England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		31st July 2001

1. MR JUSTICE MOSES: The claimant, Mr Bewry, challenges the decision of Norwich City Council's Housing Benefit Review Board, a decision dated 8th August 2000. The Board decided that the claimant had failed to establish that he was liable for rent in respect of his occupation of 11 St Martins Road, Norwich. The Board was chaired by Mr Round. He and the other two members of the Board were Norwich City councillors.
2. The claimant seeks to impugn the decision of the Board on two main grounds. Firstly, that the Board lacked the appearance of an independent and impartial tribunal and, thus, contravened his constitutional right to a fair trial. The source of that right was expressed in two ways. It was asserted to be a right under common law and, alternatively, a right protected by Article 6 of the European Convention on Human Rights. It was contended that the Human Rights Act 1998 had effect in circumstances where this court was required to give a ruling after 2nd October 2000. Secondly, it was submitted that the presence of Mr Round as Chairman of the Board gave rise to a real possibility of bias.

STATUTORY SCHEME

3. The entitlement to housing benefit is contained in section 130(1)(a) of the Social Security Contributions and Benefits Act 1992, which provides:

"A person is entitled to housing benefit if-

(a) he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home."

4. By section 63 of the Social Security Administration Act 1992:

"Adjudication

(1) Regulations shall provide that, where a person has claimed-

(a) housing benefit...

the authority shall notify the person of its determination of the claim...

(3) Regulations shall make provision for reviews of determinations relating to housing benefit."

5. By regulation 81 of the Housing Benefit (General) Regulations 1987:

"(1) A person (affected) who has made representations under regulation 79(2) (review of determinations) may give or send to the appropriate authority written notice (signed by him) requesting a further review of the determination within 4 weeks of the date on which the determination on those representations was sent to him."

6. By Regulation 81(3):

"Subject to paragraph 5, the further review shall be conducted by a Review Board appointed by the appropriate authority and constituted in accordance with Schedule 7."

7. Under Schedule 7, where a local authority is the appropriate authority, the composition of the Board is stated to be councillors of that Authority.
8. I should point out at this stage that review boards have now been replaced by appeal tribunals pursuant to the Child Support, Pensions and Social Security Act 2000 Schedule 7. The members of such tribunals are chosen from a panel constituted by the Lord Chancellor (see the Social Security Act 1988 sections 4 to 7) and will be independent of local authorities. The Housing Benefit (General) Regulations 1987, to which I have referred, have been revoked by the Housing Benefit and Council Tax Benefit (Decisions and Appeals) and Discretionary Financial Assistance (Consequential Amendments and Revocations) Regulations 2001 Schedule 2 Part 2, a new system has come into force from 2nd July 2001.

THE FACTS

9. The facts found by the Review Board are set out in a very full decision dated 8th August. The decision starts by dealing with a number of preliminary matters and then identifies the issue before the Board in which it is stated that the claimant asserted he was a lodger rather than a tenant. But the Board pointed out that that distinction was of no concern. The real issue was whether he did in fact pay rent either to the owner or to his agent. That remained very much in dispute.
10. The claimant had produced to the Board, as he had produced to the City Council, a letter dated 9th June 1999, headed: "SM Builders 65 Sherringham Avenue, London N17 9RS", which stated:

"We write to confirm as from 10th June 1999, Mr Raymond R Bewry will be lodging at 11 Saint Martins Road, Norwich, a fully furnished shared house.

His weekly rent of £40.00 is payable from 10th June 1999, exclusive of all bills including Council Tax."

11. The claimant sent in a claim form and the Council responded on 16th March 2000, stating that Mr Bewry was not eligible for benefit. The Council stated on 21st March 2000 that:

"The reason we are unable to pay benefit is because we have been unable to verify your landlord's agents."

12. It then referred to section 48(1) of the Landlord and Tenant Act 1987, which the Review Board subsequently accepted was not directly relevant. Mr Bewry responded, pointing out that section 48(1) was not relevant and asked for the decision to reinstate his benefits in a letter dated 24th March 2000.
13. The City Council responded on 12th April 2000, saying that when the Haringay Council staff visited 65 Sherringham Avenue, the address of the purported agents, they found that it was a residential property and that SM Builders did not have offices there. The letter went on to say:

"We have, therefore, been unable to make contact with them.

We have received a number of letters from S M Builders, but have found that the signatures differ on the letters. The fact that there is no consistency in these letters and signatures and that we have had no direct contact with your landlord means that we are unable to pay Housing Benefit on your claim at 11 St Martins Road, Norwich."

14. There was a further letter dated 9th May 2000 making the same point.
15. The Review Board considered those letters and the documents and pointed out under the heading: "The Parties' Cases" that the claimant had stated:

"...orally before us that the document on page 6 of your bundle [which is the letter to which I have already referred, dated 9th June 1999] is the proof of that liability."

