A High Court judge has struck out a claim against a local authority that it unlawfully made a failed asylum seeker street homeless for a week in the summer of 2017, on the basis that it was out of time.
In Rafiq v Thurrock Borough Council  EWHC 584 (QB) the claimant alleged that the local authority had violated his human rights and caused him physical and mental harm. He sought money compensation.
The council asked the High Court to strike out the claim on the ground that it was out of time and the court should not exercise its discretion to extend time.
The background to the claim was that the claimant was a Kurdish Iraqi. He arrived in the UK in November 2015, aged 17, and claimed asylum.
Thurrock 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 2 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.
The council undertook a human rights assessment on 17 June 2017. It concluded that:
i) if support were withdrawn, the claimant would not be subject to 'treatment amounting to torture or to inhuman or degrading treatment or punishment' whilst in the UK (Art.3 ECHR);
ii) returning to Iraq would not compromise his right to respect for family life (Art.8 ECHR);
iii) he should apply to the Home Office for support as an unsuccessful asylum seeker, having no other means of support.
The council decided he would be given a final weekly allowance, and a travel warrant to go to the Home Office and apply for residual support before returning to Iraq.
The claimant said he went to the Home Office about a month later, when he was still being accommodated by Thurrock. He said the Home Office told him the necessary referral from the council had not happened. He said that on 31 July 2017 he understood he had to leave his accommodation, and was street homeless from that day until 7 August 2017.
The British Red Cross helped him then; they arranged for him to stay with a hosting family and gave him money. They put him in touch with an established firm of solicitors specialising in public law and human rights.
On 15 August, the solicitors sent Thurrock 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 21 August.
More than two years passed. In late October 2019 the claimant was referred to his current solicitors for legal advice on pursuing a complaint about the state of his accommodation.
During his first consultation they advised him he could have a claim for damages from the council for making him street homeless in the summer of 2017. They corresponded with the council, and filed a money claim at the County Court on 18 November 2019. It was issued six days later.
Over the course of the following year, time for service of particulars of claim was extended. Thurrock made an application for the case to be struck out on grounds of time limitation on 7 October 2020. It filed its defence on 20 January 2021, pleading limitation. The claimant made an application for an extension of time on 8 February 2021.
In her overall balancing evaluation of what was equitable, Mrs Justice Collins Rice found the strongest argument in favour of extending time for the claimant to bring his claim was that, on the evidence she had seen, there was at least arguable merit in it.
“On the best assessment that can be made at this stage, he establishes a prima facie case that the council rendered him street homeless without properly considering that his only alternative – return to Iraq – was not a practical possibility without travel documents or money for the flight. On the authority of Limbuela, that amounts to inhuman and degrading treatment and a violation of his Art.3 human rights, and he is on the face of it entitled to vindication for that. He provides evidence of his adversities in that week in the summer of 2017 and of his vulnerability on account of his poor mental health. I weigh all of this materially in his favour,” the judge said.
Mrs Justice Collins Rice said that against that must be weighed the reservations about the prospects for the fair conduct of a trial some five years or more after the event. She said she gave at least some weight to the evidential prejudice likely to be faced by the council.
“It is perhaps unlikely that much will prove to turn on the precise circumstances in which [the claimant] found himself on the street. But on the short point at the heart of the case, about whether proper consideration was given to the 'practical obstacles' of return to Iraq, it may be that the memories of staff, including [the claimant's] personal advisor at the Council, could have a real part to play and it is unlikely, even if the staff can be traced and are willing to testify, that they will be able to remember detail.”
The judge said she gave rather more weight to what was likely to be the prohibitive difficulty for the council in obtaining robust medical evidence now on the question of the impact of the homelessness on the claimant's health. “There is an equality of arms issue where a report three years after the event can only be met by a report four and a half or five years after the event, in a case where the time-sensitive and multifactorial nature of the mental condition appears from the evidence so far. I also consider this a factor which ought to be regarded as bearing down on the quantum of damages which can be regarded as properly in issue in this case.”
Turning to what she saw as the key issue of the delay and the reasons for it, Mrs Justice Collins Rice said she regarded the delay in this case as “considerable”.
