Trinity Housing Barrister Summary of Rafiq v Thurrock Borough Council [2022]

Trinity Social Housing Law barrister, Parissa Najah has prepared the following summary of the recent case of Rafiq v Thurrock Borough Council [2022] EWHC 584 (QB) featured in the latest edition of Housing Law Week.    

Mr Rafiq (the Claimant) sought monetary compensation stating that Thurrock Borough Council (the Council) unlawfully made him street homeless for a week in the summer of 2017, violating his human rights and causing him physical and mental harm. The Council asked for the claim to be struck out on the ground that it was out of time and the Court should not exercise its discretion to extend time. The High Court found in favour of the Council finding that it would not be equitable for time to be extended in circumstances where the Claimant would not suffer injustice given the passage of time and the Council’s prompt response to his complaint.

Facts

The Claimant is a Kurdish Iraqi. He arrived in the UK in 2015, aged 17, and claimed asylum. The Council accepted an obligation under the Children Act 1989 to support and house him. He turned 18 in April 2016. The Council had continuing statutory support and housing duties to a ‘former relevant child’. The Claimant’s asylum claim was refused in August 2016. He appealed unsuccessfully, and became ‘appeal rights exhausted’ in May 2017. The Council wrote to him on 2nd June 2017 giving 28 days’ notice that, since he was no longer entitled to access public funds, it intended to cease supporting and housing him.

This was on the basis of the Council’s human rights assessment which found there would be no violation of his Article 3 (prohibiting torture or inhuman or degrading treatment) or 8 (private life) rights were he to be returned to Iraq.

A month later the Claimant contacted the Home Office and was advised that the Council had not made the necessary referral. He stated that on 31st July 2017 he understood he had to leave his accommodation, and was street homeless from that day until 7th August 2017.

On 15th August 2017, his solicitors sent the Council a pre-action judicial review letter, challenging its human rights review and apparent decision to evict the Claimant. The Council reinstated accommodation and support on 21st August 2017.

In late October 2019 the Claimant was referred to his current solicitors. They corresponded with the Council, and filed a money claim for breach of article 3 and 8 rights at the county court on 18th November 2019. Time for service of particulars of claim was extended. The Council made the present application for the case to be struck out on grounds of time limitation on 7th October 2020. It filed its defence on 20th January 2021, pleading limitation. The Claimant made the present application for an extension of time on 8th February 2021.

Legal framework

Section 7 of the Human Rights Act 1998 provides for claims against public authorities for breach of human rights. Section 7(5) provides:

“Proceedings under subsection (1)(a) must be brought before the end of—

(a) the period of one year beginning with the date on which the act complained of took place; or

(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,

but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.”

The Court referred to the guidance by the Supreme Court in Rabone v Pennine Care NHS Trust [2012] 2 AC (paragraph 75) which states that considerations

“may include the length of and reasons for the delay in issuing the proceedings; the extent to which, having regard to the delay, the evidence in the case is or is likely to be less cogent than it would have been if the proceedings had been issued within the one-year period; and the conduct of the public authority after the right of claim arose, including the extent (if any) to which it responded to requests reasonably made by the claimant for information for the purpose of ascertaining facts which are or might be relevant.”

The Court also referred to P v Tameside MBC [2017] 1 WLR 2127 as authority that a court must have regard to the policy reasons for Parliament adopting a much tighter limitation period in HRA claims than usual, and that these may be similar to those for the tight 3-month limit in judicial review proceedings.

Factors considered

The Court first assessed the merits of the case and found there to be no evidence that the Council had turned their mind to the practical difficulties the Claimant would face in returning to Iraq (funding his travel and his lack of travel documents). On this basis it accepted that there was a prima facie case that the Claimant was rendered street homeless by the withdrawal of council support [30].

The Court then considered the length of the delay and found that the delay of 2¼ to 2½ years in bringing the claim to be considerable and noted further delay in seeking an extension for service of particulars. The Court queried whether the decision by the Claimant’s first solicitors not to bring a money claim as part of their JR was negligent. However, it found that it was most likely that the original claim had focussed on housing and support as the original solicitors had wanted a quick result – which they achieved in securing reinstatement of support [42]. The Court did not accept claims about the Claimant’s mental state at the time, noting that the money claim in any event relied upon the same facts as those pleaded [44].

In assessing the prejudice caused by delay, the Court gave little weight to arguments that caseworkers had left employment or were off sick, but did recognise the difficulty they would face in remembering the precise circumstances of decisions made more than 4½ years ago [48]. Further it noted difficulties with medical evidence upon which the Claimant sought to rely to demonstrate the adverse effect of the homelessness upon him. It noted that the Council’s ability to instruct their own expert would be hampered given the passage of time since the homelessness [50].

The Court moved to consider proportionality and looked both at the value of the claim as well as the importance of the rights at stake. It also noted that the Claimant’s costs to date had exceeded £30,000.

Judgment

Ultimately, in deciding what was equitable between the parties, the Court found that in light of there having been a settled JR claim, the trial disadvantage the Council would suffer and the pull on its resources extending the time limit would not be equitable [64].