PROCEDURE

The case originated in an application (no. 40378/10) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Ms Fazia Ali (“the applicant”), on 15 July 2010.

The applicant was born in 1980 and lives in Birmingham. She is represented before the Court by Mr M. McIlvaney of the Community Law Partnership, a solicitor practising in Birmingham.

The United Kingdom Government (“the Government”) were represented by their Agent, Ms R. Tomlinson of the Foreign and Commonwealth Office.

On 7 November 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant, a parent of two young children, is a homeless person in priority need of accommodation within the meaning of Part VII of the Housing Act 1996 (“the 1996 Act”).

Birmingham City Council (“the Council”) is a local housing authority within the meaning of the 1996 Act and is required, under Part VII of that Act, to perform statutory functions in relation to homeless persons in its area.

The applicant applied as a homeless person to Birmingham City Council for assistance in October 2006. By letter dated 7 November 2006 the Council determined that the applicant was homeless, eligible for assistance, in priority need and not intentionally homeless. The authority therefore accepted that it owed the applicant the “main housing duty” to provide accommodation to her and her family. On 8 November 2006 the authority made the applicant an offer of accommodation which she refused because she was unhappy with the location. The authority told the applicant that in its view the accommodation was suitable but following a review of that decision, which was determined in the applicant’s favour, they agreed to make her another offer.

On 14 March 2007 a Housing Officer informed the applicant by telephone that another offer was being made, that a viewing had been arranged and that a letter would follow. The authority claims that on that same day a written offer of accommodation at 16 Bromford Lane, Birmingham was sent to the applicant. That letter contained a statement to the effect that if the applicant refused the offer without good cause the authority would consider that it had discharged its duty to her under Part VII of the 1996 Act. However, the applicant denied receiving the letter; instead, she claimed that she had to telephone the housing office to obtain the address and arrange the viewing appointment. She viewed the property on 19 March 2007 but declined the offer as she was not happy with the condition of the communal area.

By letter dated 21 March 2007 the Council notified the applicant that, by reason of her rejection of its offer, pursuant to section 193 of the Housing Act its duty to her under Part VII of the 1996 Act had been discharged. By letter dated 29 March 2007 the applicant notified the Council that she had not received an offer in writing and requested that the Council review its decision.

While the applicant’s case was pending before the review panel, a further offer of accommodation was made to her pursuant to a different scheme, namely the scheme for the provision of housing accommodation under Part VI of the 1996 Act. She did not accept this offer.

On 1 May 2007 a Homelessness Review Officer employed by the Council conducted a telephone interview with the applicant to establish her reasons for refusing the offer of accommodation at 16 Bromford Lane. The Officer claimed that in the course of this conversation the applicant accepted that she had in fact received the offer letter but refused the offer of accommodation because there was no lift and the entrance to the property was dirty, which could put her youngest son’s health at risk. However, the applicant claims that at the time she had thought she was being questioned about the subsequent offer of accommodation, in respect of which she did not deny having received a letter.

By letter dated 2 May 2007 the Homelessness Review Officer upheld the decision that the applicant’s refusal of the offer of accommodation had discharged the Council’s main housing duty to her under section 193(2) of the 1996 Act. In particular, the Officer found that the applicant had been sent an offer letter from the Council which complied with the mandatory requirements of section 193 of the 1996 Act prior to her refusal and there was no reason to believe that she had not received it. In any case, she noted that the applicant had not refused the accommodation because she had not received a written offer but because she did not consider the accommodation to be suitable for her family’s needs.

The applicant appealed to Birmingham County Court under section 204 of the 1996 Act, which allowed for an appeal on a point of law only. The jurisdiction exercised by the County Court under section 204 was that of judicial review. In her grounds of appeal the applicant claimed that the Council, in reaching its decision, had taken into account irrelevant considerations and/or acted under a fundamental mistake of fact; that the Council had acted unlawfully as it had failed to make adequate inquiries to enable it to reach a lawful decision; that its decision was one which no rational Council would have made; that it had fettered its discretion; and that it had acted in breach of natural justice.

The appeal was heard on 29 August 2007, on which date the judge noted that the only ground of appeal argued before him was that the letter of offer had failed to arrive. The applicant submitted that the County Court should hear evidence on the matter so that it could determine it for itself. However, although the judge accepted that the Homelessness Review Officer was not an independent or impartial tribunal, he found that the decision whether or not the letter had been received was properly and fairly to be made by her and he declined to hear evidence on the point. Although it was not specifically stated in the correspondence between the Council and the applicant, the judge appeared to consider whether or not the Council had discharged its duty under section 193(7) (see paragraph 25 below).

