X AND Y V LONDON BOROUGH OF HOUNSLOW [2009] EWCA Civ 286
FACTS:-
The Claimants were protected parties proceeding by their Litigation Friend, the Official Solicitor and claiming damages against the Defendant, the London Borough of Hounslow. X and Y were aged 44 and 38, and lived in a flat owned by the Defendant with Y’s two daughters, A and B aged 11 and 8. X, Y and A all had learning difficulties and the family had long standing involvement with social services.
They suffered a series of attacks from local youths, the most serious of which took place in their home. They claimed damages from the local authority for failing to protect them.
At first instance, they recovered £97,000 agreed damages with costs. The Defendant local authority appealed to the Court of Appeal.
JUDGEMENT:-
Sir Anthony Clarke said that it was important to note that at trial, it was conceded on behalf of X and Y that their main social worker, Miss Tajinder Hayre had not acted negligently. It was also conceded that there was no action for breach of statutory duty.
Sir Anthony Clarke began with the issue of the statutory framework. The Council was a creature of statute and so the question of whether it owed a duty of care in any particular circumstances had to be judged against the relevant statutory background. The most important statutes were the National Assistance Act 1948 and the Housing Act 1996.
Section 21(1)(a) of the 1948 Act provided that local authorities must make arrangements for providing residential accommodation for persons who by reason of age, illness, disability or other circumstances were in need of care and attention not otherwise available to them. That was amplified by the Department of Health Circular LAC (93)10.
However Section 21(1)(a) did not apply where the Housing Act 1985 applied and it also followed that Section 21(1)(a) did not apply if the Housing Act 1996 applied.
Under Section 29(1) of the 1948 Act, local authorities had to make arrangements for promoting the welfare of persons with illness, mental disorders or disabilities. That was amplified by LAC(93)10.
Section 2 of the Chronically Sick and Disabled Persons Act 1970 stated that where a local authority was satisfied that an individual in its area required the local authority to meet its needs, then it had to make arrangements to do so pursuant to its functions under Section 29 of the 1948 Act.
Section 9 of the Housing Act 1985 gave local housing authorities the power to erect, convert and purchase houses and to provide welfare services. Section 3 of the 1970 Act stated that a local authority discharging its duties under Section 8 of the 1985 Act had to have regard to the special needs of chronically sick or disabled persons.
Section 47 of the National Health Service and Community Care Act 1990 provided that where a local authority considered that a person might be in need of “community care services”, they should carry out an assessment of that person’s needs and decide whether he required any services. A housing authority could be invited to assist in an assessment.
Part VI of the Housing Act 1996 dealt with priority housing needs and Part VII imposed duties on the local authorities to assist the homeless, who included those who had accommodation which it was no longer reasonable for them to occupy.
The trial judge had held that the local authority owed a duty of care to X and Y and that it was in breach of that duty. It should have moved them to other accommodation, which would have prevented the worst of the abuse. However there was no breach of statutory duty and the Claimants did not contend that the local authority was in breach of statutory duty actionable by a private law action for damages.
Moreover the judge did not hold that any individual working for the Council owed a duty of care to the Claimants. He had applied the three stage test laid down in Caparo Industries Limited v Dickman [1990] 2 AC 605 which was:-
The trial judge had held that the injury and loss were reasonably foreseeable and that there was a relationship of sufficient proximity between the local authority and the Claimants. However the judge had not, when addressing the third limb of the test, considered whether there was an assumption of responsibility on the part of the local authority. He had on the other hand noted that it was not suggested that the local authority owed a general duty to protect the Claimants. They were living independent lives, and it would plainly not be fair, just and reasonable to impose such a broadly based duty on the local authority. The duty imposed would be of a very narrow and case specific nature and would not therefore open the flood gates to future claims.
There had been an alternative claim under the Human Rights Act 1998. It was agreed that this claim would be withdrawn if the claim in negligence failed. The trial judge had not considered this alternative claim in any detail and it had not been revived in this appeal.
The Legal Principles
The local authority had submitted that Section 21(1) of the National Assistance Act 1948 was excluded by the provisions of Section 21(8).
Section 21(1) stated:-
“…a local authority may….. make arrangements for providing (a) residential accommodation for persons…..who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them.”
