Birch and Others v UK Application no. 26393/10

Birch arises out of possession proceedings brought by Bedfordshire DC on a property which had been leased, short term, to a housing association which had, in turn licences a co-op group to grant assured shorthold tenancies to occupiers on its behalf. The lease had been granted in 1993 and expired in 1996. It was not renewed but negotiations went on and the co-op continued to grant ASTs to occupiers. In 2006, Bedfordshire brought possession proceedings. The judge granted possession, considering himself bound by Kay v Lambeth, and refused to consider the art 8 defence. The Court of Appeal dismissed the appeal on the basis that the facts were those of Kay rather than Doherty (our report here). The Supreme Court refused permission.

Since then, the applicants have all moved out, some into private accommodation and some homeless, with some suffering physical and mental health consequences. The property remains undeveloped and empty.

The ECtHR notes the recent history of Pinnock and Powell and poses the question:

Was the interference with the applicants’ respect for their home, within the meaning of Article 8 § 1 of the Convention, necessary in terms of Article 8 § 2?

Wilkes & Wilkes v UK Application no. 56387/07

The Wilkes had an introductory tenancy from Blackpool BC. Following complaints involving some 57 incidents of ASB, including allegations of violence, threats to neighbours and council officers and an incident of indecent exposure, Blackpool served statutory notice to terminate the tenancy, on grounds of ASB in January 2007. The Wilkes requested a review of the decision to seek possession. The review panel consisted of a five-member panel of the Employment and Appeals Committee made up of elected councillors who had formed no part of the original decision-making process. the Wilkes did not attend, but via a solicitor, sent a letter admitting many of the incidents alleged. On 5 February 2007, the panel decided the decision to seek possession was justified. Possession proceedings began two weeks later. The defence was art 8 and an argument that the review panel was not impartial or independent so that there was a breach of article 6.1. There was also a public law defence.

At trial, the Recorder found that the public law defence had no realistic prospect of success and summarily dismissed it. On the human rights defences, the Recorder considered himself bound by R (McLellan) v Bracknell Forest Borough Council and Reigate and Banstead Borough Council v Benfield and another [2002] QB 1129, in which the Court of Appeal stated that in the context of introductory tenancies, there was simply no room to conclude that there might be any incompatibility with the Convention. He therefore struck out the applicants’ defence. Permission to appeal was refused.

The ECtHR notes the intervening history of Pinnock and Powell, and poses the following questions:

1. Was the interference with the applicants’ respect for their home, within the meaning of Article 8 § 1 of the Convention, necessary in terms of Article 8 § 2?

2. Was the review panel an impartial and independent tribunal as required by Article 6 § 1 of the Convention?

Comment

While Birch must surely have a predictable outcome, following the decision in Kay v UK (our report), Wilkes introduces something else. The article 6 question will give the ECtHR the chance to give its view on ‘review panels’ in determining Introductory tenancies (and presumably by extension Demoted tenancies). It may well turn out that the Pinnock approach would satisfy the article 6 issue for the future, even if the review panel is not art 6 compliant, but nonetheless an interesting prospect (although not perhaps the most prepossessing facts on which to be running such a case). Hat tip to the Garden Court Bulletin for letting us know about these.

*One for those of a certain vintage.

We’re indebted to Legal Action’s ‘Recent Developments in housing law’ for this one, not least because the European Court of Human Rights judgment is only available in French, and my legal French is a bit insuffisant. The translation is welcome…

This is a very interesting judgment in respect of the Court’s attitude to Article 1 Protocol 1 rights, Article 8 rights, statute and margins of appreciation, albeit perhaps of no immediate application outside Portugal.

Mr & Mrs Ferreira held the life interest in a flat. In 1980, they let it to tenants. In 2002, they decided they needed the property for their son and his growing family. They applied to the court to have the tenant’s lease terminated. The District Court refused their application, applying a law which prevented the termination of a lease in any circumstances where the tenant had been living in the property for more than 20 years. The Court of Appeal and Constitutional Court dismissed the F’s appeals. The Fs applied to the ECtHR complaining of a breach of their Art 1 Protocol 1 rights.