The judge said: “It is well over double the primary limitation period set by Parliament. That means I need to look critically at the reasons for it. I have not accepted solicitor negligence or inability to instruct at the time as good explanations for the delay, for the reasons I have given. That leaves only one explanation to be considered in favour of an extension: that [the claimant], as an unrepresented layperson from very shortly after the event, had not understood his rights until he happened to approach new solicitors about something else.
“Had that reason stood alone as an explanation for the delay, I would have been able to give it little weight in any event. There are good public policy reasons – the very same reasons underlying the short primary limitation period – for discouraging routine applications for extension of time where solicitors' firms happen upon potential cases long after the event: it does not reflect the balance Parliament has struck between the vindication of individual rights and the exposure of public authorities to litigation and expense.”
Mrs Justice Collins Rice said this reason did not stand alone in this case. “Such positive explanation as does appear for why this claim was not brought within the primary limitation period must in my view be weighed heavily against extending time. That is the evidence suggesting that the mutual understanding between the parties at the time, when [the claimant] was represented by experienced solicitors, was that the threat to bring legal proceedings in relation to his period of homelessness was withdrawn in consideration of the prompt reinstatement of support and housing.”
The High Court judge said the public policy reasons for discouraging legal firms happening upon potential cases long after the event from making routine applications for extension of time, applied with especial force where the case for doing so required a court either to impugn without positive evidence the conduct of solicitors representing a claimant at the time, or to speculate at a distance about the precise terms on which threatened legal proceedings arising out of the precise facts complained of were compromised.
“The general observations in Anufrijeva requiring a court to look 'critically' at attempts to recover HRA damages by any procedure other than judicial review apply with additional force where the reason for not doing so is that the JR with which such a claim would be associated has long since been withdrawn by mutual consent,” she said.
“Even allowing for the qualitative difference between Art.3 and Art.8 cases, and the issue of the violating 'treatment' of a victim over and above the maladministrative decision precipitating it, there are strong arguments of fairness, good administration and the proper conduct of litigation for JR and HRA damages claims arising out of the same facts to be considered in the round and dealt with together.”
Mrs Justice Collins said that more specifically, she was satisfied on the evidence she had seen that a legal grievance was raised against the council at the time “citing both violation of [the claimant’s] Art.3 rights and the allegedly maladministrative decision precipitating it (itself comprising a defective human rights assessment). In return for not pursuing that grievance in litigation, the council was asked to, and did, promptly reinstate support and accommodation and continued to do so.”
The High Court judge said she accepted that the council genuinely considered the matter closed in these circumstances and that, as in P v Tameside, the attempt to reopen it now came as a 'bolt out of the blue'. The judge accepted that, without admitting liability, Thurrock genuinely considered it had made the swift amends asked for, which could fairly be regarded as a vindication of, and just satisfaction for, the claimant’s rights.
“I accept it had good and reasonable objective grounds for that view,” Mrs Justice Collins Rice said. “There is a strong public interest in encouraging public authorities to deal quickly, efficiently and finally with legal grievances, as seems best suited to eliminating the need for litigation on both sides. They are entitled to look to the courts to support them in doing so.”
The unfairness, prejudice and administrative burden Thurrock faced if time for the claim was extended was real, the judge said. “It lies in a combination of the undoing of an arrangement it had fairly assumed was final, genuine trial disadvantage, and the sudden priority consumption of public resource at the expense of other calls upon it, from which the public ultimately suffers.”
The judge said the facts of the P v Tameside case were very different from those of this case but said she would adopt the final analysis in that case, and adapt and apply it here.
“Set against the inequity from the standpoint of the Council in granting an extension of time in this case, I do not find countervailing equity of any strength in favour of granting [the claimant’s] application. He will undoubtedly suffer prejudice in not being able to pursue his claim; he at least had nothing to lose and the hope of a 'life changing' award of money. Claimants face loss of claim in all 'limitation discretion' cases where there is no right to litigate. That is what limitation is; it is inherent in the whole exercise.”
Mrs Justice Collins Rice said: “What is more crucial is to consider the question of justice or fairness as between the parties. Here, for the reasons I have given, I do not consider [the claimant] will suffer injustice (as distinct from prejudice) in being denied permission to bring this claim, so long after the facts giving rise to it, after the council responded promptly and in full to his complaint at the time, and after the primary limitation period expired. I do not consider it equitable – fair to both sides – for time to be extended in this case.”
Thurrock’s application to strike out the claim therefore succeeded.