16. The Review Board pointed out that the letter was neither legible or attributable to any individual, but is stated to be for SM Builders.
17. It was argued on behalf of the Benefits Authority, the City Council, that insufficient information had been given to establish a liability. The Board then went on to give very full reasons based upon the documentation. It found the documentation to be unreliable and the arrangement between the claimant, the owner of the property, and those who appeared to act as his agents, to be, as the Review Board described, "highly unusual". The identity of the registered proprietor was uncertain. There were inconsistencies, not only as to the spelling of his forename but as to his date of birth. The letters from SM Builders were, so it was stated, "unreliable". There were discrepancies as to the proprietor and the letter heading.
18. The decision letter goes on by considering the highly unusual involvement of the claimant with the property.

"The registered proprietor of the property is shown as Silvan (yet another spelling of the forename) Letchumanan with effect from 6th December 1990. We have seen considerable documentation from that time onwards, all of which closely involves you. We find that you have the majority of dealings with the Yorkshire Building Society to whom the property is mortgaged. On 21st August 1990 you confirmed to the Building Society that Mr Letchumanan was employed by you, thus confirming his eligibility for a mortgage. You confirmed in cross-examination that he did indeed work for you at that time."

19. Later, the Review Board also recorded:

"...you have requested that your housing benefit is paid not to those whom you claim to be the Managing Agents but direct to the Yorkshire Building Society mortgage account."

20. The Board concluded:

"The Board is bound to take into account the absence of any conventional letting documentation. It is bound to take into account, secondly, the considerable inconsistencies and doubts which arise from the documentation involving the registered proprietor and his agents. It is also bound to take into account, thirdly, the highly unusual background in terms of your involvement with the property and the registered proprietor before the date on which you claim your liability to make payments for which benefit is available arose.

Against this background, we consider that you have entirely failed to explain the questions which arise in our minds. On 21st March 2000 you were asked to assist by getting the agent to come into City Hall or to give the Authority his name/telephone number but you refused. Nothing which you have presented to the Review Board has clarified the situation. Indeed, we agree with the Benefits Authority that the information subsequently provided, on the contrary, makes the situation less clear.

In all the circumstances, we therefore conclude that the letter of 9th June 1999 cannot be relied upon as establishing a liability on your part for which housing benefit would be payable; and, indeed, that the documentation as a whole relating to your liability is unreliable. For this reason we confirm the determination of the Benefits Authority that no liability on your part to make payments for which housing benefit is available has been established. Indeed, we are of the opinion that it would be an abuse of the Benefit system to pay out benefit in these circumstances."

THE COMMON LAW RIGHT TO AN INDEPENDENT AND IMPARTIAL TRIBUNAL

21. Mr Squires contends on behalf of the claimant that the claimant has a common law right to a fair trial. That right he contends is co-extensive with the right under article 6(1) of the European Convention on Human Rights to an independent and impartial tribunal. The 1987 Regulations, which provide for resolution of a dispute as to the statutory entitlement for housing benefit by councillors from the local housing authority which confers the relevant benefits, infringes that right.
22. The Secretary of State, through Mr Eadie, makes two important but correct concessions. Firstly, that the claimant is seeking determination of a civil right, namely his statutory entitlement to housing benefit. Secondly, that the appointment by the local authority of its councillors to sit as members of the Review Board undermines the appearance of independence and impartiality of that Review Board. However, submits the Secretary of State, in relation to decisions made before the coming into force of the Human Rights Act on 2nd October 2000, common law does not recognise the right to resolution of such a dispute by an independent and impartial tribunal. The assertion of such a right is merely a means of overcoming the difficulty which the claimant faces arising from the fact that the decision of the Review Board was made on 8th August 2000.
23. The claimant founds his argument under this heading upon the decision of Laws J (as he then was) in R v Lord Chancellor ex parte Witham [1998] QB 575. It will be recalled that that case concerned a challenge to the Lord Chancellor's order based on the claim that the level of fees deprived the poor of access to the courts. Laws J held that there was no power under the primary legislation to deprive citizens of access to the courts. He reviewed the domestic authorities for the purpose of establishing the constitutional and fundamental right of unimpeded access to a court, ranking, as it did, as a constitutional right (see in particular his citation of R v Secretary of State for the Home Department ex parte Leech [1994] QB 198.) He concluded at page 585:

"Mr Duffy relied also on the jurisprudence of the European Court of Human Rights, and referred to Golder v United Kingdom [and a number of other decisions]... For my part I do not find it necessary to refer to these cases, since I consider that the issue may correctly be resolved by reference to the substance of our domestic law. As regards the ECHR jurisprudence I will say only that, as it seems to me, the common law provides no lesser protection of the right of access to the Queen's courts than might be vindicated in Strasbourg. That is, if I may say so, unsurprising. The House of Lords has held the same to be true in relation to the right of freedom of expression...I cannot think that the right of access to justice is in some way a lesser right than that of free expression; the circumstances in which free speech might justifiably be curtailed in my view run wider than any in which the citizen might properly be prevented by the state from seeking redress from the Queen's courts. Indeed, the right to a fair trial, which of necessity imports the right of access to the court, is as near to an absolute right as any which I can envisage.

