England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOW COUNTY COURT
HH Judge Laurie

		Royal Courts of Justice Strand, London, WC2A 2LL Friday14th December 2001

SUMMARY

(This summary forms no part of the judgment)

On 6th October 2000, four days after the Human Rights Act 1998 came into force, Judge Laurie, sitting in the Bow County Court, allowed an appeal by Fardous Adan against a decision of a Newham LBC reviewing officer on her homelessness application under Part VII of the Housing Act 1996, and directed that the matter be reviewed again by a reviewing officer who complied with ECHR Article 6 in respect of his independence and impartiality.

The Court of Appeal has unanimously allowed Newham's appeal against the second part of this order (paras 7, 52 and 84). It also noted that Mrs Adan had made a fresh application to Newham under Part VII now that it has been decided that she was habitually resident in this country for social security purposes (para 8). It acceded, however, to a request made by the parties that it should express an opinion on the question whether the relevant statutory procedures complied with the "fair trial" requirements of ECHR Article 6(1), given that appeal lies to the county court only on a point of law. The court was told that a number of other cases had been held up pending its judgment on this appeal.

It was common ground that the local authority reviewing officer did not have the requisite independence and impartiality. It was also common ground that the powers of the county court on an appeal under section 204 of the 1996 Act were akin to those of judicial review exercisable in the High Court. The Court of Appeal was only concerned in this judgment with those cases in which there was a material dispute as to the primary facts. In the other cases the county court's supervisory jurisdiction is sufficient to ensure Article 6(1) compliance (paras 16-17 and 26, 62-67).

All three members of the court agreed that it was not possible to interpret the words "appeal on a point of law" quite simply as if they included an appeal on a point of fact (paras 42, 70, 86). Hale LJ considered, however, that it was possible to interpret those words so as to confer on a county court jurisdiction to decide whether the decision-making process as a whole complied with Article 6 in the particular circumstances of the case, and to decide disputed questions of fact itself if it concluded that this was the only way to achieve compliance with Article 6 (paras 75, 77-79). The majority of the court (Brooke LJ and David Steel J) hold that it was impermissible to interpret the Act in this way (paras 49, 94-95). They held that it was for Parliament, not the courts, to decide who should be the final arbiter of the facts, and that it was not possible to interpret section 204 as if the question whether the statutory procedure, taken as a whole, was Article 6 compliant raised a point of law for the county court itself (paras 50, 94).

All three members of the court agreed that it would be open to a local authority to use its statutory contracting-out powers in such a way that an independent and impartial tribunal might be appointed to conduct the review in those cases where a material dispute as to the facts had to be resolved (paras 9 and 43-45, 76, 94).

LORD JUSTICE BROOKE :

1. This is an appeal by the London Borough of Newham ("Newham") against an order made by Judge Laurie in the Bow County Court on 6th October 2000 (and later amended under the slip rule on 9th October 2001) whereby after quashing a decision made on a review of a homelessness application under Part VII of the Housing Act 1996 ("the 1996 Act") he directed that the matter be remitted for a further review decision within 28 days, to be conducted by a different Reviewing Officer (being an officer who in respect of independence and impartiality complies with Article 6 of Schedule (1) of the Human Rights Act 1998). The judge made his direction only four days after that Act came into force, but the difficulty (and importance) of the issue he faced was recognised by all three of the experienced members of the Bar who appeared on the hearing of this appeal more than a year later.
2. The facts of the case are relatively straightforward. Mrs Adan is a Dutch citizen of Somali origin. Her three children, now aged 10, 7 and 5, are also Dutch citizens. Her husband was murdered outside the family home in the Netherlands in March 1996. A murder investigation conducted by the Dutch police was inconclusive. In January 2000 she decided to bring her family to England. She had found it increasingly difficult to live in the Netherlands on her own, and her children wanted to move because they were frightened that their father's murderer would return and kill them. In particular her oldest child, a girl, was suffering from behavioural problems which were affecting her educational development. She had frequent nightmares, and her younger brothers shared her fears. When the family came to England, Mrs Adan terminated her tenancy and brought all the family's possessions with her. They lived at first with her sister-in-law and her six children in a three-bedroomed property in Stratford. Her sister-in-law then required them to leave, because her home was so crowded, and Mrs Adan turned to Newham to seek housing assistance.
3. Section 185(1) of the 1996 Act provides that a person is not eligible for assistance under Part VII of the Act if he is a person from abroad who is ineligible for housing assistance. The effect of regulation 4(a) of the Homelessness Regulations 1996 is that Mrs Adan had to show that she was habitually resident in this country (or the Republic of Ireland) in order to be eligible. Her application was initially rejected by a Newham housing officer in March 2000 on these grounds. She was told that she was not habitually resident in this country because she had made no arrangements for accommodation or work here and she was in receipt of social security payments from the Netherlands. Officers had looked at the circumstances of her case, and had decided that she did not have a settled and viable pattern of living here as a resident.
4. She exercised her right to a review of this decision pursuant to section 202 of the Act, and the review was conducted by Mr Paul Clark, who is Newham's Appeal Officer. On 23rd June 2000 he gave his reasons for declining to alter the original decision. After setting out the facts (which he took from her history of events) at some length and summarising the effect of the submissions he had received from her solicitors, he told her that although she had had difficulties in the Netherlands, there was no evidence that she planned to settle in this country. She did not make any inquiries about accommodation in this country, she did not learn English and she remained financially dependant on the Dutch authorities (who were paying her a widow's pension). He had therefore decided that she was not habitually resident in this country.
5. Mrs Adan then exercised her right of appeal to the county court pursuant to section 204(1) of the Act which gives a dissatisfied applicant a right to appeal "on any point of law arising from the decision or, as the case may be, the original decision". She did not suggest in her grounds of appeal that Mr Clark had got any of the underlying facts wrong. Her complaint was that he had taken into account irrelevant factors and failed to take into account relevant factors; that he had not properly applied the correct legal test or conducted a proper balancing exercise of the relevant factors; and that his decision, in all the circumstances, was irrational. Her appeal was supported by a short witness statement and by a skeleton argument which deployed all the relevant evidence and concluded that in all the circumstances it was irrational for Mr Clark to say that there was no evidence that she had planned to settle in the United Kingdom.
6. This argument was sufficient to persuade Judge Laurie to allow the appeal. He said "It is a statement of fact that there is no evidence, but there is tonnes of evidence that she planned to do just that" (viz settle in the United Kingdom). Newham does not now challenge his decision to allow the appeal and quash Mr Clark's determination on those grounds. What is in issue on this appeal is his direction that Newham's further review should be conducted by a different reviewing officer who possessed the appropriate impartiality and independence required by Article 6 of the European Convention on Human Rights ("ECHR"). The judge had expressed concern about the compatibility of the normal review procedure with that article of the Convention, and decided that he needed to spell out in his order what the Convention required.
7. I am satisfied that he did not have power to make this further direction. Section 204 of the 1996 Act specifies the powers given to the county court on these appeals, and because this is a public law matter, as soon as the original determination was quashed Newham was obliged to review the matter again. By now the Human Rights Act was in force. As a public authority Newham would know that it would be unlawful for it to act in a way which was incompatible with a Convention right, and section 38(3)(a) of the County Courts Act 1984 expressly prescribes that the county court shall not have the power to order mandamus, which is what the judge was doing when he ordered Newham to carry out a public duty in a particular way.
8. In the ordinary course of things this judgment could end at this point, particularly since things have changed with the passage of time. When it was decided that Mrs Adan is habitually resident in this country for social security purposes, she made a fresh application to Newham under Part VII of the 1996 Act. This application has recently been determined against her on the ground that she made herself intentionally homeless by relinquishing her tenancy in the Netherlands. We have been told that a review of that decision is now pending.. Notwithstanding the existence of this new application, the parties were very anxious that this court should express its opinion on the remaining, much more important, issues that have been argued, and we have been told that a number of other cases have been held up pending our judgment in this case. Because Mrs Adan served a respondent's notice seeking a declaration that the relevant statutory provisions were incompatible with the requirements on ECHR Article 6(1) in the event that her other arguments failed, Mr Hoskins appeared for the Secretary of State as a party to the proceedings pursuant to CPR 19.4A(2).
9. The issues can be stated quite briefly. Mr Hoskins and Mr Pleming QC accepted that the procedure under Part VII of the 1996 Act involved the determination of Mrs Adan's civil rights within the meaning of ECHR Article 6(1). Ms Booth QC accepted this proposition in this court, but reserved her position in the event that the case went further. It was common ground that a Newham employee, like Mr Clark, could not constitute an independent and impartial tribunal for Article 6(1) purposes, and it is unnecessary in these circumstances to consider any of the other complaints Mr Pleming made about the review procedure. The central questions were whether the county court had "full jurisdiction" on an appeal pursuant to section 204 of the Act, so that there would be no Article 6 irregularity in the procedure taken as a whole, alternatively whether if Newham contracted out its reviewing function pursuant to powers conferred on it by article 3 of the Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996, this exercise would cure the position. Article 3 of this Order provides, so far as is material, that:

"Any function of an authority which is conferred by or under Part VII of the [Housing Act 1996] (homelessness) … may be exercised by, or by employees of, such person (if any) as may be authorised in that behalf by the authority whose function it is."

10. Ms Booth told us that Newham found the prospect of having to use these contracting out powers a singularly unattractive one. She said that in practice a local appeals officer like Mr Clark is able to deal with a number of these vulnerable applicants' problems in an attractively informal way. Newham receives 3,000 Part VII applications each year, of which half are allowed. 500 go on for a review, at which one in three are then allowed. There are then 30-40 appeals each year to the county court. Her clients did not wish to see a more formal procedure put in place. She said that for the most part disputes arose over the inferences to be drawn from the facts furnished by the applicants, and disputes on issues of primary fact were comparatively uncommon. Homeless women suffering violence from their partners were particularly attracted to the informality of Newham's procedures.
11. The scope for argument in this case was considerably reduced by the recent decision of another division of this court in McLellan v Bracknell Forest BC [2001] EWCA Civ 1510. That appeal was concerned with a similar Article 6(1) challenge to the procedures for terminating an introductory tenancy created under Part V of the 1996 Act. To put the matter briefly, such a tenant has some but not all of the safeguards of a secure tenancy for the first one-year trial period of his/her tenancy. If the local authority landlord wishes to terminate the tenancy before the year is up (usually because the tenant has breached the terms of the tenancy agreement) it has power to decide that it will seek an order for possession. Once it has done this, it must serve a notice on the tenant giving notice of its intention, and setting out its reasons, and the tenant then has the right to require a review of that decision, and also a right to request an oral hearing. If the local authority remains unmoved, the tenant's only remedy is by way of judicial review: the county court is bound to grant the order sought. For the details of this procedure, see [2001] EWCA Civ 1510 at [13] - [22].
12. The reason why this court considered that that procedure was compatible with the Convention was that it was satisfied that the Administrative Court on judicial review had full jurisdiction to cure any defect in the legality of the local authority's decision in the circumstances of that type of case. It was particularly concerned to ascertain whether material facts were likely to be in issue. Waller LJ, with whom Latham and Kay LJJ agreed, concluded at paras 96-97 that if the local authority's reasons for seeking possession related to rent arrears, the facts could be established with certainty, and that if its reasons related to a complaint that the tenant was being a nuisance,

".. under the introductory tenancy scheme it is not a requirement that the council should be satisfied that breaches of the tenancy agreement have in fact taken place. The right question under the scheme will be whether in the context of allegation and counter-allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy."

13. Waller LJ concluded (at para 97) that as with a rent arrears complaint (where the issue was also likely to be whether in the circumstances the council's decision was reasonable), this was a matter which could be dealt with under judicial review either of the traditional kind or (if it was necessary to do so) intensified so as to ensure that the tenant's rights were protected.
14. Mr Pleming, who appeared for one of the appellants in that case, accepted that at this level McLellan was binding on us as to the approach a court should adopt towards a complaint of this kind. He argued, however, that there were different considerations to be applied on the case of an application under Part VII of the 1996 Act. Although it might be that in many cases the local authority might accept the version of the facts presented by the applicant, there were many other cases which bristled with disputes over primary facts (for example, as to the reasons why the applicant had left his/her last home). In those cases a court to which appeals lay only on a point of law did not have the full jurisdiction required by Article 6(1) jurisprudence. It was common ground that the county court's powers on an appeal under section 204 of the 1996 Act are akin to those of judicial review exercisable in the High Court (see Nipa Begum v Tower Hamlets LBC [2000] 1 WLR 306, 312-14, 327).
15. The circumstances in which the power of the Administrative Court in judicial review proceedings to review the legality of administrative decisions might be sufficient to ensure compatibility with ECHR Article 6(1) were so comprehensively discussed by the House of Lords in R (Alconbury Developments Ltd) v Secretary of State of the Environment, Transport and the Regions [2001] UKHL 23, [2001] 2 WLR 1389 that it is unnecessary to cover that ground again, except so far as is necessary for the purpose of resolving the issues in the present case.
16. Ms Booth told us that in practice the grounds for dissatisfaction with a reviewing officer's decision usually amount to a question of law within the ambit of the county court's jurisdiction, and that issues of disputed primary fact are comparatively rare. She instanced as grounds of legitimate challenge a failure to make adequate inquiries; a failure to put relevant matters to the applicant; a failure to allow the applicant to comment on matters which the authority was minded to weigh against the applicant; a failure to take into account relevant matters and the consideration of irrelevant matters; making a perverse decision; reaching a decision which no local authority properly directing itself could properly reach; a failure to follow procedures, including those provided by the Code of Guidance; and a failure to give adequate reasons for the decision.
17. This list is not an exhaustive list, and it is reasonably clear from what she told us on behalf of a local authority which has vast experience in these matters that the appellate jurisdiction of the county court on points of law will usually be sufficient to ensure that the proceedings, taken as a whole, are Article 6 compliant. If there is a dispute of fact, but the local authority does not find it necessary to resolve the dispute in order to adjudicate fairly on the application, then the situation will be on all fours with that considered by this court in McLellan. It is only where housing officers have to resolve a dispute of fact which is material to the decision, and the appeal against their finding cannot properly be categorised as an appeal on a point of law, however elastic that expression may be taken to be, that difficulties are likely to arise over ECHR compliance.
18. Ms Booth went on to suggest that section 204 of the 1996 Act, read in conjunction with CPR Part 52, has the potential to provide the solution to any residual problems over ECHR compliance. Section 204(3) gives the county court power to "make such order confirming, quashing or varying the decision as it thinks fit." Although CPR Part 52 is "subject to any … enactment … which sets out special provisions with regard to any particular category of appeal", (CPR 52.1(4)), she submitted that there was nothing in the 1996 Act to prevent the county court (which is an "appeal court" for this purpose – see CPR 52.1(3)(b)) from receiving oral evidence (CPR 52.11(2)). She also relied on other powers given to an appeal court by CPR 52.11, including the power to draw any inference of fact which it considered justified on the evidence. She argued that in these circumstances the county court had ample power to correct any decision by a review officer even if the complaint relates to the way in which a factual dispute was resolved.
19. The trouble about this argument is that statute has limited the powers of this particular appeal court to appeals on points of law. It follows that both CPR 52.10 (to which we were also referred) and CPR52.11 must be read subject to the proviso that rules which confer powers wider than the powers conferred by Parliament on the county courts in this particular statutory scheme are expressly excluded from the county court's range of powers by CPR 52.1(4). When Parliament has expressly narrowed an appeal court's powers so as to leave intact the jurisdiction of an administrative body as the fact-finding tribunal, the rule-makers have no authority to widen them. I do not consider that the court's power to "vary the decision", which enables it to correct the wording of a decision without having to quash it completely, are apt to turn an appeal on a point of law into an appeal on a point of fact.
20. I have little doubt, on the basis of what Ms Booth told us, that in very many Part VII cases no Article 6(1) difficulty will arise. To take a case like the present, where there is no dispute about the underlying facts but a dispute whether, given those facts, the applicant was habitually resident in this country, it is not necessary to go further than two decisions of the House of Lords to see that the central dispute raises a question of law over which the county court will have jurisdiction.
21. In Edwards v Bairstow [1956] AC 14 Mr Bairstow and Mr Harrison contended that they were engaged in an adventure in the nature of trade within the meaning of Case 1 of Schedule D to the Income Tax 1918. Mr Edwards, the Inspector of Taxes, disagreed. With no previous experience in buying and selling machinery the two men had bought a complete spinning plant for the purpose of making a quick resale. In the event they took longer than expected to find a purchaser, and incurred a number of expenses in connection with the sale, insurance, renovation, necessary office work, travelling and entertaining, and rent for the housing of the plant. In due course they made a significant profit on the resale.
22. Mr Edwards's rejection of their contention was upheld by the General Commissioners, and the High Court and the Court of Appeal both decided that they had no power to interfere with a finding of fact. The House of Lords adopted a different approach. Viscount Simonds said at p 29:

"The primary facts, as they are sometimes called, do not, in my opinion, justify the inference or conclusion which the commissioners have drawn: not only do they not justify it but they lead irresistibly to the opposite inference or conclusion. It is therefore a case in which, whether it be said of the commissioners that their finding is perverse or that they have misdirected themselves in law by a misunderstanding of the statutory language or otherwise, their determination cannot stand."

See also Lord Radcliffe at pp 33-35.

23. In R v Barnet LBC ex p Shah [1983] 2 AC 309, five overseas students had been pursuing courses of study in this country for three years or more when they applied to their local education authorities for an award in respect of their studies for a first degree, or comparable, course of further education. Their applications were refused on the statutory ground that they had not been ordinarily resident in this country for three years, the view being taken that they had been granted limited leave to enter for the purposes of their initial studies and that leave had now expired.
24. After observing at p 340F that the relevant statutory provisions were to be construed by giving to the words "ordinarily resident in the United Kingdom" their natural and ordinary meaning, Lord Scarman said at p 341A-C:

"Though the meaning of ordinary words is, as Lord Reid observed in Cozens v Brutus [1973] AC 854, a question of fact, the meaning to be attributed to enacted words is a question of law, being a matter of statutory interpretation. So in this case a question of law arises as to the meaning of 'ordinarily resident in the United Kingdom', even though it arises only at a preliminary stage in the process of determining a question of fact, namely whether the 'propositus' (in these appeals, the student applicant) has established the fact of ordinary residence for the prescribed period (ie three years immediately preceding the course in respect of which he seeks an award). It is with this preliminary stage that the courts are concerned. If a local education authority gets the law right, or, as lawyers would put it, directs itself correctly in law, the question of fact – ie has the student established the prescribed residence? – is for the authority, not the court to decide. The merits of the application are for the local education authority subject only to judicial review to ensure that the authority has proceeded according to the law."

25. When Lord Brandon said in C v S [1990] 2 AC 562, 578 that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case, there is no indication that he intended to depart from Lord Scarman's proposition that there is a preliminary question of law to be determined before the facts can be decided. See, too, for a similar discussion about the meaning of the words "habitually resident" in the Income Support (General) Regulations 1987, Nessa v Chief Adjudication Officer [1999] 1 WLR 1937, 1940B-1943B.
26. In these circumstances I am satisfied that in the context of the "habitual residence" type of issue on which Mrs Adan's application originally foundered it is likely that there would be no difficulty about ECHR compliance. If there is no dispute about the primary facts, the county court will have power to correct any errors of law which may have arisen in the way in which those facts were considered for the purpose of the ultimate decision.
27. As to the residue of cases which call for decisions on disputed facts, Mr Hoskins boldly submitted that even though the county court has only been given jurisdiction to entertain appeals on a point of law, it was possible for us to interpret section 204(1) of the 1996 Act as if it gave the county court power to resolve disputed issues of fact if this was necessary to ensure that the procedure was Article 6 compliant.
28. He accepted that this was not a case in which a court with supervisory powers was obliged to resolve an issue of precedent fact in order to determine whether a public authority had power to take the decision complained of (R v Home Secretary ex p Khawaja [1984] 1 AC 74, 97D-F). He relied, however, on a recent line of authority, buttressed by academic writing, in support of his contention that a court of supervisory jurisdiction has power to consider whether a public authority has reached a mistaken conclusion of fact, not on traditional Wednesbury or even super-Wednesbury grounds, but because it has believed other witnesses when it ought to have believed the applicant.
29. His starting point was a dictum of Lord Slynn of Hadley in R v Criminal Injuries Compensation Board ex p A [1999] 2 AC 330, 344F-345C. The board had rejected the applicant's claim for compensation after being misled by a police witness as to the effect of a report by a police doctor which was not before it. The House of Lords quashed the board's decision on procedural grounds. In his speech, however, Lord Slynn alluded to arguments to the effect that jurisdiction existed to quash the board's decision on the grounds of a material error of fact. He said that he would accept that there was jurisdiction to quash the board's decision on that ground, but he preferred to decide the matter on the alternative procedural basis. Lord Hobhouse, agreeing as to the result, said at p 348E that he expressed no opinion about the problems to which the acceptance of "error of fact" as a ground for judicial review would give rise, nor would he discuss the soundness of the views expressed in the two textbook passages to which Lord Slynn referred: Wade & Forsyth, Administrative Law (7th Edition) (1994) pp 316-318 (see now the 8th Edition (2000) pp 282-4), and de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th Edition) (1995) p 288.
30. Lord Slynn returned to this topic in R (Alconbury Developments) Ltd v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23 at [53] – [54], [2001] 2 WLR 1389, when he said that the potential ability of a supervisory court to review material errors of fact made the argument that the scope of judicial review was sufficient to comply with ECHR standards in the case before the House even stronger. The only other member of the House to consider this topic was Lord Clyde, who approached it very cautiously at para 169:

"The suggestion was advanced that, if the respondents were correct in their contention that the present proceedings are in breach of article 6(1), the scope of judicial review might somehow be enlarged so as to provide a complete remedy. The point in the event does not arise, but I consider that it might well be difficult to achieve a sufficient enlargement to meet the stated purpose without jeopardising the constitutional balance between the role of the courts and the role of the executive. The supervisory jurisdiction of the court as it has now developed seems to me adequate to deal with a wide range of complaints which can properly be seen as directed to the legality of a decision.

It is sufficient to note the recognition of the idea of proportionality, or, perhaps more accurately, disproportionality, and the extent to which the factual areas of a decision may be penetrated by a review of the account taken by a decision maker of facts which are irrelevant or even mistaken: R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330, 344-345. But consideration of the precise scope of the administrative remedies is not necessary for the purposes of the present appeals."

31. In McLellan v Bracknell Forest BC [2001] EWCA Civ 1510 at [64] Waller LJ said that if the decision of a review panel considering a tenant's objections to his/her introductory tenancy being terminated was found to have been reached on the basis of a material error of fact, then that would be a ground for review in the High Court. He supported this proposition by reference to Lord Slynn's dictum in ex p A and by the following passage in the speech of Lord Wilberforce in Secretary of State for Education v Tameside MBC [1977] 1 AC 1014, 1047:

"If a judgment requires, before it can be made, the existence of some facts then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If those requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge."