However Section 21(8) stated:-
“……..Nothing in this section shall authorise or require a local authority to make any provision authorised or required to be made under the National Health Services Act 1977.”
It had been submitted by the local authority that the provision of emergency accommodation would have been governed by the provisions of Part VII of the Housing Act 1996. Thus Section 21(8) excluded the provisions of Section 21(1).
Sir Anthony Clarke was not persuaded that the judge was correct to reject the local authority’s submission that Section 21(1) was excluded by Section 21(8) because of the provisions of Part VII of the 1996 Act. The Court of Appeal would not construe Section 21(8) in this limited way.
It could be properly said that the Claimants’ flat was no longer accommodation which it would be reasonable for them to continue to occupy within the meaning of Section 175(3) of the 1996 Act. On that basis there would be a duty on the local authority under Section 188 to secure that accommodation was available to the Claimants.
Sir Anthony Clarke said that these statutory duties were not of any real significance in answering the question of whether the local authority owed the Claimants a duty of care at common law to take reasonable care and remove them from the flat. He referred to the case of Gorringe v Calderdale MBC [2004] UKHL 15 in which Lord Steyn in the House of Lords referred to the following cases (all of which concerned the imposition of a common law duty of care):-
X (Minors) v Bedfordshire County Council [1995] 2 AC 633
Stovin v Wise [1996] AC 923
Barrett v Enfield London Borough Council [2001] 2 AC 550
Phelps v Hillingdon London Borough Council [2001] 2 AC
Lord Steyn had made two comments on these cases.
Lord Hoffman had said in the case of Gorringe that since the existence of statutory powers was the only basis upon which a common law duty was claimed to exist, it was relevant to ask whether Parliament could be taken to have intended such a duty. If a duty was imposed by the statute, then it was well settled that the question of whether it was intended to give rise to a private right of action depended upon the construction of the statute.
Lord Hoffman had also in Gorringe referred to the case of O’Rourke v Camden LBC [1997] AC 188 where the statute in question was the Housing Act 1985. Lord Hoffman said that in the absence of a right to sue for breach of statutory duty, it would have been absurd to hold that the local authority was under a common law duty to take reasonable care to provide accommodation for homeless persons, whom it could reasonably foresee would otherwise be reduced to sleeping rough. If the local authority only had a power, then the argument in favour of a common law duty would have been even weaker.
Another example of there being no duty of care in respect of an allegedly negligent exercise of a statutory power was Jain v Trent Strategic Health Authority [2009] UKHL 4.
Sir Anthony Clarke said that those principles still remained valid. However Lord Hoffman in Gorringe had made it clear that that case was an attempt to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty. The House of Lords in Gorringe was not concerned with cases in which public authorities had actually done acts or entered into relationships which gave rise to a common law duty of care. In such cases, the fact that the local authority acted pursuant to a statutory power or public duty did not necessarily negative the existence of a duty (for instance a hospital acting under statutory powers providing medical treatment). The cases of Dorset Yacht Co Ltd v Home Office [1970] AC 1004, Barrett and Phelps were examples of a common law duty being found.
On the other hand, the Claimants in this case faced a particularly difficult hurdle. In Smith v Littlewoods [1987] 1 AC it was recognised that there was no general duty to take care to prevent a third party from deliberately causing damage to the Claimant. That principle had been underlined in the case of Mitchell v Glasgow City Council [2009] UKHL 11 where it was alleged that a local authority had failed to protect one of its tenants from another violent tenant. Lord Hope in the House of Lords had said that reasonable forseeability was insufficient to justify the imposition of liability upon someone who had done nothing, and who had neither created the risk nor had undertaken to do anything about it. Lord Hope had identified examples of cases where there would be an imposition of a duty of care:-
No duty of care was found in Mitchell because the House of Lords decided that it was not fair, just and reasonable to impose such a duty.
Sir Anthony Clarke said that this was not a case of control, nor a case where the Defendant had created or increased the danger to the Claimants. It was not a case of assumption of responsibility.