It seems to me, from all the authorities to which I have referred, that the common law has clearly given special weight to the citizen's right of access to the courts. It has been described as a constitutional right, though the cases do not explain what that means. In this whole argument, nothing to my mind has been shown to displace the proposition that the executive cannot in law abrogate the right of access to justice, unless it is specifically so permitted by Parliament; and this is the meaning of the constitutional right."

24. Accordingly, submits Mr Squires, the power to make regulations as to the constitution of the review body under section 63 cannot abrogate the claimant's right to an independent and impartial adjudication of his statutory right to housing benefit. In Witham the applicant sought to bring proceedings for malicious falsehood and liable. There was no dispute but that the only forum for resolution of those allegations was the Queen's courts. That he had a right of access was undisputed.
25. In the instant case it is submitted by the Secretary of State that no such right exists. It is accepted that the common law would recognise the right to a fair trial of the issue of statutory entitlement to housing benefit. It is further accepted that under common law an appearance of bias would be avoided by the application of a test of whether there is a real danger of the decision having been affected bias. Thus, the common law provides for procedural fairness and the avoidance of real or apparent bias. But it is submitted there is no basis in domestic authority for the assertion that, under common law, there is a requirement that the constitution of the tribunal, which determines the applicant's statutory entitlement, should be independent.
26. The common law, submits the Secretary of State, does not require any particular forum for the resolution of such disputes provided that the tribunal operates in a procedurally fair manner without any real danger of bias; its decision cannot be impugned on the grounds of what Mr Eadie describes as "structural lack of independence". There is no authority for such a proposition to be found in domestic law, at least before the coming into force of the Human Rights Act. It is to be noted, he submits, that Laws J founded his decision upon express domestic authority.
27. I disagree. The primary legislation in section 63 provides for adjudication of the statutory right to housing benefit. Such an adjudication must, under the common law, in the absence of an express specific provision in primary legislation, be an adjudication by an independent and impartial decision-maker. In R and the Secretary of State for the Home Department, ex parte Saleem [2001] 1 WLR 443, Hale LJ considered the argument of counsel for the Secretary of State that there was no right of access to a court for determination of a claim for asylum arising out of the statutory right of an appeal under section 22 of the Immigration Act 1971. Hale LJ said:

"I am quite unable to accept that argument. There are now a large number of tribunals operating in a large number of specialist fields. Their subject matter is often just as important to the citizen as that determined in the ordinary courts. Their determinations are no less binding than those of the ordinary courts: the only difference is that tribunals have no direct powers of enforcement and, in the rare cases where this is needed, their decisions are enforced in the ordinary courts. In certain types of dispute between private persons, tribunals are established because of their perceived advantages in procedure and personnel. In disputes between citizen and state they are established because of the perceived need for independent adjudication of the merits and to reduce resort to judicial review. This was undoubtedly the motivation for grafting asylum cases onto the immigration appeals system in 1993. In this day and age a right of access to a tribunal or other adjudicative mechanism established by the state is just as important and fundamental as a right of access to the ordinary courts." (See pages 457H to 458A)

28. In re Medicaments [2001] 1 WLR 700, where the court of appeal was considering an allegation of appearance of bias, Lord Phillips, MR, remarked at paragraph 35:

"The requirement that the tribunal should be independent and impartial is one that has long been recognised by English common law."

29. In my judgment, the right of review of a determination of statutory entitlement is akin to the right of access to a court and carries with it a right to independent and impartial review. It could hardly be suggested that such a review does not need to be procedurally fair or does not need to be free from apparent bias. But once that is accepted, I cannot see why such a right does not also include the right to determination by an independent and impartial reviewing body carrying out that statutory review. Accordingly, I conclude that common law provides no lesser protection to the claimant than that which is provided by Article 6.

THE APPLICATION OF THE HUMAN RIGHTS ACT 1998

30. Mr Squires submitted that even though the decision the claimant sought to impugn was made before 2nd October 2000, this court was bound to apply the Act. Thus, this court is bound to read section 63 in a way which is compatible with Article 6(1), if it is possible to do so (see section 3(1)), and is bound to take into account the jurisprudence of Strasbourg (see section 2(1)(a)). Further, it is submitted, it would be unlawful for the court to act in a way which is incompatible with article 6(1) (see sections 6(1) and 3(a) of the 1998 Act).
31. The argument stems from the proposition that there can be no breach of article 6(1) unless and until it is determined whether this court has sufficient jurisdiction to subject the Tribunal to control in a manner which will safeguard the claimant's Convention right. It is based in part upon dicta of Lord Hoffman in R (Alconbury Developments Ltd and Others) v Secretary of State for the Environment Transport and the Regions [2001] 2 WLR 1389 in which he said at paragraph 135 page 1428:

"...it makes little difference whether one says, as in Kaplan, that the administrative act does not fall within article 6 at all and the question is concerned only with the adequacy and impartiality of the judicial review, or whether one says, as the European Court and Commission have done in other cases, that the administrative act does in theory come within article 6 but the administrator's lack of impartiality can be cured by an adequate and impartial judicial review. The former seems to me a more eloquent analysis, but the latter may be necessary in order to explain, in the context of civilian concepts, why the administrative process can be treated as involving at any stage a determination of civil rights and obligations."