32. Finally, Mr Hoskins relied on the even more recent decision of this court in R (Wilkinson) v Broadmoor Hospital RMO [2001] EWCA Civ 1545 as suggesting that a supervisory court could turn itself into an ordinary appellate court in the changed climate created by the Human Rights Act 1998.
33. In that case a patient detained at Broadmoor Hospital challenged the lawfulness of a decision to administer injections to him without his consent. The RMO had no power to administer any treatment to him in those circumstances unless it constituted treatment for his mental disorder, and there were disputes of fact, which this court held could only be resolved by cross-examination, as to the nature of that disorder, whether the patient was (as the RMO believed) incapacitated, whether the proposed treatment would benefit his condition and be justified even with his consent, and whether such treatment was justified if it had to be given under constraint. It was a feature of the case that subject to an unresolved question as to whether leave was required under section 139 of the Mental Health Act 1983, there was nothing to stop the patient from bringing a private law action in these circumstances, where cross-examination would certainly be permitted.
34. I consider that one would have to delve much deeper than this line of authority to find support for the proposition that where Parliament has decided that a particular body should decide questions of fact, a court of supervisory jurisdiction should be able to look at the factual evidence before that body and decide that it had made a mistake of fact susceptible of review when it preferred to believe one witness rather than another.
35. In the 8th Edition of Wade and Forsyth, Administrative Law (2000) the authors suggest at p 286 that a supervisory court now has jurisdiction to quash a decision if an erroneous and decisive fact was (a) jurisdictional; (b) found on the basis of no evidence; or (c) wrong, misunderstood or ignored. Except for the concept that an erroneous and decisive fact was wrong, these grounds are all familiar grounds for judicial review. The concept of "wrongness" is a more elusive one. On one side of the line are the simple examples discussed in the text at pages 282-3, some of which were deployed by the appellants in argument in ex p A [1999] 2 AC 330, 333-4. On the other are the cases in which complaint is made that an administrative decision-maker got the facts wrong by preferring one version of the facts to another when it could reasonably have accepted either version.
36. There are very powerful judicial statements throughout the common law world which suggest that in this second type of case a court of supervisory jurisdiction has no power to interfere. It is necessary only to quote a few of them.
37. In Secretary of State for Employment v ASLEF (No 2) [1972] 2 QB 455 Lord Denning MR, who in general preferred an expansionist view of the court's supervisory powers which has not won universal acceptance, said at p 493:

"If the minister plainly mistakes himself in fact or law it may well be that a court would interfere. But when he honestly takes a view of the facts or the law which could reasonably be entertained, then his decision is not to be set aside simply because thereafter someone thinks that his view was wrong."

38. In Pulhofer v Hillingdon LBC [1986] AC 484 Lord Brightman said at p 518:

"Parliament intended the local authority to be the judge of fact … .

Where the existence or non-existence of a fact is left to the judgment and discretion of a public body … it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."

39. In Australia, Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1985-6] 162 CLR 24, 40-41:

"The limited rule of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision within those boundaries cannot be impugned: Wednesbury Corporation."

40. In New Zealand, Cooke J, who had been unable to carry his two colleagues in the Court of Appeal with him in relation to the more expansionist views he had expressed in Daganayasi v Minister of Immigration [1980] 2 NZLR 130, 149, said in New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544:

"To jeopardise validity on the ground of mistake the fact must be an established one or an established and recognised opinion … and it cannot be said to be a mistake to adopt one of two differing points of view of the facts, each of which may be reasonably held."

This formulation contains an echo of the opinion expressed by Scarman LJ in Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, 1030E when he said that "misunderstanding or ignorance of an established and relevant fact" fell within the scope of judicial review.

41. This is not the occasion - because we do not have to decide the point – to take further the discussion initiated by Lord Slynn in ex p A and Alconbury. In very many cases, although it could be said that an administrative body has made a material mistake of fact the decision is vulnerable on other more conventional grounds: for procedural impropriety (as in ex p A), or because a factor has been taken into account which should not have been taken into account (as in Simplex GE (Holdings) v Secretary of State for the Environment (1989) 57 P & CR 306) or because there was no evidence on which the decision could have been safely based (see R v London Residuary Body ex p ILEA, The Times 3rd July 1987, [1998] JR 238, 240: "a mistake can vitiate a decision, as where … the fact was the only evidential basis for [the] decision"). What is quite clear is that a court of supervisory jurisdiction does not, without more, have the power to substitute its own view of the primary facts for the view reasonably adopted by the body to whom the fact-finding power has been entrusted.
42. In my judgment, if we were to be beguiled by the arguments of Mr Hoskins into holding that we should interpret the words "may appeal to the county court on any point of law arising from the decision" in section 204(1) of the 1996 Act as meaning "any point of law, or if it is necessary to do so in order to ensure that an appellant's Convention rights are not violated, any point of fact", we would be doing exactly what Lord Woolf adjured courts not to do in Donoghue v Poplar HARCA [2001] EWCA Civ 595 when he distinguished between interpretation, which is a matter for the courts, and legislation, which is a matter for Parliament. The danger of blurring of the distinction between the judicial role and the legislative role was no doubt what Lord Clyde had in mind when he spoke in Alconbury at para 169 of "jeopardising the constitutional balance" (see para 30 above). I can see nothing in the speeches in the House of Lords in R v A [2001] UKHL 25, [2001] 2 WLR 1546 which would enable us in any circumstances to interpret the words "appeal on any point of law" as meaning, or including, "appeal on any point of fact".
43. It follows that if a case arises on a section 202 review where there is a dispute about the primary facts of a kind which has to be resolved because it is material to the decision-making process, then the danger will arise that the proceedings, taken as a whole, will not be ECHR compliant. The reviewing officer will lack the independent status of the planning inspector in the Alconbury case and the county court does not have full jurisdiction to decide questions of disputed fact (except in a Wednesbury, or super-Wednesbury, sense). If such a case arises before the law is changed in order to correct the deficiencies identified in this judgment, then it appears to me that the local authority will have to exercise its contracting-out powers so as to ensure that any such dispute is determined by a tribunal with the appropriate attributes of independence and impartiality.
44. It was suggested in argument that this escape route would not be open because section 202(4) of the Act prescribes that on a review "the authority or authorities concerned shall review their decision", so that the review power would still be being exercised, even if it was contracted out, by an authority which lacked independence and impartiality. I do not consider that this argument is soundly based. Article 3 of the Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996 (for whose terms see para 9 above) makes it clear that the performance of the authority's function (in this case the function of reviewing the earlier decision) is transferred to the third party to whom the function has been contracted out. It would be inappropriate in this judgment to discuss on a hypothetical basis any of the practical difficulties that may arise when trying to ensure that the third party has the requisite independence.
45. For the sake of completeness, I would add that there is nothing in the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 or paragraph 17.8 of the Code of Guidance which prevents this function from being contracted out to someone who is not an officer of the relevant local authority.
46. We were shown during the course of argument some recent decisions in disciplinary cases in the medical field. The Privy Council decisions in Ghosh v GMC [2001] UKPC 29, [2001] 1 WLR 1915 and Priess v GMC [2001] UKPC 36, [2001] 1 WLR 1926 show that no ECHR difficulties will usually arise where an appeal court's jurisdiction is truly appellate and not merely supervisory, although in Priess Lord Cooke observed ([2001] UKPC 36 at [10]) that there may be some risk of unpredictable circumstances where even a full Privy Council hearing is not enough. I do not consider that the decision of the European Commission of Human Rights in Stefan v United Kingdom (1997) 25 EHRR CD 130, where a Strasbourg challenge to the Privy Council's dismissal of an appeal against a decision of a GMC Health Committee on the medical question of the applicant's mental fitness to practise was declared inadmissible, assists very much outside the specialist context of that particular jurisdiction.
47. Finally, we were shown three recent judgments in the Administrative Court in which conclusions were reached which are similar to that to which I have found myself driven in the present case. I refer to the judgments of Richards J in R (Kathro) v Rhondda Cynan Taff County Borough Council [2001] EWHC Admin 527 at [28] – [29]; Moses J in R (Bewry) v Norwich City Council [2001] EWHC Admin 657 at [58] - [62]; and Stanley Burnton J in Husain v Asylum Support Adjudicator [2001] EWHC Admin 832 at [78] – [79]. It is sufficient for present purposes to recite a passage in the last of these judgments. In Husain Stanley Burnton J said (at paras 78-79):

"… where the decisions of a tribunal are likely to depend to a substantial extent on disputed questions of primary fact, and the tribunal is clearly not independent, judicial review should not suffice to produce compliance with Article 6. The scope for review of findings of primary facts is too narrow to be considered a 'full jurisdiction' in such a context. Fact-dependent decisions must be made by fully independent tribunals: the scope for judicial review of primary findings of fact, and particularly of findings as to the credibility of witnesses, is generally too narrow to cure a want of independence at the lower level.

