XPQ v The London Borough of Hammersmith and Fulham, Court of Appeal - Queen's Bench Division, June 07, 2018, [2018] EWHC 1391 (QB)

Resolution Date:June 07, 2018
Issuing Organization:Queen's Bench Division
Actores:XPQ v The London Borough of Hammersmith and Fulham

Case No: HQ15P0213

Neutral Citation Number: [2018] EWHC 1391 (QB)



Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 7th June 2018



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--Ms Catherine Meredith (instructed by Leigh Day) for the Claimant--


Mr Nicholas Grundy QC & Ms Millie Polimac (instructed by Borough Solicitor at the London Borough of Hammersmith and Fulham) for the DEFENDANT--------

Hearing dates: 12th - 16th February 2018----------

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  1. The Claimant was born in Ghana. Her mother died in childbirth. Until around the age of 5 she lived with a person described as a grandmother; but after that was taken to the house of ``Uncle Jojo'' where she was wickedly exploited: first by being expected to work in domestic servitude for him, and then being physically and sexually abused both by Uncle Jojo and male acquaintances. For a while she was probably trafficked within Ghana to another, but returned to Jojo's house.

  2. Though there is significant uncertainty about her precise date of birth, late in adolescence or early in adulthood she came to the United Kingdom where it was said she could have an education and earn some money. However, for a while in the United Kingdom - the precise duration of which is in issue - she was forced into prostitution.

  3. In order to implement its international obligations the UK set up a National Referral Mechanism (``NRM'') with effect from 1st. April 2009. This is a system for identifying victims of trafficking and supporting them. Those who might be victims of trafficking are referred to the NRM. The Competent Authority then decides whether there are reasonable grounds for believing that a person referred to it may be a victim of trafficking. If it decides that there are reasonable grounds, the person concerned is entitled to a minimum of a 45 day recovery and reflection period while the Competent Authority makes a substantive ``conclusive grounds'' decision in respect of the trafficking claim. During this 45 day period support is provided, usually comprising the provision of accommodation and cash payments. Once that period ends, the Competent Authority will make a decision whether there is sufficient information for it to find that the person concerned is indeed a victim of trafficking. This is a conclusive grounds decision that the person is an actual identified victim of trafficking. Just such a ``conclusive grounds decision'' was made in the case of XPQ.

  4. If a positive conclusive grounds decision has been made, and if no extension has been applied for the victim must find ``move on'' support within 14 days, which is normally the responsibility of a local authority to provide.

  5. Whilst in detention, following a conviction for having used a false document, a referral was made to the NRM in the Claimant's case on 11th. November 2011. On 26th. March 2012, following this referral, she was released from detention, and provided with accommodation in a ``safe house'' run by Hestia, an organisation supporting women who have been trafficked. The accommodation was female only.

  6. On 21st. October 2012 the Home Office identified that she had reasonable grounds under the NRM to be regarded as trafficked, and she was granted the reflection and recovery period provided for by the scheme.

  7. On 22nd. March 2013 the Home Office made a conclusive grounds decision that she had been trafficked, and granted her leave to remain in the jurisdiction valid until 10th September 2013. She was given notice to quit the safe house since the support available for her during the recovery and reflection period had ended with the making of a conclusive grounds decision and the grant of leave to remain.

  8. She currently is recognised as a refugee and has been granted leave to remain in the UK (until 2nd October 2018).

  9. Notice to quit the safe house was due to expire on 3rd May 2013. The Claimant applied to the Defendant as housing authority for a London Borough for housing assistance, so that she could secure new accommodation after that date.

  10. The Defendant as housing authority is subject to the duties under the Housing Act 1996. Part V11 of the Act provides, by Section 184, that if a local housing authority has reason to believe that an applicant may be homeless or threatened with homelessness (as the Claimant was) they should make such inquiries as necessary to satisfy themselves whether she was eligible for assistance, and if so whether any, and if so what, duty was owed to her under the Act.

  11. Section 184(2) provides that the housing authority might also ``make enquiries whether he has a local connection with a district of another local housing authority in England and Wales or Scotland.''