32. In Tehrani v UKCC for Nursing, Midwifery and Health Visiting [2001] IRLR 208 (CS) at paragraph 55 Lord Mackay of Drumadoon said:

"...when dealing with a disciplinary tribunal...a right of appeal to a court of full jurisdiction does not purge a breach of the Convention. It prevents such a breach from occurring in the first.

If, as Mr Squires contends, this court is unable to provide any adequate safeguard against lack of independence, it is at that moment that the court acts in breach of the Convention and that breach, therefore, takes place after 2nd October 2000.

I do not need to resolve the argument in the light of my conclusions under the common law, save to record that there are substantial reasons pointing to the contrary conclusion to be found in R v Lambeth [2001] UK HL 37, and Wilson and First Country Trust Limited [2001] 3 WLR 52. In particular, I refer to paragraphs 10 to 14 in the speech of Lord Slynn, and paragraphs 104 and 115 in Lambeth, and the citation of the Vice-Chancellor's judgment in Wilson v First Country Trust with the approval of the majority of their Lordships' House.

True it is that in those cases the court was considering an earlier breach and not examining the function of that court when exercising the jurisdiction of judicial review. But the thrust of their reasoning may well apply to Mr Squires' ingenious attempt to overcome the stark fact that Parliament sought to bring human rights home as from 2nd October 2001 and not before.

As I have said, I need not resolve that interesting question. In the light of my decision that the common law requires the tribunal to be both independent and impartial, it seems to me that I should adopt the same approach as I would have done were this case to be considered under the Human Rights Act. For a number of years the courts have reached conclusions as to the extent of protection afforded by the common law to fundamental rights, informed by the approach of the jurisprudence of the European Court of Human Rights. Unless I had formed the view that the protection under the common law was less extensive, there is no point in proceeding without regard to the approach adopted by Strasbourg to article 6 and the approach adopted by the courts of that country after the Human Rights Act came into force. Where, as I have concluded, there exists a common law right to an independent and impartial tribunal, it is difficult to see why that right should be less extensive than the same right protected specifically by article 6, as interpreted by the European Court of Human Rights and by our courts.

This court's recognition that the common law will protect such a right involves an appreciation and use of all the currently available sources which may inform a conclusion as to the nature of that right, and whether it has been infringed. These include up-to-date domestic authority, which takes into account the jurisprudence of the European Court of Human Rights. Just as the common law developed, prior to the coming into force of the Act, with the aid of reference to such jurisprudence so too, as it seems to me, current recognition of the state of the common law today should do so, even if no statutory obligation exists to have regard to that jurisprudence. There is no reason to pretend that the jurisprudence of those other courts does not exist.

ARTICLE 6

The European Court of Human Rights recognises that the question whether those determining a civil right have the appearance of independence and impartiality requires consideration not only of the independence and impartiality of the original decision-maker but also scrutiny of the jurisdiction of any court which is itself independent and impartial which has the power to control the original decision-maker. If the latter court has a jurisdiction which will alleviate the effect of any lack of independence or impartiality, and is itself independent and impartial, rights under article 6 may be said to be adequately protected.

In Byran v United Kingdom (1995) 21 EHRR 322, the European Court of Human Rights considered the role of an inspector in relation to enforcement proceedings. It said in paragraph 37:

"In order to establish whether a body can be considered 'independent', regard must be had, inter alia, to the manner of appointment of its members and to their term of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence.

It is true that the inspector was required to decide the applicant's planning appeal in a quasi-judicial, independent and impartial, as well as fair, manner. However, as pointed out by the Commission in its report, the Secretary of State can at any time, even during the course of proceedings which are in progress, issue a direction to revoke the power of an inspector to decide an appeal. In the context of planning appeals the very existence of this power available to the Executive, whose own policies may be in issue, is enough to deprive the inspector of the requisite appearance of independence, notwithstanding the limited exercise of the power in practice as described by the Government and irrespective of whether its exercise was or could have been at issue in the present case."

33. The court then proceeded to consider the jurisdiction of the High Court in respect of a decision of the inspector at paragraph 44, and continued:

"45. Furthermore 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 desire and actual grounds of appeal.

46. In this connection the court would once more refer to the uncontested safeguards of tending the procedure before the inspector, the quasi judicial character of the decision-making process, the duty incumbent on each inspector to exercise independent judgment, the requirement that inspectors must not be subject to any improper influence, the stated mission of the inspector to uphold the principles of openness, fairness and impartiality. Further, any alleged short-coming in relation to these safeguards could have been subject to review by the High Court."

