CASE OF FAZIA ALI v. THE UNITED KINGDOM

1. 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.
2. 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.
3. The United Kingdom Government (“the Government”) were represented by their Agent, Ms R. Tomlinson of the Foreign and Commonwealth Office.
4. On 7 November 2012 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. 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”).
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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).
15. 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.
16. 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.
17. 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
18. 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).”
19. 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
20. 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.”
21. 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. ”
22. 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 ...”
23. 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.
24. 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). ”
25. 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.
II. RELEVANT DOMESTIC LAW AND PRACTICE
26. Section 193 in Part VII of the Housing Act 1996 (“the 1996 Act”), as amended by the Homelessness Act 2002 (“the 2002 Act”), which deals with the duty on local authorities to persons with priority need who are not homeless intentionally, provides as follows:
“(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.
(7) The local housing authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation refuses a final offer under Part 6.
(7A) An offer of accommodation under Part 6 is a final offer for the purposes of subsection (7) if it is made in writing and states that it is a final offer for the purposes of subsection (7).”
27. Section 202(1), as amended by the 2002 Act, entitles an applicant to request a review of the decision of council under Part VII of the 1996 Act.
28. The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (SI 1999/71) provide that the officer shall be someone who was not involved in the original decision and who is senior to the officer who made the original decision. The reviewer is required to consider any representations made to him. If he considers that there is a deficiency or irregularity in the original decision, or the manner in which it was made, but is minded nevertheless to make a decision which is against the interests of the applicant on one or more issues, he must notify the applicant that he is so minded and the reasons why he is of that view in order that the applicant, or someone on their behalf, may make representations.
29. Section 204(1) of the 1996 Act provides that, if an applicant is dissatisfied with the decision on review, he may appeal to the County Court on any point of law arising from the decision or, as the case may be, the original decision. No provision is made for an appeal against the facts found by the homelessness review officer.
30. Pursuant to section 206(1), the council may discharge its functions under Part VII in one of the following three ways:
(a) by securing that suitable accommodation provided by them is available to the applicant;
(b) by securing that the applicant obtains suitable accommodation from some other person; or
(c) by giving the applicant such advice and assistance as will secure that suitable accommodation is available from some other person.
B. Judicial consideration of Part VII of the Housing Act 1996
1. Adan v. Newham London Borough Council [2002] 1 WLR 306
31. In Adan v. Newham London Borough Council the Council had decided that an applicant for Part VII accommodation was ineligible because she was not habitually resident in the United Kingdom. The Homelessness Review Officer confirmed the decision and the applicant appealed to the County Court. The judge allowed the appeal on the ground of irrationality. The Council ’ s decision was quashed and the matter remitted to it for a fresh review. However, the judge was concerned that the Council, when conducting the fresh review, should not infringe the applicant ’ s right under Article 6 to have her civil rights determined by an “independent and impartial tribunal established by law”. He therefore directed that the review should be conducted by a different officer who, in respect of independence and impartiality, complied with Article 6.
32. The Court of Appeal set aside the judge ’ s direction on the ground that he had no jurisdiction to make the order. However, having allowed the appeal on that ground, the court went on, in an extended obiter dictum, to consider the effect of Article 6 on decisions under Part VII. In doing so, it proceeded on the assumption that the Council ’ s decision had determined a “civil right”. In this regard, Hale LJ opined that the right to accommodation under section 193 “is more akin to a claim for social security benefits than it is a claim for social or other services, where the authorities have a greater degree of discretion and resource considerations may also be relevant”.
33. In respect of the question whether the original Homelessness Review Officer, employed by the Council, was an independent and impartial tribunal, it was conceded that he was not. The third question was whether, notwithstanding the lack of independence of the Officer, the composite procedure of his decision subject to an appeal on law to an independent County Court was sufficient to satisfy Article 6.
34. The Court of Appeal considered that in practice the composite procedure would in most cases be sufficient. It would not, however, be adequate if the Homelessness Review Officers had to “ resolve a dispute of fact which [was] material to the decision ”.
2. Runa Begum v. London Borough of Tower Hamlets [2003] UKHL 5
35. In the case of Runa Begum v. London Borough of Tower Hamlets, in which the contested questions of fact went to the larger issue of the “suitability” of the accommodation offered, the House of Lords considered whether the review mechanism under section 202 of the 1996 Act complied with Article 6 of the Convention.
