High Court guidance on Article 3 engagement in care at home cases

David Lawson and Katherine Hampshire analyse the approach taken to human rights claims in claims against public bodies providing accommodation and social care. Such claims face significant hurdles and there is a growing body of guidance on where the boundary lies.

On 29 January 2025, Fordham J handed down judgment in two linked cases, heard across eight days in 2024: BLZ No. 1 (R (BLZ) v Secretary of State for the Home Department [2025] EWHC 153 (Admin) and (BLZ No.2: R (BLZ) v Leeds City Council [2025] EWHC 154 (Admin).

Both claims were centred around the provision of accommodation to BLZ: which public body should provide the accommodation, and what sort of accommodation should be provided.

However, the Claimant also alleged that the accommodation provided to him by the Secretary of State in two authorities was so poor as to breach his human rights. The basis of the claim was his epilepsy and general unsteadiness which was said to give rise to a falls risk, particularly around stairs. After an admission to hospital he was discharged on the basis of advice from an occupational therapist that he “could be discharged home [from hospital] for one room living, with commode, urinal bottles and telecare”.  

The judgment on this element of the claim is interesting for its analysis of the facts of this specific case, of other accommodation-related human rights cases, and of the language used in human rights claims.

BLZ’s case: comparative analysis with TMX and Bernard

A string of case law exists considering the relationship between provision of housing and care and possible breaches of Articles 2, 3, and 8 ECHR. These cases include:

• R (Bernard) v Enfield LBC [2002] EWHC 2282 [2003] HRLR 4, in which the Claimant used a wheelchair and was confined to one room for two years because she could not access any room other than the living room in her wheelchair, severely limiting her interaction with her family. She would defecate and urinate on the floor daily. The local authority was found to be in breach of its statutory duty to provide accommodation under s21 National Assistance Act 1948 (the predecessor to Care Act 2014 for these duties), and her conditions amounted to an Article 8 breach, albeit the Article 3 severity threshold was not crossed.
• R (McDonagh) v Enfield [2018] EWHC 1287 in which the claimant had cerebral palsy and relied on a wheelchair but was given a two storey house and could not access bedrooms and the bathroom on the first floor. He had to use a commode and wash in a living room which he used as a bedroom. This lasted 3 years but was not a breach of article 8, including because of the limited breaches of duty by the local authority, the lack of suitable accommodation, and the fact the family had not been separated.
• R (TMX) v Croydon LBC [2024] EWHC 129 (Admin), in which the claimant lived for 16 months in a room of 5x5m² with his entire family. He had to toilet in front of his family and could not shower. C had accommodation related care needs, and the local authority had provided home care, but failed to provide him with suitable accommodation, leaving this to the Home Office. These circumstances were found to breach the authority’s duties under Care Act 2014 and to violate Articles 3 and 8.

The claimant in BLZ argued he was required to live in circumstances where he was either (i) confined to one room, or (ii) not confined, but subject to risk of injury if he had an epileptic fit whilst crossing a small landing at the top of a flight of 8 carpeted stairs.

Fordham J held no breaches of Articles 2, 3 or 8 were disclosed on the facts (BLZ 1 §§59, 84). There was no evidence of a risk of death from the stairs, or of the chance of a seizure taking place with no prior warning just as the Claimant crossed the landing. The Claimant was not in fact confined to his room, or forced to use a commode or be trapped in a room with a commode. His living conditions did not show a lack of respect for his private or family life, or make it “virtually impossible” for him to have a private or family life.   

Unlike the Claimants in TMX and Bernard, he simply had not been confined to one room. He interacted with his family. He had a personal life, albeit one that was curtailed by his bail conditions, personality, and health conditions.

Risk of harm

A key part of the Claimant’s Article 3 claims was the assertion that his Article 3 rights had been breached by the public bodies because he had been exposed to a real risk of future Article 3 level harm. The particular harm he identified was the harm that would eventuate if he had a seizure whilst stood on the small landing outside of his room. In this respect, there was a factual dispute between the parties as to whether the Claimant was truly exposed to a real risk of Article 3 level harm but the wider question of risk as itself an article 3 breach is interesting.

That exposure to a real risk of Article 3 level harm can amount to an Article 3 breach, without the harm ever in fact happening, is clear law. This was recognised in R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58 [2006] 2 AC 148, which concerned seclusion in a psychiatric hospital and creating or accepting risks by way of a general policy, not decisions about one person: “the trust must not adopt a policy which exposes patients to a significant risk of treatment prohibited by article 3” §29. No breach was found in Munjaz as there was on the facts no exposure to a real risk of harm.  

The language of risk is used throughout the case law considering the speediness of administrative decisions relating to immigration, such as decisions to lift upon application a ‘no recourse to public funds’ condition. See ASY v Home Office [2024] EWCA Civ 373 where the Court of Appeal held that damages for breach of article 3 might be ordered where someone has suffered inhuman or degrading treatment (as you would expect), or where they were at “immediate risk” of it, sought assistance and “suffered severe distress” while waiting (§97).  In other words, a prospective breach can be the basis for an award of compensation.  See also R (SAG) v SSHD [2024] EWHC 2984 (Admin).  