34. The courts have thus been at pains to examine whether the jurisdiction of the reviewing court is a full jurisdiction. That will depend upon the nature of the decision and the extent of the review.
35. In R (Alconbury Developments Limited and Others) QB (supra) Lord Hoffman cited with approval the opinion of Mr Bratza (as he then was) when sitting as part of the Commission in relation to the decision of Bryan. I shall return to Mr Bratza's concurring opinion later. Lord Hoffman said at paragraph 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."

36. Later, Lord Hoffman said at paragraph 117:

"It is only when one comes to findings of fact, or the evaluation of facts, such as arise on the question of whether there has been a breach of planning control, that the safeguards are essential for the acceptance of a limited review of fact by the appellate tribunal."

37. Lord Slynn cited Albert and Le Compte v Belgium 5 EHRR 533 in paragraph 29 in support of the proposition:

"'...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).'"

38. Paragraph 45:

"These judgments also show that the test whether there is a sufficient jurisdictional control is not a mechanical one. It depends on all the circumstances."

39. Later in his speech, Lord Slynn pointed out the full width of judicial review in relation to decisions of the Secretary of State including, as he pointed out at paragraph 53, jurisdiction to quash for a misunderstanding or ignorance of an established and relevant fact.
40. Thus, because the decision was one in relation to administrative policy, the lack of jurisdiction in the reviewing court to conduct a full review of the merits did not mean the decisions taken by the Secretary of State were incompatible with article 6(1). But as Richards J pointed out in R v Rhondda Cyon Taff County Borough Council ex parte Kathro and Others (a judgment of 6th July 2001), the House of Lords placed considerable emphasis upon the role of an inspector carrying out an independent review of the facts upon which the Secretary of State would base his policy decision. Richards J was considering the decision-making process of a local planning authority in which the inspector had no part to play (see paragraph 20). Richards J at paragraph 28 drew attention to the emphasis placed in Alconbury upon the fact-finding role of the inspector in its procedural safeguards. He continued:

"By contrast, there is no equivalent in the decision-making process of a local planning authority. That process includes a right to make representations and to submit evidence, and persons may be heard orally at a meeting of the relevant committee. But there is nothing like a public inquiry, no opportunity for cross-examination and no formal procedure for evaluating the evidence and making findings of fact. The report of the planning officer to the committee generally contains an exposition of relevant facts, including any areas of factual dispute, but does not serve the same function as an inspector's report. In general there will be no express findings of fact by the committee itself. All of this considerably reduces the scope for effective scrutiny of the planning decision on an application for judicial review. It makes it more difficult, if not impossible, to determine whether the decision has been based on a misunderstanding or ignorance of an established and relevant fact, or has been based on a view of the facts that was not reasonably open on the evidence."

41. The question in the case of Kathro was not whether the decision might be in breach of article 6 but whether it inevitably would. Richards J concluded that there was no basis for saying at that stage there was any factual dispute even if there might ultimately prove to be one (see paragraphs 32 and 33).
42. It is important to note that in Kathro the claimants were seeking to make a prospective challenge to prevent a determination by the local planning authority. At the stage they were seeking to make that prospective challenge it was not possible to say whether there was a factual dispute or not.
43. Consideration of article 6 in relation to the fact-finding body was also made by Longmore J (as he then was) in Johns & McLellan v Bracknell Forest District Council (a decision of 21st December 2000). In that case what was under consideration was the concept of introductory tenancies. In relation to such tenancies a local authority was entitled to seek an order for possession which the court was bound to grant. A system had been set in place for review of a decision as to whether to seek an order for possession.
44. The court concluded that even though article 6 did have application, and even though the reviewing officer could not be said to be independent, in an article 6 sense, the court had sufficient control over the reviewing officer in applying the standards set out by Lord Denning in Ashbridge v Minister of Housing and Local Government [1965] 1 WLR 1320 as to satisfy the requirements of article 6.
45. I find it difficult to derive particular assistance from the decision of McLellan because it is not clear to me precisely what the factual issue, which a reviewing officer would have to decide, was. The reviewing officer, as it seems to me, rather than making primary findings of fact would seek to make a value judgment as to whether there was good reason to seek possession. I accept that such a judgment can be said to be a question of fact and degree. It is very far from being the sort of primary fact that an inspector would have to reach. More analogous were decisions of those bodies, to which Longmore J drew attention, which have to consider the fitness of certain people to pursue particular professional callings. But I can at least derive from both McLellan and Kathro and, more importantly, from Alconbury, the proposition that before a breach can be determined to have occurred of article 6, it is necessary to determine the nature of the issues and the extent of the procedural safeguards in place to ensure an independent determination of the factual issues.
46. In the light of those factors it is necessary to consider the extent of an independent court's review and, in particular, whether that review is sufficient to provide a safeguard against any lack of independence. It is not enough merely to point to the absence of the structural independence of the original decision-maker.
47. The Secretary of State relies upon a number of procedural safeguards. He points to the 1987 Housing Benefit (General) Regulations and, in particular, the procedure for determinations under regulation 76, for notification under regulation 77 and the provisions of regulations 81 to 82. In particular, under regulation 82 there is a right to a full hearing and representation, including a right to call persons to give evidence and to cross-examine. Of particular importance is the Review Board's Good Practice Guide, prepared by the Department of Social Security, in which the introduction states:

"...dissatisfied claimants have a clear legal right to further consideration of their case by an independent Review Board..."

