QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF CUMPSTY||(CLAIMANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR G FETHERSTONHAUGH (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
THE CLAIM FOR JUDICIAL REVIEW
The claimant, Mr Robert Cumpsty, holds an assured tenancy of 1 Silent Valley Cottage situated between the villages of Lymm and High Legh in Cheshire. His is a private landlord. His monthly contractual rent is £550. Since 18th September 1996, Mr Cumpsty has been in receipt of housing benefit. On 22nd January 2002 the Rent Service, by their rent officer, Mr Duncan Turner, redetermined his Local Reference Rent for the purposes of Article 3 and Schedule 1 paragraph 4 of the Rent Officers (Housing Benefit Functions) Order 1997 in the sum of £525 per month.
(1) Mr Turner misdirected himself in law by applying the wrong test of locality by which to arrive at the Local Reference Rent; and
(2)(a) the redetermination was procedurally unfair contrary to the rules of natural justice; and/or
(b) in breach of the claimant's Article 6 right to a fair trial in the determination of his civil rights.
As to ground (2) it is accepted that if the process is Article 6 compliant then ground (2) falls in its entirety.
THE STATUTORY FRAMEWORK
"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;
(b) there is an appropriate maximum housing benefit in his case, and
(i) he has no income, or his income does not exceed the applicable amount, or
(ii) his income exceeds that amount but only by so much that there is an amount remaining if the deduction for which subsection (3)(b) (below) provides is named."
By subsection (2):
"Payments in respect of a dwelling means such payments as may be prescribed."
By subsection (4):
"Regulations shall prescribe the manner in which the appropriate maximum housing benefit is to be determined in any case."
And by section 137(1):
"'Prescribed' payments are those specified in or determined in accordance with regulations."
"(1) Regulations shall provide that, where a person claims-
(a) housing benefit ...
the authority to whom the claim is made shall notify the person of its determination of the claim.
(2) Any such notification shall be given in such form as may be prescribed ...
(4) Regulations shall make provision for reviews of determinations relating to housing benefit ...
(5) Regulations may make provision as respects matters arising out of the revision on review of such determinations."
"Subject to articles 5 and 6, where a local authority in accordance with regulations made under section 136(2) or (3) of the Social Security Administration Act 1992, applies to a rent officer for determinations in respect of a tenancy of a dwelling, a rent officer shall-
(a) make the determinations in accordance with Part I of Schedule 1 (Determinations)
(b) complied with Part II of Schedule 1 when making the determinations (Assumptions et cetera), and
(c) give notice in accordance with Part III of schedule 1 (Notifications)."
"The rent officer shall make a determination of the Local Reference Rent in accordance with the formula R = H + L divided by 2 where R is the Local Reference Rent, H is the highest rent in the rent officer's opinion -
(a) which a landlord might reasonably have been expected to obtain at the relevant time for an assured tenancy of a dwelling which meets the criteria in subparagraph (2) and,
(b) which is not exceptionally high rent
And L is the lowest rent in the rent officer's opinion -
(a) which a landlord might reasonably have been expected to obtain at the relevant time for an assured tenancy of a dwelling which meets the criteria in subparagraph (2), and
(b) which is not an exceptionally low rent.
(2) The criteria are-
(a) that the dwelling under the assured tenancy (i) is in the same locality as the dwelling; (ii) is in a reasonable state of repair, and (iii) has the same number of bedrooms and rooms suitable for living in as the dwelling (or in a case where the dwelling exceeds the size criteria for the occupiers) accords with the size criteria..."
As I have noted above, by Regulation 11 paragraph 5 the Local Reference Rent becomes the maximum rent payable for housing benefit purposes.
"An authority shall notify in writing any person affected by a decision made by it under these Regulations-
(a) in the case of a decision on a claim, forthwith or as soon as reasonably practicable thereafter;
(b) in any other case, within 14 days of that decision or as soon as reasonably practicable thereafter,
and every notification shall subject to paragraph 2 include a statement as to the matters set out in schedule 6."
Paragraph 4 reads:
"A person affected to whom an authority sends or delivers a notification of a decision may by notice in writing signed by him, request the authority to provide a written statement setting out the reasons for its decision on any matter set out in the notice."
