House gave
149
leave to Thames Water
to appeal on terms that the existing costs orders in the courts below remain
undisturbed and that Thames Water pay Mr Marcic’s costs in the House in any
event.
LORD STEYN.
[48] My Lords, I have read the opinions of my noble and
learned friends, Lord Nicholls of Birkenhead and Lord Hoffmann. For the reasons they have given I too would
allow this appeal.
LORD HOFFMANN.
[49] My Lords, Thames Water Utilities Ltd (Thames Water) is
a statutory sewerage undertaker. Mr
Marcic has a house in Stanmore, within the area for which Thames is
responsible. Since 1992 Mr Marcic’s
garden has suffered periodic flooding.
The reason for the flooding is that the sewers in his street are
overloaded. At the time they were laid,
the surface and foul water sewers were adequate. But many more houses have
since been built. Each has the right to
connect itself to the existing sewers: see s 106 of the Water Industry Act
1991. The result of the overload is that
in heavy rain the surface water sewer becomes so full that the water overflows
through the gullies into Mr Marcic’s low-lying garden. Still worse, the surface water enters the
foul sewer and causes sewage to flow back onto his property through his foul
drain. Since 1992 the garden has been
regularly flooded. Only Mr Marcic’s private flood defence system, constructed
at a cost of some £16,000, has prevented the water from entering the house.
[50] Thames has a statutory duty, under s 94(1) of the 1991
Act:
‘(a) to provide, improve and extend such a system of public sewers
(whether inside its area or elsewhere) and so to cleanse and maintain those
sewers as to ensure that that area is and continues to be effectually drained;
and (b) to make provision for the emptying of those sewers and such further
provision (whether inside its area or elsewhere) as is necessary from time to
time for effectually dealing, by means of sewage disposal works or otherwise,
with the contents of those sewers.’
[51] Mr Marcic, however, has not attempted to enforce this
duty. The reason is that Ch II of the
1991 Act contains an exclusive code for the enforcement of, among others, the
duty under s 94(1). Putting it shortly,
the only person who can in the first instance enforce the duty is the Director
General of Water Services: see s 18. He
may make an ‘enforcement order’, provisional or final, for the purpose of
securing compliance. If an enforcement
order is made, a failure to comply with the order is actionable at the suit of
members of the public who thereby sustain loss or damage: see s 22(1) and
(2). Section 18(8) makes it clear that
the statutory remedies are the only remedies available for an act or omission which
constitutes a contravention of duties enforceable under s 18. So all that Mr Marcic could do by way of
enforcement of the s 94(1) duty was to make a complaint to the Director, in
which case it would be the duty of the Director to consider the complaint and
take such steps, if any, as he thought appropriate: see s 30.
[52] Mr Marcic chose not the avail himself of this
route. Instead, he issued a writ
claiming an injunction and damages for nuisance. Section 18(8) does not exclude any remedies
‘available in respect of [an] act or omission otherwise than by virtue of …
constituting … a contravention [of a duty enforceable under s 18]’.
150
It follows that if the
failure to improve the sewers to meet the increased demand gives rise to a
cause of action at common law, it is not excluded by the statute. The question is whether there is such a cause
of action.
[53] The flooding has not been due to any failure on the
part of Thames to clean and maintain the existing sewers. Nor are they responsible for the increased
use. They have, as I have said, a
statutory duty to accept whatever water and sewage the owners of property in
their area choose to discharge. The
omission relied upon by Mr Marcic as giving rise to an actionable nuisance is
their failure to construct new sewers with a greater capacity.
[54] Until the decision of the Court of Appeal in this case,
there was a line of authority which laid down that the failure of a sewage
authority to construct new sewers did not constitute an actionable
nuisance. The only remedy was by way of
enforcement of the statutory duty now contained in s 94(1) of the 1991 Act,
previously contained in s 14 of the Public Health Act 1936 and before that in s
15 of the Public Health Act 1875. The
earlier acts also had a special procedure for enforcement which the courts held
to be exhaustive: see Robinson v Workington Corp [1897] 1 QB 619. The existence of this procedure for the
enforcement of statutory duties did not (any more than s 18(8) of the 1991 Act)
exclude common law remedies for common law torts, such as a nuisance arising
from failure to keep a sewer properly cleaned: see Baron v Portslade UDC
[1900] 2 QB 588. But the courts
consistently held that failure to construct new sewers was not such a nuisance.