36. Their Lordships accepted that the Homelessness Review Officer was not independent of the Council. Lord Hoffmann of Chedworth, giving the leading opinion, concluded that :
“50. ... It seems to me sufficient to say that in the case of the normal Part VII decision, engaging no human rights other than article 6, conventional judicial review such as the Strasbourg court considered in the Bryan case (1995) 21 EHRR 342 is sufficient.
52. In this case the subject matter of the decision was the suitability of accommodation for occupation by Runa Begum; the kind of decision which the Strasbourg court has on several occasions called a ‘ classic exercise of an administrative discretion ’. The manner in which the decision was arrived at was by the review process, at a senior level in the authority ’ s administration and subject to rules designed to promote fair decision-making....
56. The key phrases in the judgments of the Strasbourg court which describe the cases in which a limited review of the facts is sufficient are ‘ specialised areas of the law ’ ( Bryan ’ s case, at p 361, para 47) and ‘ classic exercise of administrative discretion ’ ( Kingsley ’ s case, at p 302, para 53). ... It seems to me that what the court had in mind was those areas of the law such as regulatory and welfare schemes in which decision-making is customarily entrusted to administrators. And when the court in Kingsley spoke of the classic exercise of administrative discretion, it was referring to the ultimate decision as to whether Kingsley was a fit and proper person and not to the particular findings of fact which had to be made on the way to arriving at that decision. In the same way, the decision as to whether the accommodation was suitable for Runa Begum was a classic exercise of administrative discretion, even though it involved preliminary findings of fact.
59. ... In my opinion the question is whether, consistently with the rule of law and constitutional propriety, the relevant decision-making powers may be entrusted to administrators. If so, it does not matter that there are many or few occasions on which they need to make findings of fact. ”
37. While not relevant to the disposal of the appeal, Lord Millett of St Marylebone in the City of Westminster, without expressing a settled decision, set out some thoughts in connection with the issue of whether Runa Begum ’ s case involved the determination of a “civil right”. He made the observation that the case-law of the Court, as it related to social security, was still in a process of development. At paragraph 91, he noted the significant differences between the case of Runa Begum and previous decisions of the Court:
“The present case undoubtedly goes further still. It has four features which take it beyond the existing case law: (i) it is concerned with a benefit in kind; (ii) it therefore involves priority between competing claimants. There is only a finite amount of housing stock, whether it belongs to the local housing authority or is bought in; and if one applicant is allowed to remain on the unintentionally homeless register it will be to the detriment of other homeless persons; (iii) the housing authority has a discretion as to the manner in which it will discharge its duties; and (iv) ultimately the question for determination calls for an exercise of judgment: whether the applicant has behaved reasonably in refusing an offer of accommodation, having regard to all the circumstances, and in particular housing conditions in the area.
93. It is not difficult to conclude that the nature of the dispute in her case makes it inappropriate for determination by the ordinary judicial process. But it is more difficult, at least in principle, to justify withdrawing it from the protection of Article 6(1)....”
C. Judicial consideration of “full jurisdiction” under Article 6
38. The leading domestic decision on this concept is that of the House of Lords in R (Wright and Others) v. Secretary of State for Health [2009] UKHL 3. Baroness Hale of Richmond fully and concisely summarises the state of the law at paragraph 23:
“It is a well-known principle that decisions which determine civil rights and obligations may be made by the administrative authorities, provided that there is then access to an independent and impartial tribunal which exercises ‘ full jurisdiction ’ : Bryan v United Kingdom (1995) 21 EHRR 342. ... It does not always require access to a court or tribunal even for the determination of disputed issues of fact. Much depends upon the subject-matter of the decision and the quality of the initial decision-making process. If there is a ‘ classic exercise of administrative discretion ’, even though determinative of civil rights and obligations, and there are a number of safeguards to ensure that the procedure is in fact both fair and impartial, then judicial review may be adequate to supply the necessary access to a court, even if there is no jurisdiction to examine the factual merits of the case.”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
39. The applicant complains that her inability to appeal to an independent and impartial tribunal in respect of the relevant factual finding amounted to a violation of Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
40. The Government contested that argument.
41. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. Applicability of Article 6 § 1
(a) The applicant ’ s submissions
42. The applicant submitted that the determination of her entitlement to accommodation under Part VII of the 1996 Act was a determination of a civil right for the purposes of Article 6 § 1 of the Convention.
