Judgments - Begum (FC) (Appellant) v. London Borough of Tower Hamlets (Respondents)

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    94. I am persuaded by these considerations that extending the scope of article 6(1) is a desirable end in itself, but needs to go hand in hand with moderating its requirements in the interests of efficient administration where administrative decisions are involved. In the light of the unsettled state of the jurisprudence of the Strasbourg court, therefore, I am content to assume, without deciding, that Runa Begum's claim involved a determination of her civil rights within the meaning of article 6(1).

The second issue: was Mrs Hayes an independent tribunal?

    95. There is no reason to doubt Mrs. Hayes' impartiality. My noble and learned friend Lord Bingham of Cornhill has referred to the many safeguards in place to avoid the danger that she might be unfairly influenced by the decision which she was reviewing, and there is no suggestion that she had any personal interest in the outcome.

    96. But I do not see how she can sensibly be said to be independent. The question she had to decide was whether the council was under a continuing duty towards Runa Begum. She was an officer of the very council which was alleged to owe the duty. The council contended that it had no interest in the outcome either. It was concerned to house the homeless, not to avoid performing its statutory duty; the real dispute was not between Runa Begum and the council, but between her and others on the homeless register. But these considerations go to Mrs Hayes' impartiality, not to her independence, which is a separate requirement. The review which Mrs Hayes conducted was an internal review carried out by the council itself in order to determine the extent of its own statutory obligations. The want of independence is manifest.

    97. It was suggested that where, as in the present case, factual disputes arise for decision, the case should be referred to an external fact-finder independent of the local housing authority. Like my noble and learned friend Lord Bingham, I doubt that the exercise of quasi-judicial powers is a function of the authority within the meaning of the relevant Order, which is concerned in very general terms with deregulation and the subcontracting of ordinary local authority functions. But in any case I do not see how a person appointed ad hoc by the authority directly concerned and lacking any kind of security of tenure could constitute an "independent … tribunal established by law" as required by article 6(1). Moreover, while the legality of farming out the decision-making function in relation to disputes of fact which arise in the course of the hearing is open to doubt, there can be no doubt that it would create an administrative nightmare. It is notable that Parliament has established no similar procedure for any of the great number and variety of decisions that it has devolved to administrative bodies.

The third issue: did the county court have "full jurisdiction"?

    98. The fact that, on an appeal under section 204 of the Act, the county court has been said to possess the full judicial review jurisdiction (see Nipa Begum v Tower Hamlets London Borough Council [2000] 1 WLR 306 should not obscure the fact that its jurisdiction is appellate and not merely supervisory. Before the Act there was no right of appeal to the county court, and decisions of local housing authorities could be challenged only by way of judicial review in the High Court. This was both expensive and inconvenient, and a right of appeal to the county court on a point of law was substituted. The change was made in the interests of the efficient administration of justice and was not intended to cut down the scope for judicial control by excluding, for example, challenges based on procedural unfairness or impropriety or the adequacy of the reasons given for the decision.

    99. Where, however, the jurisdiction of the court to entertain an appeal depends on whether it involves a question of fact or law, there is no need to refer to the supervisory jurisdiction of the court in judicial review. The controlling authority is Edwards v Bairstow [1956] AC 14, which explains the scope of an appeal on a point of law. It is accurately summarised in Bryan v United Kingdom [1995] 21 EHRR 342, 349-350, paras 25, 26. A decision may be quashed if it is based on a finding of fact or inference from the facts which is perverse or irrational; or there was no evidence to support it; or it was made by reference to irrelevant factors or without regard to relevant factors. It is not necessary to identify a specific error of law; if the decision cannot be supported the court will infer that the decision-making authority misunderstood or overlooked relevant evidence or misdirected itself in law. The court cannot substitute its own findings of fact for those of the decision-making authority if there was evidence to support them; and questions as to the weight to be given to a particular piece of evidence and the credibility of witnesses are for the decision-making authority and not the court. But these are the only significant limitations on the court's jurisdiction, and they are not very different from the limitations which practical considerations impose on an appellate court with full jurisdiction to entertain appeals on fact or law but which deals with them on the papers only and without hearing oral evidence.

    100. Where an administrative decision is determinative of the claimant's civil rights, including his or her right to social security benefits or welfare assistance, the Strasbourg court has accepted that it may properly be made by a tribunal which is not itself possessed of the necessary independence, provided that measures to safeguard the impartiality of the tribunal and the fairness of its procedures are in place and its decisions are subject to ultimate judicial control by a court with "full jurisdiction".