I think that the Courts should lean against accepting judicial review as a substitute for the independence of tribunals. If the availability of judicial review is too easily regarded as curing a want of independence on the part of administrative tribunals, the incentive for the executive and the legislature to ensure the independence of tribunals is considerably weakened."

I agree.

48. I would add that I have had the opportunity of reading in draft the judgment of Hale LJ. I admire the ingenious way in which she seeks to interpret the words "point of law arising from the decision" so as to include the question whether the decision-making process as a whole complies with ECHR Article 6 in the particular circumstances of the case. This, she asserts, is plainly a point of law (see para 75 of her judgment).
49. Much as I would like to follow her along that path, I do not consider it is constitutionally open to us to do so. It would involve using judicial sleight of hand to enlarge the jurisdiction of the county court beyond that given to it by Parliament. Parliament has decided that the local authority should be the final arbiter on the facts, not the courts, and the courts do not, in my judgment, have the power to put these arrangements into reverse.
50. It is trite Convention law, as I said in Director-General of Fair Trading v Proprietary Association of Great Britain [2001] EWCA Civ 1217 at [23], that an appeal court can remedy defects in first instance decisions where the appeal is in the nature of a full rehearing or otherwise involves a careful review of the merits (see, for example, Edwards v United Kingdom (1992) 15 EHRR 417 and Twalib v Greece (Appln 41/1997/826/1032, judgment of 9 June 1998)). In such cases it invalidates the first decision because of the blemishes in procedural fairness which it contains, so that the proceedings, viewed as a whole, do not violate Article 6. But it is a giant leap from there to hold that an appeal court has power to arrogate itself a jurisdiction which Parliament clearly did not give it, in order to ensure that the proceedings, taken as a whole, are Article 6 compliant. The issue identified by Hale LJ does indeed raise a point of law on a second appeal, which is the reason why this court has been considering it. It is not possible, in my judgment, to interpret section 204 as if it raised a point of law for the county court itself. We must be very careful not to substitute decision-making by the judges for decision-making by the executive when we try to make the law ECHR compliant. I agree with what David Steel J says about this issue in his judgment, which I have also read in draft.
51. For these reasons, I would allow the appeal and direct that the judge's order should be altered with the deletion of the direction I have recited in paragraph 6 of this judgment.

Lady Justice Hale:

52. I agree that the judge did not have power to make the direction he did. He did have power to quash the decision, thus requiring that the local authority take it again. Hence the simple answer is to allow this appeal, but only to the extent of deleting the judge's direction that the matter be 'remitted for further review decision within 28 days to be conducted by a different Reviewing Officer (being an Officer who in respect of independence and impartiality complies with Article 6 of Schedule (1) of the Human Rights Act 1998). It is also the sensible answer, as matters have now moved on and there would be little point in sending the case back to the circuit judge. However, in my view, that would otherwise have been the right solution.
53. Although it is not necessary for the disposal of the appeal, all parties have asked us to consider two issues: (1) whether the regime for deciding homelessness cases, as presently operated and understood, always complies with Article 6(1) of the European Convention on Human Rights; and (2) if it does not, can it be changed and if so how?
54. Article 6(1) reads as follows:

"In the determination of his civil rights and obligations . . . everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly . . . "

Ms Booth has accepted for the purpose of this hearing that the determination of an application for accommodation, or for assistance in obtaining accommodation, under Part VII of the Housing Act 1996 is 'the determination of his civil rights and obligations'. The European Court of Human Rights has held that 'the general rule is that Article 6(1) does apply in the field of social insurance, including even welfare assistance': see Schuler-Zraggen v Switzerland (1993) 16 EHRR 405, para 46; also Feldbrugge v Netherlands (1986) 8 EHRR 425; Deumeland v Germany (1986) 8 EHRR 448. Those cases concerned what we would call social security benefits, but the court pointed out that 'despite the public law features pointed out by the Government, the applicant was not only affected in her relations with the administrative authorities as such but also suffered an interference with her means of subsistence; she was claiming an individual economic right flowing from specific rules laid down in a federal statute.'

55. A claim for accommodation under Part VII of the Housing Act 1996 is also, it is accepted for present purposes, such a right. Once the local authority are satisfied that the statutory criteria for providing accommodation exist, they have no discretion. They have to provide it, irrespective of local conditions of demand and supply. Hence this is more akin to a claim for social security benefits than it is to a claim for social or other services, where the authorities have a greater degree of discretion and resource considerations may also be relevant.
56. Nevertheless, as Ms Booth points out, the nature of the decision-making process required by Article 6(1) differs according to the nature of the right being claimed. The European Court of Human Rights in Albert and Le Compte v Belgium (1983) 5 EHRR 533, adopted the concept of "full jurisdiction". But as Lord Hoffman explained, in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2001] 2 WLR 1389, at para 87, ' . . . subsequent European authority shows that "full jurisdiction" does not mean full decision-making power. It means full jurisdiction to deal with the case as the nature of the decision requires.'
57. In assessing the sufficiency of the decision-making process under Part VII of the 1996 Act, it must be relevant that local authorities, with all the internal and external controls to which they are subject, are involved. On the other hand, decisions to house the homeless are quite different from the Secretary of State's decisions in planning and compulsory purchase, with which the House of Lords was concerned in Alconbury. In that case, Lord Hoffman drew a distinction, at para 74, between policy decisions 'as to what the public interest requires', which one would expect to see taken by democratically accountable bodies, and the determination of rights. He applied it at para 90:

"In applying the distinction between policy decisions and the determination of rights, one would expect that, while the question of whether planning permission should be granted was a matter of policy, the questions of whether a breach of planning control had taken place would involve a determination of right."

Decisions under Part VII of the 1996 Act are not in any sense 'policy' decisions as to what the public interest requires (as Lord Hoffman put it) or 'questions of expediency' (as the European Commission of Human Rights put it in ISKCON v United Kingdom (1994) 18 EHRR CD 133, echoing the Court in Zumtobel v Austria (1993) 17 EHRR 116). The policy decisions were taken by Parliament when it enacted the 1996 Act. Individual eligibility decisions are taken in the first instance by local housing authorities but policy questions of the availability of resources or equity between the homeless and those on the waiting list for social housing are irrelevant to individual eligibility.

58. Even then, however, Article 6 does not necessarily require that the decision be made by a body which possesses all the court-type characteristics which a literal reading of the Article would suggest. It may be enough if it possesses some of those characteristics and those which it does not possess are safeguarded by access to the courts. One might have thought, as Lord Hoffmann went on to observe in para 90 of Alconbury, that decisions as to whether or not there has been a breach of planning control 'fell within the category in which one was entitled to the judgment of an impartial and independent tribunal'. However, the European Court of Human Rights held otherwise in Bryan v United Kingdom (1995) 21 EHRR 342. The planning inspector did not possess all those characteristics, because he was 'still the creature of the Secretary of State'. But there were important safeguards attending the procedure before him: the quasi-judicial character of the process, the inspector's duty to exercise independent judgment, the requirement that inspectors should not be subject to any improper influence, and the Inspectorate's mission to uphold the principles of openness fairness and impartiality. These, coupled with the court's power to intervene if his findings of fact were perverse or irrational, were sufficient.
59. Hence, in McClellan v Bracknell Forest Borough Council [2001] EWCA Civ 1510, at para 89, Waller LJ concluded that the relevant passages from Lord Hoffmann's speech in Alconbury

" . . .. supported the following propositions in considering whether judicial review, plus the procedures, are Article 6 compliant:

1. it is relevant whether findings of fact are material to the decision;

2. if findings of fact are material to the decision, that will not finally determine whether judicial review provides a remedy in compliance with Article 6;

3. if the facts have themselves been found by an 'expert tribunal' sufficiently independent to make it unnecessary for the court to have a broad jurisdiction to review those decisions of fact that is likely to lead to the conclusion that judicial review is sufficient."