48. My attention was drawn to a number of the paragraphs in that document. Section 2 deals with administration and organisation of the hearing. Section 3 deals with procedures at the hearing and, for example, at 3.4 emphasises that a Review Board is in law a separate body from the authority, and continues:

"It is good practice for authorities to ensure that a Review Board is made up of people who have not previously been involved in the case, and who do not have an interest in the outcome. An authority may appoint a single Review Board, but it would not be appropriate for any person who has any close connection with the claimant to consider a particular case. Some authorities ensure that no councillor sits on a Review Board to hear a case involving a claimant from his or her ward, but this may not be practical or possible for all authorities."

49. Under the rubric "Natural Justice" paragraph 3.8 of the Good Practice Document asserts the requirement of natural justice: no member of the Board should have a vested interest in the outcome. There should be no contact between members of the Review Board and the authority or the claimant. Each side should be given a fair and equal opportunity to fully state their case, and the Review Board should only consider written material seen by all the parties in respect of which they have had an opportunity to comment.
50. Paragraph 3.23 requires the decision to be recorded. Section 4 deals with the hearing and the rights of the claimant and the procedures to be adopted. Section 5 deals with record and notification of the decision. Under paragraph 5.6 the reasons must be intelligible and explain clearly and unambiguously to all persons affected why the application for further review succeeded or failed. Any breach of either the regulations or, more importantly, of the Good Practice Guide would, as it seems to me, be subject to the control of the court exercising the jurisdiction of judicial review.
51. Mr Squires submits that the control which this court is able to exercise is inadequate in the context of a dispute as to primary fact. This court is unable, he says, to afford a sufficient safeguard against the lack of independence consequent upon the position of the members of the Review Board as councillors of the very body which makes the initial determination of entitlement. He likens the position of the councillors in the instant case to the lay members of the Employment Tribunal appointed by the Secretary of State for Trade and Industry to determine a claim for redundancy following refusal by the Secretary of State of such redundancy payments in Scanfuture v Secretary of State for Trade and Industry [2001] IRLR 416. In that case the Employment Appeal Tribunal concluded that in a case where primary facts were in dispute the lay members lacked the appearance of independence. They were appointed by the Secretary of State. Their remuneration was fixed by him. He had a substantial role in their appointment, in fixing the length of their appointed/reappointment and possible removal.
52. Appeals to the Employment Appeal Tribunal were limited to points of law under section 21 of the Employment Tribunal Act 1996 and, thus, the EAT concluded it did not have full jurisdiction. The decision in Scanfuture rested upon the feature that there was a dispute of primary fact and the control by the Secretary of State over the appointment of those to determine a dispute in which he was a party, and the absence of any framework to protect the lay members from improper interference or influence (see paragraphs 34 and 35). The Tribunal in that case emphasised that there was no dispute as to primary fact in the case of Bryan. But that emphasis finds no place in the speeches of the House of Lords in Alconbury. The case of Scanfuture can be of limited assistance, bearing in mind that it does not appear that the EAT had the advantage of seeing any of the speeches in Alconbury.
53. The resolution of the question in the instant case must depend upon the adequacy of scrutiny which this court is able to undertake in the light of the issues in dispute. The limited review of the facts which this court can undertake is only acceptable if there are sufficient safeguards in place to ensure independent judgment and procedural fairness: see Lord Hoffman at paragraph 117 in Alconbury and at paragraph 128 where he said:

"The second strand concerns the facts. These are found by the inspector and must be accepted by the Secretary of State unless he has first notified the parties and given them an opportunity to make representations...This is the point upon which, in my opinion, the Bryan case 21 EHRR 342 is authority for saying that the independent position of the inspector, together with the control of the fairness of the fact-finding procedure by the court in judicial review, is sufficient to satisfy the requirements of article 6."

54. The independent position of the inspector was described by the European Court of Human Rights in Bryan at paragraphs 46 and 47 and at paragraph 21, in a passage that I have not yet read, in which the court referred to the framework document in respect of the staff of the inspectorate and the objectives of the inspectorate of maintaining the integrity of each inspector as an independent tribunal not subject to any improper influence.
55. The position of the inspectorate was in particular amplified by Mr Bratza in his concurring opinion as a member of the Commission in which he said of the report of the Commission:

"...while accepting that the inspector is a 'tribunal' within the substantive sense of the expression as used in Article 6(1) and that such a tribunal is one 'established by law', concludes that an inspector does not satisfy the requirement of independence and impartiality: it is correctly pointed out that inspectors are chosen from salaried staff of the Planning Inspectorate, which serves the Secretary of State in the furtherance of his policies, and that while the Secretary of State and his inspector are not parties to the dispute as such, the facts that those policies can be in issue on appeals means that the inspector cannot have the independence necessary for Article 6 of the Convention.