    101. It is clear from the decision of the Strasbourg court in Bryan v United Kingdom (1995) 21 EHRR 342 that "full jurisdiction" in this context does not necessarily mean full jurisdiction on fact or law but, as my noble and learned friend Lord Hoffmann described it in R v (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389, 1416, para 87, "jurisdiction to deal with the case as the nature of the decision requires".

102.

    Bryan was concerned with the decision of a planning inspector whose decision was subject to appeal to the High Court on a point of law. The question was whether buildings which had been erected in the Green Belt could, from their appearance and layout, be considered to have been designed for the purposes of agriculture. This was a question of fact and degree. The Strasbourg court ruled that, despite the many safeguards in place, the inspector was not an independent tribunal for the purpose of article 6(1). But it also held that the jurisdiction of the High Court was sufficient to comply with article 6(1), even though it could not substitute its own decision on the merits for that of the inspector. The decision of the Strasbourg court was a strong one, for while the primary facts were not in dispute the inspector's decision was a conclusion of fact drawn from the primary facts.

    103. In Bryan the Strasbourg court held that in assessing the adequacy of the appellate procedure which was available to the claimant, regard must be paid to 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. The court noted the extensive jurisdiction of the High Court and that, while it could not substitute its own conclusion for that of the inspector, it was bound to satisfy itself that his conclusion was neither perverse nor irrational. The court observed that such an approach to questions of fact was a feature of the systems of judicial control of administrative decisions found throughout the Member States of the Council of Europe; and held that such an approach could reasonably be expected "in specialised areas of the law" such as the one at issue.

    104. Given the context in which these words were used, the Strasbourg court can hardly have meant areas of specialised law such as patent or trade mark law. It must have meant areas which called for some special knowledge or experience on the part of the decision-maker. In Edwards v Bairstow, which was a tax case, Lord Radcliffe explained that the reservation of the fact-finding process to the exclusive jurisdiction of the special commissioners was not based on the specialised nature of tax law but was necessary in the interests of the efficient administration of justice.

    105. In the present case the subject-matter of the decision was the distribution of welfare benefits in kind, and critically depended upon local conditions and the quality and extent of available housing stock. The content of the dispute related to the reasonableness of the claimant's behaviour in refusing an offer made to her which, if refused by her, would have to be offered to others on the homeless register. Any factual issue arising in the course of the dispute, even if critical to the outcome, would be incidental to the final decision. In my opinion the subject-matter of the decision and the content of the dispute demanded that the decision be made by an administrative officer with experience of local housing conditions, subject to a proper degree of judicial control; and that a right of appeal to the court on law only was sufficient for this purpose.

    106. Although the question involves the claimant's individual Convention rights and falls to be decided on a case by case basis, I think that it is the system which is the essential subject of the inquiry. The question in every case is whether the claimant's Convention rights have been satisfied by giving him or her access to the system of decision-making which Parliament has established. They were not satisfied in Kingsley v United Kingdom (2001) 33 EHRR 288; (2002) 35 EHRR 177, because the court could not direct a rehearing before another tribunal where the only body which Parliament had authorised to make the decision had shown bias. But there is no reason to suppose that the Strasbourg court would have reached the same conclusion had the nature of the claimant's complaint been different.

    107. In the present case, for the reasons I have given, as well as those of your Lordships, with which I agree, I consider that the county court had sufficient jurisdiction to deal with Runa Begum's case to comply with article 6(1). I would dismiss the appeal.

LORD WALKER OF GESTINGTHORPE

My Lords,

    108. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. I agree with it and for the reasons which he gives I would dismiss this appeal. I add a few remarks of my own on the "civil rights" issue because of its interest and importance.

    109. Lord Hoffmann has in his speech in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389, 1414-1416, paras 78-88, clearly summarised the development of the autonomous meaning of "civil rights and obligations" and the consequential problems which have arisen in relation to judicial review of administrative decision-making. As he has observed, the original intention of the draftsmen of the Convention to restrict "civil rights and obligations" to those under private law is now of no more than historical interest. But the inroads made into the intended exclusion of a citizen's rights and obligations under public law have not been entirely consistent. In particular, the European Court of Human Rights has recently, in Ferrazzini v Italy (2001) 34 EHRR 1068, reaffirmed the exclusion of tax proceedings from the ambit of article 6(1). But it did so only by a majority of 11 to 6, and the dissenting opinion of Judge Lorenzen (joined by five other judges) merits attention.

