COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOW COUNTY COURT
London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE DYSON
| London Borough of Tower Hamlets||Appellant|
|- and -|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Paul Morgan QC and Steven Woolf (instructed by Messrs Maxim) for the respondent
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Laws:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law,”
This appeal has required the court to look again at the scope of the expression “civil rights” in the context of the homeless persons legislation. In particular, we have had to examine the impact of the statutory setting in which a civil right is said to arise upon the nature and quality of independent adjudication required to satisfy Article 6(1).
“175(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere...
(2) A person is also homeless if he has accommodation but -
(a) he cannot secure entry to it...
(3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy....
177(2) In determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation, regard may be had to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he has applied for accommodation or for assistance in obtaining accommodation...
179(1) Every local housing authority shall secure that advice and information about homelessness, and the prevention of homelessness, is available free of charge to any person in their district...
182(1) In the exercise of their functions relating to homelessness and the prevention of homelessness, a local housing authority or social services authority shall have regard to such guidance as may from time to time be given by the Secretary of State...
184(2) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves-
(a) whether he is eligible for assistance, and
(b) If so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.
(2) They may also make inquiries whether he has a local connection with the district of another local housing authority in England, Wales or Scotland.
(3) On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision...
188(1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part….
189(1) The following have a priority need for accommodation –
(a) a pregnant woman or a person with whom she resides or might reasonably be expected to reside;
(b) a person with whom dependent children reside or might reasonably be expected to reside;
(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;
(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster...
191(1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy...
193(1) This section applies where the local 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.
This section has effect subject to section 197 (duty where other suitable accommodation available).
(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...
(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, 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....
197(1) This section applies if the local housing authority would be under a duty under this Part -
(a) to secure that accommodation is available for occupation by an applicant, or
(b) to secure that accommodation does not cease to be available for his occupation,
but are satisfied that other suitable accommodation is available for occupation by him in their district.
(2) In that case, their duty is to provide the applicant with such advice and assistance as the authority consider is reasonably required to enable him to secure such accommodation...
198(1) If the local housing authority would be subject to the duty under section 193 (accommodation for those with priority need who are not homeless intentionally) but consider that the conditions are met for referral of the case to another local housing authority, they may notify that other authority of their opinion.
The authority need not consider under section 197 whether other suitable accommodation is available before proceeding under this section.
(2) The conditions for referral of the case to another authority are met if-
(a) neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with the district of the authority to whom his application was made,
(b) the applicant or person who might reasonably be expected to reside with him has a local connection with the district of the other authority, and
(c) neither the applicant nor any person who might reasonably be expected to reside with him will run the risk of domestic violence in that other district...
202(1) An applicant has the right to request a review of-
(b) any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 and 195 to 197 (duties to persons found to be homeless or threatened with homelessness),…
(f) any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraph (b)…
(4) On a request being duly made to them, the authority or authorities concerned shall review their decision.
203(1) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under section 202.
Nothing in the following provisions affects the generality of this power.
(2) Provision may be made by regulations-
(a) requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision, and
(b) as to the circumstances in which the applicant is entitled to an oral hearing, and whether and by whom he may be represented at such a hearing.
(3) The authority, or as the case may be either of the authorities, concerned shall notify the applicant of the decision on the review.
(4) If the decision is-
(a) to confirm the original decision on any issue against the interests of the applicant, or
(b) to confirm a previous decision-
(i) to notify another authority under section 198 (referral of cases), or
(ii) that the conditions are met for the referral of his case,
they shall also notify him of the reasons for the decision.
(5) In any case they shall inform the applicant of his right to appeal to a county court on a point of law, and of the period within which such an appeal must be made (see section 204)...
(8) Notice required to be given to a person under this section shall be given in writing…
204(1) 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…
(3) On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit...
206(1) A local housing authority may discharge their housing functions under this Part only in the following ways-
(a) by securing that suitable accommodation provided by them is available,
(b) by securing that he obtains suitable accommodation from some other person, or
(c) by giving him such advice and assistance as will secure that suitable accommodation is available from some other person.
(2) A local housing authority may require a person in relation to whom they are discharging such functions-
(a) to pay such reasonable charges as they may determine in respect of accommodation which they secure for his occupation (either by making it available themselves or otherwise), or
(b) to pay such reasonable amount as they may determine in respect of sums payable by them for accommodation made available by another person.”
“2 Where the decision of the authority on a review of an original decision made by an officer of the authority is also to be made by an officer, that officer shall be someone who was not involved in the original decision and who is senior to the officer who made the original decision.