Richards J drew a similar conclusion in R (Kathro and others) v Rhondda Cynon Taff County Borough Council [2001] EWHC Admin 527, at para 28:

"Looking at the overall tenor of the speeches in Alconbury and at the underlying decisions of the Strasbourg court, . . . I accept that the finding that the Secretary of State's decision-making process was compatible in principle with article 6 was based to a significant extent on the fact-finding role of the inspector and its attendant procedural safeguards . . . "

60. In this case, however, the internal decision-making process does not share the essential features of the planning inspectorate. Both the initial decision-maker and the reviewing officer are officers of the local authority concerned. They have no independence from that authority, no matter how conscientiously they fulfil their obligations. Those obligations do not require anything in the nature of a quasi-judicial hearing. That is not a criticism: many applicants will no doubt welcome the speed, privacy, and informality of the process, as well as the knowledge of the local community which the reviewing officer will often bring to it. But these are the features of a good initial decision-making process: they are not the features of an Article 6 determination.
61. An appeal which is limited to points of law as that has traditionally been understood cannot fill all the gaps. Until this case, the understanding was that the county court acted on the same principles as the High Court had previously acted when judicial review was the only remedy in homelessness cases: see Nipa Begum v Tower Hamlets London Borough Council [2000] 1 WLR 306. This means that it has a jurisdiction over errors both in procedure and in law which is, as Sedley LJ observed at p 327B, 'at least as wide as that of a court of judicial review'. Its powers are in some respects wider, as section 204(3) permits it to 'make such order confirming, quashing or varying the decision as it thinks fit'.
62. There are three broad types of judgment which may need to be made in any determination of rights and liabilities:

i) What are the primary facts? Who did what and when and with what intention?

ii) What are the inferences to be drawn from those facts?

iii) What are the legal rules applicable to those findings?

63. As to (i) we are told that the local authority in this case took Mrs Adan's account of the primary facts from her. They did not conduct any independent enquiries of their own. They did not challenge anything she told them. No doubt this will often be the case. But there will be cases where the local authority are sceptical about what they have been told or at least wish to find out what others involved, for example previous landlords, have to say. Their determination of these primary facts will not be attended by any of the safeguards expected of a judicial or quasi-judicial determination. As currently understood, the county court could not resolve any such dispute as to the primary facts.
64. As to (ii), there is more than one kind of inference to be drawn from primary facts. For example, section 177(1) of the 1996 Act provides that 'It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence against him . . .' The primary facts will be those relied on by the applicant, such as previous violence, threats of violence, stalking, or the like. The inference to be drawn is whether this means that domestic violence is probable in the future. That is an inference of fact.
65. In this case, the question of whether an applicant is 'ineligible for housing assistance' within the meaning of section 185(1) of the 1996 Act, depends upon whether the applicant is 'not habitually resident in the Common Travel Area' for the purpose of regulation 4 of the Homelessness Regulations 1996. Once the correct legal test has been identified, habitual residence has commonly been described as a question of fact. As Lord Scarman put it in Barnet London Borough Council v Shah [1983] 2 AC 309, at p 341A:

"Though the meaning of ordinary words is, as Lord Reid observed in Cozens v Brutus [1973] AC 854, a question of fact, the meaning to be attributed to enacted words is a question of law, being a matter of statutory interpretation. So in this case a question of law arises as to the meaning of 'ordinarily resident in the United Kingdom,' even though it arises only at a preliminary stage in the process of determining whether the 'propositus' . . . has established the fact of ordinary residence for the prescribed period . . . It is with this preliminary stage that the courts are concerned. If a local education authority gets the law right, or, as lawyers would put it, directs itself correctly in law, the question of fact – i.e. has the student established the prescribed residence? – is for the authority, not the court, to decide." (Emphasis supplied)

This approach does not differ significantly from that of the House of Lords in Edwards v Bairstow [1956] AC 14, where the question was whether a particular transaction was 'an adventure in the nature of trade'. Viscount Simonds said this, at p 29:

" . . . in my opinion, whatever test is adopted, that is whether the finding that the transaction was not an adventure in the nature of trade is to be regarded as a pure finding of fact or as the determination of a question of law or of mixed law and fact, the same result is reached in this case. . . For it is universally conceded that, though it is a pure finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think, fairly summarized by saying that the court should take that course if it appears that the commissioners have acted without any evidence or upon a view of the facts which cannot reasonably be entertained . . . The primary facts, as they are sometimes called, do not, in my opinion, justify the inference of conclusion which the commissioners have drawn: not only do they not justify it but they lead irresistibly to the opposite inference or conclusion." (Emphasis supplied)

Lord Radcliffe said this, at p 36:

"I do not think that inferences drawn from other facts are incapable of being themselves findings of fact, although there is value in the distinction between primary facts and inferences drawn from them. When the case comes before the court it is its duty to examine the determination having regard to its knowledge of the relevant law. If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. . . . I do not thinks that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. " (Emphasis supplied)

66. I have quoted these well-known passages at length to demonstrate that the circumstances in which an inference drawn from primary facts can be treated as a question of law are not unlimited. They are different from the circumstances in which such inferences can be drawn in an appeal on fact and law: cf Benmax v Austin Motor Co Ltd [1955] AC 370. The cases do not support the proposition that any conclusion that a legal or statutory concept applies to a particular set of facts is a question of law, although in practice they permit considerable elasticity in their application. In any particular case, it may not be easy for the county court judge to know on which side of the line the particular inference is to fall: if it had been easy, Judge Laurie would have gone on in this case to decide whether, on the agreed primary facts, Mrs Adan was habitually resident here. Even if a case does fall on the error of law side of the boundary, it may not be easy to know whether it is a case in which there is only one possible answer, so that the judge can vary the decision accordingly, or whether it should be quashed so that the authority can make it again.
67. Hence it is not surprising that Mr Pleming QC, on behalf of Mrs Adan, argues that homelessness decisions are rich in factual questions over which the court may have limited or no control. These are in no sense 'specialist issues' which might properly be referred to an expert tribunal: they are bread and butter questions of the kind which county courts encounter regularly in the course of their work. I have no doubt that, although the present decision-making process will comply with Article 6 in some cases, there are many others in which it will not do so. The only question, therefore, is what can be done to put it right. The question of a declaration of incompatibility does not strictly arise here, given that all this discussion is obiter dicta, but it is not difficult to imagine a case in which such a question would arise. All parties here would prefer us to find an alternative solution.
68. We were presented with two possibilities, which in my view are cumulative rather than alternative: (1) interpreting the court's jurisdiction and powers under section 204 of the 1996 Act to enable it to cure those cases in which the procedure as a whole would not otherwise comply with Article 6; and (2) contracting out the local authority's reviewing function under section 202 of the 1996 Act to a body which meets the Article 6 criteria, both in terms of its independence and impartiality and in terms of the procedures adopted.
69. Mr Hoskins for the Secretary of State argued eloquently that we could take a bold approach to the interpretation of section 204(1) so as to enable the system to be operated compatibly in all cases. Section 204(1), it will be recalled, provides that

"If an applicant who has requested a review under section 202 -

(a) is dissatisfied with the decision on the review; or

(b) is not notified of the decision on the review within the time prescribed under section 203,

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."