While this is true, there is equally nothing to suggest that, in finding the primary facts and in drawing conclusions and inferences from those facts, an inspector acts anything other than independently, in the sense that he is in no sense connected with the parties to the dispute or subject to their influence or control; his findings and conclusions are based exclusively on the evidence and submissions before him."

56. I acknowledge that there are many procedural safeguards within the practice document governing the procedures of the Review Board. Indeed, the Review Board appears faithfully to have followed those procedures in this case. This claimant had every opportunity to present his case. The decision gives full reasons for rejecting his assertion that he was liable to pay rent in respect of his occupation. It was a model of cogency and clarity. The court is thus in a position to examine whether the Review Board failed to take into account relevant considerations; whether the decision was irrational; or whether the primary facts found failed to support the conclusions. The Review Board is quite unlike the position of the local planning authority in Rhondda v Kathro. Moreover, there has been no dispute as to the fairness of the procedure and, in any event, this court has ample powers to review those procedures. The manner in which the decision in the instant case was arrived at cannot be impugned.
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 describe by Lord Hoffman 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. The dispute was between the claimant and the Council. The case against payment of benefit was presented by an employee of the Council and relied upon the statement of an official of the Council (the Fraud Verification Officer in the Council's Revenue office).
59. At the heart of the cases of Bryan and Alconbury lay the distinction between the fact-finding function of an inspector and his service to the Secretary of State in furtherance of his policies. It was only in the latter respect that it could be said that the inspector lacked independence and impartiality. Once it was accepted that there was no such lack of independence in an inspector's fact-finding function, and that prescribed procedures ensured fairness, then the limited jurisdiction of the court to review facts could be seen to be acceptable.
60. The combination of the position of the inspector, the very nature of whose profession requires an independence of approach in relation to the finding of facts, and the fairness of the prescribed procedures avoid any risk that the apparent lack of independence and impartiality might taint the decision. The same cannot be said of councillors determining a dispute of fact in respect of which the Council is one of the parties.
61. I accept wholeheartedly that the procedures in place, and adopted in the instant case, are such as to ensure a fair hearing. The reasoning carefully set out by the Board enables the court to ensure that there has been no material error of fact. Even in relation to a finding of fact, this court can exercise some control if it can be demonstrated that the facts found are not supported by the evidence. But, in that respect, the court can only exercise limited control. It cannot substitute its own views as to the weight to be given to the evidence. Nor can it substitute its own views as to the credibility of that evidence. Hence, the importance of the independence of the position of one, such as an inspector, when considering the evidence in a planning application and in finding primary facts based upon the weight and credibility of that evidence. Lord Hoffman after all referred not only to the procedural safeguards but also the position of the inspector in finding primary fact.
62. In my judgment, the connection of the councillors to the party resisting entitlement to housing benefit does constitute a real distinction between the position of an inspector and a Review Board. The lack of independence may infect the independence of judgment in relation to the finding of primary fact in a manner which cannot be adequately scrutinised or rectified by this court. One of the essential problems which flows from the connection between a tribunal determining facts and a party to the dispute, is that the extent to which a judgment of fact may be infected cannot easily be, if at all, discerned. The influence of the connection may not be apparent from the terms of the decision which sets out the primary fact and the inferences drawn from those facts. But the decision does not, and indeed should not, set out all the evidence.
63. The weight and impression given by that evidence will be a matter for the judgment of those before whom it is presented. The extent to which they have been influenced will not be manifest from the decision and it may indeed be something of which they themselves are unaware. That is, after all, the origin of the principle which determines the question of bias in terms of risk and not of actual bias. Real possibility and real danger are necessarily tests for the very reason that actual bias cannot readily be demonstrated.
64. Thus it is no answer to a charge of bias to look at the terms of a decision and to say that no actual bias is demonstrated or that the reasoning is clear, cogent and supported by the evidence. This court cannot cure the often imperceptible effects of the influence of the connection between the fact-finding body and a party to the dispute since it has no jurisdiction to reach its own conclusion on the primary facts; still less any power to weigh the evidence.
65. Accordingly, I conclude that there has been no determination of the claimant's entitlement to housing benefit by an independent and impartial tribunal. The level of review which this court can exercise does not replenish the want of independence in the Review Board, caused by its connection to a party to the dispute.
66. I have reached this decision with great reluctance. I repeat my admiration at the clarity and care demonstrated by the decision. It bears all the hallmarks of a cogent and independent judgment. Moreover, it is difficult to ascertain the precise nature of that which the claimant seeks to advance. He has been asked on numerous occasions for an explanation of the discrepancies which the documents reveal. He has not been forthcoming with any explanation. He has not even advanced any explanation for those discrepancies. I have the gravest suspicion that he has no answer to the telling points made in the decision. Nevertheless, he persists in asserting that he is to be believed when he says that he was liable and did pay rent. This court can make no finding as to his credibility.
67. In the absence of any previous determination of primary fact by a review body, unconnected with a party to the dispute, I find myself unable to say that there is no dispute as to primary fact, or that the evidence to be derived from undisputed documentation is so clear that the lack of independence of the review body could make no difference. There is, as it seems to me, a real danger in concluding that the result is so obvious that it matters not whether the tribunal finding the facts was independent or not. Even those with hopeless cases are entitled to a determination by an independent tribunal.
68. I conclude that the claimant was deprived of his common law right to a determination of his entitlement to housing benefit by an independent tribunal. The case should be remitted to an appeal tribunal pursuant to regulation 4(3) of the Transitional Regulations 2001.

