Social Housing Speed Read: Inquests – Hoarding and Local Authorities’ Article 2 Duty
5th September, 2024
Hoarding continues to be a serious issue for Social Housing Providers, given the health and safety risks it poses to residents (both of the hoarded property and neighbours), and the difficulty in tackling what can be a deep rooted psychological compulsive disorder.
This week’s article considers the duties of local authorities in an inquest following the death of a hoarder, but is likely to be of interest to all those tacking hoarding cases.
In the case of Parkin v HM Assistant Coroner Inner London (East) and others, the Court considered the categories of inquest which give rise to enhanced Article 2 duty, in terms of the State’s obligation to take appropriate steps to safeguard citizens.
Inquests and Article 2
An inquest is a fact-finding process in which Coroners are tasked with determining who died, when, where and how they died. It is not about liability, blame, or guilt. The majority of inquests do not trigger the enhanced Article 2 duty and the “how” question is answered as “by what means” someone came by their death. However, in limited cases, it is determined that enhanced Article 2 duty is owed and the Coroner conducts a wider investigation to determine “in what circumstances” the person came by their death.
Article 2 has relevance at inquest when considering the involvement of public bodies/authorities as, in short, the State’s enhanced obligation is to take appropriate steps to safeguard the lives of citizens. From a practical perspective, an inquest labelled Article 2 allows the Coroner to investigate more broadly and to reach a conclusion which is not only broader in scope but potentially more judgmental when assessing the factual issues and the role of public agencies. Article 2 will therefore be considered at an inquest where a public body is involved, including Local Authorities.
The facts of Parkin
This tragic inquest involved a 78-year-old lady who died at home from smoke inhalation. The Deceased, Mrs Wolff, was a hoarder. It was likely that her sofa caught fire due to a discarded cigarette, and her home was reported to be unhygienic and filled with both debris and detritus. She was noted to have lived alone.
The evidence revealed that Mrs Wolff had agreed, prior to her death, to accept a care package aimed at supporting her in maintaining her personal hygiene and monitoring her medical conditions. A referral had also been made to the London Fire Brigade to conduct home safety visits. Mrs Wolff also agreed to have smoke detectors fitted. She was however reported to be reluctant to engage with Local Authority social services and other agencies, and was assessed as having capacity to make decisions regarding her wellbeing.
Was Article 2 engaged?
Following her death, Mrs Wolff’s family submitted to the Coroner that Article 2 should be engaged on the basis that Mrs Wolff had been let down by the public authorities who had been charged with assisting her prior to her death.
The Coroner disagreed and ruled that Article 2 was not engaged. This was on the basis that individuals are free to live their lives without restraint or interference from the State and the fact that public authorities interacted with a citizen does not alone engage Article 2. The evidence was that Mrs Wolff resided in her own home and declined additional intervention by the State. She was deemed to have capacity to make her own decisions and was entitled to exercise her own free will. It did not matter that her decisions, in terms of her hoarding and the general tidiness of her property, may be deemed by ordinary persons to be unwise.
The family challenged this decision by way of judicial review. The Judge on appeal was mindful that the test for engagement of Article 2 at inquest was whether it was arguable that a public authority was in breach of a substantive duty under Article 2, which was owed in the first place. In Mrs Wolff’s case, the duty in question was whether there was a real and immediate risk to life which the relevant authorities were, or ought to have been, aware of, and whether they failed to take steps to deal with this risk.
In assessing this, the Judge considered the decision of Rabone v Pennine Care NHST, in which it was made clear that the existence of a “real and immediate risk” to life is a necessary, but not sufficient, condition for an Article 2 duty. The other relevant criteria for such a duty are:
- Assumption of State responsibility, including, but not limited to, the exercise of control.
- The vulnerability of the victim.
- The nature of the risk; was this ordinary risk that individuals in the relevant category should reasonably be expected to take?
The Judge was also mindful that such a duty must be interpreted in a way which does not impose impossible or disproportionate burdens on public authorities.
Why Article 2 was not deemed to be engaged
The Judge found that Mrs Wolff lived a risky lifestyle in the sense that she was a hoarder, had poor smoking habits and was known to discard cigarettes around her property. This placed her at greater risk of experiencing a fire than the ordinary citizen. There was therefore a risk of a house fire occurring within Mrs Wolff’s home which could prove fatal.
However, Mrs Wolff did not lack capacity to make decisions regarding her lifestyle. She would have been aware of the risks and, whilst her decisions in terms of how she lived her life may have been considered unwise by many, she was entitled as a capacitous adult to make her own choices. In addition, the risk in question (fire as a result of the discarding of cigarettes) was an ordinary one. The responsibility for dealing with such risks, the Court ruled, therefore rested with individuals, as opposed to the State. As such no Article 2 duty was owed.
What is the significance of this decision?
Whenever public bodies, such as Local Authorities, are involved in inquests, consideration will be given as to whether Article 2 is engaged. The decision in Parkin highlights that it is ordinarily a high threshold for Article 2 to be engaged and more is required than public authorities merely offering services to a person which might assist in limiting a risk of death.
If you would like any further advice or guidance in relation to the above, or to know more about how this may affect local authorities, please do not hesitate to contact James Donnelly or anther of our expert Inquest Specialists
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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