The applicant subsequently appealed to the Court of Appeal and then to the Supreme Court. At each level, the grounds of appeal were that the decision taken by the Council’s Homelessness Review Officer had constituted a determination of the applicant’s civil rights for the purposes of Article 6 § 1 of the Convention; that the Officer had not been an independent or impartial tribunal as required by Article 6 § 1; that the decision of the Officer had turned on the resolution of a simple question of disputed primary fact, involving no application of specialist knowledge; that pursuant to Tsfayo v. the United Kingdom, no. 60860/00, 14 November 2006, Article 6 § 1 required that the applicant be able to appeal that simple factual determination; and, alternatively, that the restriction of all statutory appeals to points of law, no matter what the nature of the decision, was incompatible with Article 6 § 1.

Both the Court of Appeal and the Supreme Court decision on the applicant’s appeal followed the decision of the House of Lords in Runa Begum v. London Borough of Tower Hamlets [2003] UKHL 5. In Runa Begum the House of Lords found that judicial review of a Homelessness Review Officer’s decision that a claimant had been unreasonable in rejecting the accommodation offered to her provided “sufficiency of review” for the purposes of Article 6 § 1. The House of Lords stressed that although the Officer had been called upon to resolve some disputed factual issues, these findings of fact were “only staging posts on the way to the much broader judgments” concerning local conditions and the availability of alternative accommodation, which the Officer had the specialist knowledge and experience to make. Although the Officer could not be regarded as independent, since she was employed by the Council which had made the offer of accommodation which the claimant had rejected, statutory regulations provided substantial safeguards to ensure that the review would be independently and fairly conducted, free from improper external influences. Any significant departure from the procedural rules would have afforded a ground of appeal.

The applicant submitted that the present case could be distinguished from that of Runa Begum because it concerned the simple question of a finding of primary fact rather than an evaluative judgment, such as a qualitative assessment of “suitability”.

A. The judgment of the Court of Appeal

On 7 November 2008 the Court of Appeal dismissed the applicant’s appeal. In doing so, it proceeded on the assumption that the case involved the determination of the applicant’s civil rights for the purposes of Article 6 § 1 of the Convention. In relation to the question whether the decision of the Homelessness Review Officer had turned on the resolution of a simple question of primary fact, or whether it required the application of specialist knowledge, Thomas LJ stated that: “i) It is far from easy to draw the distinction advanced in practice. A finding of suitability is itself a finding based on conclusions of primary fact ... ii) There would be considerable complexity in administering a scheme with these distinctions. A scheme which enabled certain factual issues to be subject to a full right of appeal and others which would not be so subject would be too uncertain and too complex ... iii) ... [I]f the extent of the review by the court was determined by the answer to the questions of whether a finding of fact was a primary finding, or whether that finding required expertise or whether that finding was determinative, the room for argument and uncertainty would be considerable ... .... v) The additional review which would be provided by the suggested full right of appeal on fact would not in practice be very wide ... vi) The full right of appeal sought from a review officer on fact might have to be significantly different from an appeal from a court ... the procedure adopted by the reviewing officer in reaching findings of fact is informal and there are no transcripts of evidence. .... viii) There would therefore clearly be significant implications for not only the statutory scheme but for the court and tribunal system, if this court were to hold that a full right of appeal was required on findings of primary fact or on issues of primary fact where the finding was determinative ... The statutory scheme for housing and the statutory scheme for the method of appeals in respect of courts and tribunals are determined by Parliament; funds are provided for their finance by Parliament ... ix) The present scope of the appeal provides a real measure of protection for homeless appellants. It is clear from the careful judgments of Judge MacDuff QC and Judge McKenna that both considered that the housing authority had fairly treated both appellants in cases where the determinative issue was a question of fact. This conclusion reinforces the view I have expressed that the review by the County Court in cases of this kind was sufficient and that there is no reason to attempt to find that it is outside the scope of the decision in Runa Begum. It demonstrates, as Lord Bingham observed at paragraph 11, that the scheme properly operated should ensure fair treatment. I consider that it does whether the decision turns on a simple issue of primary fact or a conclusion of fact based on primary facts (such as a conclusion on suitability).”