"Every decision notice shall include the statement as to the right of any person affected by that decision to request a written statement under regulation 77(4) (requests for statement of reasons) and the manner and time in which to do so."
Part II paragraph 9 provides:
"Where a person on income support or an income-based jobseeker's allowance is awarded housing benefit, the decision notice shall include a statement as to ...
(b) his weekly eligible rent if any ...
(e) the normal weekly amount of rent allowance or rent rebate as the case may be, to which he is entitled; and
(f) in the case of a rent allowance and a rent rebate paid as if it were a rent allowance, the day of payment, and the period in respect of which payment of that allowance is to be made; and
(g) the first day of entitlement to an allowance or rebate; and
(h) the date on which his benefit period will end if not terminated earlier; and
(i) his duty to notify any change of circumstances which might affect his entitlement to, or the amount of, housing benefit and (without prejudice to the extent of the duty owed under regulation 75 (duty to notify changes of circumstances)) the kind of change of circumstances which is to be notified, either upon the notice or by reference to some other document available to him on application and without charge."
Part III paragraph 10 provides:
"Where a person is not on income support or an income-based jobseeker's allowance but is awarded housing benefit, the notice of decision shall include a statement as to-
(a) the matters set out in paragraph 9..."
"(1) This paragraph applies where-
(a) a person affected makes written representations which are signed by him, to a relevant authority concerning a decision which it makes in relation to him;
(b) those representations relate, in whole or in part, to a Rent Officer's determination or redetermination in exercise of the Housing Act functions; and
(c) those representations are made no later than six weeks after the day on which the person affected was notified of the decision by the relevant authority."
"... where paragraph (1) applies, the relevant authority shall, within 7 days of receiving the representations, apply to the Rent Officer for a redetermination or, as the case may be, a further redetermination in exercise of the Housing Act functions and a copy of those representations shall accompany the local authority's application."
Thus the local authority is bound to pass to the rent officer any written submissions that the claimant wishes to make in support of the redetermination requested.
"so much of any decision of a relevant authority as adopts a decision of a rent officer under any order made by virtue of section 122 of the Housing Act 1996... "
May not be the subject of appeal. In other words, the rent officer's determination or redetermination may not be the subject of appeal to a tribunal. A claimant aggrieved by the rent officer's redetermination of his Local Reference Rent has only a right to a further redetermination and/or a right to apply for judicial review on the grounds of an error of law.
"...a rural location with farmland surrounding it. Local shops are available approximately 1 mile away in High Legh with major shopping in nearby Lymm."
The market evidence he described as follows:
"Re-determination Officers base their valuations on rents other people pay without the help of housing benefit. We regularly gather this information from letting agents, private landlords and tenants as well as other sources such as newspapers and shop windows."
They look at any other relevant information, this includes other Housing Act benefit valuations as well.
"The local reference rent is the general level of rent in your locality for a home with three rooms. I have looked at a range of reasonable rents from £300.00 to £750.00 in Lymm, High Legh and the surrounding areas and have decided that your local reference rent is £525.00 per calendar month."
"Under the provisions of the Rent Officers Order I have to look at all of the determinations. Other than those I have specifically mentioned in this report I have confirmed the other determinations (if any), or they are equal to or more than the Local Reference Rent.
My valuation of your home has to follow housing benefit rules and we are not able to change these, whatever your personal circumstances ... If you have any further questions about our decisions or these reasons, please contact our office at the address on the first page."
THE FURTHER REDETERMINATION
LOCATION OF THE CLAIMANT'S HOME
MR TURNER'S APPROACH
"I have been employed by the Rent Service since 1974. I was appointed to the post of Rent Officer in 1980 and became a senior Rent Officer in 1989. During my service I have always been based in the West Yorkshire area, but have worked throughout the northern area. Since February 2000, I have been seconded to the Northern Region Re-determination Unit of the Rent Service. I am currently a Fellow of the Chartered Institute of Housing. I made the re-determination, which is the subject of these proceedings..."
