European Court of Human Rights

FOURTH SECTION

Application no. 40378/10
Fazia ALI
against the United Kingdom
lodged on 15 July 2010

STATEMENT OF FACTS

 

The applicant, Ms Fazia Ali, is a British national, who was born in 1980 and lives in Birmingham. She is represented before the Court by Michael McIlvaney of the Community Law Partnership, a solicitor practising in Birmingham.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant, a parent of two young children, is a homeless person in priority need of accommodation within the meaning of Part VII of the Housing Act 1996 (“the 1996 Act”).

Birmingham City Council (“the Council”) is a local housing authority within the meaning of the 1996 Act and is required, under Part VII of that Act, to perform statutory functions in relation to homeless persons in its area.

The applicant applied as a homeless person to Birmingham City Council for assistance in October 2006. By letter dated 7 November 2006 the Council determined that the applicant was homeless, eligible for assistance, in priority need and not intentionally homeless. The authority therefore accepted that it owed the applicant the “main housing duty” to provide accommodation to her and her family. An offer of accommodation at 16 Bromford Lane, Erdington, Birmingham was made. The applicant declined the offer. She claimed that at the time she declined it, she had not received the offer in writing; rather, it was communicated to her verbally through a telephone call.

By letter dated 21 March 2007 the Council determined that, by reason of the applicant’s rejection of its offer, its duty to her under Part VII had been discharged. By letter dated 29 March 2007 the applicant notified the Council that she had not received an offer in writing and requested that the Council review its decision.

By letter dated 2 May 2007 a Homelessness Review Officer employed by the Council upheld the decision that the applicant’s refusal of the offer of accommodation had discharged the Council’s main housing duty to her under section 193(2) of the 1996 Act. In particular, the officer found that the applicant had received an offer letter from the Council which complied with the mandatory requirements of section 193 of the 1996 Act prior to her refusal.

The applicant appealed to Birmingham County Court under section 204 of the 1996 Act, which allowed for an appeal to the County Court on a point of law only. The jurisdiction exercised by the County Court under section 204 was that of judicial review. The appeal was heard on 29 August 2007. Although the judge accepted that the Review Officer was not an independent or impartial tribunal, he declined to hear evidence on the simple factual dispute over the offer letter.

The applicant subsequently appealed to the Court of Appeal and then to the Supreme Court. At each level, the grounds of appeal were that the decision taken by the Council’s Review Officer had constituted a determination of her civil rights for the purposes of Article 6 of the Convention; that the Council’s Review Officer had not been an independent or impartial tribunal as required by Article 6; that the decision of the Officer had turned on the resolution of a simple question of disputed primary fact, involving no application of specialist knowledge; that pursuant to Tsfayo v. the United Kingdom, no. 60860/00, 14 November 2006, Article 6 required that the applicant be able to appeal that simple factual determination; and, alternatively, that the restriction of all statutory appeals to points of law, no matter what the nature of the decision, was incompatible with Article 6.

Both the Court of Appeal and the House of Lords decision on the applicant’s appeal followed the decision of the House of Lords in Runa Begum v. London Borough of Tower Hamlets [2003] UKHL 5. In Runa Begum the House of Lords had found that judicial review of a housing officer’s decision that the claimant had been unreasonable in rejecting the accommodation offered to her provided “sufficiency of review” for the purposes of Article 6 § 1. The House of Lords stressed that although the housing officer had been called upon to resolve some disputed factual issues, these findings of fact were “only staging posts on the way to the much broader judgments” concerning local conditions and the availability of alternative accommodation, which the housing officer had the specialist knowledge and experience to make. Although the housing officer could not be regarded as independent, since she was employed by the local authority which had made the offer of accommodation which the claimant had rejected, statutory regulations provided substantial safeguards to ensure that the review would be independently and fairly conducted, free from improper external influences. Any significant departure from the procedural rules would have afforded a ground of appeal. The applicant submitted that the present case could be distinguished from that of Runa Begum because it concerned the simple question of a finding of primary fact rather than an evaluative judgment, such as a qualitative assessment of “suitability”.

