CASE OF TSFAYO v. THE UNITED KINGDOM
(Application no. 60860/00)
14 November 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Tsfayo v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Mr J. Casadevall,
Sir Nicolas Bratza,
Mr M. Pellonpää,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr J. Borrego Borrego,
Ms L. Mijović, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 22 November 2005 and 24 October 2006,
Delivers the following judgment, which was adopted on the last mentioned date:
There appeared before the Court:
(a) for the Government
Mr John GRAINGER, Agent
Mr James EADIE, Counsel
Ms J. KENNY, Adviser
Ms A. POWICK, Adviser
(b) for the applicant
Mr Richard DRABBLE, Q.C., Counsel
Mr Paul DRAYCOTT, Solicitor
The Court heard addresses by Mr Eadie and Mr Drabble, as well as their answers to questions put by Judge Bratza.
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW
A. Housing benefit
B. The Housing Benefit Review Board
“(2) Subject to the provisions of these Regulations
(a) the procedure in connection with a further review shall be such as the Chairman of the Review Board shall determine;
(b) any person affected may make representations in writing in connection with the further review and such representations shall be considered by the Review Board;
(c) at the hearing any affected person has the right to
(i) be heard, and may be accompanied and may be represented by another person whether that person is professionally qualified or not, and for the purposes of the proceedings at the hearing any representative shall have the rights and powers to which any person affected is entitled under these regulations;
(ii) call persons to give evidence;
(iii) put questions to any person who gives evidence;
(d) the Review Board may call for, receive or hear representations and evidence from any person present as it considers appropriate.”
C. The scope of judicial review of administrative decision-making
“It has long been established that if the Secretary of State misinterprets the legislation under which he purports to act, or if he takes into account matters irrelevant to his decision or refuses or fails to take account of matters relevant to his decision, or reaches a perverse decision, the court may set his decision aside. Even if he fails to follow necessary procedural steps - failing to give notice of a hearing or to allow an opportunity for evidence to be called or cross-examined, or for representations to be made or to take any step which fairness or natural justice requires, the court may interfere. The legality of the decision and the procedural steps must be subject to sufficient judicial control.” ...
Lord Slynn continued that he was further of the view that a court had power to quash an administrative decision for a misunderstanding or ignorance of an established and relevant fact (§§ 51-53 of the judgment, and see also Lord Nolan at § 61, Lord Hoffman at § 130 and Lord Clyde at § 169) and, where human rights were in issue, on grounds of lack of proportionality.
“... may not only quash the authority’s decision ... if it is held to be vitiated by legal misdirection or procedural impropriety or unfairness or bias or irrationality or bad faith but also if there is no evidence to support factual findings made or they are plainly untenable or if the decision maker is shown to have misunderstood or been ignorant of an established and relevant fact ... It is plain that the ... judge may not make fresh findings of fact and must accept apparently tenable conclusions on credibility made on behalf of the authority... .”
D. Consideration of administrative decision-making under the Human Rights Act 2000
“In a democratic country, decisions as to what the general interest requires are made by democratically elected bodies or persons accountable to them. Sometimes the subject-matter is such that Parliament can itself lay down general rules for enforcement by the courts. Taxation is a good example; Parliament decides on grounds of general interest what taxation is required and the rules according to which it should be levied. The application of those rules, to determine the liability of a particular person, is then a matter for independent and impartial tribunals such as the General or Special Commissioners or the courts. On the other hand, sometimes one cannot formulate general rules and the question of what the general interest requires has to be determined on a case by case basis. Town and country planning or road construction, in which every decision is in some respects different, are archetypal examples. In such cases Parliament may delegate the decision-making power to local democratically elected bodies or to ministers of the Crown responsible to Parliament. In that way the democratic principle is preserved.
... There is however another relevant principle which must exist in a democratic society. That is the rule of law. When ministers or officials make decisions affecting the rights of individuals, they must do so in accordance with the law. The legality of what they do must be subject to review by independent and impartial tribunals. This is reflected in the requirement in Article 1 of Protocol No. 1 that a taking of property must be ‘subject to the conditions provided for by law’. The principles of judicial review give effect to the rule of law. They ensure that administrative decisions will be taken rationally, in accordance with a fair procedure and within the powers conferred by Parliament. ...”
“the narrower the interpretation given to ‘civil rights’, the greater the need to insist on review by a judicial tribunal exercising full powers. Conversely, the more elastic the interpretation given to ‘civil rights’, the more flexible must be the approach to the requirement of independent and impartial review if the emasculation (by over-judicialisation) of administrative welfare schemes is to be avoided. ...”
