But as any practitioner knows, homeless persons as a class not only routinely receive decisions that are unlawful, irrational and in breach of procedural duties. They also, as the HLPA submission to the ODPM committee homelessness inquiry recognised, often have their applications for assistance prejudiced by the lack of housing and resources, pressure on decision-makers to find that no duty exists, and in places a culture of adverse decision-making. I would add an important additional factor – a significant proportion of homeless officers are not sufficiently trained or equipped to make quasi-judicial decisions.

There is a persuasive argument that the possibility of an independent and impartial fact finder presents a ray of hope, in that it might result in a significant improvement in first instance decision-making. Can the current discrepancy between housing and the independent oversight of facts in other areas of welfare law be justified when the provision of shelter is so fundamental? Sure, the issues raise very difficult practical and policy issues. But Community Law Partnership should be commended for asking the question.

What we’re seeing here is a debate which goes much wider than homelessness and s.202 reviews.

There is a tension between the requirements of Art. 6 and the ECtHR requirement for a decision maker (or, more commonly, the appellate body) to have “full jurisdition” over facts and law.

Given that the High Court on JR is only concerned with law, not facts (although, after Doherty v Birmingham CC / Tweed v Parades Commission etc that is still right?), the ECtHR does not, as a general rule, think that JR is adequate for the purposes of Art. 6 (and Art. 13 – right to an effective remedy).

The difficulty for the UK is that:
(a) the Government doesn’t want to create an independent appeals system for every single administrative decision. This would be expensive and slow the decision making process of public bodies;
(b) the High Court does not want to have to deal with “full jurisdiction” appeals from every single administrative decision, because it would cause the work of the High Court to slow even further and there are other (more important?) things that High Court Judges think they should be doing (if you doubt this, remember that High Court judges were very much in favour of moving s.204 appeals to the county court and ousting JR, essentialy for these reasons).

I’m not sure what the answer is, in practical or policy terms.

Clearly there are strong arguments against the courts being required to make findings of fact in homelessness appeals (although why not do away with in-house reviews, have a right of appeal to an independent and impartial tribunal, and then oversight on JR principles). Its just seems, to me at least, this judgment is at odds with Tsfayo and the discrepancy doesn’t seem to have been convincingly resolved.

I understand one of the judges remarked at the hearing that their judgment, should the appeal be unsuccessful, might merely be “a staging post” on route to somewhere else. If their Lordships refuse leave to appeal on the basis they dealt with the issue in Runa Begum, can permission be sought in Strasbourg notwithstanding that refusal?