QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BEWRY|
|NORWICH CITY COUNCIL|
Smith Bernal Reporting Limited,
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
MR JAMES EADIE (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant.
MR JONATHAN MANNING (instructed by Norwich City Council, City Clerk's Office, City Hall, Norwich NR2 1WB)
Crown Copyright ©
"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."
(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."
"(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."
"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."
"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."
"The reason we are unable to pay benefit is because we have been unable to verify your landlord's agents."
"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."
"...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."
"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."
"...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."
"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
"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."
"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)
"The requirement that the tribunal should be independent and impartial is one that has long been recognised by English common law."
THE APPLICATION OF THE HUMAN RIGHTS ACT 1998
"...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."
"...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  UK HL 37, and Wilson and First Country Trust Limited  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.
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."
"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."
"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."
"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."
"'...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).'"
"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."
"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."
"...dissatisfied claimants have a clear legal right to further consideration of their case by an independent Review Board..."
"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."
"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."
"...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."
APPARENT BIAS OF THE CHAIRMAN
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.