"The essence of the claim under Article 5 is that the Claimant was unlawfully deprived of his liberty between the 1st of February 2011 and the 12th of August 2013, a period of some two and a half years. ... In the present case the extension period sought (18 months) represents an extension equal to the whole of the primary limitation period (12 months) and half as much again. ... For all these reasons I decline to grant the Claimant an extension of time under section 7 to bring his human rights claim against the Defendant."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
Queen’s Bench Division
AP v Tameside Metropolitan Borough Council
Human rights — Breach of Convention rights — Time limit for bringing claim — Claimant protected party bringing human rights claim against local authority responsible for meeting assessed needs outside primary limitation period — Claimant seeking extension of limitation period — Whether claimant’s lack of capacity giving rise to rebuttable presumption in favour of granting extension — Whether limitation period to be extended — Human Rights Act 1998 (c 42), s 7(1)(5)
Section 7 of the Human Rights Act 1998, so far as material, provides: “(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may— (a) bring proceedings against the authority under this Act in the appropriate court or tribunal … (5) Proceedings under subsection (1)(a) must be brought before the end of— (a) the period of one year beginning with the date on which the act complained of took place; or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances …”
The claimant, aged 29, had a learning disability and as a result lacked capacity to make decisions for himself in respect of his residence and care package for the purposes of the Mental Capacity Act 2005. The defendant local authority was under a statutory obligation to meet his assessed needs and to comply with the provisions of the 2005 Act. Until 2011 the claimant was being cared for at his family home by his mother. Between February 2011 and August 2013 the claimant was removed from the family home and placed in respite accommodation by the local authority, following an allegation against the mother of wilful neglect of his aunt for whom she was also the full-time carer. In 2016 the claimant, through his litigation friend, issued a claim under section 7 of the Human Rights Act 1998 seeking declaratory relief and damages for alleged breach by the local authority of his rights under the Convention for the Protection of Human Rights and Fundamental Freedoms in respect of that placement. The local authority asserted in its defence that the claim was time-barred, having been brought one and a half years outside the one-year primary limitation period provided for in section 7(5)(a) of the 1998 Act. The question whether the claimant should be granted an extension of time under section 7(5)(b) of the 1998 Act was ordered to be tried as a preliminary issue. At the hearing the claimant contended that the fact of his lack of capacity gave rise to a rebuttable presumption that it would be equitable in all the circumstances to extend the period for bringing the claim.
On the preliminary issue—
Held, extension of time for bringing the claim refused. Section 7(5) of the Human Rights Act 1998 was not to be read as creating a rebuttable presumption in favour of the equity of extending the time limit, absent exceptional circumstances, in the case of a claimant who lacked capacity and who by reason thereof had to depend on others in order to make a claim under section 7 seeking vindication of his human rights. The wording of section 7(5) did not allow for such a presumption. Rather, the words conferred a wide discretion on the court which was not to be fettered by any such prescriptive principle. The fact that a claimant was under a disability lacking capacity and hence dependent on others to bring a claim under the 1998 Act to vindicate his rights under the Convention was a factor which obviously had to be weighed in the balance when determining where the equity of the situation lay in considering whether to grant an extension of time under section 7(5), but the weight to be given to that factor depended on the particulars facts of the given case. It could not automatically qualify as one to which decisive or even substantial weight had to be given. The weight to be given to that “dependency” factor would vary according in particular to when a claimant first had someone acting on his behalf and looking after his human rights interests, and when that person had come into, or was in a position to come into, possession of knowledge of the essential facts, and the expertise held by that person in identifying human rights claims. Adopting that approach, the factors against the equity of granting an extension, including the delay in bringing the claim, the fact that the claimant’s family and legal advisers had known of the essential facts giving rise to the claim for a number of years, and the prejudice to the defendant, outweighed those in favour of grant. Accordingly, it would not be equitable to grant an extension of time to enable the claimant to pursue his claim against the local authority (paras 65–77, 81, 83, 84, 87, 90, 93, 95).
M v Ministry of Justice (2009) 159 NLJ 860, CA applied.
Sam Karim (instructed by Stephensons Solicitors) for the claimant (A protected party by his litigation friend).
Jonathan Auburn (instructed by Head of Legal Services, Tameside Metropolitan Borough Council) for the local authority.
Reported by: Giovanni D’Avola, Barrister