The ECtHR found that their Art 1 Prot 1 rights were interfered with by the law complained of. However, the question was whether the interference was justified, as the article shall not ‘in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest’.

The law pursued a legitimate goal of social protection for tenants and tended to promote the economic well-being of the country (Barreto v Portugal App No 18072/91). This was an area in which states had a wide margin of appreciation.

States may justifiably and proportionately afford broader protection to tenants with longer and more secure leases. The Court could not call into question political choices aimed at providing such increased protection. The law served the greater interest and was not manifestly unreasonable.

The Portugese Court had not been able to put the interests of the property owners and the tenant in the balance, the absolute terms of the law after the 20 year period were not per se incompatible with the Convention (Evans v UK [GC] App No 6339/05 at para 89, Salabaiku v France App No 10519/83 at para 28). A clear rule promoted judicial certainty and gave clarity in a sensitive area. Such absolute rules were not rare (James v UK App No 8793/79 para 47).

The ECtHR gave decisive weight to the fact that the law was already in force when the Fs let the property in 1980. They had therefore known that they could request termination of the lease if they or their children needed housing at any point beforre the 20 years, but would be debarred from terminating the lease thereafter.

The restriction on the F’s rights was not disproportionate or unjustified and struck a fair balance between the property owner’s rights and the interests of the community. Complaint rejected.

This admissibility hearing was the culmination of a long, long story. We reported the Court of Appeal judgment and the House of Lords judgments. The very abbreviated history was that in 2005, the Ofulues had lost a possession claim for a property on the basis that the Bosserts, who had lived in the property since 1981, had gained title through adverse possession.

The Ofulues appealed on the basis that the law on adverse possession constituted a breach of Article 1, Protocol 1,and Art 6, and further that i) the Bosserts had acknowledged that they were tenants in a defence to possession proceedings in 1990, and ii) that the Bosserts had acknowledged title (so as to re-start time) in a without prejudice letter of 1992. The Court of Appeal held that, following Pye v United Kingdom [2007] ECHR 44302/0, adverse possession law was Art 1, Prot 1, and Art 6 compliant. On the acknowledgements of title, the defence to the possession claim did not prevent the ‘defendant’ occupant having the requisite intention to possess – a person believing themselves a tenant may still have to requisite intention to possess. Crucially, the Court of Appeal also held that there was no reason to overturn the usual rule on ‘without prejudice’ correspondence, as the letter was clearly part of an attempt to settle the dispute.

On appeal to the House of Lords, the Olufues argued that the defence to possession claim was an admission of title that persisted until the proceedings were struck out, some 6 years later, and that the ‘without prejudice’ letter should be considered as an acknowledgement of title. The HoL had no problem in disposing of the argument on the possession defence – s.29(2) referred to the date of acknowledgment – signing and service, but no later.

On the ‘without prejudice’ letter, their Lordships split 4 to 1. The majority held, in the words of Lord Neuberger:

that, save perhaps where it is wholly unconnected with the issues between the parties to the proceedings, a statement in without prejudice negotiations should not be admissible in evidence, other than in exceptional circumstances such as those mentioned in Unilever [2000] 1 WLR 2436, 2444D-2445G. It is not only that the offer contained in the relevant sentence of the Letter was connected with the issue between the parties in the earlier proceedings.

Public policy stood in the way of making such an exception. The ECtHR Grand Chamber’s decision in Pye v United Kingdom on Art 1 compliance noted.