6(2).... the authority to whom a request for a review under section 202 has been made shall –
(a) notify the applicant that he, or someone acting on his behalf, may make representations in writing to the authority in connection with the review;
(b) if they have not already done so, notify the applicant of the procedure to be followed in connection with the review.
8(1) The reviewer shall, subject to compliance with the provisions of regulation 9, consider-
(a) any representations made under regulation 6....;
(b) any representations made under paragraph (2) below.
(2) If the reviewer considers that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant –
(a) that the reviewer is so minded and the reasons why;
(b) that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing.”
Regulation 9 makes provision for the notification of the review decision within stipulated time limits.
“Any function of an authority which is conferred under Part VII of the Act (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.”
“If you have been accepted as homeless under section 184 of the Housing Act 1996 and you unreasonably refuse this offer, responsibility will be discharged by the homelessness service and you will be required to leave any accommodation provided by the council under Part VII of the Housing Act.”
“2 Following receipt of your representations, information was requested from the Estate Office regarding your allegation that a drug problem exists at the above block, and also your allegation that the area suffers from racial problems. The Estate Officer advises that it has been reported that there are no drug problems at the block, and that this block is served by a concierge facility and is secure in that the entry phone system is extended to cover each individual landing, so that movement through the block is restricted, allowing only unauthorised access to particular areas. The Estate Officer also confirmed that there have not been any major racial incidents at the block in question, your allegations therefore appear unfounded and unsubstantiated.
3 Your letter of 12 July 2001 gives details of an alleged attack by two youths on yourself, which you later reported to the police. However, I note that there are discrepancies in the details provided by yourself in respect of this incident, in that your letter advises that your purse was taken, but during an interview with one of our Officers, you advised that your purse was not taken, indeed you used money from your purse in order to return to your interim accommodation. Information was sought from the police in respect of the attack reported by yourself in order that further investigations could be made, however we were informed that attempts have been made to contact yourself, but thus far you have remained rather illusive [sic] to the enquiries being made by the police, and I am advised that there were also discrepancies in the original report you made to them.
4 You advised that your husband frequently visits friends at Balfron Towers, however, you are unable to provide specific names and addresses of those friends in order to corroborate your suggestions. Notwithstanding this you have advised that you saw your husband on the day of the viewing and state that you do not wish to see him again. You have given no reason for this other than that you are no longer on friendly terms with him. I note from your application file my Rehousing Officer phoned your home on 13 July 2001 to discuss your refusal of the offered tenancy, and a gentleman answered who stated that he was your husband and that you had taken your children to the hospital. When asked about this later in the day when you returned her call, firstly you advised that there was nobody in your house, when asked again about who the gentleman was you failed to respond. On balance I consider it strange that a supposedly identified gentleman would answer your telephone whilst you are out, and you are unable to confirm who this person was.
I consider that the property offered is both suitable for you and your children in that the physical attributes are in accordance with the council’s allocation criteria, and I further consider that it is reasonable to expect yourself and your household to occupy the property offered as I consider that the area in which Balfron Towers is located is no different to any other area within the London Borough of Tower Hamlets. You seem to suggest that you are on bad terms with your husband, and perhaps this would render the property unsuitable for you given an apparent frequency of which he is supposed to visit friends there, however you also report that on the day you met him there was no incident or unpleasantness. Further, you are unable to substantiate this claim by providing details of his friends, and I do not accept that frequent visits to the block by your husband renders the property offered unsuitable.”
“The preliminary point which the appellant [respondent in this court] wished to argue and which the court has considered put very simply is this. It is said in this case that there were here disputed issues of fact which were material to the decision of the council and that accordingly the local authority could not, if the procedure was to be compatible with Article 6(1) of the European Convention on Human Rights, have conducted a final review by its own officer, but was bound at least to have given consideration to using its powers to direct a review by an independent body [sc. under paragraph 3 of the 1996 Contracting Out Order].”
“... the fact of the matter is that I cannot on what is effectively a judicial review, determine whether or not those findings [sc. of Mrs Hayes] have been affected by her connection with one of the parties, namely the local authority in this case.
It therefore follows in my judgment, that the failure on the part of the local authority either to refer this matter to a wholly independent tribunal for review... or at least to give consideration to doing so, is fatal to their opposition to this appeal. As a matter of law they should have considered at least referring it to an independent tribunal and their failure to do so means that the appellant, in my judgment, must succeed on this appeal because the procedure adopted by the local authority is in contravention of Article 6 of the ECHR.”