[55] The principal authorities for this last proposition
were three cases in the late nineteenth century: Glossop v Heston and
Isleworth Local Board (1879) 12 Ch D 102, [1874–80] All ER Rep 836, A-G
v Guardians of the Poor of Union of Dorking (1881) 20 Ch D 595, [1881–5]
All ER Rep 320 and Robinson’s case, to which I have already referred, to
which may be added Hesketh v Birmingham Corp [1924] 1 KB 260, [1922] All
ER Rep 243 which followed Robinson’s case. It is not necessary to examine them in detail
because their effect was summed up with customary lucidity by Denning LJ in
Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd
[1953] 1 All ER 179, [1953] Ch 149. This
was an action for nuisance against a local authority for discharging
insufficiently treated effluent into the river Derwent. Denning LJ said ([1953] 1 All ER 179 at 203,
[1953] Ch 149 at 190) that the plaintiffs—
‘have a perfectly good cause of action for nuisance if they can show
that the defendants created or continued the cause of the trouble, and it must
be remembered that a person may “continue” a nuisance by adopting it, or in
some circumstances by omitting to remedy it: see (Sedleigh-Denfield v
O’Callaghan (Trustees for St Joseph’s Society for Foreign Missions)
[1940] 3 All ER 349, [1940] AC 880).
This liability for nuisance has been applied in the past to sewage and
drainage cases in this way. When a local
authority take over or construct a sewage and drainage system which is adequate
at the time to dispose of the sewage and surface water for their district, but
which subsequently becomes inadequate owing to increased building which they
cannot control, and for which they have no responsibility, they are not guilty
of the ensuing nuisance. They obviously
do not create it, nor do they continue it merely by doing nothing to enlarge or
improve the system. The only remedy of
the injured party is to complain to the Minister [of Health, under the 1936 Act
enforcement procedure].’
151
[56] This statement of law was followed a year later by
Upjohn J in Smeaton v Ilford Corp [1954] 1 All ER 923, [1954] Ch 450, in
which overloading caused the corporation’s foul sewer to erupt through a
manhole and discharge ‘deleterious and malodorous matter’ into Mr Smeaton’s
garden. Upjohn J said ([1954] 1 All ER
923 at 928–929, [1954] Ch 450 at 464–465):
‘No doubt, the defendants are bound to provide and maintain the sewers
(see the Public Health Act, 1936, s. 14), but they are not thereby causing or
adopting the nuisance. It is not the
sewers that constitute the nuisance; it is the fact that they are
overloaded. That overloading, however,
arises not from any act of the defendants but because, under the Public Health
Act 1936, s. 34 … they are bound to permit occupiers of premises to make
connections to the sewer and to discharge their sewage therein … Nor, in my
judgment, can the defendant corporation be said to continue the nuisance, for
they have no power to prevent the ingress of sewage into the sewer.’
[57] Mr Marcic can therefore have a cause of action in
nuisance only if these authorities are no longer good law. The Court of Appeal decided that they should
no longer be followed. They said that
the earlier cases had been overtaken by developments in the concept of
‘adopting’ or ‘continuing’ a nuisance which enabled one to say, in appropriate
circumstances, that a sewerage undertaker had a common law duty to lay new
sewers in order to prevent overloaded old ones from flooding neighbouring
properties.
[58] The cases relied upon by the Court of Appeal are those
in which it has been held that a land owner may have a duty to take positive
steps to remove a source of nuisance which he did not himself create. The leading case is of course
Sedleigh-Denfield v O’Callaghan (Trustees for St Joseph’s Society for
Foreign Missions) [1940] 3 All ER 349, [1940] AC 880, in which the
potential source of the nuisance was created by a trespasser. Attempts to distinguish cases in which the
damage arose from natural causes (lightning or natural weathering of rocks and
soil) failed in Goldman v Hargrave [1966] 2 All ER 989, [1967] 1 AC 645
and Leakey v National Trust for Places of Historic Interest or Natural
Beauty [1980] 1 All ER 17, [1980] QB 485.