Application to the facts
The Claimants said that there had been an assumption of responsibility in this case, given the Claimants’ obvious vulnerability. Sir Anthony Clarke said that the principal difficulty facing the Claimants was that their essential complaint was that the local authority was not exercising its statutory duties and powers properly. Caselaw showed that this was not sufficient to give rise to a duty of care. Something more was required. However the local authority was simply trying to exercise its statutory functions.
The Court of Appeal was not persuaded that there was an assumption of responsibility or some other special factor, which might give rise to the imposition of a duty of care.
Nonetheless the Court would consider the facts. Firstly it appeared that it was necessary to consider the relative roles of the social services department and of the housing department separately. It would not be correct to treat the local authority as a single entity, although it was a single legal entity.
One of the complaints made by the Claimants was that social services and housing had not communicated properly. The trial judge had held that the problem was insufficient communication between different departments of the local authority. That in the opinion of the Court of Appeal was not a sufficient analysis of the problem. The duty to communicate was not a duty of care owed to members of the public at common law. Again the question was whether the local authority assumed a responsibility to the Claimants.
Sir Anthony Clarke went over the facts of the case as found by the judge. In the judgment of the Court of Appeal, there was an important difference between a case where children asserts that a duty of care was owed to them and a case like this where the Claimants were adults living in the community, albeit vulnerable adults. Local authorities had specific obligations in respect of children under the Children Act 1989, which were different from those which applied in respect of adults. However it was not suggested that the local authority was in breach of any duty with regard to the Claimants’ children.
With regard to the Human Rights Act 1998, which had been mentioned by the trial judge, the Court of Appeal did not think that it had any real relevance to the existence or otherwise of a duty of care on the facts of the case.
The Court of Appeal did not think that it would be fair, just and reasonable to impose a duty of care of the kind suggested on the local authority. The housing authority had not assumed any responsibility in this case. If anyone assumed any responsibility, it was the social worker, Tajinder Hayre who had been visiting the Claimants and making reports on their situation. However it was conceded by the Claimants that she was not in breach of any duty, and in fact in the opinion of the Court of Appeal, she behaved impeccably. No-one had criticised her for not taking more urgent steps to persuade the Housing Department that the Claimant should be provided with emergency accommodation. In fact, she formed the view that it would be better for the Claimants to wait until a larger property could be found for them, rather than arranging an emergency transfer.
Therefore the Court of Appeal did not think that the social worker assumed any responsibility to the Claimants at common law and if she did, she was not in breach of that duty.
The trial judge had bypassed these considerations in two ways. The first was by treating the local authority as a single entity and holding that there was insufficient communication between its departments. Sir Anthony Clarke said that for the reasons set out above, that was not a sufficient analysis of the problem. Secondly the trial judge had pointed to various facts, which pointed to a breach of the duty of care that he had identified. These included evidence given by an objective witness on behalf of the local authority, who said that she would have set in motion an emergency transfer procedure to move the Claimants from their flat. They also included the evidence of an expert witness for the local authority, who expressed the view that the Housing Department should have been aware of the information of which Social Services were aware, and that the situation clearly warranted the emergency transfer procedure.
Sir Anthony Clarke said that this approach should not have led the judge to find that the local authority was in breach of a duty of care. Critically the judge did not direct himself to the test in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. Once it was accepted that a different view from that of the objective witness could properly be held by an experienced social worker, which it was by the social worker who dealt with the Claimants’ case, it could not properly be held that either the social worker or any other employee of the local authority or the local authority itself was in breach of a duty of care owed the Claimant in failing to move them to emergency accommodation.
Conclusion
The Court of Appeal’s conclusion was that the local authority did not assume a responsibility to the Claimants at common law, and in any event, neither it nor its employees were in breach of duty of care at common law, and in any event, neither it nor its employees was in breach of a duty to take reasonable care to remove the Claimants from their flat into emergency accommodation.
FACTS:-
The Claimants were protected parties proceeding by their Litigation Friend, the Official Solicitor and claiming damages against the Defendant, the London Borough of Hounslow. X and Y were aged 44 and 38, and lived in a flat owned by the Defendant with Y’s two daughters, A and B aged 11 and 8. X, Y and A all had learning difficulties and the family had long standing involvement with social services.
They suffered a series of attacks from local youths, the most serious of which took place in their home. They claimed damages from the local authority for failing to protect them.