(1) Was Mrs Hayes’ decision of 27th July 2001 taken under HA s.202 a determination of the respondent’s “civil rights” within the meaning of ECHR Article 6(1)?
(2) If so, did Mrs Hayes constitute an “independent and impartial tribunal” for the purposes of Article 6(1)?
(3) If not, did the county court, on appeal to it under HA s.204, possess “full jurisdiction” (I shall explain the quotation) so as to guarantee compliance with Article 6(1)?
THE FIRST QUESTION: HA s.202 AND “CIVIL RIGHTS”
“…as we shall see, the European court has not restricted article 6(1) to the determination of rights in private law. The probable original meaning, which Judge Wiarda said in König's case, at p 205, was the ‘classical meaning’ of the term ‘civil rights’ in a civilian system of law, is nevertheless important. It explains the process of reasoning, unfamiliar to an English lawyer, by which the European court has arrived at the conclusion that article 6(1) can have application to administrative decisions. The court has not simply said, as I have suggested one might say in English law, that one can have a ‘civil right’ to a lawful decision by an administrator. Instead, the court has accepted that ‘civil rights’ means only rights in private law and has applied article 6(1) to administrative decisions on the ground that they can determine or affect rights in private law.”
“According to the well established case law of the Court, the concept of ‘civil rights and obligations’ is not to be interpreted solely by reference to the respondent State’s domestic law and Article 6(1) applies irrespective of the status of parties, and of the character of the legislation which governs how the dispute is to be determined and the character of the authority which is invested with jurisdiction in the matter; it is enough that the outcome of the proceedings should be decisive for private right and obligations.”
With great respect I find this a little difficult to fathom (I am sure the fault is mine). I take it to refer, partly at least, to the different courts, and court processes, established respectively for the resolution of private and public law disputes in civilian systems, and to indicate that differences of that kind cannot conclude the question whether “civil rights and obligations” are at stake. At all events I see no reason here not to apply the touchstone described by Lord Hoffmann at paragraph 79 of Alconbury.
“Lord Bridge went on [sc. In Cocks v Thanet]… to say that a duty in private law would arise once the housing authority had made a decision in the applicant's favour. He said  2 AC 286, 292-293:
‘On the other hand, the housing authority are charged with executive functions. Once a decision has been reached by the housing authority which gives rise to the temporary, the limited or the full housing duty, rights and obligations are immediately created in the field of private law. Each of the duties referred to, once established, is capable of being enforced by injunction and the breach of it will give rise to a liability in damages. But it is inherent in the scheme of the Act that an appropriate public law decision of the housing authority is a condition precedent to the establishment of the private law duty.’
My Lords, I must say with all respect that I cannot accept this reasoning. There is no examination of the legislative intent, the various considerations which I have discussed earlier as indicating whether or not a statute was intended to create a duty in private law sounding in damages. The fact that the housing authority is ‘charged with executive functions’ is treated as sufficient to establish a private law duty. No doubt because the question did not have to be decided, Lord Bridge did not undertake a careful examination of the statutory intent such as he afterwards made in Reg. v. Deputy Governor of Parkhurst Prison, Ex parte Hague  1 AC 58, 157-161. I feel sure that if he had, he would have expressed a different opinion.
The concept of a duty in private law which arises only when it has been acknowledged to exist is anomalous. It means that a housing authority which accepts that it has a duty to house the applicant but does so inadequately will be liable in damages but an authority which perversely refuses to accept that it has any such duty will not. This seems to me wrong. Of course a private law relationship may arise from the implementation of the housing authority's duty. The applicant may become the authority's tenant or licensee and so brought into a contractual relationship. But there seems to me no need to interpose a statutory duty actionable in tort merely to bridge the gap between the acknowledgement of the duty and its implementation.”
“… Article 6 does not apply to the exercise by public authorities of their discretion, as distinguished from their compliance with their obligations owed to citizens. Obligations give rise to rights; discretionary payments and discretionary support do not.”
“A line has to be drawn between those decisions which, in a democratic society, must be given to an independent tribunal and those which need not. Article 6 draws this line by restricting the requirement to the determination of criminal charges and civil rights and obligations. A right by definition is something to which the citizen is entitled, to which he has an enforceable claim. A discretionary benefit, one that a government may give or refuse as it wishes, cannot be the subject of a right.”