The present law is that, as Denning LJ said in the Pride of Derby
case by reference to Sedleigh-Denfield’s case, a person may ‘“continue”
a nuisance by adopting it, or in some circumstances by omitting to remedy it …’
[59] The Court of Appeal in the present case took the view
([2002] EWCA Civ 64 at [97], [2002] 2 All ER 55 at [97], [2002] QB 929) that
the four cases upon which Denning LJ based his summary of the law were decided
when ‘the law of nuisance drew a clear distinction between misfeasance and
non-feasance’. I find this statement
surprising when one considers that Denning LJ went to considerable lengths in
the Pride of Derby case to point out that there was no such distinction,
citing (among other cases) Baron v Portslade UDC [1900] 2 QB 588, in
which a local authority had been held liable for omitting to clean a
sewer. The much narrower proposition
which Denning LJ thought was supported by the four cases was that a local
authority does not continue a nuisance emanating from a sewer ‘merely by doing
nothing to enlarge and improve the system’.
In other words, the four cases are not about general principles of the
law of nuisance. They are cases about
sewers.
[60] The Court of Appeal said that since the four cases were
decided, the law of nuisance had been ‘radically extended’ by
Sedleigh-Denfield’s case. This case
was of course cited by Denning LJ, but he does not seem to have thought that it
undermined his statement of the law about the obligations of local authorities
in
152
respect of sewers. Goldman’s case and Leakey’s
case were said to have made a ‘significant extension’ to the law. It is true that they rejected a distinction
between acts of third parties and natural events which Lord Wilberforce said
([1966] 2 All ER 989 at 994, [1967] 1 AC 645 at 661) was ‘well designed to
introduce confusion into the law’ and lacked ‘any logical foundation’. Both cases also discussed in greater detail
the extent of the duty to remedy a potential nuisance. Otherwise, however, they were applications of
the Sedleigh-Denfield principle.
[61] Why should sewers be different? If Sedleigh-Denfield’s case lays down
a general principle that an owner of land has a duty to take reasonable steps
to prevent a nuisance arising from a known source of hazard, even though he did
not himself create it, why should that not require him to construct new sewers
if the court thinks it would have been reasonable to do so?
[62] The difference in my opinion is that
Sedleigh-Denfield’s case, Goldman’s case and Leakey’s
case were dealing with disputes between neighbouring land owners simply in
their capacity as individual landowners.
In such cases it is fair and efficient to impose reciprocal duties upon
each landowner to take whatever steps are reasonable to prevent his land
becoming a source of injury to his neighbour.
Even then, the question of what measures should reasonably have been
taken may not be uncomplicated. As Lord
Wilberforce said in Goldman’s case ([1966] 2 All ER 989 at 996, [1967] 1
AC 645 at 663), the court must (unusually) have regard to the individual
circumstances of the defendant. In
Leakey’s case ([1980] 1 All ER 17 at 37, [1980] QB 485 at 527) Megaw LJ
recoiled from the prospect of a detailed examination of the defendant’s
financial resources and said it should be done ‘on a broad basis’.
[63] Nevertheless, whatever the difficulties, the court in
such cases is performing its usual function of deciding what is reasonable as
between the two parties to the action.
But the exercise becomes very different when one is dealing with the
capital expenditure of a statutory undertaking providing public utilities on a
large scale. The matter is no longer
confined to the parties to the action.
If one customer is given a certain level of services, everyone in the
same circumstances should receive the same level of services. So the effect of a decision about what it
would be reasonable to expect a sewerage undertaker to do for the plaintiff is
extrapolated across the country. This in
turn raises questions of public interest.
Capital expenditure on new sewers has to be financed; interest must be
paid on borrowings and privatised undertakers must earn a reasonable
return. This expenditure can be met only
be charges paid by consumers. Is it in
the public interest that they should have to pay more? And does expenditure on the particular
improvements with which the plaintiff is concerned represent the best order of
priorities?
[64] These are decisions which courts are not equipped to
make in ordinary litigation. It is
therefore not surprising that for more than a century the question of whether
more or better sewers should be constructed has been entrusted by Parliament to
administrators rather than judges. Under
the 1875 Act, the procedure for enforcement of the statutory duty to ‘cause to
be made such sewers as may be necessary for effectually draining their district’
was not very sophisticated. An aggrieved
member of the public could complain to the Local Government Board which, if
satisfied there had been a default, was required to make an order limiting the
time for performance of the duty. If
there was still default, the order could be enforced by mandamus or the board
could do the work itself and charge the local authority with the cost. Under s 322 of the Public Health Act 1936 the
complaint was made to the Minister of Health who had a
153
discretion whether to
order a local inquiry and a power, if satisfied there had been a default, to
make an order requiring the work to be done.