43. In this regard, she argued that there had been a determination of a civil right because once the qualifying conditions were met, the Council ’ s duty under section 193 of the 1996 Act was mandatory, not discretionary. As such, there was a legally enforceable entitlement on her part to be provided with subsidised public housing which derived from a specific statutory scheme under Part VII of the 1996 Act. Moreover, the applicant was affected by the Council ’ s determination in a personal, individual and private capacity. As a homeless person in priority need of accommodation, the right to accommodation was critically important – and of direct economic benefit – to her.
44. The applicant noted that for a particular right to amount to a “civil right”, it was sufficient for it to be an individual, economic right flowing from specific rules laid down in a statute (see, for example, Salesi v. Italy, 26 February 1993, § 19, Series A no. 257 ‑ E). It was well-established that the right to social security or welfare benefit was a civil right (see, for example, Tsfayo v. the United Kingdom, cited above, § 40, Feldbrugge v. the Netherlands, 29 May 1986, Series A no. 99, Deumeland v. Germany, 29 May 1986, Series A no. 100 and Schuler-Zgraggen v. Switzerland, 24 June 1993, Series A no. 263 ) and the fact that section 193 provided for a right to accommodation rather than any financial payment or subsidy should not alter the established position. The applicant submitted that it would be irrational to distinguish between housing benefit, which falls within Article 6, and the even more fundamental right to housing on the basis that the latter was a benefit in kind.
45. The applicant further argued that the Court had previously found a right to accommodation to be a civil right (see, for example, Teteriny v. Russia, no. 11931/03, § § 5 – 7 and 41 – 144, 30 June 2005, Shpakovskiy v. Russia, no. 41307/02, §§ 5 – 9 and 28 – 31, 7 July 2005, Tarasov v. Russia, no. 13910/04, §§ 5 and 20 – 23, 28 September 2006, Sypchenko v. Russia, no. 38368/04, §§ 6 – 14 and 36 – 45, 1 March 2007 and Nagovitsyn v. Russia, no. 6859/02, §§ 5, 15 – 22, 42 – 45 and 51 – 58, 24 January 2008).
46. Finally, the applicant challenged the Supreme Court ’ s conclusion that the right was not a “civil right” on the following grounds: first, that the mere fact that evaluative judgments were required in reaching a decision did not take the case outside of Article 6 § 1; secondly, the fact that there was discretion as to how and what accommodation was provided did not affect the substance of the right but rather related to the performance of the right; thirdly, the fact that there were a number of hurdles that had to be overcome (eligibility, priority need and intentionality) which might involve an evaluative judgment in no way detracted from the fact that once those hurdles had been overcome, there was a discrete right to accommodation in existence which was a civil right and which continued until the Council ’ s duty was discharged in one of the ways outlined in section 206 of the 1996 Act.
( b ) The Government ’ s submissions
47. The Government submitted that in the present case there was no “civil right” for the purposes of Article 6 § 1 because the Court had limited its interpretation of “civil rights” to rights which were related to individual economic rights enforceable through the courts; any “right” under section 193 of the 199 6 Act was subject to a large number of judgmental decisions by the Council as to whether it arose; the duty on the Council under section 193 was merely to “secure that accommodation is available” and therefore further judgment had to be exercised in order to determine how that “right” should be delivered; and the subject matter of the duty or “benefit” was “in kind” and was subject to a range of judgmental issues such as the size and nature of the accommodation, its location and its tenure.
48. In particular, the Government argued that this Court had always stopped short of recognising that a right to non-contributory welfare benefits in kind amounted to a “civil right”. In fact, in each case in which non-contributory welfare benefits had been recognised as falling within the scope of Article 6 § 1, the critical feature was that the applicant had “suffered an interference with her means of subsistence and was claiming an individual, economic right flowing from specific rules laid down in a statute” (see, for example, Salesi v. Italy, cited above, § 19). In so far as the Court in Tsfayo had found that a non-contributory housing benefit gave rise to a civil right, it went no further than the principle in Salesi.