  12. If a local housing authority has reason to believe that an applicant may be homeless, eligible for assistance and have a priority need they ``shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part'' (Section 188(1)). The duty arises irrespective of any possibility of referral of the case to another local housing authority.

  13. The Defendant concluded, in a process which it will be necessary to consider in a little further detail below, that it had reason to believe that the Claimant might be homeless, eligible for assistance, and have a priority need. The Defendant recognised that it therefore came under the duty to secure that accommodation was available for her occupation pending a decision as to the duty, if any, owed to her under the provisions of Part VII (Section 188(1)).

  14. In purported discharge of this duty, the Defendant secured a place for the Claimant in Rose Lodge in Wembley on 3rd. May 2013. Whereas the Claimant had been accommodated in a safe house with female residents only for over a year prior to this, and before that in a women's prison, Rose Lodge was not single sex accommodation. The Claimant complained of this, asserting that the accommodation was shared with 5 men, and that although she had a bedroom with a door with a functioning lock, the bathroom available for her use, which was liable to be shared by other (male) residents, did not.

  15. Whilst in Rose Lodge, and after she had complained of this potential intrusion of males into her privacy, she made a further complaint that she had been harassed by one of the male residents. She said he had followed her into the kitchen and shouted at her on 15th. May 2013, and later had opened the bathroom door when the Claimant was in the room. Further (according to the pleading) she was:

    ``assaulted and harassed by a male resident. The Claimant came down the stairs from the bathroom and was met by the male resident on the stairs who tried to engage her in conversation and touch her arm. When she returned to walk up the stairs he grabbed her pyjamas at the rear by her buttocks. She was scared.''

    The date of this was said to be 22nd. May.

  16. On 29th. May 2013 Romin Sutherland, a project manager of the Zacchaeus Trust (a charity addressing poverty issues caused by unfairness, the law, and the legal benefits system) sent emails to the Defendant, complaining that a vulnerable survivor of human trafficking for the purpose of sexual exploitation had been placed into accommodation which was inappropriate and unsuitable for her needs and had suffered foreseeable harm as a result. On 30th. May 2013 the Defendant then provided the Claimant with alternative temporary accommodation, this time in a self-contained unit in South Tottenham.

  17. The Claimant's case, as pleaded, was that she arrived at the address in Tottenham shortly before 7pm. When taking her belongings out of a cab outside the address, a woman pulled up in a car and started calling her by the name she had used when working in prostitution. She asked the Claimant if she was living at the address. When, some 2½ hours later, the Claimant went to buy cleaning products from a shop, and as she was walking there, the woman in the car appeared again and started calling out to her. She asked why the Claimant was ignoring her. The Claimant panicked and got on a bus quickly. On the next day 31st. May 2013, she was too afraid to go out and contacted the police. An urgent move was requested, and the Defendant forthwith provided it by offering an address in Shepherds Bush.

  18. Arising out of those facts, the Claimant sought damages for the sexual assault and harassment she had suffered, victimisation and a risk of re-trafficking, psychiatric injury, re-traumatisation, anxiety, stress, depression, fear and humiliation and injury to feelings. The particulars asserted a violation of her ``rights as a victim and a gross interference with her personal dignity'', significant psychiatric damage, the feelings of re-traumatisation, anxiety, distress, depression, fear and humiliation she had suffered as a consequence of the two placements in unsuitable temporary accommodation, and Francovich damages against the Defendants in respect of breaches of the EU Trafficking Directive 2011/36/EU. In addition, she claimed aggravated damages, and exemplary damages. She also claimed declarations that the Defendants were in breach of their duties under the Trafficking Directive, Human Rights Act 1998, the Housing Act 1996 and common law duties of care.

    The Law

  19. In O'Rourke v Camden LBC [1998] AC 188, the House of Lords held that what was then Section 63(1) of the Housing Act 1985 did not create a private law duty for which damages could be claimed. Section 63(1) of the 1985 Act was the precursor to Section 188 of the 1996 Act. The terms of the latter section are materially the same. Nicholas Grundy QC for the Defendant...

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