“A finding of fact in this context seems to me very different from the findings of fact which have to be made by central or local government officials in the course of carrying out regulatory functions (such as licensing or granting planning permission) or administering schemes of social welfare such as [housing the homeless]. The rule of law rightly requires that certain decisions, of which the paradigm examples are findings of breaches of the criminal law and adjudications as to private rights, should be entrusted to the judicial branch of government. This basic principle does not yield to utilitarian arguments that it would be cheaper or more efficient to have these matters decided by administrators. Nor is the possibility of an appeal sufficient to compensate for lack of independence and impartiality on the part of the primary decision-maker (see De Cubber v. Belgium [judgment of 26 October 1984, Series A no. 124-B]).
But utilitarian considerations have their place when it comes to setting up, for example, schemes of regulation or social welfare. I said earlier that in determining the appropriate scope of judicial review of administrative action, regard must be had to democratic accountability, efficient administration and the sovereignty of Parliament. This case raises no question of democratic accountability. ...
On the other hand, efficient administration and the sovereignty of Parliament are very relevant. Parliament is entitled to take the view that it is not in the public interest that an excessive proportion of the funds available for a welfare scheme should be consumed in administration and legal disputes ... .”
“There is however, in my judgment, one insuperable difficulty. Unlike an inspector [in a planning case], whose position was described by Lord Hoffman [in R. v. Secretary of State for the Environment, ex parte Holding and Barnes, Alconbury Developments Ltd and Legal and General Assurance Society Ltd,  UKHL 23;  2 All ER 929: see Holding and Barnes plc v. the United Kingdom (dec.), no. 2352/02, ECHR 2002] as independent, the same cannot be said of a councillor who is directly connected to one of the parties to the dispute, namely the Council. The dispute was between the claimant and the Council. The case against payment of benefit was presented by employee of the Council and relied upon the statement of an official of the Council (the Fraud Verification Officer in the Council’s Revenue office). ...
The reasoning carefully set out by the Board enables the court to ensure that there has been no material error of fact. Even in relation to a finding of fact, this court can exercise some control if it can be demonstrated that the facts found are not supported by the evidence. But, in that respect, the court can only exercise limited control. It cannot substitute its own views as to the weight of the evidence ... In my judgment, the connection of the councillors to the party resisting entitlement to housing benefit does constitute a real distinction between the position of a [planning] inspector and a Review Board. The lack of independence may infect the independence of judgment in relation to the finding of primary fact in a manner which cannot be adequately scrutinised or rectified by this court. One of the essential problems which flows from the connection between a tribunal determining facts and a party to the dispute is that the extent to which a judgment of fact may be infected cannot easily be, if at all, discerned. The influence of the connection may not be apparent from the terms of the decision which sets out the primary facts and the inferences drawn from those facts. ...
Thus it is no answer to a charge of bias to look at the terms of a decision and to say that no actual bias is demonstrated or that the reasoning is clear, cogent and supported by the evidence. This court cannot cure the often imperceptible effects of the influence of the connection between the fact finding body and a party to the dispute since it has no jurisdiction to reach its own conclusion on the primary facts; still less any power to weigh the evidence. Accordingly, I conclude that there has been no determination of the claimant’s entitlement to housing benefit by an independent and impartial tribunal. The level of review which this court can exercise does not replenish the want of independence in the Review Board, caused by its connection to a party in the dispute.”
The Secretary of State was granted leave to appeal against this judgment but, in the event, decided not to appeal.
The Bewry judgment was approved and followed, after the House of Lords’ judgment in Runa Begum, by the High Court in R. (Bono and another) v. Harlow District Council  EWHC 423.
E. The Council on Tribunals’ recommendations
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
A. The parties’ submissions
B. The Court’s assessment
“Such an approach by an appeal tribunal on questions of fact can reasonably be expected in specialised areas of the law such as the one at issue, particularly where the facts have already been established in the course of a quasi-judicial procedure governed by many of the safeguards required by Article 6 § 1. It is also frequently a feature in the systems of judicial control of administrative decisions found throughout the Council of Europe member States. Indeed, in the instant case, the subject-matter of the contested decision by the inspector was a typical example of the exercise of discretionary judgment in the regulation of citizens’ conduct in the sphere of town and country planning.”
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Pecuniary Loss
B. Non-pecuniary Loss
C. Costs and expenses
D. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage and EUR 5,800 (five thousand, eight hundred euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 14 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Josep Casadevall
Deputy Registrar President