[65] The enforcement procedure under the 1991 Act is much
more elaborate. The Director has a duty
under s 30(4) to consider a complaint and take such steps as he considers
appropriate. He has a prima facie duty
under s 18(1) to make an enforcement order if he satisfied that the company is
contravening its statutory duty. But
that duty is qualified by s 19(1), which provides that he is not required to
make an order if satisfied, among other things, that the company is willing to
give suitable undertakings or that the duties imposed upon him by Pt I of the
Act preclude the making of such an order.
His duties under Pt I require him to exercise his powers in the manner
best calculated to achieve certain objectives.
The overriding objectives (see s 2(2)) are to secure that the functions
of a sewerage undertaker are properly carried out and that the undertakers are
able ‘(in particular, by securing reasonable returns on their capital)’ to
finance the proper carrying out of their functions. More particular objectives are to protect the
interests of customers liable to pay charges and promote economy and efficiency
on the part of the company.
[66] Pursuant to these duties, the Director has addressed
himself to the question of flooding and formulated policies which the statutory
undertakers should follow. Undertakers
are required to submit a quinquennial strategic business plan which includes a
statement of the capital expenditure required to achieve a reasonable level of
alleviation of flooding. If the Director
accepts such expenditure as reasonable, it is taken into account in assessing
the charges which will give the undertaker a reasonable return on capital. Otherwise it is not. During the three quinquennia starting in
1990, the Director was willing to allow expenditure on work in relation to
properties classified as at risk of internal flooding. But no allowance was made for properties,
like that of Mr Marcic, which were only at risk of external flooding.
[67] After the widespread floods of October 2000, the
Director commissioned further studies of the flooding problem. In March 2002 he issued a consultation paper
proposing a policy revision for the 2005–2010 quinquennium by which remedial
work for properties only at risk of external flooding should also be
included. He also made an interim
agreement with Thames by which he approved additional investment before 2005 to
free 250 properties (including that of Mr Marcic) from risk of external
flooding. Your Lordships were told that
this work has been done.
[68] It is plain that the Court of Appeal, in deciding that
better sewers should have been laid to serve Mr Marcic’s property, was in no
position to take into account the wider issues which Parliament requires the
Director to consider. The judge, who
heard fairly detailed evidence about what the cost of such improvements would
be, confessed himself unable to decide whether the priorities laid down by the
Director were fair or not ([2001] 3 All ER 698 at [102], [2002] QB 929 at
[102]):
‘The system of priorities used by the defendant may be entirely fair,
and I have no reason to doubt that it is intended to be. But its fairness in balancing the competing
interests of the defendant’s various customers must depend in part on the
numbers in each class, the total costs involved in relation to each class, and
the resources of the defendant. The answers
to the questions raised above as matters for consideration might depend on the
figures. If the exercise of assessing
the fairness of the system were carried out, it might lead
154
to the conclusion that for all its apparent faults, the system fell
within the wide margin of discretion open to the defendant and the
director. But on the limited evidence
available to me, it is not possible to carry out such an exercise.’
[69] As a result, the judge had to resort to deciding the
matter upon the burden of proof: he said that the burden was upon Thames to
satisfy him that it had done what was reasonable and that it had not done
so. The judge said this in the context
of whether Thames was in breach of its duty under s 6 of the Human Rights Act
1998, having previously decided that there was no cause of action in
nuisance. But the Court of Appeal (at
[87]) treated it as a finding that Thames Water had not taken reasonable steps
to abate the nuisance emanating from its sewers: ‘… Thames failed to persuade the
judge that their system of priorities was a fair one.’
[70] My Lords, I think that this remark, together with the
judge’s frank admission that the fairness of the priorities adopted by Thames
Water was not justiciable, provides the most powerful argument for rejecting
the existence of a common law duty to build new sewers. The 1991 Act makes it even clear than the
earlier legislation that Parliament did not intend the fairness of priorities
to be decided by a judge. It intended
the decision to rest with the Director, subject only to judicial review. It would subvert the scheme of the 1991 Act
if the courts were to impose upon the sewerage undertakers, on a case-by-case
basis, a system of priorities which is different from that which the Director
considers appropriate.