49. In relation to benefits in kind, the Government submitted that there was normally no readily identifiable and specific benefit to which an individual could be said to have a pre-existing right. Thus, in the present case the applicant only had a general right to be housed; she could not point to a specific property to which she had any right. This was in contrast to the provision of a financial benefit, where both the entitlement and the amount were determined by a clear set of conditions.
50. The Government further submitted that the determination of any right under section 193 involved a series of evaluative judgments both in terms of whether the criteria for entitlement were met and, once the Council had decided that such a duty was owed, a further judgment had to be made as to how it was to be met. A decision-making process with a series of judgments, including as to the very nature of the benefit to be given, militated strongly against there being a “civil right” and was quite different from any of the situations found by the Court to have given rise to “civil rights” (see, for example, Mennitto v. Italy [GC], no. 33804/96, §§ 25 and 27, ECHR 2000 ‑ X and Wos v. Poland (dec.), no. 22860/02, ECHR 2005 ‑ IV).
51. The Government contended that the Russian cases relied on by the applicant as authority for the proposition that Article 6 § 1 could be engaged where there was a right to social housing all concerned the enforceability of judgments made by the courts in respect of that housing. The Court had not considered the nature of the right in issue; instead, it had focused on the difficulties with enforcing the domestic courts ’ judgments. Thus, there was no consideration of whether a duty to provide social housing itself would engage Article 6 § 1 and whether the case-law in Salesi should be extended so far.
52. Finally, the Government noted that in Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, ECHR 2006 ‑ VI the Court found that there had to be an “assertable” right for Article 1 of Protocol No. 1 to be engaged. One of its reasons for finding that non-contributory benefits did fall within Article 1 of Protocol No. 1 was the fact that, under the Court ’ s existing case-law, such benefits would fall within the ambit of Article 6 § 1. Thus, the Grand Chamber had recognised that it was important for the clarity and consistency of the approach of the Court that the tests for engagement of Article 6 § 1 and Article 1 of Protocol No. 1 remain on the same or closely related analysis. If the Court were to find that there was a “civil right” in the present case, rights under Article 6 § 1 and Article 1 of Protocol No. 1 would be out of step.
53. The Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (“contestation” in the French text) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is protected under the Convention. The dispute must be genuine and serious; it may relate to the actual existence of a right in the first place as well as to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, among other authorities, Micallef v. Malta [GC], no. 17056/06, § 74, 15 October 2009). Lastly, the right must be a “civil right” ( Mennitto v. Italy [GC], no. 33804/96, § 23, ECHR 2000 ‑ X).
54. Article 6 § 1 does not guarantee any particular content for civil “rights and obligations” in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see, for example, Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294 ‑ B, and Roche v. the United Kingdom [GC], no. 32555/96, § 119, ECHR 2005 ‑ X). The starting-point must be the provisions of the relevant domestic law and their interpretation by the domestic courts (see Masson and Van Zon v. the Netherlands, 28 September 1995, § 49, Series A no. 327-A, and Roche, cited above, § 120). This Court would need strong reasons to differ from the conclusions reached by the superior national courts by finding, contrary to their view, that there was arguably a right recognised by domestic law (ibid.).
55. In carrying out this assessment, it is necessary to look beyond the appearances and the language used and to concentrate on the realities of the situation (see Van Droogenbroeck v. Belgium, 24 June 1982, § 38, Series A no. 50; Roche, cited above, § 121; and Boulois v. Luxembourg [GC], no. 37575/04, § 92, 3 April 2012).
(ii) Application of the general principles to the facts of the present case
56. In the case of Runa Begum the House of Lords accepted that section 193(2) of the 1996 Act imposed a duty on the Council to secure that accommodation was available for occupation by Ms Begum. Thus, a duty was owed which was enforceable by Ms Begum and which related to a matter of acute concern for her. In the present case the Council acknowledged in its letter of 7 November 2006 to the applicant that it owed her the “main housing duty” to provide accommodation to her and her family (see paragraph 7 above). The Government also accept that she had a general right to be housed (see paragraph 48 above), although the applicant could not point to any property to which she had any right.