At first instance, they recovered £97,000 agreed damages with costs. The Defendant local authority appealed to the Court of Appeal.
JUDGEMENT:-
Sir Anthony Clarke said that it was important to note that at trial, it was conceded on behalf of X and Y that their main social worker, Miss Tajinder Hayre had not acted negligently. It was also conceded that there was no action for breach of statutory duty.
Sir Anthony Clarke began with the issue of the statutory framework. The Council was a creature of statute and so the question of whether it owed a duty of care in any particular circumstances had to be judged against the relevant statutory background. The most important statutes were the National Assistance Act 1948 and the Housing Act 1996.
Section 21(1)(a) of the 1948 Act provided that local authorities must make arrangements for providing residential accommodation for persons who by reason of age, illness, disability or other circumstances were in need of care and attention not otherwise available to them. That was amplified by the Department of Health Circular LAC (93)10.
However Section 21(1)(a) did not apply where the Housing Act 1985 applied and it also followed that Section 21(1)(a) did not apply if the Housing Act 1996 applied.
Under Section 29(1) of the 1948 Act, local authorities had to make arrangements for promoting the welfare of persons with illness, mental disorders or disabilities. That was amplified by LAC(93)10.
Section 2 of the Chronically Sick and Disabled Persons Act 1970 stated that where a local authority was satisfied that an individual in its area required the local authority to meet its needs, then it had to make arrangements to do so pursuant to its functions under Section 29 of the 1948 Act.
Section 9 of the Housing Act 1985 gave local housing authorities the power to erect, convert and purchase houses and to provide welfare services. Section 3 of the 1970 Act stated that a local authority discharging its duties under Section 8 of the 1985 Act had to have regard to the special needs of chronically sick or disabled persons.
Section 47 of the National Health Service and Community Care Act 1990 provided that where a local authority considered that a person might be in need of “community care services”, they should carry out an assessment of that person’s needs and decide whether he required any services. A housing authority could be invited to assist in an assessment.
Part VI of the Housing Act 1996 dealt with priority housing needs and Part VII imposed duties on the local authorities to assist the homeless, who included those who had accommodation which it was no longer reasonable for them to occupy.
The trial judge had held that the local authority owed a duty of care to X and Y and that it was in breach of that duty. It should have moved them to other accommodation, which would have prevented the worst of the abuse. However there was no breach of statutory duty and the Claimants did not contend that the local authority was in breach of statutory duty actionable by a private law action for damages.
Moreover the judge did not hold that any individual working for the Council owed a duty of care to the Claimants. He had applied the three stage test laid down in Caparo Industries Limited v Dickman [1990] 2 AC 605 which was:-
- The injury and loss suffered by the Claimants was reasonably foreseeable
- The relationship between the Claimants and the Defendant was sufficiently proximate to warrant the imposition of a duty of care
- It would be just, fair and reasonable to impose such a duty
The trial judge had held that the injury and loss were reasonably foreseeable and that there was a relationship of sufficient proximity between the local authority and the Claimants. However the judge had not, when addressing the third limb of the test, considered whether there was an assumption of responsibility on the part of the local authority. He had on the other hand noted that it was not suggested that the local authority owed a general duty to protect the Claimants. They were living independent lives, and it would plainly not be fair, just and reasonable to impose such a broadly based duty on the local authority. The duty imposed would be of a very narrow and case specific nature and would not therefore open the flood gates to future claims.
There had been an alternative claim under the Human Rights Act 1998. It was agreed that this claim would be withdrawn if the claim in negligence failed. The trial judge had not considered this alternative claim in any detail and it had not been revived in this appeal.
The Legal Principles
The local authority had submitted that Section 21(1) of the National Assistance Act 1948 was excluded by the provisions of Section 21(8).
Section 21(1) stated:-
“…a local authority may….. make arrangements for providing (a) residential accommodation for persons…..who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them.”
However Section 21(8) stated:-
“……..Nothing in this section shall authorise or require a local authority to make any provision authorised or required to be made under the National Health Services Act 1977.”
It had been submitted by the local authority that the provision of emergency accommodation would have been governed by the provisions of Part VII of the Housing Act 1996. Thus Section 21(8) excluded the provisions of Section 21(1).