1.  The judgment of the Court of Appeal

On 7 November 2008 the Court of Appeal dismissed the applicant’s appeal. In doing so, the Court of Appeal proceeded on the assumption that the issue did involve the determination of the applicant’s civil rights for the purposes of Article 6 of the Convention. However, Thomas LJ stated that:

“i) It is far from easy to draw the distinction advanced in practice. A finding of suitability is itself a finding based on conclusions of primary fact ...

ii) There would be considerable complexity in administering a scheme with these distinctions. A scheme which enabled certain factual issues to be subject to a full right of appeal and others which would not be so subject would be too uncertain and too complex ...

iii) ... [I]f the extent of the review by the court was determined by the answer to the questions of whether a finding of fact was a primary finding, or whether that finding required expertise or whether that finding was determinative, the room for argument and uncertainty would be considerable ...

....

v) The additional review which would be provided by the suggested full right of appeal on fact would not in practice be very wide ...

vi) The full right of appeal sought from a review officer on fact might have to be significantly different from an appeal from a court ... the procedure adopted by the reviewing officer in reaching findings of fact is informal and there are no transcripts of evidence.

....

viii) There would therefore clearly be significant implications for not only the statutory scheme but for the court and tribunal system, if this court were to hold that a full right of appeal was required on findings of primary fact or on issues of primary fact where the finding was determinative ... The statutory scheme for housing and the statutory scheme for the method of appeals in respect of courts and tribunals are determined by Parliament; funds are provided for their finance by Parliament ...

ix) The present scope of the appeal provides a real measure of protection for homeless appellants. It is clear from the careful judgments of Judge MacDuff QC and Judge McKenna that both considered that the housing authority had fairly treated both appellants in cases where the determinative issue was a question of fact. This conclusion reinforces the view I have expressed that the review by the County Court in cases of this kind was sufficient and that there is no reason to attempt to find that it is outside the scope of the decision in Runa Begum. It demonstrates, as Lord Bingham observed at paragraph 11, that the scheme properly operated should ensure fair treatment. I consider that it does whether the decision turns on a simple issue of primary fact or a conclusion of fact based on primary facts (such as a conclusion on suitability).”

Thomas LJ therefore concluded that the decision of the House of Lords in Runa Begum applied to all County Court appeals under section 204 of the 1996 Act, no matter whether the decision turned on a simple issue of primary fact or not. He further held that the decision in Tsfayo, which concerned the housing benefit scheme, did not affect appeals brought in homelessness cases:

“34. ... In the first place the Strasbourg Court relied on the decision in Runa Begum in reaching its conclusion and said nothing that cast doubt on the correctness of the decision. Secondly, the decisions in Runa Begum and Tsfayo each turned on a careful examination of the whole of the statutory scheme relevant to the particular case. Thirdly, it is apparent from the details of the scheme considered in Tsfayo that whereas in the case of prospective benefit, central government reimbursed the local authority 95% of what it was required to pay, it only reimbursed 50% of backdated awards (see paragraph 19 of the decision); this fact had been heavily relied upon in argument (see paragraph 37 of the decision) for the powerful contention that the hearing had taken place before a tribunal consisting of members of an authority which would be required to pay 50% of the benefit if it made an award in the applicant’s favour; the HBRB was not independent of the parties. Finally when the housing benefits scheme was looked upon as a whole, it was readily apparent that a conclusion could be reached, in contradistinction to the scheme under Part VII of the Housing Act, that the particular scheme was not compliant with Article 6.1.”

2.  The judgment of the Supreme Court

On 17 February 2010 the Supreme Court dismissed the applicant’s appeal, finding that the determination by the Council, that its duty to secure accommodation for the applicant had ceased, was not a determination of her civil rights within the meaning of Article 6. Lord Hope of Craighead with whom Baroness Hale and Lord Brown agreed, stated that:

“... I would be prepared now to hold that cases where the award of services or benefits in kind is not an individual right of which the applicant can consider himself the holder, but is dependent upon a series of evaluative judgments by the provider as to whether the statutory criteria are satisfied and how the need for it ought to be met, do not engage article 6(1). In my opinion they do not give rise to ‘civil rights’ within the autonomous meaning that is given to that expression for the purposes of that article.”