57. The Court is satisfied that in the present case the applicant had a legally enforceable right by virtue of section 193 of Part VII of the 1996 Act to be provided with accommodation, albeit that this was a right that could cease to exist in certain conditions (see paragraph 25 above). Moreover, the court proceedings in question clearly concerned a “dispute” over the continuing existence, if not the content, of that right; the dispute was genuine and serious; and the result of the proceedings was directly decisive for the right in question. It therefore falls to the Court to decide whether or not the right in question was a “civil right” for the purposes of Article 6 § 1 of the Convention.
58. It is now well-established that disputes over entitlement to social security or welfare benefits generally fall within the scope of Article 6 § 1 of the Convention (see, for example, Tsfayo v. the United Kingdom, cited above, § 40, Feldbrugge v. the Netherlands, 29 May 1986, Series A no. 99, Deumeland v. Germany, 29 May 1986, Series A no. 100 and Schuler ‑ Zgraggen v. Switzerland, 24 June 1993, Series A no. 263). The Court has even recognised a right to a non-contributory welfare benefit as a civil right (see, for example, Salesi v. Italy, cited above, § 19, and Tsfayo v. the United Kingdom, cited above, § 40 ). However, the present case differs from previous cases concerning welfare assistance, as the assistance to be provided under section 193 of the 1996 Act not only was conditional but could not be precisely defined (compare, for example, Tsfayo, in which the dispute concerned a fixed financial amount of housing benefit). It concerns, as the Government noted, a “benefit in kind” and the Court must therefore consider whether a statutory entitlement to such a benefit may be a “civil right” for the purposes of Article 6 § 1. In this regard, the Court agrees with the Government that the Russian authorities relied upon by the applicant are of little assistance as they concerned the enforceability of pre-existing domestic judgments on the right to housing and, as such, no consideration was given to the question before the Court in the present case.
59. It is true that accommodation is a “benefit in kind” and that both the applicant ’ s entitlement to it and the subsequent implementation in practice of that entitlement by the Council were subject to an exercise of discretion. Nonetheless, the Court is not persuaded that all or any of these factors necessarily militate against recognition of such an entitlement as a “ civil right ”. For example, in Schuler-Zgraggen v. Switzerland, 24 June 1993, Series A no. 263, in which the applicant ’ s entitlement to an invalidity pension depended upon a finding that she was at least 66.66% incapacitated, the Court accepted that Article 6 § 1 applied. In any case, the “discretion” in the present case had clearly defined limits : once the initial qualifying conditions under section 193 (1) had been met, pursuant to section 206(1) the Council was required to secure that accommodation was provided by one of three means, namely by providing accommodation itself; by ensuring that the applicant was provided with accommodation by a third party; or by giving the applicant such advice and assistance to ensure that suitable accommodation was available from a third party. In this regard, the Court agrees with Hale LJ in Adan v. Newham London Borough Council, in which she opined that the right to accommodation under section 193 “is more akin to a claim for social security benefits than it is a claim for social or other services, where the authorities have a greater degree of discretion and resource considerations may also be relevant”.
60. In light of the above, as far as the applicability of Article 6 § 1 is concerned, the Court sees no convincing reason to distinguish between the applicant ’ s right to be provided with accommodation, as acknowledged by the Council in its letter of 7 November 2006 (see paragraph 7 above), and the right to housing benefit asserted by the applicant in Tsfayo. Article 6 § 1 therefore applies and, as such, the applicant had a right to a fair hearing before an independent and impartial tribunal.
2. Compliance with Article 6 § 1
( a ) The applicant ’ s submissions
61. The applicant submitted that, on the simple facts of her case, the lack of a full merits review by an independent and impartial tribunal of the decision that she was no longer entitled to accommodation violated her rights under Article 6 § 1 of the Convention.
62. The applicant referred the Court to Runa Begum, in which the House of Lords held that a Homelessness Review Officer hearing a statutory appeal under section 202 of the 1996 Act was not an “independent and impartial tribunal” for the purposes of Article 6 § 1 of the Convention. The applicant submitted that this reasoning was entirely correct.
