QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN (on the application of BONO)||Claimant|
|- and -|
|HARLOW DISTRICT COUNCIL||Defendant|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Jonathan Manning (instructed by Legal Services of Harlow District Council) for the Defendant
AS APPROVED BY THE COURT
Crown Copyright ©
Mr Justice Richards:
“… A person who makes a claim shall furnish such certificates, documents, information and evidence in connection with the claim, or any question arising out of it, as may be reasonably required by the appropriate authority in order to determine that person’s entitlement to housing benefit, and shall do so within 4 weeks of being required to do so or such longer period as the appropriate authority may consider reasonable ….”
“(1) Unless provided otherwise by these Regulations, any matter required to be determined under these Regulations shall be determined in the first instance by the appropriate authority.
(2) An authority shall be under no duty to determine a claim – …
(b) where the claimant has failed to satisfy the provisions of regulation 73 … (evidence and information) ….”
“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 .…
(2) The notice given under paragraph (1) shall set out the grounds on which a further review is requested.
(3) The further review shall be conducted by a Review Board appointed by the appropriate authority and constituted in accordance with Schedule 7.”
“1. A Review Board appointed by an authority listed in column (1) of the Table below shall consist of not less than three of the persons specified in relation to that authority in Column (2) of that Table.
|(1) Authority||(2) Composition of Board|
|1. A local authority other than the Common Council of the City of London||1. Councillors of that Authority.”|
“(1) Upon further review the Review Board shall decide whether to confirm or revise the determination of the appropriate authority ….
(2) In reaching its decision the Review Board shall apply the provisions of these Regulations as though any duty imposed on, or power or discretion conferred on, an authority were imposed or conferred on the Review Board.”
“Thank you for your application for Housing Benefit and Council Tax Rebate. However, I need the following proof to verify your claim:
Please refer to my previous letter of 3rd April which asked you to provide actual books or accounts with regards your self-employed earnings.”
“I am writing in reply to the request from A. Shah, Welfare Rights that we assess your claim for Housing/Council Tax Benefit using the form you completed for the Family Credit Unit.
I have discussed this matter with my Senior Officer, and looked at the form you completed for them and we feel that we cannot use the information you provided for them. In order to assess Housing Benefit we would need to see either audited accounts or Weekly/Monthly figures. I refer again to the letter sent to you on 3rd April 1998 where you were informed that we would assess your claim for six months and then we would need to see more accurate accounts or books.
If you cannot provide these details then I am afraid that I cannot assess your claim ….”
“To assess your claim for Housing/Council Tax rebate we need to know a week-to-week, or month-to-month profits and details of your expenses. The Family Credit unit do not ask for these details, but for Housing/Council Tax benefit purposes we need a breakdown of expenses as some are allowable and some are not.
There is no need for actual audited accounts, as I informed you before (please refer to copies of letter dated 3rd April 1998 and 21st July 1998), just weekly or monthly details will suffice.
If you are not able to provide us with these details I am afraid we cannot continue with your claim.
If you are still dissatisfied with this decision you may ask within four weeks of this notification for your claim to be considered by a Review Board ….”
“1. The Board found as fact that the Applicants were not required by the Benefits Unit to produce audited accounts. This was clear from the correspondence submitted with the Benefits Unit’s case.
2. The Board found that the Benefits Unit were entitled to request information as to the Applicants’ income and expenditure in order to carry out the function of assessing the level of Housing Benefit due to the Applicants, pursuant to Regulation 73 of the 1987 Regulations.
3. The Board noted that the Benefits Unit had been fair in allowing the Applicants Housing Benefit by using the assessment made by the Family Credit Unit up until June 1998, and the Applicants had had sufficient time to prepare basic details of income and expenditure.
4. The Board found that the Applicants had failed to provide the necessary information before the end of June 1998, as requested. This request was made in order that the Benefits Unit could make its own assessment in accordance with Regulation 23 of the 1987 Regulations.
5. The Board found as fact that the figures supplied by the Applicants in June 1998 did not deal adequately with the expenses that had been incurred by the Applicants in the course of their business. The Board also found that the figures provided in January/February 1999 were sufficiently detailed in order to allow the Benefits Unit to carry out an assessment of the Applicants’ income and thus entitlement to Housing Benefit for the following Benefit period. The Board further found that as the Applicant had failed to make a request, no back date could be made.
6. The Board accepted that the Benefits Unit should exercise its own discretion in assessing income and thus entitlement to Housing Benefit.
7. The Board found that as the Applicants had failed to comply with Regulation 73 of the 1987 Regulations, the Benefits Unit were under no duty to determine the Applicants’ claim – Regulation 76 of the 1987 Regulations.
8. The Board upheld the Benefits Unit decision to withdraw Housing Benefit for the period 29 June 1998 to 7 February 1999.”
Article 6 ECHR
“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 on the Review Board, caused by its connection to a party to the dispute.”
“… where the decisions of a tribunal are likely to depend to a substantial extent on disputed questions of primary fact, and the tribunal is clearly not independent, judicial review should not suffice to produce compliance with Article 6. The scope for review of findings of primary facts is too narrow to be considered a ‘full jurisdiction’ in such a context. Fact-dependent decisions must be made by fully independent tribunals: the scope for judicial review of primary findings of fact, and particularly of findings as to the credibility of witnesses, is generally too narrow to cure a want of independence at the lower level.
I think that the Courts should lean against accepting judicial review as a substitute for the independence of tribunals. If the availability of judicial review is too easily regarded as curing a want of independence on the part of administrative tribunals, the incentive for the executive and the legislature to ensure the independence of tribunals is considerably weakened.”
“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if –
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.”
i) It is more natural to read the words “which cannot be read or given effect in a way which is compatible with the Convention rights” in s.6(2)(b) as qualifying “primary legislation” rather than “provisions”. If read as qualifying “primary legislation”, they limit the scope of the provision to cases where the incompatibility is inherent in the primary legislation.
ii) The policy of the 1998 Act is to preserve the validity of incompatible primary legislation and of inevitably incompatible subordinate legislation, but not to preserve the validity of incompatible subordinate legislation where the incompatibility is avoidable: see ss.3 and 4, in particular s.3(2)(c) and s.4(4)(c). It is consistent with that policy to read s.6(2)(b) as protecting an authority only where the incompatibility is inherent in the enabling primary legislation.
iii) Section 3(1) of the 1998 Act requires that, so far as it is possible to do so, s.6(2)(b) should be read and given effect in a way which is compatible with Convention rights. The broader construction of s.6(2)(b) advanced by the council would mean that the council acted lawfully and the claimants had no remedy even if the decision was in breach of the claimants’ rights under article 6. The provision should be read so as to avoid that result if possible. The narrower construction that I favour would avoid that result and is a possible construction. It is therefore to be preferred.
iv) If and to the extent that the regulations are incompatible with the Convention by requiring the appointment of a Review Board in breach of the claimants' rights under article 6, then the regulations could themselves be quashed by the court; and if they were quashed, the decision of the Review Board constituted in accordance with them would likewise fall to be quashed. It would, however, be very surprising if s.6(2)(b) gave the council a statutory defence unless and until the court formally quashed the material part of the regulations, especially in circumstances where, as here, to quash the regulations would be a pure act of formalism with no wider utility (since the regulations have already been superseded in material part by a new statutory regime for the determination of appeals by independent tribunals).
v) I accept that there are conceptual difficulties in relation to the question whether the council, had it wished to do so in order to secure compliance with article 6, would have been free to appoint a Review Board otherwise than in accordance with regulation 81(3) and Schedule 7. Since its powers in relation to reviews are derived from the 1987 Regulations, the scope for acting outside the strict ambit of the Regulations is not obvious. I was not addressed at any length in argument on this point and it is unnecessary to decide it. The fact is that the council did not seek to adopt any other course than to apply Schedule 7; and if that produces a result contrary to the Convention, then the decision should be quashed. If it is quashed, the matter will fall to be redetermined under the new statutory appeals procedure and it is therefore unnecessary to consider the position in which the council would otherwise have found itself.
“The Claimants did not produce this book however nor did they allege that it was ever produced to the Benefits Service. No other accounts or figures were presented to the Review Board and no application was made by the Claimants for any other books or figures to be submitted in evidence.”
“14. The Applicants asked Mr Tilmouth why the figures they provided were not accepted in June 1998 but were later accepted in January/February 1999. Mr Tilmouth replied that the figures provided by the Applicants in June 1998 did not adequately show expenditure incurred in the course of business.
16. The Applicants presented their case. The Benefits Unit had been supplied with everything that they had requested. The Applicants had produced their notebook and details of income for the Review Board …. The Applicants further stated that their notebook had been rejected as being inadequate by a member of staff from the Council, they were not certain if it was a member of staff from the Benefits Unit. The Applicants submitted figures in or around June 1998 as evidence of their income and expenditure, but these, too, had been rejected by the Benefits Unit.
20. When questioned by the Board, the Applicants accepted that the notebook kept by themselves giving details of their takings was not sufficient for the purposes of the Benefits Unit in assessing income. The Applicants admitted that they transferred the figures from their notebook into another book which recorded expenditure as well as income ….
21. The Applicants stated that if the figures were acceptable in January/February 1999, they should have been accepted in June 1998 …” (emphasis added).
Misapplication of the regulations
“Limiting what I say to the Review Board, it is clear that it has duties which are not those of a court of law. In particular it, like the authority, is a custodian both of public funds and of the interests of those local people who claim and may be entitled to housing benefit. It cannot properly fulfil this dual function if it confines itself like a court of law to adjudicating on pleaded points. Equally, however, I accept that the Review Board cannot be expected and is not required by the regulations to trawl through the whole of the statutory scheme in order to see if any points which might have been taken either for or against the claimant have been overlooked.
The present cases, however, do not require any such roving commission. All [counsel for the claimant] seeks to establish is that when a review is based on a single sub-paragraph in a Schedule to the regulations, it is appropriate for the Review Board to consider whether any limb of the sub-paragraph, not merely the one focused on in argument, has a bearing on the claim …. In my judgment she is right in that contention.”