Crossing the threshold

A recent case involving homelessness applications has shown that the threshold for proving misfeasance in public office is a high one. Peter Wake explains why.

In the recent case of R (on the application of K, Z and M) v Birmingham City Council [2010] the High Court issued a welcome reminder that the threshold for a claimant to establish misfeasance on the part of a public officer is a high one indeed.

The case related to the local authority’s direction to staff on the intended interpretation of its homelessness policy upon receipt of applications. A senior officer had issued a direction to some 40 members of staff in relation to how homelessness applications should be dealt with. The direction stated that all applicants should be referred to the appropriate support service and that formal homeless applications should not be filled out.

Whilst there was evidently a proper place for funded support services, and for identifying housing options, it was not a substitute for the duties owed under Part 7 of the Housing Act 1996. A housing application should have been completed. Accordingly the direction was unlawful under Part 7 of the Act. This was recognised by the local authority which gave evidence to the court that the error was appreciated almost immediately.

The authority contended that the relevant officer confirmed at two briefing sessions that the instruction “was wrong” and that he made it “very clear that his intention had been to try to prevent homelessness by using specialist agencies but this was to be done in parallel with the taking of a homelessness application”. Notwithstanding this contention it was also apparent that a much more unequivocal retraction of the direction was required at a later date.

Despite the local authority’s arguments the judge was unable to conclude that an effective retraction of the unlawful direction was effected at either of these briefing sessions. The judge’s view was that the chronology of events “hardly represented a satisfactory response to an instruction said to have been recognised early as wrong and unlawful.”

The application of K was handled in accordance with the original direction. Accordingly, up until the point he was offered interim accommodation pending the outcome of the enquiries into his case, he had been treated unlawfully by the council. K’s case was that the original unlawful direction and the subsequent failure on the part of the relevant officer to issue a clear, unequivocal and immediate retraction amounted to a cynical attempt to ignore the legal requirements of Part 7. He alleged that this was done because of the adverse financial consequences that might flow from too many acceptances of homeless applications.

K contended that this amounted to misfeasance in public office on the part of the relevant council officer for which the local authority was vicariously liable.

Since there was no doubt that the relevant officer was a person in public office who was exercising a power, the key issue was whether there was evidence of malice. The question to address was the officer’s state of mind at the time the unlawful instruction was issued.

The judge referred to the decision of the House of Lords in Three Rivers DC v Bank of England [2003] where Lord Steyn said that it must be established that the officer acted with a “state of mind of reckless indifference to the illegality of his act” and Lord Hope said, “recklessness is demonstrated where it is shown that the public officer was aware of a serious risk of loss due to an act or omission on his part which was unlawful but chose deliberately to disregard that risk. That is sufficient to establish that he did not have an honest belief in the lawfulness of the conduct which, to his knowledge, gave rise to that risk. Recklessness about the consequences, in the sense of not caring whether the consequences happen or not, will satisfy the test. In this context there is no additional element of dishonesty or bad faith that requires to be satisfied.”

A public body “can only be reckless subjectively if one or more individuals acting on its behalf are subjectively reckless. And their subjective state of mind needs to be established” (Southwark LBC v Dennett [2008] Court of Appeal).

In deciding the case the judge said firstly that there was nothing in the relevant documents to support the conclusion that there was an “institutional” decision to effectively ignore the council’s responsibilities under Part 7 of the Act. He then went on to consider the state of mind of the relevant public officer at the relevant time.

Despite having some reservations about the evidence provided, the judge was of the view that the officer’s state of mind was not of the nature of the bad faith and reckless indifference to the illegality of what he was putting forward that was necessary to establish misfeasance in public office. “It is a high threshold that needs to be crossed to establish the requisite mental element,” he said. “It is higher than the mental element involved in merely making a mistake, even a significant one. I am not satisfied on the evidence that it has been passed in this case.”

Civil claims for damages arising out of alleged misfeasance in public office are obviously far less common than negligence claims against public bodies. However, as a society we now seem more willing (and able) than ever before to challenge authority and the decisions of our public organisations. Some commentators believe that the practical significance of this is that actions in misfeasance in public office are increasingly likely to be brought.

Inevitably such claims involve serious allegations against public officers. They also have the ‘advantage’ over negligence claims in that the claimant does not need to establish the existence of a duty of care and can recover for purely economic loss. However, significant mistakes and errors of judgment will generally not be sufficient to constitute the malice required to found a misfeasance claim. This is likely to be the case even if they result in a technically unlawful decision. The threshold is higher than this and it should always be borne in mind that serious allegations will demand serious evidence to support them.

Peter Wake is an Associate in the Local Government Team of Weightmans LLP. He can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it. or alternatively on 0151 242 6866.