63. The applicant accepted that the initial lack of independence and impartiality could be cured if the decision were subject to the control of a court or tribunal which had “full jurisdiction” to consider the case (see, for example, Albert and Le Compte v. Belgium, 10 February 1983, § 29, Series A no. 58). In Runa Begum, the House of Lords had held that the decision of the Homelessness Review Officer was subject to the control of such a court. However, the applicant sought to distinguish that case on the ground that it was confined to decisions of the Homelessness Review Officer which related to suitability, or those which involved policy considerations and which required specialist expertise. Following Tsfayo, the applicant submitted that Article 6 § 1 required that the County Court have power to re-open findings of fact made by a Homelessness Review Officer.
64. In this regard, the applicant did not accept that the distinction between primary findings of fact and findings of fact which were merely ancillary or “staging posts” en route to a broader discretionary judgment was one which was likely to be difficult to draw in practice.
65. The applicant therefore submitted that the determination in her case was directly analogous to the decision considered in Tsfayo and, as such, her limited right of appeal to the County Court under section 204 of the 1996 Act – which she described as being limited to “ irrationality ” grounds - did not enable the court adequately to deal with the disputed factual issues. On the contrary, “ irrationality ” was such a high hurdle that the practical effect was that the applicant was stuck with whatever finding of fact was made by the Homelessness Review Officer. Consequently, the court had not possessed “full jurisdiction” for the purposes of Article 6 § 1 and could not cure the lack of independence and impartiality of the Homelessness Review Officer.
( b ) The Government ’ s submissions
66. The Government argued that the issues which arise under Article 6 § 1 need to be considered as a whole and different aspects of the right claimed should be balanced against each other. Therefore, if a wide approach is taken to the scope of Article 6 § 1, then a more flexible approach should be taken to the question of breach.
67. The Government relied on the recent case of Sigma Radio Television Ltd v. Cyprus, nos. 32181/04 and 35122/05, 21 July 2011 as authority for the proposition that it is not the role of Article 6 § 1 to give access to a level of jurisdiction which can substitute its opinion for that of the administrative authorities; on the contrary, respect should be accorded to decisions taken by administrative authorities on grounds of “expediency” and which often involved specialised areas of law.
68. In deciding what level of judicial scrutiny is necessary to comply with Article 6 § 1, the Government argued that the Court should consider whether the right in question was on the margins of what would be a civil right; whether the issues to be decided were policy issues, pure questions of fact or questions which called for professional expertise; the degree to which those questions were appropriately ones for the administrative body rather than a court or tribunal; and whether or not the alleged breach was fundamental, either because of a complete denial of the right to make representations or a lack of independence.
69. First, the Government argued that in the present case the right claimed emanated purely from public law and therefore had no impact on any private rights asserted. Further, it was one which involved a high level of evaluative judgment. In these circumstances the level of judicial scrutiny required should be lower.
70. Secondly, the Government asserted that the present case involved a decision whether or not the Council had an ongoing duty to provide housing, which was an exercise of administrative discretion involving professional expertise and experience. In this regard, the Government submitted that the question whether or not the applicant had received a letter was a staging post in the determination of whether or not the housing duty had been met. It was therefore one element in the overall consideration under section 193 of the 1996 Act. In Tsfayo, on the other hand, the decision as to “ good cause ” for the late claim was determinative.
71. Thirdly, it was unrealistic and unworkable in practice to distinguish between cases which concern a “primary fact” and those which raise issues of judgment. For example, questions about “suitability” and “intentional homelessness” may involve both disputes of fact and of judgment. Both types of question might arise at the outset or what starts out as a purely factual issue may quickly merge into arguments about judgment. In many, if not most, cases, such factual findings will be staging posts on the way to the final determination under Part VII of the 1996 Act. Thus, an appeal system which rested on drawing such distinctions would be likely to result in a large amount of litigation and argument simply about the nature of the appeal before the substantive issues were ever dealt with.
72. Finally, the Government submitted that the alleged breach in the present case was not fundamental. Where a lack of independence or impartiality was alleged, it was necessary to look at the safeguards that existed to determine whether the lack of impartiality or independence had any real content. In this regard, there were a number of critical distinctions from the position in Tsfayo : the Homelessness Review Officers had professional expertise in the area of housing; they were employed under a contract of employment; and they had no democratic or financial responsibility for the Council. Hence, the critical factors which led to the Court finding a lack of impartiality in Tsfayo did not exist in the present case.
73. Moreover, there were further procedural safeguards in the present case: the statute provided for an internal review of any decision; if carried out by Council officers it had to be by a more senior officer; and there was an appeal to the County Court on a point of law.