THE SECOND QUESTION: s.202 AND “INDEPENDENT AND IMPARTIAL TRIBUNAL”
“…in order to establish whether a tribunal can be considered ‘independent’, regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of impartiality… As to the question of ‘impartiality’, there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. The concepts of independence and impartiality are closely linked…”
THE THIRD QUESTION: THE COUNTY COURT AND “FULL JURISDICTION”
“86 In… Albert and Le Compte v Belgium (1983) 5 EHRR 533… the court said, at paragraph 29, that although disciplinary jurisdiction could be conferred upon professional bodies which did not meet the requirements of article 6(1) (e g because they were not ‘established by law’ or did not sit in public):
‘None the less, in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of article 6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of article 6(1).’
87 The reference to ‘full jurisdiction’ has been frequently cited in subsequent cases and sometimes relied upon in argument as if it were authority for saying that a policy decision affecting civil rights by an administrator who does not comply with article 6(1) has to be reviewable on its merits by an independent and impartial tribunal. It was certainly so relied upon by counsel for the respondents in these appeals. But 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.
88 This emerges most clearly from the decisions on the English planning cases… But the leading European authority for the proposition that it is not necessary to have a review of the merits of a policy decision is Zumtobel v Austria (1993) 17 EHRR 116. The Zumtobel partnership objected to the compulsory purchase of their farming land to build the L52 by-pass road in the Austrian Vorarlberg. The appropriate government committee heard their objections but confirmed the order. They appealed to an administrative court, which said that the government had taken proper matters into account and that it was not entitled to substitute its decision for that of the administrative authority. They complained to the Commission and the European court that, as the administrative court could not ‘independently assess the merits and the facts of the case’, it did not have ‘full jurisdiction’ within the meaning of the Albert and Le Compte formula. The European court said, at para 32, that its jurisdiction was sufficient in the circumstances of the case, ‘Regard being had to the respect which must be accorded to decisions taken by the administrative authorities on grounds of expediency and to the nature of the complaints made by the Zumtobel partnership.’”
“107… [Mr Bratza] said, at p 354:
‘It appears to me that the requirement that a court or tribunal should have “full jurisdiction” cannot be mechanically applied with the result that, in all circumstances and whatever the subject matter of the dispute, the court or tribunal must have full power to substitute its own findings of fact, and its own inferences from those facts, for that of the administrative authority concerned. Whether the power of judicial review is sufficiently wide to satisfy the requirements of article 6 must in my view depend on a number of considerations, including the subject matter of the dispute, the nature of the decision of the administrative authorities which is in question, the procedure, if any, which exists for review of the decision by a person or body acting independently of the authority concerned and the scope of that power of review.’
110 Mr Bratza's particular insight, if I may respectfully say so, was to see that a tribunal may be more or less independent, depending upon the question it is being called upon to decide. On matters of policy, the inspector was no more independent than the Secretary of State himself. But this was a matter on which independence was unnecessary—indeed, on democratic principles, undesirable—and in which the power of judicial review, paying full respect to the views of the inspector or Secretary of State on questions of policy or expediency, was sufficient to satisfy article 6(1). On the other hand, in deciding the questions of primary fact or fact and degree which arose in enforcement notice appeals, the inspector was no mere bureaucrat. He was an expert tribunal acting in a quasi-judicial manner and therefore sufficiently independent to make it unnecessary that the High Court should have a broad jurisdiction to review his decisions on questions of fact.”
Lord Hoffmann proceeded to point out that Mr Bratza’s opinion had influenced the decision of the Court in Bryan, which said in paragraph 45 of the judgment:
“… in assessing the sufficiency of the review available to Mr Bryan on appeal to the High Court, it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal.”
“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.
47 … 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  EWHC Admin 527 at -; Moses J in R (Bewry) v Norwich City Council  EWHC Admin 657 at -; and Stanley Burnton J in Husain v Asylum Support Adjudicator  EWHC Admin 832 AT -. It is sufficient for present purposes to recite a passage in the last of these judgments. In Husain Stanley Burnton J said (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 Court 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.’
“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  1 WLR 306. This means that it has a jurisdiction over error both in procedure and in law which is, as Sedley LJ observed at p327B, ‘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 decisions as it thinks fit’.
79… 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 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.”
The third member of the court was David Steel J, who (paragraph 94) agreed with Brooke LJ:
“Whatever may be the true analysis of the decision [sc. in R v A  UKHL 25], I still agree with the conclusion of Brooke LJ that it does not permit an interpretation, 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.”