"Following the inspection I subsequently consulted with Mr E A Harrison, Re-determination Manager in the Stockport Office of the Rent Service who is himself a Rent Officer; this I am required to do under schedule 3 paragraph 2 of the Order. Mr Harrison accepted my view that the referred rent of £550 per calendar month, was not significantly above a reasonable rent for a similar property in the area. Mr Harrison also agreed with me that the rent of £550 per calendar month was not Exceptionally High, and that the dwelling did not exceed the Size Criteria under the Order. When considering the Local Reference Rent, I noted that the area used by the Rent Officer and the First Re-determination Officer, was the whole of the Cheshire County and I considered this area too large. My decision to use a smaller area was accepted by Mr Harrison. After discussing the high and low parameters with Mr Harrison, he accepted my view that the local reference rent was £525 per calendar month, a difference of £26.67 per calendar month."
At paragraph 7:
"The Rent Service maintains a database of market rental values and this is used as a tool to assist with valuations. The database contains details of tenancies and can be searched by a number of criteria ... In re-determining the local reference rent, I considered 90 pieces of information extracted from the database relating to tenancies at rents ranging from £300.00 to £750.00 per calendar month. I did not consider any of these rents to be exceptionally high or exceptionally low and the figures of £300.00 and £750.00 per calendar month were those used in the calculations. The mid point between those figures is £525.00 per calendar month and this was the figure at which I re-determined the Local Reference Rent. All the evidence which I looked at, related to the time of the original application for a determination and fulfilled the criteria set out in paragraph 4(2) of schedule 1 to the Order."
"High Legh itself is a very small village with limited facilities. The locality used to determine the local reference rent comprises High Legh, Lymm, East Warrington, Knutsford, Altrincham and all villages within those areas. I looked at this area because it provides a critical mass of evidence which enabled me to produce a Local Reference Rent. I was satisfied that this area was justified because it forms a homogeneous locality for the purposes. It is an area which, taken together, is well served by public transport and good links for private transport providing access to a choice of schools, hospitals, recreational facilities, shops and financial institutions. Taken as the locality, it gives access to a wide range of facilities and from a valuer's viewpoint it provides a good range of residential lettings and a variety of types and tenancies."
"This locality is a much smaller area than that chosen by the original Rent Officer, and I believe it to be in line with the judgment of the 'Dinsdale' case dated 26 October 2001.
The 'Dinsdale' (or Saadat)case is one to which I shall refer later.
"... In fact the 90 pieces I extracted from the database ranged from £215 to £1100 per calendar month. However, in determining the LRR in accordance with paragraph 4 of Schedule 1 to the Rent Officer (Housing Benefit Functions) Order 1997, I discounted 3 pieces of evidence above £750.00 which in my judgment were exceptionally high rents and 5 pieces of evidence below £300 which, in my judgment were exceptionally low rents. After discounting these exceptional rents, the range of evidence which I used to determine the LLR was, as I said in my first witness statement, between £300 and £750 per calendar month..."
"Mr Cumpsty makes an important point regarding data. I emphasise that the database from which the relevant material was drawn both by myself and Mr Cannon was exactly the same database. Rent Officers exercise professional judgment, and in doing so, they take into account legislation, case law and Rent Service guidance and quality assurance procedures. These factors ensure that there is a fair degree of consistency both in the procedures and processes used by Rent Officers to make Housing Benefit determinations. There are a number of reasons, however, why the LLR redetermination may differ from Rent Officer to Rent Officer. First, it may be that Rent Officers' individual views of the locality may vary, thus causing the extracts from the database in any given case to be different. Secondly, although the extracted material from the database may be identical in any given case, it may be that individual Rent Officers would draw the high and low cut-off points at different places. In this case, as far as I can ascertain, my LLR redetermination differed from that of Mr Cannon because I considered, in accordance with the Dinsdale case, that the size of the locality used previously had been too large an area. The locality from which I drew the evidence was somewhat smaller, thus resulting in a different determination of the exceptionally high and exceptionally low figures, which produced the different LLR."
"... I consider that the evidence held on the Rent Service database is of the highest quality. It has been collated by Rent Officers who use their professional judgment to decide whether the information in question is transactional (that is to say, taken from an actual transaction between landlord and tenant) or whether it is merely supporting data (that is to say, based, for example, on an advertisement in the local press or newsagents' windows). The evidence used in the LLR redetermination is based upon transactional data, and is interpreted with the assistance of the supporting data. In addition to the use of the Rent Officer's own professional judgment and guidance from Senior Rent Officers, there are detailed quality assurance checks in place to make sure that the data is accurate, as well as checks by internal audit and the Rent Service's Quality Inspectorate. I am therefore fully confident that the information used in this case was representative of the market for properties of the requisite size in the locality."
I should interpose here in connection with Mr Turner's reference to "Rent Service Guidance", I have been shown two examples of such guidance. However, there was not, for the particular period with which this review is concerned, specific guidance in written form as to the application of the case to which Mr Turner refers as the Dinsdale case.
"... The first stage of my approach to the gathering of information was to assess the locality of Mr Cumpsty's property. I have already described that process in my first witness statement. It is important that the locality in question should be large enough to yield a critical mass of evidence upon which the LLR averaging calculation can then be based. A small sample of transactions would not enable that exercise to be carried out in any meaningful way.
11. The locality used for local reference rent calculations can be bigger than that used for significantly high rent or other Housing Benefit related determinations. I first looked at the post code area WA13, but then widened my search to include WA14, WA16, WA3, WA4 and CW9 postcodes. I looked at this wider area because it provided a critical mass of evidence which enabled me to produce a reliable LLR. I was satisfied that this area was a locality in that it is was well served by public transport and gives access to a wide range of facilities. From a valuer's perspective it gives a wide range of residential lettings with a variety of different property types..."
"...Just over 40% of the market evidence data used for the LLR determination in Mr Cumpsty's case was classed as transactional or 'confirmed' evidence. These comparables are the first 37 items listed on the table at 'DT2'. Importantly they include both the High and Low rents used in the formula to calculate the LLR. The remainder of the items on my list at 'DT2' are non-confirmed pieces of evidence."
"...Valuation is not an exact science and must include individual valuation skills and judgement. The criteria will be different in urban areas than in rural ones. A Rent Officer or Redetermination Officer considers travel times for the most appropriate form of transport. In rural areas public transport is limited but roads are generally less congested. A larger area is needed than for a conurbation to ensure that the LLR is effective.
23. The areas I included in the locality include rents that fall within similar ranges. There is no distinct area within the locality I used in which the range of rents is significantly different from another within the same locality."
At paragraph 27 Mr Turner confirmed that he had excluded no property satisfying the criteria within the locality which he had chosen for his consideration.
"Having considered Mr Cumpsty's and Mr Kershaw's comments, I have explored purely hypothetical alternative localities which I might have used had I not decided to extend my search to include a wider range of evidence. Mr Kershaw contends I should have used the Lymm and Knutsford areas only as the locality - the WA13 and WA16 postal code districts. There are 26 pieces of market evidence for these areas. Only 14 of these are transactional items. Limiting the locality would have resulted in a higher LLR for 1 Silent Valley Cottage. But, for example I might equally have used only WA13 (Lymm's postal code area) and the immediately adjacent WA4 (south Warrington) area to the west. Capital values in Knutsford are generally higher than those in Lymm and it is arguable that Lymm has more in common socially and economically with the south Warrington area. Using WA13 and WA4 would have generated a total of 23 pieces of evidence, including 14 transactional items, from our database. Discounting one rent as exceptionally high would have resulted in a range of rents from £320 to £650 and a lower LLR of £485. In my view this illustrates the need for a wider area to provide a range of evidence and a critical mass of more than 14 pieces of transactional evidence."
GROUND 1: MISDIRECTION OF LAW
"To decide whether ... it is on any view large enough to encompass the whole of Stockport, it is necessary to consider the policy and objects of this Order in its amended form. We are not concerned with here with policy in the sense of what ministers hoped or intended to achieve in financial terms, but with what the amended Order itself (which by section 122(6)(a) of the Housing Act 1996 was subject to negative resolution in Parliament) displays as its essential objective. This, in my judgment, is to limit the housing benefit which is otherwise payable on grounds of reasonable individual need to the median point between the upper and lower ends (excluding exceptional cases) of the local market in dwellings with similar living space (actual or assumed) and in a reasonable state of repair. To this extent, but no more, its purpose is to intervene in the market. It is not to drive people who have had to fall back on housing benefit out of more affluent areas where the benefit rules would otherwise have enabled them to remain and into poorer areas. If that were desired, it would require clear provision - for example by a recasting of paragraph 3, which is designed to avoid subsidising market-priced but excessively comfortable accommodation. It cannot fairly be deduced from the terms of paragraph 4.