Thomas LJ therefore concluded that the decision of the House of Lords in Runa Begum applied to all County Court appeals under section 204 of the 1996 Act, no matter whether the decision turned on a simple issue of primary fact or not. He further held that the decision in Tsfayo, which concerned the housing benefit scheme, did not affect appeals brought in homelessness cases: “34. ... In the first place the Strasbourg Court relied on the decision in Runa Begum in reaching its conclusion and said nothing that cast doubt on the correctness of the decision. Secondly, the decisions in Runa Begum and Tsfayo each turned on a careful examination of the whole of the statutory scheme relevant to the particular case. Thirdly, it is apparent from the details of the scheme considered in Tsfayo that whereas in the case of prospective benefit, central government reimbursed the local authority 95% of what it was required to pay, it only reimbursed 50% of backdated awards (see paragraph 19 of the decision); this fact had been heavily relied upon in argument (see paragraph 37 of the decision) for the powerful contention that the hearing had taken place before a tribunal consisting of members of an authority which would be required to pay 50% of the benefit if it made an award in the applicant’s favour; the HBRB was not independent of the parties. Finally when the housing benefits scheme was looked upon as a whole, it was readily apparent that a conclusion could be reached, in contradistinction to the scheme under Part VII of the Housing Act, that the particular scheme was not compliant with Article 6.1.”

B. The judgment of the Supreme Court

On 17 February 2010 the Supreme Court dismissed the applicant’s appeal, finding that the determination by the Council, that its duty to secure accommodation for the applicant had ceased, was not a determination of her civil rights within the meaning of Article 6. Lord Hope of Craighead with whom Baroness Hale and Lord Brown agreed, stated that: “... I would be prepared now to hold that cases where the award of services or benefits in kind is not an individual right of which the applicant can consider himself the holder, but is dependent upon a series of evaluative judgments by the provider as to whether the statutory criteria are satisfied and how the need for it ought to be met, do not engage article 6(1). In my opinion they do not give rise to ‘civil rights’ within the autonomous meaning that is given to that expression for the purposes of that article.”

In supporting that conclusion Lord Hope looked to what the relevant provisions within Part VII of the 1996 Act were intended to achieve. He observed that: “... It provides a right to assistance if the relevant conditions are satisfied. But this is not a pecuniary right, nor is the benefit that is to be provided defined by the application of specific rules laid down by the statute. Even where the full homelessness duty arises under section 193, the content of the statutory duty lacks precise definition. There is no private law analogy. The duty is expressed in broad terms – to secure that ‘accommodation is available’ – which leaves much to the discretionary administrative judgment of the authority.”

He continued, following a review of the jurisprudence of the Court, by noting that: “43. There are however ... a number of straws in the wind since Runa Begum that suggest that a distinction can indeed be made between the class of social security and welfare benefits that are of the kind exemplified by Salesi v Italy whose substance the domestic law defines precisely and those benefits which are, in their essence, dependent upon the exercise of judgment by the relevant authority ...”

Later in his judgment, Lord Hope, for completeness, set out some observations on whether the scheme of decision-making was Article 6‑compliant. He commented that the possibility, foreshadowed in argument, of separating simple, formal questions of “gateway” facts, such as the letter issue, from the expert assessment of suitability would needlessly complicate a scheme which was designed to be simple to administer.

The court went on to observe that the fact that a County Court did not have a full fact-finding jurisdiction when hearing an appeal under section 204 of the 1996 Act did not mean that the applicant was deprived of what was required to satisfy the guarantees of Article 6 of the Convention. In this connection, Lord Hope said this: “54. ... For ease of administration the review is entrusted to a single officer who is equipped to deal with issues as to the suitability of the accommodation that has been declined. An answer to the question whether or not the letters were received was incidental to a more searching and judgmental inquiry into the accommodation’s suitability. ... These cases are quite different from Tsfayo, where no broad questions requiring professional knowledge or experience had to be addressed once the question whether there was good cause had been answered. In these circumstances I would hold that the ratio of the decision in Runa Begum should be applied and that the absence of a full fact-finding jurisdiction in the court to which an appeal lies under section 204 does not deprive it of what it needs to satisfy the requirements of article 6(1).”

Unlike the County Court, the Supreme Court appeared to consider whether or not the Council had discharged its duty to the applicant under section 193(5); however, it appeared to accept that a formal letter of offer was required by that subsection.