Sir Anthony Clarke was not persuaded that the judge was correct to reject the local authority’s submission that Section 21(1) was excluded by Section 21(8) because of the provisions of Part VII of the 1996 Act. The Court of Appeal would not construe Section 21(8) in this limited way.
It could be properly said that the Claimants’ flat was no longer accommodation which it would be reasonable for them to continue to occupy within the meaning of Section 175(3) of the 1996 Act. On that basis there would be a duty on the local authority under Section 188 to secure that accommodation was available to the Claimants.
Sir Anthony Clarke said that these statutory duties were not of any real significance in answering the question of whether the local authority owed the Claimants a duty of care at common law to take reasonable care and remove them from the flat. He referred to the case of Gorringe v Calderdale MBC [2004] UKHL 15 in which Lord Steyn in the House of Lords referred to the following cases (all of which concerned the imposition of a common law duty of care):-
X (Minors) v Bedfordshire County Council [1995] 2 AC 633
Stovin v Wise [1996] AC 923
Barrett v Enfield London Borough Council [2001] 2 AC 550
Phelps v Hillingdon London Borough Council [2001] 2 AC
Lord Steyn had made two comments on these cases.
- In a case founded on breach of statutory duty, the central question is whether from the provisions and structure of the statute an intention can be gathered to create a private law remedy (Reg. v Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 AC 58).
- Per Lord Hoffman in Stovin v Wise [1996] AC 923, the minimum preconditions for basing a duty of care upon the existence of a statutory power, were first that it would in the circumstances have been irrational not to have exercised the power, so that there was a public law duty to act and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised.
Lord Hoffman had said in the case of Gorringe that since the existence of statutory powers was the only basis upon which a common law duty was claimed to exist, it was relevant to ask whether Parliament could be taken to have intended such a duty. If a duty was imposed by the statute, then it was well settled that the question of whether it was intended to give rise to a private right of action depended upon the construction of the statute.
Lord Hoffman had also in Gorringe referred to the case of O’Rourke v Camden LBC [1997] AC 188 where the statute in question was the Housing Act 1985. Lord Hoffman said that in the absence of a right to sue for breach of statutory duty, it would have been absurd to hold that the local authority was under a common law duty to take reasonable care to provide accommodation for homeless persons, whom it could reasonably foresee would otherwise be reduced to sleeping rough. If the local authority only had a power, then the argument in favour of a common law duty would have been even weaker.
Another example of there being no duty of care in respect of an allegedly negligent exercise of a statutory power was Jain v Trent Strategic Health Authority [2009] UKHL 4.
Sir Anthony Clarke said that those principles still remained valid. However Lord Hoffman in Gorringe had made it clear that that case was an attempt to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty. The House of Lords in Gorringe was not concerned with cases in which public authorities had actually done acts or entered into relationships which gave rise to a common law duty of care. In such cases, the fact that the local authority acted pursuant to a statutory power or public duty did not necessarily negative the existence of a duty (for instance a hospital acting under statutory powers providing medical treatment). The cases of Dorset Yacht Co Ltd v Home Office [1970] AC 1004, Barrett and Phelps were examples of a common law duty being found.
On the other hand, the Claimants in this case faced a particularly difficult hurdle. In Smith v Littlewoods [1987] 1 AC it was recognised that there was no general duty to take care to prevent a third party from deliberately causing damage to the Claimant. That principle had been underlined in the case of Mitchell v Glasgow City Council [2009] UKHL 11 where it was alleged that a local authority had failed to protect one of its tenants from another violent tenant. Lord Hope in the House of Lords had said that reasonable forseeability was insufficient to justify the imposition of liability upon someone who had done nothing, and who had neither created the risk nor had undertaken to do anything about it. Lord Hope had identified examples of cases where there would be an imposition of a duty of care:-
- The Defendant has created the source of the danger
- The third party who caused the damage was under the supervision or control of the Defendant
- The Defendant had assumed a responsibility to the Claimant which lay within the scope of the alleged duty
- Where a decorator left a house unlocked, which is entered by a thief whilst he is away
- Where the parents of an adopted child received assurances from the local authority that they would not be allocated a child who was known to be, or suspected of being, a sexual abuser
- Where a prisoner was placed in a cell with another prisoner with a history of violence who perpetrated a racist attack on him from which he died.
