UKSC 8
On appeal from:  EWCA Civ 1228
Tomlinson and others (FC) (Appellants) v Birmingham City Council (Respondents)
Lord Hope, Deputy President
JUDGMENT GIVEN ON
17 February 2010
Heard on 23 and 24 November 2009
James Goudie QC
(Instructed by Community Law Partnership)
Andrew Arden QC
(Instructed by Birmingham City Council)
(Secretary of State for Communities and Local Government)
Natalie Lieven QC
(Instructed by Treasury Solicitor)
LORD HOPE, with whom Lady Hale and Lord Brown agree
"The judicialisation of dispute procedures, as guaranteed by article 6(1), is eminently appropriate in the realm of relations between individuals but not necessarily so in the administrative sphere, where organisational, social and economic considerations may legitimately warrant dispute procedures of a less judicial and formal kind."
I would venture to suggest that those words are as true today as when they were written over twenty years ago.
(a) Ms Ali
"In the light of the above I contacted you on the 1 May 2007 to establish the reasons why you had decided not to accept this offer of accommodation as it was apparent from the reasons given in the letter from your representatives, dated 29 March 2007, that you (sic) alleging that you had not received the offer letter was not the reason you had refused the offer of accommodation.
I put this to you and you advised that you had in fact received the offer letter and refused the offer of accommodation for a number of reasons, firstly that there was no lift. Also the entrance was dirty and smelly. Your son was born premature and suffers with lots of infections. Therefore, had you accepted this offer your sons (sic) health would have been at risk."
Ms Ali does not deny saying that she had received the offer. Her explanation is that she initially thought that she was being asked about the offer of a flat at Teviot Tower. She then realised that she was being asked about the offer of accommodation at 16 Bromford Lane. She gave her reasons for refusing that offer, but failed to mention her earlier confusion as to which offer was being referred to.
(b) Ms Ibrahim
"I consider that we have adequately dealt with the point you raise about the validity of the offer letter. In her statement dated 21 February 2006 the housing officer Lisa Hopkins clearly states that the two offer letters were sent to you in the same envelope. One was originally addressed to you at your previous temporary address of 110 Fernley Road, Sparkhill, Birmingham. This letter was sent to this address by mistake as it was the last address showing on the computer system following your move to 61 Adria Road, Sparkhill, Birmingham. This mistake was realised and both copies of the offer letter were then sent to you in the same envelope. Your argument that the offer letter does not comply with section 193(5) is therefore not substantiated. The information contained in the offer letter sent to 110 Fernley Road and then sent to 61 Adria Road is fully compliant with section 193(5). It is therefore entirely reasonable to conclude that you were fully acquainted with your options following either acceptance or refusal of the offer."
The statutory provisions
"(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.
(3) The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section.
(5) The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section.
(6) The local housing authority shall cease to be subject to the duty under this section if the applicant
(a) ceases to be eligible for assistance,(b) becomes homeless intentionally from the accommodation made available for his occupation,(c) accepts an offer of accommodation under Part V1 (allocation of housing), or(cc) accepts an offer of an assured tenancy (other than an assured shorthold tenancy) from a private landlord,(d) otherwise voluntarily ceases to occupy as his only or principal home the accommodation made available for his occupation.
"An applicant has the right to request a review of
(a) any decision of local housing authority as to his eligibility for assistance,(b) any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 and 195 and 196 (duties to person found to be homeless or threatened with homelessness),(c) any decision of a local housing authority to notify another authority under section 198(1) (referral of cases),(d) any decision under section 198(5) whether the conditions are met for the referral of his case,(e) any decision under section 200(3) or (4) (decision as to duty owed to applicant whose case is considered for referral or referred),(f) any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraph (b) or (e) or as to the suitability of accommodation offered to him as mentioned in section 193(7), or(g) any decision of a local housing authority as to the suitability of accommodation offered to him by way of a private accommodation offer (within the meaning of section 193)."
Is this a civil right?
(a) before Runa Begum
"Mrs Salesi was not affected in her relations with the administrative authorities as such, acting in the exercise of discretionary powers; she suffered an interference with her means of subsistence and was claiming an individual, economic right flowing from specific rules laid down in a statute giving effect to the Constitution."
That decision was followed in Mennitto v Italy 34 EHRR 1122. But there was an important qualification. In para 23 of its decision in that case the court said that the outcome of the proceedings must be directly decisive for the right in question. As in Salesi, the entitlement was to an amount of benefit that was not in the discretion of the public authority. I do not find support in these cases for Mr Goudie's submission that the right to accommodation under Part VII of the 1996 Act is a civil right because, as he put it, it is an individual economic right which flows from specific rules laid down in a statute. The entitlement in section 193(2) is simply to "accommodation". There is a considerable area of administrative discretion as to how that accommodation is to be provided by the authority in any given case.
(b) Runa Begum
(c) since Runa Begum
"The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question."
The article 6 review
"The Court has previously held that in order to determine whether the article 6-compliant second-tier tribunal had 'full jurisdiction', or provided 'sufficiency of review' to remedy a lack of independence at first instance, it was necessary to have regard to such factors as the subject-matter of the decision appealed against, the manner in which that decision was arrived at and the content of the dispute, including the desired and actual grounds of appeal."
Reference was made to Bryan v United Kingdom 21 EHRR 342, paras 44-47 and Tsfayo v United Kingdom, para 43 in which those factors were said to be among those to which it was necessary to have regard: see also the concurring opinion of Mr Bratza as he then was, in Bryan at p 354 where he set out a similar list of considerations. Commenting on Tsfayo in para 73, the court said that the determination of the issue in that case did not require any specialist expertise. Nor could the factual findings there be said to be merely incidental to the reaching of broader judgments of policy or expediency which it was for the democratically accountable authority to take. That, said Mr Goudie, was the situation in the case of these appeals. The questions that they raised were not incidental to a judgment as to whether or not accommodation was suitable, such as whether there was a lift. The subject matter of the decision was simply whether or not the letters had been received.
"37. To begin with, Mrs. Feldbrugge was not affected in her relations with the public authorities as such, acting in the exercise of discretionary powers, but in her personal capacity as a private individual. She suffered an interference with her means of subsistence and was claiming a right flowing from specific rules laid down by the legislation in force.
For the individual asserting it, such a right is often of crucial importance; this is especially so in the case of health insurance benefits when the employee who is unable to work by reason of illness enjoys no other source of income. In short, the right in question was a personal, economic and individual right, a factor that brought it close to the civil sphere."
" [T]he widow of Mr. Deumeland Senior was not affected in her relations with the public authorities as such, acting in the exercise of discretionary powers, but in her personal capacity as a private individual. She was claiming a right flowing from specific rules laid down by the legislation in force. The right in question was a personal, economic and individual right, a factor that brought it close to the civil sphere."
" today the general rule is that Article 6(1) does apply in the field of social insurance, including even welfare assistance . State intervention is not sufficient to establish that Article 6(1) is inapplicable; other considerations argue in favour of the applicability of Article 6(1) in the instant case. The most important of these lies in the fact that despite the public-law features pointed out by the Government, the applicant was not only affected in her relations with the administrative authorities as such but also suffered an interference with her means of subsistence; she was claiming an individual, economic right flowing from specific rules laid down in a federal statute "
"The Court has previously held that in order to determine whether the Article 6-compliant second-tier tribunal had 'full jurisdiction', or provided 'sufficiency of review' to remedy a lack of independence at first instance, it was necessary to have regard to such factors as the subject-matter of the decision appealed against, the manner in which that decision was arrived at and the content of the dispute, including the desired and actual grounds of appeal (see [Bryan v the United Kingdom 21 EHRR 342, paras 44 to 47 and Tsfayo v Untied Kingdom 48 EHRR 18, para 43]" [My emphasis.]