“57 But Mr Squires asserts that at the heart of this case lay an issue of credibility. The Secretary of State submits that the reasoning of the Review Board makes it plain that their decision was based upon the questions to which the documents gave rise which the claimant singularly failed to answer or to clarify. The question of credibility, he submits, did not depend upon oral evidence but upon inferences to be drawn from the documents to which the Review Board referred. Had the reasons for rejecting the claimant’s assertions not stacked up, this court would have been in a good position to identify that failure. The reasoning demonstrates, it is submitted, an independence of approach.
58 There is, however, in my judgment, one insuperable difficulty. Unlike an inspector, whose position was described by Lord Hoffmann as independent, the same cannot be said of a councillor who is directly connected to one of the parties to the dispute, namely the Council. In my judgment, the position of councillors chosen to sit on a Review Board cannot be likened to that of the Planning Inspectorate…
62 … The lack of independence [sc. of the councillors on the Board] may infect the independence of judgment in relation to the finding of primary fact in a manner which cannot be adequately scrutinised or rectified by this court…
64 … This court cannot cure the often imperceptible effects of the influence of the connection between the fact-finding body and a party to the dispute since it has no jurisdiction to reach its own conclusion on the primary facts, still less any power to weigh the evidence.”
I should say that these conclusions were arrived at by the judge through what he saw as the application of common law principle, the relevant events having happened before the Convention rights were patriated by the HRA on 2nd October 2000. Moses J’s judgment, and much of the other learning in this area, was cited at some length by Richards J in Beeson  EWHC Admin 986 (to which as I have said the judge in the present case referred). Beeson concerned certain statutory arrangements for the provision of residential accommodation under the National Assistance Act 1948. The judge found that like considerations to those which moved Moses J applied in the circumstances before him.
“99 It is in my view legitimate to take into account in this context that the review panel is a body chosen by Parliament. If, of course, it was simply impossible for such a tribunal to reach a fair decision, that would lead inevitably to the conclusion that the scheme could not work without infringement of Article 6. Would it be impossible for there to be a fair decision from any person who would be appointed to review matters under the introductory tenancy scheme? Would a court inevitably come to the conclusion that any officer, however senior, could not constitute a fair tribunal for hearing the matter? Is the position such that judicial review could not provide the check as to whether a decision had been reached fairly and lawfully?
100 One has to remember that the council are in reality making decisions which are not simply decisions as to whether it has a right to terminate. The council is not anxious to terminate unless other considerations prevail. The council is having to have regard to competing interests of other tenants and the competing interest of others who need the housing that they can supply. In my view there is no reason to think that such a decision cannot be taken fairly at a senior level of the council reviewing the decisions already reached by less senior people. Furthermore it seems to me that judicial review will be able to check the fairness and legality of decisions taken.”
“In ex parte Puhlhofer  AC 484 at page 517, Lord Brightman said:
‘It is an Act to assist persons who are homeless, not an Act to provide them with homes... It is intended to provide for the homeless a lifeline of last resort; not to enable them to make inroads into the local authority’s waiting list of applicants for housing. Some inroads there probably are bound to be, but in the end the local authority will have to balance the priority needs of the homeless on the one hand and the legitimate aspirations of those on their housing waiting list on the other hand.’
(See also ex parte Awua  1 AC 55 at 72 and ex parte Kihara (1996) 29 HLR 147 at 155). It, thus, has to be borne in mind that any priority system involves striking a balance between the needs of one group of homeless persons and another. To grant priority to one person involves the deferment of another.
In the context of old age, the guidance [sc. given by the Secretary of State under what is now HA s.182(1)] directs the authority to consider the extent to which the age of the applicant makes it hard for him to fend for himself (paragraph 6.9). In relation to mental illness or handicap or physical disability, the guidance states that the authority should consider the ‘relationship between the illness or handicap and the individual’s housing difficulties’ (paragraph 6.10). In relation to ‘victims of violence or abuse or sexual and/or racial harassment’, the guidance demonstrates the breadth of the factors to be taken into account – ‘authorities should secure wherever possible that accommodation is available for men and women without children who have suffered violence at home or are at risk of further violence if they return home’”.
For my own part I have already stated (paragraph 24) that the issues which may fall for decision on a homeless person’s application lie across a spectrum between questions of fact and questions of judgment or discretion. It is important also to have in mind the procedures given by HA s.203 and paragraphs 2, 6 and 8 of the 1999 Regulations. I have already set out this material. It seems to me to provide very significant safeguards, in the applicant’s interest, for the integrity of the s.202 process.
Lord Justice Dyson:
Lord Woolf CJ: