O'ROURKE v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
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”. Both of these sections appear at Part III of the 1985 Act. 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 A.C. 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.”