[71] That leaves only the question of whether the remedies
provided under the 1991 Act do not adequately safeguard Mr Marcic’s rights
under the European Convention for the Protection of Human Rights and
Fundamental Freedoms 1950 (as set out in Sch 1 to the 1998 Act) to the privacy
of his home and the protection of his property.
The judge, who found for Mr Marcic on this ground, did not have the
benefit of the decision of the Grand Chamber of the European Court of Human
Rights in Hatton v UK [2003] All ER (D) 122 (Jul). That decision makes it clear that the
convention does not accord absolute protection to property or even to
residential premises. It requires a fair
balance to be struck between the interests of persons whose homes and property
are affected and the interests of other people, such as customers and the
general public. National institutions,
and particularly the national legislature, are accorded a broad discretion in
choosing the solution appropriate to their own society or creating the
machinery for doing so. There is no
reason why Parliament should not entrust such decisions to an independent
regulator such as the Director. He is a
public authority within the meaning of the 1998 Act and has a duty to act in
accordance with convention rights. If
(which there is no reason to suppose) he has exceeded the broad margin of
discretion allowed by the convention, Mr Marcic will have a remedy under s 6 of
the 1998 Act. But that question is not
before your Lordships. His case is that
he has a convention right to have the decision as to whether new sewers should
be constructed made by a court in a private action for nuisance rather than by
the Director in the exercise of his powers under the 1991 Act. In my opinion there is no such right.
[72] I would therefore allow the appeal and dismiss the
action.
155
LORD HOPE OF
CRAIGHEAD.
[73] My Lords, I have had the advantage of reading in draft
the speech of my noble and learned friend Lord Nicholls of Birkenhead. I agree with it, and for the reasons that he
has given I too would allow the appeal.
[74] I should like to add a few words of my own on the
question whether the flooding of Mr Marcic’s property constituted an
infringement of his rights under 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) and art 1 of the First Protocol.
[75] Judge Richard Havery QC recognised that the rights
which are embodied in art 8 of the convention and in art 1 of the First
Protocol are qualified rights: [2001] 3 All ER 698 at [67], [2002] QB 929 at
[67]. He said that the fact that nothing
had been done about the increasingly frequent flooding for nine years other
than the works that Mr Marcic himself had carried out constituted an
infringement by Thames Water Utilities plc (Thames Water) of Mr Marcic’s human
rights which required justification. So
the court had to decide whether a fair balance had been struck between the
competing interests of Mr Marcic and the other customers. He was prepared to accept that the system of
priorities used by Thames Water might have been entirely fair, and he said that
he had no reason to doubt that it was intended to be. He was prepared to accept, too, that if the
exercise of assessing the fairness of the system were to be carried out it
might lead to the conclusion that, for all its apparent faults, the system did
fall within the wide margin of discretion which was open to it and the Director
General of Water Services (the Director).
But he held (at [103]) that, on the limited information available to
him, it was not possible to carry out that exercise, that the burden lay on
Thames Water to establish that the infringement was justified and that it had
failed to do so.
[76] As the Court of Appeal held that Mr Marcic had a valid
claim in nuisance under the common law, Thames’ appeal against the judge’s
finding that it had infringed his convention rights had become academic and
this part of the argument was dealt with only briefly. It was submitted that it was for Parliament
to decide how to secure a fair balance, and that the statutory scheme currently
embodied in the Water Act 1991 had incorporated a mechanism to achieve that
balance which satisfied the requirements of the convention, but the court did
not find this to be in point: [2002] 2 All ER 55 at [109]–[110], [2002] QB 929
at [108]–[109]). It was not persuaded
that the judge was wrong to hold that Thames had infringed Mr Marcic’s
convention rights. The crucial point, so
far as it was concerned, was that Mr Marcic’s claim was not just for breach of
statutory duty. It was for interference
with his human rights as an incident of the performance by Thames of their
statutory duty, and the statutory scheme did not purport to cater for such an
eventuality. The court summed the matter
up ([2002] 2 All ER 55 at [110], [2002] QB 929 at [109]):
‘The reality is that the provisions of s 18 provide a procedure for
striking the necessary balance in the case of those who claim that they are
being denied the benefits that Thames is required to provide to them under the
statute. They provide no answer to a
claim such as Mr Marcic’s.’
[77] In my opinion this approach does not give sufficient
weight to the fact that Parliament has decided that the most appropriate method
of achieving a fair balance between the competing interests of the individual
and the community is by means of a statutory scheme administered by an
independent expert regulator,
156
whose decisions are
subject to judicial review if there is a doubt as to whether the necessary
balance has been struck in the right place.
The role of the director on the one hand, and that of the court in
judicial review on the other, form an important part of the scheme which has
been laid down by the statute. The
opportunity to test how effective this scheme might prove to be in Mr Marcic’s
case was not taken. The judge found that
no approach was made by Mr Marcic or on his behalf to bring his problem to the
attention of the Office of Water Services, although his solicitors were
informed by the Department of the Environment, Transport and the Regions that
customer service committees had been set up by the director to assist him in
his role of protecting customers’ interests and investigating complaints
([2001] 3 All ER 698 at [15], [2002] QB 929 at [15]). So the effectiveness of the scheme must be
considered by examining its content.
[78] The general duty which is laid on every sewerage
undertaker by s 94(1) of the 1991 Act requires it to ensure by its system of
public sewers that the area is and continues to be drained effectually. Everyone in its area has the right to
discharge effluent into the public sewer, subject to consents under the Public
Health (Drainage of Premises) Act 1937 in the case of trade effluent. Provision is made in s 95 for standards of
performance to be prescribed by regulations.
Environmental protection, in the general public interest, is an
important aspect of the services which the undertaker must provide. The provision and operation of a composite
system of public sewers available to all for the drainage of foul water as well
as surface water from their premises has been attributed to the introduction of
the water closet in the nineteenth century: see Chambers Encyclopaedia,
vol 8, Sewage, p 642. In modern
circumstances this is a complex and expensive exercise.
[79] The mechanism which has been laid down in the 1991 Act
to secure the compliance of undertakers with their statutory duties is set out
in ss 18–22. The director presides over
this system. The general duties that are
imposed on him by s 2 of the Act include the duty of exercising and performing
his powers and duties in the manner that he considers best calculated to secure
that the functions of the undertaker are properly carried out. Section 3
provides that environmental requirements must be taken into account when he is
formulating any proposals relating to any of the functions of the undertaker.
[80] Under s 18(1) of the 1991 Act the Director has power by
a final enforcement order to make such provision as he considers necessary to
secure compliance by an undertaker with any condition of its appointment under
the Act or any statutory or other requirement which is enforceable against
it. Section 22(1) declares that the
obligation to comply with an enforcement order shall be a duty owed to any
person who may be affected by a contravention of the order, and any breach of
that duty is actionable at the suit of that person under s 22(2). Section 18(8) provides:
‘Where any act or omission constitutes a contravention of a condition of
an appointment under Chapter I of this Part or of a statutory or other
requirement enforceable under this section, the only remedies for that
contravention, apart from those available by virtue of this section, shall be
those for which express provision is made by or under any enactment and those
that are available in respect of that act or omission otherwise than by virtue
of its constituting such a contravention.’
157
[81] There is, as s 18(8) of the 1991 Act indicates, an area
of possible complaint against the activities of an undertaker that lies outside
the scheme of the statute. The reference
to remedies that are available in respect of an act or omission ‘otherwise than
by virtue of its constituting such a contravention’ preserves the possibility
of making use of another route in order to preserve or protect the interests of
the individual. It is that possibility
that seems to have indicated to the Court of Appeal that the statutory scheme
provides no answer to Mr Marcic’s claim.
There lay its error, in my opinion.
Mr Marcic’s complaint that Thames has acted in breach of his convention
rights cannot be considered in isolation from the scheme which the Act has
provided for the compliance by Thames with the duties that are laid on it as a
sewerage undertaker.
[82] There is no doubt that the situation in which Mr Marcic
found himself was provided for expressly by the statute. The flooding on his land was due to a failure
by the undertaker to provide effectual drainage in his area. The duty to ensure that the area is
effectually drained is enforceable under s 18.
But it is not an absolute duty.
Parliament appreciated that, as the undertaker has no power to control
the volume of effluent that is drained into the system, this would not have
been practicable. The only solution, in
the event of overload into a public sewer of inadequate capacity, is to improve
or extend the system so that there is no overload.