    110. Mr Ferrazzini wished to run a business providing farm holidays in Italy, and for that purpose he transferred assets to a company which he controlled. This gave rise to liability to several different Italian taxes and there were disputes both about valuations and about the availability of a reduced rate for agricultural property. Various assessments were made in 1987. Three sets of proceedings ensued before district and regional tax courts. One set of proceedings concluded in 1998 and the other two were still pending in 2000. Mr Ferrazzini complained that he had not had a hearing within a reasonable time.

    111. The majority of the court took the view that article 6(1) was not engaged (p 1075, para 29):

    "The court considers that tax matters still form part of the hard core of public-authority prerogatives, with the public nature of the relationship between the taxpayer and the tax authority remaining predominant. . . It considers that tax disputes fall outside the scope of civil rights and obligations, despite the pecuniary effects which they necessarily produce for the taxpayer".

    The dissenting opinion challenged that view. The whole opinion merits attention, but its general theme appears from pp 1078-1079, para O-II4:

    "It is hard to accept that the travaux préparatoires dating more than 50 years back and partly based on preconditions that have not been fulfilled or are no longer relevant should remain a permanent obstacle to a reasonable development of the case law concerning the scope of Article 6—in particular to areas where there is an obvious need to extend the protection granted by that Article to individuals. The present case law clearly demonstrates in fact that the Convention institutions have not felt bound to maintain a restrictive attitude, but have extended the applicability of Article 6(1) to a considerable number of relationships between individuals and governments which originally must have been held to be excluded".

    112. Further development in the case-law may therefore be expected. The existing Strasbourg jurisprudence most directly in point is the line of cases starting with Feldbrugge v The Netherlands (1986) 8 EHRR 425 and leading to Salesi v Italy (1993) 26 EHRR 187 and Mennitto v Italy (2000) 34 EHRR 1122. These indicate that article 6(1) is likely to be engaged when the applicant has public law rights which are of a personal and economic nature and do not involve any large measure of official discretion (see Masson v The Netherlands (1995) 22 EHRR 491, 511, para 51.

    113. In the present case the applicant's rights (arising from her unintentional homelessness and her priority need) were personal and economic (at least in the sense of meeting her need for the necessities of life). Superficially they did not involve any large measure of discretion: once it was established that she satisfied the statutory conditions, the local housing authority owed her the full statutory duty under section 193(2) of the Housing Act 1996 ("the Act") and she had a correlative right to the performance of that duty. On that basis it was argued that the applicant had not only a right under national law, but also a civil right in the autonomous Convention sense, a right (as it was put in Feldbrugge, p 434, para 37 "flowing from specific rules laid down by the legislation in force").

    114. However it is necessary to take a closer look, both at the process by which a homeless person becomes entitled to the performance of the full housing duty, and to the content of that duty. It is apparent that the process involves some important elements of official discretion, and also issues which (although not properly described as involving the exercise of discretion) do call for the exercise of evaluative judgment. The following points seem to me particularly significant, though the list is by no means exhaustive.

      (1)  Establishing priority need may call for the exercise, and sometimes for a very difficult exercise, of evaluative judgment. There was no problem in the applicant's case because of her family circumstances, but the identification of a "vulnerable" person may present real problems (see section 189(1)(c) of the Act and R v Camden London Borough Council, Ex p Pereira (1998) 31 HLR 317).

(2)  A local housing authority may at its discretion perform its full housing duty in any of the three ways specified in section 206 of the Act, which include (section 206(1)(c)) giving such advice and assistance as will secure that suitable accommodation is available to the applicant from some other person. Moreover under section 206(2) the authority has quite a wide discretion as to making charges to a successful applicant.

(3)  The period for which the accommodation is to be secured is a minimum period of two years; after that the authority has a discretion (see section 193(3) and (4) and section 194 of the Act, embodying changes made after the decision of your Lordships' House in R v Brent London Borough Council, Ex p Awua [1996] AC 55).

(4)  The local housing authority's duty comes to an end if an applicant refuses an offer of accommodation which the authority are satisfied is suitable (see section 193(5) and (7) of the Act). Here again there are potentially difficult exercises of judgment to be made.

    115. These points, taken together, amount to a considerable qualification of the notion that a successful applicant is enjoying a quantifiable right derived from specific statutory rules. If the local housing authority's duty does create a civil right within the autonomous Convention meaning, it must in my view lie close to the boundary of that aggregation of rights. I do not think it is necessary, in order to dispose of this appeal to express a definite view. On this point I am in full agreement with the observations in paragraphs 69 and 70 of Lord Hoffmann's speech. I would dismiss this appeal.

 
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