A risk-based analysis was also applied in R (CSM) v Secretary of State for the Home Department [2021] EWHC 2175 (Admin), in which the Claimant, a minor and asylum-seeker, went for over 4 days without the anti-retroviral drugs he needed for his HIV, because the detention centre he was in had taken inadequate steps to obtain those drugs for him. The drugs need to be taken at the same time every day and missing doses creates a risk of the virus “rebounding”.  The Court found a breach of the operational duty “by a narrow margin” but ordered no compensation as there was no evidence of harm.

The analysis of the authors of this article is that there is a category difference between the sorts of risks identified in the ASY and SAG judgments and the sorts of risk identified in the CSM judgement.

The word “risk” in ASY and SAG is effectively used as a synonym for “prospect” (the word adopted in Limbuela). The risk identified in ASY and SAG is not a risk in the sense that something may happen (e.g. a “50% chance” or a “95% chance”). Rather, the language of risk was used in those cases to reflect what was, in effect, a given, unless there was intervention by a public body. See ASY §§41-44 and §§92-94, which sets out that where there is an “imminent prospect” of inhuman or degrading treatment or an “immediate or imminent risk of … article 3 breach” a public duty must act expediently to avoid that risk. In other words, the person will suffer detriment unless something is done.

In contrast, the risk identified in CSM is a risk in the sense of a potential future event which may or may not happen – someone facing chances of an event that may or may not happen and does not amount to a certainty in the absence of outside intervention. This is the sort of risk that it is appropriate to measure in percentage terms. The anti-retroviral drugs the Claimant required in CSM needed a 95% adherence rate to be effective (§31). Every dose he missed materially increased the likelihood of the Claimant acquiring an opportunistic infection. It was the possible consequence of missing a dose (contracting an infection) that was considered to be sufficiently serious to engage Article 3 (§96), and exposure to the (increased) risk of these consequences was therefore a breach of Article 3, too.   

It is possible that the Article 3 harm in CSM could have been analysed differently; i.e., that the Claimant was not exposed to a risk of Article 3 harm (the harm being catching an opportunistic infection), but had actually suffered Article 3 harm because being deprived of his medication and therefore living in the knowledge that he was at increased risk was itself degrading treatment. That was not the approach in CSM, probably because it’s the more difficult way to put the point, but – at its most basic – one can understand that the fear of torture is a breach of article 3 just as is actual torture.

The risk for BLZ was a CSM-type risk, rather than an ASY-type risk. There was no imminent prospect of the Claimant falling down the stairs absent a public body intervention. Rather, the longer he was “exposed” to the stairs, the greater the likelihood he would have a seizure on the small landing above them.  

There can be no rule about what risk may be sufficient. However, the Supreme Court in Rabone v Pennine Care NHS Trust [2012] 2 AC 72 found risk “present and continuing and therefore immediate” based on evidence which included a 5% risk (§§35, 41).

In BLZ, there was no evidence of the likelihood of his having a seizure on the small landing at the top of the stairs. Nor was there any evidence of the severity of injury he could suffer. He had not shown a risk of Article 3 harm sufficient to ground an Article 3 claim.

The language of human rights claims

The judgement in BLZ 1 gives guidance on the duties and the language used to describe them.

Articles 2 and 3 impose both “negative” obligations (not to inflict harm) and “positive” obligations (to protect against harm) on public authorities (§27).

The negative obligations can be breached both by actual death or torture/inhuman and degrading treatment, and by unlawful risks of the same (§28). The positive obligations will be breached if policies adopted by the public authority give rise to such an unlawful risk (§28).

The positive obligations include the systems duty and the operational duty.

The Systems Duty (§29): relevant public authorities must put in place “appropriate legal and administrative “systems” for protecting lives (Article 2) and safeguarding against inhuman or degrading treatment (Article 3). This duty requires an effective criminal law and effective arrangements for its enforcement, and, at a lower level, proportionate administrative measures reducing risk to a reasonable minimum.

The Operational Duty (§30): relevant public authorities must use their powers to take “reasonably-expected measures to protect an individual from a real and immediate risk of death or inhuman or degrading treatment about which the public authority knows or ought to know”.

Breach of the investigative duty was not considered in BLZ 1 or BLZ 2, but the investigative duty is traditionally analysed as arising where there has been an arguable breach by a public authority of a positive obligation under Articles 2 or 3 ECHR, such as death in custody or use of lethal force by the state (see MG v SSHD [2022] EWHC 1847 which also provides a useful overview of the systems and operational duties).

Concluding thoughts

In conclusion, breaches of article 3 in Care Act cases may be assessed by an “elephant test” – hard to define, but you know it when you see it.  Breach of Article 8 rarely arises; Article 8 is “not article 3 minus”, but it is not yet fully clear how to define any specific article 8 area. Perhaps, given TMX, Bernard, and McDonagh, it might be where relationships between people are affected.

David Lawson and Katherine Hampshire of Serjeants Inn represented Leeds Citty Council, interested party in BLZ 1 and defendant local authority in BLZ 2.