APPARENT BIAS OF THE CHAIRMAN

69. My conclusion renders unnecessary the ground advanced against the City Council of apparent bias of the chairman. It is only fair to him and his colleagues to make clear that after full argument on the point there is absolutely nothing in it.
70. The claimant relies upon the fact that he was at some stage involved in litigation against the Council in relation to his employment, between 1986 and 1992, that Mr Round was a City Councillor since 1984 and had overall responsibility for the department in which the claimant worked, being Chair of the Direct Labour Organisation Committee. He was also a member of the personal committee responsible for employment litigation conducted by the Council.
71. All of this, as the argument on the behalf of the City Council demonstrates, happened far too long ago. The Chairman has specifically said he has no recollection of this claimant. There is no possibility whatever and no danger whatever of bias. Moreover, it is plain to me that at the hearing the claimant withdrew his objection. The allegation should not have been made in the first place. Once made it was rightly withdrawn the claimant apologised, as he should have done.
72. Yes, Mr Squires?

MR SQUIRES: My Lord, I ask for our costs and for a legal aid assessment?

MR JUSTICE MOSES: You can have a legal aid assessment. What do you say about costs, Mr Eadie?

MR EADIE: My Lord, I am here on behalf of both the Secretary of State and the second defendant.

MR JUSTICE MOSES: The second defendant can have his costs.

MR EADIE: So far as he is concerned----

MR JUSTICE MOSES: You do not want to have to pay his?

MR EADIE: No.

MR JUSTICE MOSES: Let us deal with it by stage? Mr Eadie, what do say about your costs.

MR EADIE: So far as the Secretary of State is concerned costs follow the event and I have nothing to say about that.

MR JUSTICE MOSES: I think they do, I am afraid. But you are asking for costs on behalf of the first defendant?

MR EADIE: Yes.

MR JUSTICE MOSES: What sort of order do I make then?

MR EADIE: The order, it is a frightfully complicated regime, the order we would ask to be made on behalf of the first defendants is an order for the first defendant's costs to be determined. That has effectively taken over from the old football pool style order. I can take your Lordship through it in the White Book but it all ends up there eventually. It enables them to go off and get a determination within three months and if they do not, they still have the right to go as a change of circumstances. So the appropriate form of order is an order that the first defendant's costs be determined.

MR JUSTICE MOSES: Mr Squires, have you anything further to add?

MR SQUIRES: No, my Lord.

MR JUSTICE MOSES: I shall make the order that the second defendant pay the claimant's costs.

MR EADIE: My Lord, yes.

MR JUSTICE MOSES: Do you want permission to appeal?

MR EADIE: My Lord, I do. I want permission to appeal on the basis that whatever else may be there, it is an important issue as well.

MR JUSTICE MOSES: Actually, I am not sure it is. It is a funny decision, you can say, because here I obviously did not what to come to that conclusion.

MR EADIE: It may be of limited importance in this context, given the new regulations have cut in and, therefore, the overhang of cases may not be so significant.

MR JUSTICE MOSES: That is what I mean. I cannot believe that it really matters.

MR EADIE: There are other cases in the pipeline, I am not entirely sure how many.

MR JUSTICE MOSES: Anyway, you want permission. You will obviously think about whether it matters or not later.

MR EADIE: I will think about whether it matters, it does not mean we are going to take it up.

MR JUSTICE MOSES: I suppose the real point is where the case is so apparently bogus can it really be said that it matters whether there is what you would call some, lack of structural independence?

MR EADIE: Yes, and whether or not in effect lack of structural independence is always going to be fatal as long as there is, even arguably, an issue of primary fact.

MR JUSTICE MOSES: Also whether I was right in saying there really was an issue of primary fact. Mr Squires, I am rather minded to give permission, partly because, as you can see, I am rather hostile to your client.

MR SQUIRES: Yes, my Lord, I am aware of that. The submission that I would make is that, as in all these cases, they are very much facts specific in terms of the particular case.

MR JUSTICE MOSES: I wish it had been fact specific because then I would have found against you. The problem was I did not think it was sufficiently fact specific.

MR SQUIRES: (Inaudible) The structures themselves are very fact specific and, therefore, we would say it is not an arguable case on appeal.

MR JUSTICE MOSES: Mr Eadie, you can have your permission to appeal. It does seem to me there is a principle of law involved.