OROURKE v the United Kingdom - 39022/97 [2001] ECHR 889 (26 June 2001)

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The European Court of Human Rights, sitting on 26 June 2001 as a Chamber composed of

Mr J.-P. Costa, President,
Mr W. Fuhrmann,
Mr L. Loucaides,
Sir Nicolas Bratza,
Mrs H.S. Greve,
Mr K. Traja,
Mr M. Ugrekhelidze, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 3 December 1997 and registered on 18 December 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

The applicant is a British national, born in 1941 and living in London. He is represented before the Court by Mr A. J. Mullem of Moss Beachley and Mullem, a firm of solicitors practising in London. The respondent Government are represented by their Agent, Mr H. Llewellyn of the Foreign and Commonwealth Office.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant was released from prison in or around February 1991, having served a two year sentence for attempted rape and indecent assault. On 22 February 1991 the applicant applied to Camden London Borough Council (“CLBC”) for accommodation. In response CLBC told him that he did not fall within any of the priority categories as set out in Part III of the Housing Act 1985 (“the 1985 Act”). The applicant made a further approach to CLBC on 28 March 1991, whereupon CLBC agreed to make initial inquiries pursuant to section 62 of the 1985 Act (see below). Since the applicant appeared to have a priority need owing to health problems, CLBC provided him with temporary accommodation in accordance with section 63 of the 1985 Act (see below), in a hotel room. On 24 April 1991, before CLBC had completed its inquiries under section 62, the applicant was evicted from the hotel following complaints about his behaviour there, including allegations of nuisance and assault on female residents. He was advised by CLBC to go to a night shelter pending a decision on permanent housing, but he failed to do so.

The applicant informed CLBC that he wanted permanent accommodation and was thus unwilling to accept anything on a temporary basis. A search for suitable accommodation was conducted by five different District Rehousing Offices. The applicant was offered a tenancy on 7 August 1991, but he refused it as he believed that the majority of the surrounding tenants were aware of his past history and claimed that he had been threatened. In February 1992 all five District Rehousing Offices indicated that they were finding it difficult to find permanent accommodation for the applicant due to his specific housing requirements designed to minimize his exposure to women. In or around March 1992 the applicant refused an offer of permanent bed-sit accommodation because it shared a bathroom and toilet. In June 1992 the applicant decided to accept an offer of temporary accommodation.

The applicant had remained on the streets, to the detriment of his health, since his eviction from the hotel. In particular, the asthmatic condition and chest infection of which the applicant had been suffering when he first contacted CLBC had deteriorated following his eviction, leading Dr A.M. Rehman to advise CLBC in February 1992 that the applicant should be rehoused urgently.

On 13 October 1992 the applicant refused permanent bed-sit accommodation because he said he wanted a one-bedroom flat. On 2 February 1994 he was offered a secure tenancy, which he accepted subject to repairs and decorations being carried out. The applicant’s tenancy commenced on 28 February 1994.

Some time in 1993 the applicant commenced an action for breach of statutory duty and damages against CLBC. On 30 October 1995 his claim was struck out by the Central London County Court as disclosing no cause of action. The applicant appealed to the Court of Appeal which decided, on 13 February 1996, that the aspect of the claim concerning CLBC’s failure to provide alternative accommodation following the applicant’s eviction should not have been struck out.

CLBC then appealed to the House of Lords which, on 12 June 1997, allowed the appeal. In the course of delivering the leading judgment in the House of Lords, Lord Hoffman stated that:

“The question is whether s 63(1) creates a duty to Mr O’Rourke which is actionable in tort. There is no doubt that, like several other provisions in Pt III, it creates a duty which is enforceable by proceedings for judicial review. But whether it gives rise to a cause of action sounding in damages depends upon whether the Act shows a legislative intention to create such a remedy.”

Having considered the relevant domestic legal principles and authorities, Lord Hoffman concluded that:

“Both in principle and on the authority of the actual decision of this House in Cocks v Thanet DC [1982] 3 All ER 1135, (...) I would therefore hold that the breach of statutory duty of which the plaintiff complains gives rise to no cause of action in private law and I would allow the appeal and restore the order of Judge Tibber striking out the action.”

The Housing Act 1985 (“the 1985 Act”) provides in Part III, section 62(1) that, in respect of a person applying to a local authority, if the local authority “have reason to believe that he may be homeless ... they shall make such inquiries as are necessary to satisfy themselves as to whether he is homeless ...”.

Under section 63(1) of the 1985 Act, if the authority “have reason to believe that an applicant may be homeless and has a priority need, they shall secure that accommodation is made available for his occupation pending a decision as a result of their inquiries under section 62”.

Administrative decisions by public authorities are generally challengeable under English law by way of judicial review proceedings under Order 53 of the Rules of the Supreme Court. Such proceedings must generally be brought within three months of the offending decision.

English law recognizes a dichotomy between public authorities’ public and private law functions. In the leading case of O’Reilly v. Mackman [1983] 2 AC 237, Lord Diplock stated:

“[I]t would ... as a general rule be contrary to public policy, and as such be an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities.”

The applicant complains that his eviction, in consequence of which he was forced to sleep on the streets, constituted a breach of Article 3 of the Convention. He further contends that it amounted to an interference with his right to respect for his home under Article 8 of the Convention, which interference was contrary to section 63(1) of the 1985 Act and was not, therefore, “in accordance with law”. Finally, he complains under Article 13 of the Convention that although a prospective remedy was available to him through judicial review, he could not obtain any retrospective or compensatory remedy in respect of the injury caused to him by his unlawful eviction.

The applicant has complained of breaches of Articles 3, 8 and 13 of the Convention.

The Government argue that the application is inadmissible in its entirety because the applicant has failed to comply with Article 35 § 1 of the Convention, which provides (as relevant):

“The Court may only deal with the matter after all domestic remedies have been exhausted ...”

They argue that the applicant’s appropriate domestic remedy in respect of his eviction and consequent homelessness was in public law by way of judicial review. In particular, they highlight the fact that the applicant could have sought an order at judicial review requiring CLBC to provide him with accommodation in accordance with their statutory duty under the 1985 Act, and that he could also have sought damages in respect of any continued failure by CLBC to comply with that duty. They point out that, by contrast, the applicant’s private law action offered no prospect of success.

The applicant submits that judicial review did not offer an effective remedy in respect of the alleged violations. In particular, he points to the discretionary and prospective nature of that remedy and to the limited ability of the court to award damages in judicial review proceedings. He states that, on established domestic case-law at the relevant time, CLBC’s failure to accommodate him following his eviction gave rise to a private law action for damages and that, having failed in his claim, he has exhausted effective domestic remedies.

The Court has some doubt over whether or not the applicant did exhaust effective remedies for the purposes of Article 35 § 1 bearing in mind the fact that his private law action was struck out in the House of Lords on the basis that the breaches of duty complained of were better suited to judicial review proceedings in public law. However, it considers that it is not necessary to determine this question as it finds that the application is anyway manifestly ill-founded for the reasons set out below.

The applicant alleges that his eviction, in consequence of which he was forced to sleep on the streets notwithstanding his medical condition, constituted a breach of Article 3 of the Convention.

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court recalls that, in order to fall within the scope of Article 3, mistreatment must attain a minimum level of severity (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, § 162). The Court does not consider that the applicant’s suffering following his eviction attained the requisite level of severity to engage Article 3. Even if it had done, the Court notes that the applicant failed to attend a night shelter pending a decision on permanent housing, contrary to the advice he was given by CLBC following his eviction. He also indicated an unwillingness to accept temporary accommodation and refused two specific offers of accommodation prior to his acceptance of temporary accommodation in June 1992. The applicant was therefore largely responsible for his own deterioration following his eviction.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

The applicant alleges that his eviction amounted to an interference with his right to respect for his home under Article 8 of the Convention.

2. 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 ... for the prevention of disorder or crime ... or for the protection of the rights and freedoms of others.”

The Government submit that the hotel room from which the applicant was evicted cannot be considered to have been his “home” for the purposes of Article 8 because he occupied it for less than a month at the discretion of the hotel’s proprietors. Even if the room was his “home”, they contend that the United Kingdom cannot be held responsible for the applicant’s eviction since it was the proprietors of the hotel who were no longer willing to accommodate him due to his alleged misconduct towards other guests. The proprietors were perfectly entitled to require the applicant to leave, and CLBC had no legal means of requiring them to allow him to stay. Even if the United Kingdom can be held responsible for the eviction, the Government argue that it was in accordance with the law and pursued the legitimate aims preventing disorder or crime and protecting the rights and freedoms of others. They contend that there was no positive obligation to provide the applicant with housing thereafter and that, even if there was, this was discharged by the advice and assistance offered by CLBC immediately following his eviction and the subsequent efforts made to find suitable accommodation for him.

The applicant contends that the hotel room was his “home” at the date of his eviction on 24 April 1991 since he had a domestic right to temporary accommodation under section 63(1) of the 1985 Act until such time as CLBC had completed its statutory inquiries. He argues that the decision to evict was effected by CLBC and interfered with his right to respect for his home under Article 8. He alleges that the decision was contrary to the provisions of the 1985 Act and thus not “in accordance with the law” and that it was also disproportionate in the circumstances.

The Court recalls that Article 8 does not in terms give a right to be provided with a home (see, for example, the Chapman v. the United Kingdom judgment of 18 January 2001, § 99, to be published). It considers therefore that the scope of any positive obligation to house the homeless must be limited. Thus, for example, in the case of Marzari v. Italy (application no. 36448/97, decision of 4 May 1999, unpublished) the Court stated that a refusal by the authorities to provide housing assistance to an individual suffering from a serious disease might in certain circumstances raise an issue under Article 8 because of the impact of such refusal on the private life of the individual. However, the Court considers that, to the extent that there was any positive obligation to accommodate the applicant when he first contacted CLBC in early 1991, this was discharged by the provision of temporary hotel accommodation to the applicant pending the statutory inquiries into whether or not he was homeless, and thus entitled to permanent accommodation.

The Court recalls further that an individual must show sufficient and continuing links with a place in order that he can establish that it is his “home” for the purposes of Article 8 (see Gillow v. the United Kingdom, judgment of 24 November 1996, Series A no. 109, § 46). The Court has significant doubts over whether or not the applicant’s links with the hotel room were sufficient and continuous enough to make it his “home” at the time of his eviction. However, even if they were, it considers that the eviction following complaints about his conduct was “in accordance with the law” as being consistent with the hotel proprietors’ right to request guests to leave at any time. The Court does not consider that the provisions of the 1985 Act prevented eviction in these circumstances. The eviction was also proportionate in pursuit of the legitimate aims of preventing disorder or crime at the hotel and protecting the rights and freedoms of the proprietors, their staff and other guests.

To the extent that there was any positive obligation to re-accommodate the applicant following his eviction, particularly in the light of the applicant’s consequent health problems (see the above-mentioned Marzari case), the Court considers that this was discharged by CLBC’s advice that the applicant should attend a night shelter pending a decision on permanent housing, and by its continued efforts to find suitable temporary or permanent accommodation up until the applicant’s acceptance of temporary accommodation in June 1992. The Court notes in this regard the substantial role played by the applicant in obstructing his placement in suitable accommodation before that date. It notes also CLBC’s offer of permanent bed-sit accommodation in March 1992, shortly after Dr A.M. Rehman’s letter requesting that the application be re-housed urgently.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

The applicant complains also under Article 13 of the Convention that, although a prospective remedy was available to him through judicial review, he could not obtain any retrospective or compensatory remedy in respect of the injury caused to him by his unlawful eviction.

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”.

According to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, § 52).

The Court has above found that the applicant’s complaints under Articles 3 and 8 are manifestly ill-founded. For similar reasons, the applicant did not have an “arguable claim” and Article 13 is therefore inapplicable to his case. It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

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You are here: BAILII >> Databases >> European Court of Human Rights >> OROURKE v the United Kingdom - 39022/97 [2001] ECHR 889 (26 June 2001) URL: http://www.bailii.org/eu/cases/ECHR/2001/889.html Cite as: [2001] ECHR 889