13. It follows that it offends the purposes of the Order to take the relevant locality an area so large that the poorer dwellings in it will inexorably bring the median, and with it the cap, down to a level which drives out or pauperises otherwise eligible housing benefit claimants. The fundamental purpose of the housing benefit scheme is the very opposite: it is to ensure that people who are not under-occupying property and not overpaying rent are not made homeless through genuine inability to pay. This is the context in which the purpose of the local reference rent has to be established. While, as a limiting procedure, it undoubtedly qualifies the basic purpose, it is not designed to negative it. Its objective, in its context, is that a rent should not be subsidised above the median or average level (the two are mathematically the same here) for the locality. That in turn implies a necessary geographical and demographic restraint on what can be legitimately regarded as the locality. Just as the court will intervene if too narrow an area is taken to accommodate the statutory purpose (Metropolitan Property Holdings Ltd v Finegold  1 WLR 349, DC), so it must intervene if too large an area is taken."
"...I would hold that in none of the first four paragraphs of Schedule 1 to the Order as amended does 'locality' necessarily refer to a particular geographical or administrative area, and that in all of them it signifies an area no greater than will enable the rent officer reliably to make the specified calculations and judgments. In each case this will depend on the character of the area in which the dwelling is located and on the data available there; but in none of the four paragraphs, for the reasons I have given, can it lawfully be an area as diffuse or as arbitrarily related to the subject dwelling as the administrative borough of Stockport.
17. For this reason the four material decisions must be quashed. Beyond this point, the court should heed what has been said more than once about the importance of letting expert decision-makers such as rent officers form their own view about the precise extent of a locality so long as they stay within the law: see Metropolitan Property Holdings v Finegold (above, 353-4). It will be for the rent officer service to redetermine the local reference rent in each of these four cases in accordance with the judgment of this court."
(1) Rent officers need not be concerned solely or even mainly with the concept of a geographical or administrative area. (2) They should look at the character of the area in which the dwelling is situated and select a "locality" which is fairly representative of that character and will enable them reliably to make the specified calculations and judgments.
(3) The locality selected should not have the effect of distorting the median which the Local Reference Rent is supposed to represent.
(4) If the selection of a locality has the effect of defeating the fundamental purpose of the legislation (namely to ensure that people who are not under-occupying property and not over paying rent, are not made homeless through genuine inability to pay) then it is outside the rent officer's powers under paragraph 4.
His first report of 9th October 2002 appears at page 115 of the trial bundle. He describes High Legh as:
"... a small village in a rural area surrounded by farmland.
The closest town to it is Lymm, about three miles to the north west.
Lymm is large enough to contain a range of shopping, education and health facilities.
The next closest town is Knutsford, some 4½ miles south east of High Legh.
Like Lymm, it is sufficiently large to contain a full range of facilities."
"The Rent Officer attaches weight to the number of transactions reviewed: in any typical market valuation however the number of transactions is less important than the quality of the information. A true reflection of market worth might be found from one very similar market letting than from several dis-similar ones. Using the area which I suggest as appropriate for the LRR the Rent Office still has approximately 25 comparables on which to calculate its figure which should in my opinion be more than adequate."
"The 25 comparables referred to in my report are highlighted on the attached table taken from the Rent Officer's evidence. (Appendix A)
The average of all those highlighted rents is £629.20.
If all rents over £700 and above are excluded as being particularly high, the average rent reduces to £581."
I am not sure why Mr Kershaw has provided us with that average, he does not seem to have considered calculation of the median under paragraph 4 Schedule 1 at all. I am bound to say I have not derived any assistance from Mr Kershaw's reports. Certainly, they do not approach a meaningful and informed criticism of Mr Turner's redetermination. I turn to Mr Luba's submissions which, it is noticeable, do not depend upon support of Mr Kershaw's reports, at least not to any extent.
Mr Turner's redetermination, I reach the following conclusions:
(1) Mr Turner did begin with the subject property and its immediate surrounds. He did assess the character of those surrounds. That is the evidence.
(2) He did utilise a database by reference to postal codes, but that was not because there was any magic in the labels, that was simply the means by which an area was described. Had the database been dependent upon some other unit of measurement he would have had to use that instead.
(3) Mr Turner had in mind the Saadat judgment when deciding to draw his comparables from areas outside Lymm and High Legh. That also is the evidence. How far Mr Turner went was essentially a matter for his judgment, provided he bore the Saadat criteria in mind when forming that judgment.
(4) Mr Luba's rhetorical questions do not ultimately assist. Mr Turner explained that what he was seeking was a reliable database of comparables. Precisely the point at which he stops is essentially a matter for his experience and expertise and hardly measurable against fixed and immoveable criteria.
GROUND 2: PROCEDURAL UNFAIRNESS
".... whereas, with respect to registration areas in England, it appears to the Secretary of State for the Environment, Transport and the Regions that it is no longer appropriate for the appointment, remuneration and administration of rent officers to be a function of local authorities..."
There then follows the order which provided that the functions duties formerly exercised by the local authority were to be performed by the Secretary of State. The Rent Service has become therefore an agency of government independent of the client seeking its services.
Step 1: when the application is referred by the local authority to the rent officer under Regulation 12A of the 1987 Regulations, that step does not engage the claimant at all says Mr Luba. He is not provided with a reference notice and he will not know the nature of the issue which the rent officer will determine.
Step 2: the obligation is on the rent officer to notify the local authority of its determination but not to notify the claimant. The claimant does not receive, as a matter of course, the detailed reasons why the rent officer arrived at the Local Reference Rent he did.
Step 3: the local authority is under an obligation to notify the claimant of the result of his claim and must include the details to which I have referred. But it is not under a duty to set out the detailed grounds upon which the rent officer reached his determination.
Step 4: the claimant is entitled under regulation 12CA to make written representations, but unless (like Mr Cumpsty in this case) he makes himself informed, he does not know how and why the rent officer reached his decision and, accordingly, his written representations may be completely irrelevant.
Step 5: Mr Luba concedes that while it is not the claimant himself who seeks the redetermination of a rent officer, the local authority is bound to seek that redetermination if the claimant so requests.
Step 6: a rent officer makes a redetermination by the criteria required under paragraph 4 in the 1997 Order. But Mr Luba submits there is no statutory obligation on the rent officer to consider the claimant's written representations. There is no requirement for him to visit the subject property, and there is no requirement for him to interview the claimant or to receive them in some other form, only a power to do so. There is no right to an oral hearing. There is not a discovery of the material on the database used by the rent officer. There is no procedure by which the rent officer can indicate his preliminary view and invite comment. The effect of not giving the claimant reasons at an earlier stage might be that unwittingly the claimant seeks a redetermination, and upon redetermination runs a risk that his Local Reference Rent will be redetermined at a lower figure than that which the determination originally decided.
Step 7: again the requirement is for the rent officer to notify the local authority not the claimant. There is no obligation to give reasons.
Step 8: the local authority has an obligation to notify the claimant of the result of the redetermination, but Mr Luba submits that it is not entirely clear whether there is a duty to notify a claimant if the redetermination simply confirms an earlier decision.
Step 9: even if both the claimant and the local authority are dissatisfied after their statutory right to seek redeterminations, there can be no appeal or review to a statutory tribunal. There is no statutory obligation to provide reasoning for a decision by a rent officer even on request. All that is left is:
Step 10: Judicial review.
CIVIL RIGHTS AND OBLIGATIONS
"In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
I first have to consider whether the decisions of the local authority and/or Rent Service involve a determination of the claimant's civil rights. It is not disputed by the Rent Service that the grant or refusal of housing benefit is a determination of a civil right. What is in dispute is the position of the rent officer in that process.
"The Redetermination Officer does not carry out a judicial function. His task is to carry out an expert determination, not to arbitrate.
(b) The only rules governing the way in which the Redetermination Officer is to discharge the task given to him are set out in the Order. There is no provision whatsoever for a hearing to take place; for representations to be supplied; or for expert evidence to be entertained. That is to be contrasted with the position under the Rent Act 1977 (which allows for appeals from Rent Officers to Rent Assessment Committees, which expressly have such powers); and housing benefit decisions (which formerly were the subject of review by tribunal under the Housing Benefit (General) Regulations).
And at paragraph 6 he says:
"... Article 6 is not engaged at all, for the reason that the Claimant's civil rights and obligations are not being determined by the Redetermination officer."
INDEPENDENT AND IMPARTIAL TRIBUNAL
"Purely by way of example, the court stated in Findlay v United Kingdom (1997) 24 EHRR 221 at 244- 245 (para 73)
'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 independence. As to the question of 'impartiality', there are two aspect 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..."
FAIR AND PUBLIC HEARING
"...The approach in Strasbourg to cases where a first instance decision-maker does not of itself satisfy Article 6(1), but it is claimed that the defect is as it were cured by a right of appeal to or review by an independent court, is to ascertain whether in the circumstances the court possesses what has been called 'full jurisdiction'. The genesis of this expression is I think to be found in Albert v Belgium (1983) 5 EHRR 533. That was a case in which doctors suspended from practice by a disciplinary tribunal complained of violations of Article 6(1). It is convenient to refer to the relevant passage as it is quoted by Lord Hoffman in R (on the application of Alconbury Development Limited) and Secretary of State for the Environment, Transport and the Regions  2 All ER 929 at paragraphs 86 to 88, where it is followed by reasoning to which with respect I would attach considerable importance in the context of the present case.
'86 In ... Albert v Belgium (1983) 5 EHRR 533 at 542 (para 29 ) ... the court said, that although disciplinary jurisdiction could be conferred upon professional bodies which did not meet the requirements of Article 6(1) (eg because they were not 'established by law' or did not sit in public) - 'Nonetheless, 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.' ..."
" 37... These decisions ... seem to me to reflect an important truth about the relationship between the 'first instance' decision and the decision of the court on appeal or review, in this class of case where it is said that the later court process guarantees ECHR Article 6 compliance where that is not satisfied by the earlier determination. We have seen that in such cases the later court must possess 'full jurisdiction' (see Albert v Belgium (1983) 5 EHRR 533), and that this means 'full jurisdiction to deal with the case as the nature of the decision requires' (the Alconbury Development case  2 All ER 929 at 87). But what 'the nature of the decision requires' is by no means limited to a consideration of the question whether, in the light of the subject matter of the case, a court compliant with Article 6 standards must possess the power to investigate and decide the facts for itself. Assuming only that in any particular milieu disputes of fact may arise, it is necessary also to confront the question whether the 'first instance' decision-maker - internal review, review board, whatever it may be - is established and constituted in such a way that it may be expected to arrive at fair and reasonable decisions. That may be a live and real question even though, for want of sufficient independence, or publicity, or any other factor, such a first instance decision-maker does not itself satisfy Article 6. Its failure to meet the Article 6 standards by no means closes off the relevance of its processes or the overall judgment that has to be made which takes account also of the second stage review or appeal in an independent court."
"... The critical question, then, is this: in these two-tier cases, what are the conditions which determine whether the court process at the second tier, taken with the first instance process, guarantees compliance with Article 6(1)?
40. As I have shown, the extent to which the first instance process may be relied on to produce fair and reasonable decisions is plainly an important element. But it is not to be viewed in isolation. The matter can only be judged by an examination of the statutory scheme as a whole; that is the necessary setting for any intelligent view as to what is fair and reasonable. Where the scheme's subject matter generally or systematically involves the resolution of primary fact, the court will incline to look for procedures akin to our conventional mechanisms for finding facts: rights of cross-examination, access to documents, a strictly independent decision-maker. To the extent that procedures of that kind are not given by the first instance process, the court will look to see how far they are given by the appeal or the review; and the judicial review jurisdiction (or its equivalent in the shape of a statutory appeal on law) may not suffice. Where however the subject matter of the scheme generally or systematically requires the application of judgment or the exercise of discretion, especially if it involves the weighing of policy issues and regard being had to the interests of others who are not before the decision-maker, then for the purposes of Article 6 the court will incline to be satisfied with a form of inquisition at first instance in which the decision-maker is more of an expert than a (I use the terms loosely), and the second instance appeal is in the nature of a judicial review. It is inevitable that across the legislative board there will lie instances between these paradigms, sharing in different degrees the characteristics of each. In judging a particular scheme the court, without compromise of its duty to vindicate the ECHR rights, will pay a degree of respect on democratic grounds to Parliament as the schemes author."