[83] The question which Parliament had to address was how
best to deal with this problem in the public interest, while respecting the
interests of the affected individual. It
did so by means of the statutory scheme, in which the director has a central
role. The fact that decisions of the
director are subject to judicial review provides a further important
safeguard. The European Court of Human
Rights has repeatedly recognised the value which is to be attached to the
process of review by a judicial body that has full jurisdiction and provides
the guarantees which art 6(1) of the convention sets out: see Bryan v UK (1996)
21 EHRR 342 at 360–361 (paras 44 and 46); Kingsley v UK (2002) 35 EHRR
177, para 58; R v Shayler [2002] UKHL 11 at [72], [2002] 2 All ER 477 at
[72], [2003] 1 AC 247.
[84] In Hatton v UK [2003] All ER (D) 122 (Jul), in
the context of a complaint under art 8 about environmental pollution by
aircraft noise resulting from night flights at Heathrow Airport, the Grand
Chamber took the opportunity once again to stress the subsidiary role of the
convention:
‘The national authorities have direct democratic legitimation and are,
as the court has held on many occasions, in principle better placed than an
international court to evaluate local needs and conditions (see, for example, Handyside
v UK (1976) 1 EHRR 737 at 753). In
matters of general policy, on which opinions within a democratic society may
reasonably differ widely, the role of the domestic policy maker should be given
special weight (see James v UK (1986) 8 EHRR 123 at 142 (para 46), where
the court found it natural that the margin of appreciation ‘available to the
legislature in implementing social and economic policies should be a wide
one’).
[85] In Buckley v UK (1997) 23 EHRR 101 at 129 (para
74) the court acknowledged that the scope of the margin of appreciation will
vary according to the context, and that relevant factors include the nature of
the convention right, its importance for the individual and the nature of the
activities concerned. In Hatton v UK,
the court said that, whilst the state is required to give due consideration to
the particular interests the respect for which it is obliged to
158
secure by virtue of art
8, it must in principle be left a choice between different ways and means of
meeting this obligation:
‘The court’s supervisory function being of a subsidiary nature, it is
limited to reviewing whether or not the particular solution adopted can be
regarded as striking a fair balance.’
[86] In his written submission the Director has explained
how account is taken of the liability of water and sewerage companies to make
payments to the victims of flooding when price limits are set by him for each
company in his capacity as economic regulator.
He seeks to strike a balance between the interests of victims of flooding
and those of the company’s customers who have to pay for the additional costs
incurred by the company. His current
practice is to take account of the fact that in the case of internal sewer
flooding, unless exceptional weather was the cause, victims are paid
compensation by the company. Where
properties are affected by external flooding a free clean up service is
provided, but there is no compensation.
The emphasis instead is on remedial measures to prevent further flooding
in the area so far as practicable.
[87] The Court of Appeal said that the system provided no
answer to a claim such as Mr Marcic’s.
That observation implies that it is open to the victim to ignore the
statutory system and, instead of complaining to the regulator, to ask the court
to rule on the question whether compensation is payable. But the context shows that the case of the
victim cannot be separated from the ability of the company to serve the needs
of its customers generally. These are
public sewers, required by law to serve the needs of the public as a whole
within the area. The cost of this
provision must be borne the company’s customers. They have no alternative but to use the
services of the company. Due
consideration must be given to victims.
But a balance has to be struck if the system is to be provided at
reasonable cost. Parliament’s choice was
that it was for the Director to deal with these matters within the statutory
scheme which he administers. The margin
of appreciation that, according to the jurisprudence of the European Court,
must be given in a democratic system to the legislature allows for this. I would hold that, in the result, the scheme
is compatible with Mr Marcic’s convention rights.
LORD SCOTT OF
FOSCOTE.
[88] My Lords, I have had the advantage of reading in
advance the opinions of my noble and learned friends Lord Nicholls of
Birkenhead and Lord Hoffmann. For the
reasons they have given with which I am in full agreement, I too would allow
this appeal and dismiss the action.
Appeal allowed.
KUJUA STYLE TAMU ZA KUMKUNA MSICHANA AKAKUPENDA DAIMA ASIKUSALITI BONYEZA HAPA CHINI
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