No duty of care was found in Mitchell because the House of Lords decided that it was not fair, just and reasonable to impose such a duty.
Sir Anthony Clarke said that this was not a case of control, nor a case where the Defendant had created or increased the danger to the Claimants. It was not a case of assumption of responsibility.
Application to the facts
The Claimants said that there had been an assumption of responsibility in this case, given the Claimants’ obvious vulnerability. Sir Anthony Clarke said that the principal difficulty facing the Claimants was that their essential complaint was that the local authority was not exercising its statutory duties and powers properly. Caselaw showed that this was not sufficient to give rise to a duty of care. Something more was required. However the local authority was simply trying to exercise its statutory functions.
The Court of Appeal was not persuaded that there was an assumption of responsibility or some other special factor, which might give rise to the imposition of a duty of care.
Nonetheless the Court would consider the facts. Firstly it appeared that it was necessary to consider the relative roles of the social services department and of the housing department separately. It would not be correct to treat the local authority as a single entity, although it was a single legal entity.
One of the complaints made by the Claimants was that social services and housing had not communicated properly. The trial judge had held that the problem was insufficient communication between different departments of the local authority. That in the opinion of the Court of Appeal was not a sufficient analysis of the problem. The duty to communicate was not a duty of care owed to members of the public at common law. Again the question was whether the local authority assumed a responsibility to the Claimants.
Sir Anthony Clarke went over the facts of the case as found by the judge. In the judgment of the Court of Appeal, there was an important difference between a case where children asserts that a duty of care was owed to them and a case like this where the Claimants were adults living in the community, albeit vulnerable adults. Local authorities had specific obligations in respect of children under the Children Act 1989, which were different from those which applied in respect of adults. However it was not suggested that the local authority was in breach of any duty with regard to the Claimants’ children.
With regard to the Human Rights Act 1998, which had been mentioned by the trial judge, the Court of Appeal did not think that it had any real relevance to the existence or otherwise of a duty of care on the facts of the case.
The Court of Appeal did not think that it would be fair, just and reasonable to impose a duty of care of the kind suggested on the local authority. The housing authority had not assumed any responsibility in this case. If anyone assumed any responsibility, it was the social worker, Tajinder Hayre who had been visiting the Claimants and making reports on their situation. However it was conceded by the Claimants that she was not in breach of any duty, and in fact in the opinion of the Court of Appeal, she behaved impeccably. No-one had criticised her for not taking more urgent steps to persuade the Housing Department that the Claimant should be provided with emergency accommodation. In fact, she formed the view that it would be better for the Claimants to wait until a larger property could be found for them, rather than arranging an emergency transfer.
Therefore the Court of Appeal did not think that the social worker assumed any responsibility to the Claimants at common law and if she did, she was not in breach of that duty.
The trial judge had bypassed these considerations in two ways. The first was by treating the local authority as a single entity and holding that there was insufficient communication between its departments. Sir Anthony Clarke said that for the reasons set out above, that was not a sufficient analysis of the problem. Secondly the trial judge had pointed to various facts, which pointed to a breach of the duty of care that he had identified. These included evidence given by an objective witness on behalf of the local authority, who said that she would have set in motion an emergency transfer procedure to move the Claimants from their flat. They also included the evidence of an expert witness for the local authority, who expressed the view that the Housing Department should have been aware of the information of which Social Services were aware, and that the situation clearly warranted the emergency transfer procedure.
Sir Anthony Clarke said that this approach should not have led the judge to find that the local authority was in breach of a duty of care. Critically the judge did not direct himself to the test in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. Once it was accepted that a different view from that of the objective witness could properly be held by an experienced social worker, which it was by the social worker who dealt with the Claimants’ case, it could not properly be held that either the social worker or any other employee of the local authority or the local authority itself was in breach of a duty of care owed the Claimant in failing to move them to emergency accommodation.
Conclusion
The Court of Appeal’s conclusion was that the local authority did not assume a responsibility to the Claimants at common law, and in any event, neither it nor its employees were in breach of duty of care at common law, and in any event, neither it nor its employees was in breach of a duty to take reasonable care to remove the Claimants from their flat into emergency accommodation.