74. The Court notes at the outset that the Homelessness Review Officer in the present case was an officer of the Council which was alleged to owe the duty to the applicant and, as such, her role was to conduct an internal review to determine the extent of the Council ’ s statutory obligations. Although there is no reason to doubt the Officer ’ s impartiality (compare, for example, the position in Tsfayo, where the members of the Housing Benefit Review Board had a direct financial interest in the outcome of the review), the Court does not consider that she can be regarded as an “independent tribunal” within the meaning of Article 6 § 1 of the Convention. Indeed, the Court recalls that this was the conclusion reached by the House of Lords in Runa Begum (see paragraph 36 above) and that conclusion was not in dispute before the domestic courts in the present case.
75. The Court recalls that even where an adjudicatory body determining disputes over “civil rights and obligations” does not comply with Article 6 § 1 in some respect, no violation of the Convention can be found if the proceedings before that body are subject to subsequent control by a judicial body that has “ full jurisdiction ” and does provide the guarantees of Article 6 § 1 ( Albert and Le Compte v. Belgium, 10 February 1983, § 29, Series A no. 58 and Sigma Radio Television Ltd, cited above, § 151 ).
76. Both the Commission and the Court have acknowledged in their case-law that the requirement that a court or tribunal should have “full jurisdiction” (“ pleine juridiction ” in French) will be satisfied where it is found that the judicial body in question has exercised “sufficient jurisdiction” or provided “sufficient review” in the proceedings before it (see, amongst many authorities, Zumtobel v. Austria, 21 September 1993, §§ 31-32, Series A no. 268 ‑ A; Bryan, cited above, §§ 43-47; Müller and others v. Austria (dec.), no. 26507/95, 23 November 1999; and Crompton v. the United Kingdom, no. 42509/05, §§ 71 and 79, 27 October 2009).
77. In adopting this approach the Convention organs have had regard to the fact that in administrative - law appeals in the Member States of the Council of Europe it is often the case that the scope of judicial review over the facts of a case is limited and that it is the nature of review proceedings that the reviewing authority reviews the previous proceedings rather than taking factual decisions. It can be derived from the relevant case-law that it is not the role of Article 6 of the Convention to give access to a level of jurisdiction which can substitute its opinion for that of the administrative authorities. In this regard, particular emphasis has been placed on the respect which must be accorded to decisions taken by the administrative authorities on grounds of “expediency” and which often involve specialised areas of law (for example, planning – Zumtobel, §§ 31 and 32, and Bryan, § 47, both cited above; environmental protection – Alatulkkila and Others v. Finland, no. 33538/96, § 52, 28 July 2005; regulation of gaming – Kingsley v. the United Kingdom [GC], no. 35605/97, § 32, ECHR 2002-IV).
78. As has been explained in previous case-law (for example, Sigma Radio Television Ltd, cited above, § 154), in assessing the sufficiency of a judicial review available to an applicant, the Court will have regard to the powers of the judicial body in question (see for example, Gradinger v. Austria, 23 October 1995, § 44, Series A no. 328 ‑ C; Bryan, §§ 44-45, cited above; Potocka and Others v. Poland, no. 33776/96, § 55, ECHR 2001 ‑ X; and Kingsley, § 32, cited above), and to such factors as (a) the subject ‑ matter of the decision appealed against, in particular, whether or not it concerned a specialised issue requiring professional knowledge or experience and whether it involved the exercise of administrative discretion and if so, to what extent; (b) the manner in which that decision was arrived at, in particular, the procedural guarantees available in the proceedings before the adjudicatory body; and (c) the content of the dispute, including the desired and actual grounds of appeal (see, inter alia, Bryan, §§ 44, 45 and 47, and Crompton §§ 71 – 73 and 77, both cited above).
79. It is therefore necessary for the Court to examine the whole of the legislative scheme in question, including the safeguards offered to individual claimants, in order to determine whether the procedure provided for resolution of disputes over the “civil rights and obligations” thereby created is compliant with Article 6 § 1; including, in particular, for the purposes of the present case, whether the adjudicatory process by which the applicant ’ s “civil rights” were “determined”, taken as a whole, provided a due enquiry into the facts.