EUROPEAN COURT OF HUMAN RIGHTS
Press release issued by the Registrar
TSFAYO v. UNITED KINGDOM
The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Tsfayo v. United Kingdom (application no. 60860/00).
The Court held unanimously that there had been a violation of Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights.
Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 2,000 euros (EUR) for non-pecuniary damage and EUR 5,800 for costs and expenses. (The judgment is available only in English.)
1. Principal facts
The applicant, Tiga Tsfayo, is an Ethiopian national who was born in Ethiopia in 1975 and lives in London.
In 1993 the applicant arrived in the United Kingdom from Ethiopia and sought political asylum. She was initially provided with accommodation by the social services department of Hammersmith and Fulham Council (the council) in London. On 21 April 1997, she moved into accommodation owned by a housing association. A member of the housing association’s staff helped her complete her application for housing and council (local) tax benefit which was submitted to the council in April 1997. The application was successful.
Ms Tsfayo was required by law to renew her application for housing and council tax benefit on an annual basis. Because of her lack of familiarity with the benefits system and her poor English, she failed to submit a benefit renewal form to the council within the required time. In September 1998, she received correspondence from the housing association about her rent arrears. As she did not understand the correspondence, she sought assistance from the council’s advice office. After obtaining that advice, she realised that her housing and council tax benefit had ceased on 15 June 1998. She therefore submitted both a prospective claim and a backdated claim for both types of benefit.
The prospective claim was successful and the applicant began to receive housing benefit again from 4 October 1998, but the council rejected the application for backdated benefit because the applicant had failed to show “good cause” why she had not claimed the benefits earlier.
For the period 15 June to 4 October 1998 the applicant lost housing benefit of 860.00 pounds sterling (GBP) and – as her rent exceeded the benefit to which she had been entitled – her rent arrears amounted to GBP 1,068.86. The housing association started possession proceedings, seeking the applicant’s eviction for non-payment of rent, and the local authority also brought proceedings based on the applicant’s failure to pay council tax of GBP 163.36 for the year 1998/99. On 19 October 1998 a court order was made allowing the local authority to deduct GBP 2.60 per week from the applicant’s income support of GBP 35.87.
The applicant appealed against the council’s refusal to pay backdated council tax and housing benefits. Her case was heard on 10 September 1999 by Hammersmith and Fulham Council Housing Benefit and Council Tax Benefit Review Board (the HBRB). The HBRB consisted of three councillors from the council. It was advised by a barrister from the council’s legal department. The applicant was represented by Fulham Legal Advice Centre and the council was represented by a council benefits officer. The HBRB rejected the applicant’s appeal, finding that the applicant must have received some correspondence from the local authority during the period 15 June to 4 October 1998 concerning the council tax she owed, although no such correspondence was produced to it.
On 13 September 1999 the housing authority’s possession proceedings against the applicant concluded with a court order requiring her to pay off the rent arrears at GBP 2.60 a week (in addition to the GBP 2.60 per week for council tax arrears).
On 6 December 1999, the applicant sought judicial review of the HBRB’s decision. She complained that the HBRB had acted unlawfully because it had failed to make adequate findings of fact or provide sufficient reasons for its decision. The applicant also alleged that the HBRB was not an “independent and impartial” tribunal.
On 31 January 2000, the High Court dismissed the applicant’s application for leave to apply for judicial review on the grounds that the European Convention on Human Rights had not yet been incorporated into English law, and further dismissed the application on the merits, on the grounds that the HBRB’s decision was neither unreasonable nor irrational. The applicant was unable to appeal because legal aid was refused. She was subsequently advised that her appeal had no prospects of success.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 25 July 2000 and declared admissible on 24 August 2004. A hearing took place in public in the Human Rights Building, Strasbourg, on 22 November 2005.
Judgment was given by a Chamber of seven judges, composed as follows:
Casadevall (Andorran), President,
Nicolas Bratza (British),
Matti Pellonpää (Finnish),
Rait Maruste (Estonian),
Stanislav Pavlovschi (Moldovan),
Javier Borrego Borrego (Spanish),
Ljiljana Mijović (citizen of Bosnia and Herzegovina), judges,
and also Françoise Elens-Passos, Deputy Section Registrar.
3. Summary of the judgment1
The applicant complained that the HBRB was not an independent and impartial tribunal, as required by Article 6 § 1 of the Convention.
Decision of the Court
Article 6 § 1
The Court noted that the HBRB was composed of five elected councillors from the same local authority which would have been required to pay a percentage of the housing benefit if awarded, and the United Kingdom Government conceded on those grounds that the Board lacked structural independence. They contended, however, that the High Court on judicial review had sufficient jurisdiction to ensure that the proceedings as a whole complied with Article 6 § 1.
The Court recalled that, even where an adjudicatory body determining disputes over “civil rights and obligations” did not comply with Article 6 § 1 in some respect, no violation of the Convention could be found if the proceedings before that body were subject to subsequent control by a judicial body that had full jurisdiction and did provide the guarantees of Article 6 § 1.
The Court observed that it had already found in previous cases that a lack of independence of a first-instance tribunal had been remedied through a review by a higher level court, thus meeting the requirements of Article 6 § 1. However, in those cases, the issues to be determined required a measure of professional knowledge or experience and the exercise of administrative discretion to meet wider policy aims. In the applicant’s case, the HBRB was deciding a simple question of fact, namely whether there was “good cause” for her delay in making a claim. On that question, the applicant had given evidence to the HBRB that the first that she knew that anything was amiss with her claim for housing benefit was the receipt of a notice from her landlord – the housing association – seeking to repossess her flat because her rent was in arrears. The HBRB found her explanation to be unconvincing and rejected her claim for back-payment of benefit essentially on the basis of their assessment of her credibility. No specialist expertise was required to determine that issue, which was determined by a non-specialist tribunal. Nor could the factual findings in the applicant’s case be said to be merely incidental to the reaching of broader judgments of policy or expediency which it was for the democratically accountable authority to take.
Also, in contrast to previous cases, the HBRB was not merely lacking in independence from the executive, but was directly connected to one of the parties to the dispute. That connection of the councillors to the party resisting entitlement to housing benefit might infect the independence of judgment in relation to the finding of primary fact in a manner which could not be adequately scrutinised or rectified by judicial review. The safeguards built into the HBRB procedure were not adequate to overcome that fundamental lack of objective impartiality.
The applicant had her claim refused because the HBRB did not find her a credible witness. While the High Court had the power to quash the decision if it considered, among other things, that there was no evidence to support the HBRB’s factual findings, or that its findings were plainly untenable, or that the HBRB had misunderstood or been ignorant of an established and relevant fact, it did not have jurisdiction to rehear the evidence or substitute its own views as to the applicant’s credibility. Thus, in the applicant’s case, there was never the possibility that the central issue would be determined by a tribunal that was independent of one of the parties to the dispute. It followed that there had been a violation of Article 6 § 1.
The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).
Hellyer (telephone: 00 33 (0)3 90 21 42 15)
Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54)
Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21)
The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.
1 Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.
1 This summary by the Registry does not bind the Court.