In supporting that conclusion Lord Hope looked to what the relevant provisions within Part VII of the 1996 Act were intended to achieve. He observed that:

“... It provides a right to assistance if the relevant conditions are satisfied. But this is not a pecuniary right, nor is the benefit that is to be provided defined by the application of specific rules laid down by the statute. Even where the full homelessness duty arises under section 193, the content of the statutory duty lacks precise definition. There is no private law analogy. The duty is expressed in broad terms - to secure that ‘accommodation is available’ - which leaves much to the discretionary administrative judgment of the authority.”

He continued, following a review of the jurisprudence of the Court, by noting that:

“43. There are however ... a number of straws in the wind since Runa Begum that suggest that a distinction can indeed be made between the class of social security and welfare benefits that are of the kind exemplified by Salesi v Italy whose substance the domestic law defines precisely and those benefits which are, in their essence, dependent upon the exercise of judgment by the relevant authority ...”

Later in his judgment, Lord Hope, for completeness, set out some observations on whether the scheme of decision-making was Article 6-compliant. He commented that the possibility, foreshadowed in argument, of separating simple, formal questions of “gateway” facts, such as the letter issue, from the expert assessment of suitability would needlessly complicate a scheme which was designed to be simple to administer.

The court went on to observe that the fact that a County Court did not have a full fact-finding jurisdiction when hearing an appeal under section 204 of the 1996 Act did not mean that the applicant was deprived of what was required to satisfy the guarantees of Article 6 of the Convention. In this connection, Lord Hope said this:

“54. ... For ease of administration the review is entrusted to a single officer who is equipped to deal with issues as to the suitability of the accommodation that has been declined. An answer to the question whether or not the letters were received was incidental to a more searching and judgmental inquiry into the accommodation’s suitability. ... These cases are quite different from Tsfayo, where no broad questions requiring professional knowledge or experience had to be addressed once the question whether there was good cause had been answered. In these circumstances I would hold that the ratio of the decision in Runa Begum should be applied and that the absence of a full fact-finding jurisdiction in the court to which an appeal lies under section 204 does not deprive it of what it needs to satisfy the requirements of article 6(1).”

B.  Relevant domestic law and practice

1.  The Housing Act 1996

Section 193 of the Housing Act 1996 (“the 1996 Act”), as amended by the Homelessness Act 2002 (“the 2002 Act”), which deals with the duty on local authorities to persons with priority need who are not homeless intentionally, provides as follows:

“(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally....

(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.

(3) The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section.

...

(5) The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section.

...

(7) The local housing authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation refuses a final offer under Part 6.

(7A) An offer of accommodation under Part 6 is a final offer for the purposes of subsection (7) if it is made in writing and states that it is a final offer for the purposes of subsection (7).”

Section 202(1), as amended by the 2002 Act, entitles an applicant to request a review of the decision of a local housing authority under Part VII of the 1996 Act.

The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (SI 1999/71) provide that the officer shall be someone who was not involved in the original decision and who is senior to the officer who made the original decision. The reviewer is required to consider any representations made to him. If he considers that there is a deficiency or irregularity in the original decision, or the manner in which it was made, but is minded nevertheless to make a decision which is against the interests of the applicant on one or more issues, he must notify the applicant that he is so minded and the reasons why he is of that view in order that the applicant, or someone on their behalf, may make representations.

Section 204(1) of the 1996 Act provides that, if an applicant is dissatisfied with the decision on review, he may appeal to the County Court on any point of law arising from the decision or, as the case may be, the original decision. No provision is made for an appeal against the facts found by the reviewing officer.

2.  Judicial consideration of Part VII of the Housing Act 1996

In the case of Runa Begum v. London Borough of Tower Hamlets [2003] UKHL 5, in which the contested questions of fact went to the larger issue of the “suitability” of the accommodation offered, the House of Lords considered whether the review mechanism under section 202 of the 1996 Act complied with Article 6 of the Convention.

Their Lordships accepted that the Review Officer was not independent of the local housing authority. Lord Hoffmann of Chedworth, giving the leading opinion, concluded that:

“50. ... It seems to me sufficient to say that in the case of the normal Part VII decision, engaging no human rights other than article 6, conventional judicial review such as the Strasbourg court considered in the Bryan case (1995) 21 EHRR 342 is sufficient.

