Full case report
H and L v A City Council (CA)
Reference  EWCA Civ 403
Court Court of Appeal (Civil Division)
Judge Pill, Hooper and Munby LJJ
Date of Judgment 14 Apr 2011
Human rights – Article 8 – Right to respect for private and family life – Judicial review – Disclosure of conviction by local authority – Procedural safeguards – Local authority powers
H had a conviction for indecent assault on a seven-year old boy, with a further conviction for dishonesty for failing to disclose his earlier conviction when applying for a job. L was his partner. Both were very severely disabled and received payments from a local authority, D, which they used to employed personal assistants. H belonged to a number of representative or consultative bodies dealing with disability issues. H and L ran a company which had obtained contracts from universities and other public bodies. The company’s work did not involve contact with children, and in only one of the agencies with which H was involved had he had any contact with children.
D received a letter from another local authority drawing attention to H’s conviction and saying that he was facing trial for a similar offence (of which he was subsequently acquitted). D convened a strategy meeting effectively chaired by X, the service manager of D’s safeguarding children service, and attended by two other officers from D, two representatives of a local university, a representative of the NHS and two police officers from the local police public protection unit. At the meeting it was decided that, inter alia, the fact of H’s conviction and forthcoming trial would be communicated to various organisations with which he had contact, the university and Primary Care Trust would cease employing or hiring him or his company and he would be asked to stand down from all bodies and committees he was involved with immediately.
Pursuant to these decisions X made a number of telephone calls to various organisations: the local authority’s disability service, the university, the PCT, the Refugee Council, the General Social Care Council and four other agencies in the voluntary or third sector. He informed them of H’s conviction and the “potential for future convictions”, and stated that L, like H, was in denial about H’s conviction and had either not recognised the risk he posed to children or was careless as to that risk. H and L were not told about these disclosures at the time.
D wrote to H and L stating that it intended to make the same disclosures to their personal assistants, and that they intended to only authorise payments to those assistants by means of a managed account.
H and L sought judicial review.
The judge at first instance, HHJ Langan QC, found the disclosures and proposed future disclosures to be lawful, save for the proposed disclosure to the personal assistants, which was unlawful as in breach of H and L’s rights at common law and under Article 8 of the European Convention on Human Rights, and that the proposed managed account scheme was unlawful both for the same reasons and as ultra vires D’s powers under the relevant legislation.
H and L appealed.
(1) Whether the disclosures which had taken place following the strategy meeting were unlawful as in breach of H and L’s rights both at common law and under Article 8 of the Convention;
(2) Whether D’s proposed disclosure to H and L’s personal assistants and stated approach to future disclosures was unlawful for essentially the same reasons;
(3) Whether D’s proposals as to a managed account for payments to the personal assistants was not only unlawful for the same reasons but also ultra vires D’s powers under the relevant legislation.
(1) Applying R v Chief Constable of the North Wales Police ex p Thorpe  QB 396 and R (L) v Comr of Police of the Metropolis, each case had to be judged on its own facts. The issue was essentially one of proportionality. Information was to be disclosed only if there is a “pressing need” for that disclosure. There was no difference in this context between the common law test and the approach mandated by Article 8. Before deciding whether or not to disclose, the persons about whom disclosure was being contemplated should be consulted.
The decisions of D were wrong in that they failed to engage with the critically important fact that H and L did not work with children. The blanket approach of D, that H should stand down from all bodies and disclosure be made to all his known contacts was neither fair nor balanced nor proportionate. Further, the decision would have been quashed for procedural irregularity in any event, as the meeting at which the decisions were made and the implementation of those decisions took place behind H’s back, without H and L being given any opportunity to make representations.
(2) The proposed disclosure to the personal assistants was unlawful, both at common law and under Article 8, as it related to long-term relationships, within their homes, with personal assistants of whom 2 of 3 did not have children. Further, H and L had recently inserted a ‘no children at work’ clause in their assistants’ contracts.
The more nuanced approach proposed by D to future disclosures was an improvement to the decisions taken at the meeting. However, it was still unlawful as it did not give H and L an opportunity to make objections after D had decided to make disclosure but before it had done so.
(3) The proposed managed account scheme fell with the unlawfulness of the proposed disclosure to the personal assistants. It was also ultra vires D’s powers under the Health and Social Care Act 2001 and The Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009.
Public authorities are under what might be considered onerous duties to balance competing interests and consult relevant parties before disclosing information that engages the Article 8 right to respect for private and family life. Here the strong interest in protecting children was held not to outweigh H and L’s Article 8 rights, principally because they simply did not work with children. The local authority’s failure to properly consult them prior to the disclosure would have been fatal in any event.
Howells for H and L: Director of Legal Services for the City Council
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 3rd Edition of The Law of Privacy and the Media, published by OUP. Further details here.