70. Mr Hoskins' first approach was to invite us to take a more than generous view of the concept of a 'point of law'. This involved the widest possible view of the inferences permitted by Edwards v Bairstow [1956] AC 14. It also involved an extension of the concept of a 'material mistake of fact', in R v Criminal Injuries Compensation Board, ex parte A [1999] 2 AC 330, to encompass the power to retake the actual decision as to what the facts were. These bold propositions would, as I understood him, apply generally to appeals on a point of law, irrespective of whether compliance with the Convention rights was involved. I would find that difficult to accept, not only because I do not think that either concept can be taken so far, but also because of the effect it would have on the many other situations in which appeals are limited to points of law. In many of these, the first instance tribunal already complies with Article 6, or will do so if it is combined either with judicial review or an appeal on a point of law, or it is not required to comply with Article 6 because compliance has been waived (as will normally be the case with arbitration). It is neither necessary nor appropriate to stretch the concept of an appeal on a point of law for all purposes simply to enable Part VII of the 1996 Act to become Convention compatible in all cases.
71. Mr Hoskins' second approach was to suggest that we could interpret this particular provision so as to secure compatibility in all cases. This is much more attractive. We would be solving the problems posed by homelessness cases without affecting any other area of the law. Section 3(1) of the Human Rights Act 1998 requires that

'So far as it is possible to do so, primary legislation . . . must be read and given effect in a way which is compatible with the Convention rights.'

Lord Steyn has given us guidance in R v A [2001] UKHL 25 at [44], [2001] 3 All ER 1:

"On the other hand, the interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings. It is an emphatic adjuration by the legislature. . . . Section 3 of the 1998 Act places a duty on the court to strive to find a possible interpretation compatible with convention rights. Under ordinary methods of interpretation a court may depart from the language of a statute to avoid absurd consequences: section 3 goes much further. Undoubtedly, a court must always look for a contextual and purposive interpretation: section 3 is more radical in its effect. It is a general principle of the interpretation of legal instruments that the text is the primary source of interpretation: . . . Section 3 of the 1998 Act qualifies this general principle because it requires a court to find an interpretation compatible with convention rights if it is possible to do so. . . . In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It much be avoided unless it is plainly impossible to do so." (Emphasis supplied)

72. The statutory provision in question, section 41 of the Youth Justice and Criminal Evidence Act 1999, permitted the court to give leave to adduce evidence or ask questions in cross examination about the sexual behaviour of the complainant in sexual offence prosecutions only in certain defined circumstances. These included, in section 41(3)(c), cases where:

"it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar - (i) to any sexual behaviour of the complainant which (according to the evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused . . . – that the similarity cannot reasonably be explained as coincidence." (Emphasis supplied)

Lord Steyn, in para 46, construed this to mean that

" . . . due regard always being paid to the importance of seeking to protect the complainant from indignity and from humiliating questions, the test of admissibility is whether the evidence (and questioning in relation to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 5 of the Convention. If this test is satisfied the evidence should not be excluded."

73. Lord Slynn, Lord Clyde and Lord Hutton all agreed with this interpretation and must therefore have agreed that section 3(1) permitted them to do so. Lord Hope disagreed, at para 108:

" ... section 3 of the 1998 Act does not entitle the court to legislate; its task is still one of interpretation. The compatibility is to be achieved only so far as this is possible. Plainly this will not be possible if the legislation contains provisions which expressly contradict the meaning which the enactment would have to be given to make it compatible. It seems to me that the same result must follow if they do so by necessary implication, …"

He thought that the entire structure of the provision in question contradicted the idea that it was possible to give the court a wider power to allow cross examination in rape cases.

74. Those who took the view that they could interpret the section in such a way may have done so because they thought that it was not contradicted either expressly or by necessary implication. Alternatively, they may have agreed with Lord Steyn's approach to section 3(1) of the 1998 Act. The case does, however, indicate how far the House has been prepared to go in striving for compatibility.
75. That case concerned a statute passed after the Human Rights Act 1998 upon which the Government took a contrary view. This case concerns a relatively recent statute but one passed well before the Human Rights Act 1998. That case involved interpreting the words 'took place as part of the event which is the subject matter of the charge' to include any similar sexual behaviour which the court thinks so relevant to the issue of consent that it would endanger the fairness of the trial to exclude it. This case would involve interpreting the words 'point of law arising from the decision or, as the case may be, the original decision' to include the question whether the decision-making process as a whole complies with Article 6 in the particular circumstances of the case. This seems to me to be plainly a point of law. If the court reaches the conclusion that the process will only comply with Article 6 if the court reaches its own conclusion on disputed questions of fact, then it can, indeed must, 'give effect to' its disposal powers under section 204(3) and its procedural powers under CPR Part 52 so as to make good the deficiency. Given that the court has power under section 204(3) to vary the local authority's decision as it thinks fit, this does less violence to the statutory language than implying a power to send the case back to the local authority with a direction to comply with Article 6.
76. An alternative is to read the Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996, made under section 70(2) of the Deregulation and Contracting Out Act 1994, so as to require the local authority to contract out their reviewing function under section 202 of the 1996 Act in any case in which they fear that the overall decision-making process will not comply with Article 6. The local authority may always do this if they wish. They might contract it out to a body which resembled the planning inspectorate or a social security appeal tribunal. They might require that body to adopt procedures which were sufficient to comply with Article 6: in particular in offering an oral hearing in more circumstances than is at present required by the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999. If so, the county court would no doubt reach the conclusion that the procedures as a whole were sufficient to comply with Article 6 and confine its own role to correcting errors of law in the more traditional sense.
77. But some local authorities may be reluctant to do this. It would change the character of reviews in at least as fundamental a fashion as would the proposed interpretation of the court's jurisdiction. The reviewing function is part of a good internal decision-making process. It enables the authority to stand back a little from the pressures affecting the original decision-maker and look at that decision again. It is, we are told, welcomed by many applicants. A goodly proportion of them benefit from it. Parliament intended them to have that benefit. They would be deprived of it if it were turned into something rather different by contracting it out to a more formal process conducted by someone else.
78. More importantly, however, it will not always be clear to the local authority before the review takes place whether this is a case in which an independent fact finding body is required: the issues may only become clear to the local authority from the representations made by or on behalf of the applicant during the review. The only safe solution would be for them to contract out reviews in every case. But that would be to require them to take a step in all cases to meet a need for compliance which is only present in some. Furthermore, it is to place upon the local authority the whole burden of compliance, when the jurisprudence both here and in the European Court of Human Rights makes it clear that it is the decision-making process as a whole which must comply. The court is part of that process and the court is much better placed than the local authority to decide whether, in the particular case in question, the process as a whole complies with Article 6. The court comes at the end of the process and by then it is known, or ought to be known, what the case is about.
79. Hence, if the local authority for whatever reason do not provide a reviewing system which is adequate to comply with Article 6 in the particular case, the county court would have to say so. As we are agreed that the court cannot send the case back with a direction to comply, the court is required to fill the gap itself. This is no more radical an interpretation of section 204 as a whole than is the suggestion that the local authority be required as a matter of law to adopt a different decision-making process. Of course, if they were so required, but did not do so, this would clearly be a question of law for the court to resolve.
80. I therefore see the two possibilities as cumulative rather than alternative. I am prepared to accept that the local authority may choose to contract out some or all of its reviews to a body whose constitution and procedures enable the decision to comply with Article 6 (even though this would change the character of reviews and deprive applicants of much that is valuable in them). But if they do not do so, and the particular issues in the case require an independent decision, then the court should fill the gap.
81. I do not see this approach as jeopardising the constitutional balance: the issue before the court is properly characterised as one of law and Parliament and the CPR have given the court appropriate powers to resolve the problem. I am to some extent fortified in that view by the fact that all three parties in this case regard it as a possible approach to construction of the 1996 Act. Mr Hoskins initially appeared to go further, inviting us to read the words 'fact or' into section 204(1). That would have opened up the possibility of a complete rehearing in almost every case; but it became clear that the proposed implication was only in those cases where it was necessary to make the process Article 6 compliant. Ms Booth was clear that Newham does not want to have to set up a new contracted-out reviewing system for the large numbers of cases they have: she too argued for a wide view of the court's powers if it turns out that Article 6 will not be complied with in a particular case. Mr Pleming is concerned that there should be a process which overall has full jurisdiction to consider any questions or inferences of fact which may be involved in his client's renewed application. Of course the arguments of counsel cannot prevail over the limits of the possible in the interpretation of statutory language. But for the reasons already explained, this interpretation is indeed possible.
82. If Mr Hoskins and Ms Booth are right, this approach will not open the floodgates to retrying all the issues in every homelessness case. But if they are wrong, the obvious solution for Secretary of State would be to set up a specialist tribunal system to fill the gap. Such tribunals already exist for social security benefits and have recently been extended to housing and council tax benefit: see the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001. There are even examples in the provision of services, such as the Special Educational Needs Tribunal. For the reasons given earlier, claims under Part VII of the 1996 Act are not discretionary and have much in common with claims for social security and other financial benefits. In principle, therefore, there is nothing at all radical in subjecting individual claims to independent scrutiny on questions of fact as well as law. The Part VII procedure is the exception rather than the rule.
83. For these reasons, therefore, I would have sent this case back to the county court, with a direction to consider whether the requirements of Article 6 were complied with in this case, and to decide the case itself in accordance with those requirements if they were not.