...

52. In this case the subject matter of the decision was the suitability of accommodation for occupation by Runa Begum; the kind of decision which the Strasbourg court has on several occasions called a ‘classic exercise of an administrative discretion’. The manner in which the decision was arrived at was by the review process, at a senior level in the authority’s administration and subject to rules designed to promote fair decision-making....

...

56. The key phrases in the judgments of the Strasbourg court which describe the cases in which a limited review of the facts is sufficient are ‘specialised areas of the law’ (Bryan’s case, at p 361, para 47) and ‘classic exercise of administrative discretion’ (Kingsley’s case, at p 302, para 53). ... It seems to me that what the court had in mind was those areas of the law such as regulatory and welfare schemes in which decision-making is customarily entrusted to administrators. And when the court in Kingsley spoke of the classic exercise of administrative discretion, it was referring to the ultimate decision as to whether Kingsley was a fit and proper person and not to the particular findings of fact which had to be made on the way to arriving at that decision. In the same way, the decision as to whether the accommodation was suitable for Runa Begum was a classic exercise of administrative discretion, even though it involved preliminary findings of fact.

...

59. ... In my opinion the question is whether, consistently with the rule of law and constitutional propriety, the relevant decision-making powers may be entrusted to administrators. If so, it does not matter that there are many or few occasions on which they need to make findings of fact.”

While not relevant to the disposal of the appeal, Lord Millett of St Marylebone in the City of Westminster, without expressing a settled decision, set out some thoughts in connection with the issue of whether Runa Begum’s case involved the determination of a “civil right”. He made the observation that the case-law of the Court, as it related to social security, was still in a process of development. At paragraph 91, he noted the significant differences between the case of Runa Begum and previous decisions of the Court:

“The present case undoubtedly goes further still. It has four features which take it beyond the existing case law: (i) it is concerned with a benefit in kind; (ii) it therefore involves priority between competing claimants. There is only a finite amount of housing stock, whether it belongs to the local housing authority or is bought in; and if one applicant is allowed to remain on the unintentionally homeless register it will be to the detriment of other homeless persons; (iii) the housing authority has a discretion as to the manner in which it will discharge its duties; and (iv) ultimately the question for determination calls for an exercise of judgment: whether the applicant has behaved reasonably in refusing an offer of accommodation, having regard to all the circumstances, and in particular housing conditions in the area.

...

93. It is not difficult to conclude that the nature of the dispute in her case makes it inappropriate for determination by the ordinary judicial process. But it is more difficult, at least in principle, to justify withdrawing it from the protection of Article 6(1)....”

3.  Judicial consideration of “full jurisdiction” under Article 6

The leading domestic decision on this concept is that of the House of Lords in R (Wright and Others) v. Secretary of State for Health [2009] UKHL 3. Baroness Hale of Richmond fully and concisely summarises the state of the law at paragraph 23:

“It is a well-known principle that decisions which determine civil rights and obligations may be made by the administrative authorities, provided that there is then access to an independent and impartial tribunal which exercises ‘full jurisdiction’: Bryan v United Kingdom (1995) 21 EHRR 342. ... It does not always require access to a court or tribunal even for the determination of disputed issues of fact. Much depends upon the subject-matter of the decision and the quality of the initial decision-making process. If there is a ‘classic exercise of administrative discretion’, even though determinative of civil rights and obligations, and there are a number of safeguards to ensure that the procedure is in fact both fair and impartial, then judicial review may be adequate to supply the necessary access to a court, even if there is no jurisdiction to examine the factual merits of the case.”

COMPLAINT




§ 1 of the Convention that her inability to appeal to an independent and impartial tribunal in respect of the relevant factual finding amounts to a violation of that provision.

QUESTIONS TO THE PARTIES




  Did the determination of the rights and/or entitlements of the applicant in respect of the “main housing duty” owed to her by Birmingham City Council involve the determination of a “civil right” within the meaning of Article 6 § 1?

 




  If so, did the determination of the applicant’s civil rights satisfy the requirement of Article 6 § 1 of the Convention ?