MR JUSTICE DAVID STEEL:

84. I also agree with the order proposed by Brooke LJ.
85. I propose to dwell solely on the hypothetical issue on which Brooke LJ and Hale LJ are divided, namely whether it is legitimate, in order to ensure that review proceedings are ECHR compliant, to interpret Section 204 (1) of the Housing Act 1996 in such a way as to allow the county court, where it concludes that the review process will only comply with Article 6 if it reaches its own conclusion on disputed questions of fact, to allocate to itself jurisdiction to entertain an appeal on those issues of fact.
86. On this issue I am in agreement with Brooke LJ that any temptation to confer such an enlargement of the jurisdiction of the county court must be resisted, both as a matter of authority and of constitutional propriety.
87. I start with authority and the decision of the House of Lords in R v A [2001] UKHL 25, [2001], 3 All ER 1. Ironically, just as in the present case, the decision had an entirely hypothetical base, namely an appeal by the Crown against an obiter dictum, but not the decision, of the Court of Appeal. The detailed views of their Lordships on the proper approach to interpretation of the relevant section of the Youth Justice and Criminal Evidence Act 1999 in the face of Section 3 of the Human Rights Act 1998 varied.
88. Some passages from Lord Steyn's speech have already been cited including his summary of the effect of the decision in para. 46. I draw attention to the following additional passages: -

"43….In my view ordinary methods of purposive construction of s. 41 (3) (c) cannot cure the problem of the excessive breadth of s. 41, read as a whole, so far as it relates to previous sexual experience between a complainant and the accused. Whilst the statute pursued desirable goals, the methods adopted amounted to legislative overkill….

45. In my view s. 3 of the 1998 Act requires the court to subordinate the niceties of the language of s. 41 (3) (c) of the 1999 Act, and in particular the touchstone of coincidence, to broader considerations of relevance judged by logical and common-sense criteria of time and circumstances. After all, it is realistic to proceed on the basis that the legislature would not, if alerted to the problem, have wished to deny the right to an accused to put forward a full and compete defence by advancing truly probative material (emphasis added). It is therefore possible under s 3 of the 1998 Act to read s 41 of the 1999 Act, and in particular s 41 (3) (c), as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under art 6 of the convention should not be treated as inadmissible…".

89. In a short judgment, Lord Slynn expressed agreement with Lord Steyn's statement as to the effect of the decision. But his reasoning put emphasis on the imprecision of the relevant part of the sub-section:-

"13. Section 41 (3) (c) of the 1999 Act raises a different issue. Although if read literally or even perhaps purposively this provision is very restrictive, I think disproportionately restrictive, it is less precise than s 41 (3) (b). The section must be read and given effect in a way which is compatible with the Convention rights in so far as it is possible to do so. It seems to me that your Lordships cannot say that it is not possible to read s 41 (3) (c) together with art 6 of the convention rights in a way which will result in a fair hearing. In my view s 41 (3) (c) is to be read as permitting the admission of evidence or questioning which relates to a relevant issue in the case and which the trial judge considers it necessary to make the trial a fair one."

90. Lord Hope also agreed that the appeal should be dismissed, but was not minded to accept that section 41 as such had made excessive inroads into convention rights. The matter, in his judgment, could only be determined at the trial by construing the words of the section applying the test adumbrated by Lord Steyn "so far as it is possible to do so":-

"109. In the present case it seems to me that the entire structure of s 41 of the 1999 Act contradicts the idea that it is possible to read into it a new provision which would entitle the court to give leave whenever it was of the opinion that this was required to ensure a fair trial….

110. I would not have the same difficulty with a solution which read down the provisions of sub ss (3) or (5) of s 41, as the case may be, in order to render them compatible with the convention right. But if that were to be done it would be necessary to identify precisely (a) the words used by the legislature which would otherwise be incompatible with the convention right, and (b) how these words were to be construed, according to the rule which s 3 of the 1998 Act lays down, to make them compatible. That, it seems to me, is what the rule of construction requires. The court's task is to read and give effect to the legislation which it is asked to construe…. I would leave that exercise to be undertaken by the trial judge in the light of such further information about the nature and circumstances of his relationship with the complainant that the respondent can make available if and when he renews his application. If he finds it necessary to apply the interpretative obligation under s 3 of the 1998 Act to the words used in s 41 (3) (c) of the 1999 Act, he should do so by construing those words, so far as it is possible to do so, by applying the test indicated at [46] of the speech of my noble and learned friend Lord Steyn."

91. Lord Clyde agreed with Lord Steyn's summary of the outcome. His approach was by way of the need to strain the language:-

"136. If a case occurred where the evidence of the complainant's sexual behaviour was relevant and important for the defence to make good a case of consent, then it seems to me that the language would have to be strained in order to avoid the injustice to the accused of excluding from a full and proper presentation of his defence…."

92. Lord Hutton also agreed that the appeal should be dismissed but his approach was altogether different. He concluded that, on the facts, there was sufficient similarity to the behaviour alleged to satisfy s 41 (3) (1):-

"163. I have observed (at [159]) that on ordinary principles of construction and having regard to the change in emphasis in R v P [1991] 3 All ER 337, sub nom DPP v P [1991] 2 AC 447 away from 'striking similarity' to 'probative force' there is a possible argument that relevant evidence of a previous close and affectionate relationship in which sexual intercourse took place is admissible under s 41 (3) of the 1999 Act. Therefore pursuant to the obligation imposed by s 3 (1) of the 1998 Act that s 41 must be read and given effect in a way which is compatible with art 6 of the convention, I consider that s 41 (3) (c) should be read as including evidence of such previous behaviour on previous occasions was similar, and the similarity was not a coincidence because there was a causal connection which was her affection for, and feelings of attraction towards, the defendant. It follows that I am in full agreement with the test of admissibility stated by my noble and learned friend Lord Steyn at [46] of his speech."

93. Making full allowance for the peculiar difficulties created by section 3 of the Human Rights Act in the criminal law context, perhaps I should not disguise my attraction to Lord Hope's approach. In any event, straining the language is one thing: implying words to ensure that the statutory provision does not infringe the convention is perhaps another.
94. Whatever may be the true analysis of the decision, I still agree with the conclusion of Brooke LJ that it does not permit an interpretation, so as to allow the county court to fill any "gap", that renders the words "appeal on a point of law" as including "appeal on a point of fact". Straining the language cannot achieve that end. Nor is a dispute of fact rendered a dispute of law by reason of what would otherwise be a shortfall in ECHR compliance as regards the provision for resolution of that dispute. Nor, in the further alternative, is there any need to imply words to that effect. The Court is simply not boxed into a corner where the only option is the implication of the words "fact or" or a declaration of incompatibility. The local authority simply has to contract out the review process, either generally or in appropriate cases.
95. There is no need to cite further authority for the proposition that legislation is a matter for Parliament. Importantly, I am unable to proceed on the basis that "if alerted" to the problem, Parliament would have adopted the course suggested by Hale LJ. The consequential need for caution is spelt out in the conclusion of Lord Hoffman's Combar Lecture 2001 on the Separation of Powers:

"However slow, obtuse and maddening the democratic process may be, there is a legitimacy about the decisions of elected institutions to which judges, however enlightened, can never lay claim."

Order: Appeal allowed- no order on costs. (Order does not form part of the approved judgment)