Ms Ofulue applied to the ECtHR. She claimed that the House of Lords decision amounted to a breach of her rights under:

• Art 1, protocol 1, in that she had been deprived of her property by the declared inadmissibility of the ‘without prejudice’ correspondence. The without prejudice rule did not serve a legitimate public interest, or at least that the interference with her rights did not strike a fair balance between the general interest and the protection of her individual property rights.
• Art 6, as she was not afforded a reasonable opportunity to present her case under conditions that did not place her at a substantial disadvantage.
• Art 10, in that the House of Lords finding that the ‘without prejudice’ rule applied to the relevant letter (written by the Bosserts’ solicitor, lest we forget) violated her rights to free expression because it failed to strike a fair balance between her rights and the public policy justification for the rule.

The ECtHR decided:

On Art 1, Prot 1, Pye v UK was clear in agreeing that the adverse possession regime was Art 1 compliant and there was nothing different in this case to cause the Court to consider that the Art 1 case might be admissible. The conditions is Pye were no different in consideration of proportionality of the adverse possession regime:

35. The Court recalls that the Grand Chamber in Pye also found that applicants in adverse possession cases were not without procedural protection as it was open to them throughout the limitation period to bring an action for possession or, on the expiry of the limitation period, to argue before the domestic courts that the occupiers of their land had not been in adverse possession. In the present case it was clearly open to the applicant to bring an action for possession at any time and, as indicated above, she did so on two separate occasions. Moreover, there is no indication that the delay in bringing the second set of proceedings was due to any reliance on the letter of 14 January 1992.

36. It was also open to the applicant on the expiry of the limitation period to argue that the Bs had not been in adverse possession. The only restriction on this right was the domestic court’s refusal to admit in evidence the letter of 14 January 1992. However, the Court has already held that this decision did not render the proceedings as a whole unfair in violation of Article 6 § 1 of the Convention. It was for the domestic courts to balance the interests of the applicant against the interests of public policy and they did so in a carefully reasoned decision, taking full account of the arguments put forward by the applicant.

On Art 6:

25. As the purpose of the “without prejudice” rule is to encourage litigants to reduce the burden on the courts by settling their differences rather than litigating them to a finish, it undoubtedly has a legitimate objective. As to the issue of proportionality, the Court must assess the contested limitation placed on the applicant’s rights under Article 6 in the light of the particular circumstances of the case.

26. The Court observes that in the present case the applicant had the benefit of adversarial proceedings. At the various stages of those proceedings she was represented by counsel who was able to submit the arguments he considered relevant to the applicant’s case. There is therefore no indication that the applicant was not given a fair opportunity to present her case at any stage of the proceedings.

27. With regard to the letter of 14 January 1992, the domestic courts fully considered the arguments put forward by the applicant. However, the majority of the House of Lords were of the opinion that carving out an exception to the “without prejudice” rule to permit the admission of the letter of 14 January 1992 would not be consistent with the public policy behind the rule. The majority were particularly concerned that creating such an exception could potentially cause huge practical difficulties while also whittling down the protection afforded to parties to litigation.

28. The Court does not consider that the very essence of the applicant’s right to a fair trial was impaired. While the outcome of the proceedings was unfavourable to the applicant, it is clear that both the first-instance and appellate courts carefully weighed the demands of the applicant against the demands of the general interest before concluding that the letter could not be admitted. In view of all the circumstances of the case, the Court finds that this decision did not render the proceedings as a whole unfair.

On article 10, this argument had quite simply not been put before the domestic courts, so the domestic remedies could not be considered exhausted in this regard.

[This latter is probably the only point where the ECtHR go wrong, in my humble opinion. There is no domestic remedy in respect of an argument not previously raised when the case has been to the House of Lords, although that does not excuse the appellant for not having raised it before. However, I suspect that the ECtHR were looking for a formula to dismiss the Art 10 'freedom of expression' argument without having to actually say that it was completely bonkers. In what conceivable way is the inadmissibility in evidence against one's opponents of a letter by them a restriction on one's freedom of speech? One can say what one wants. The issue is of evidence such as to support factual assertions. No freedom of speech issue there.]

So there we are. It has been a long story, which has principally served to confirm existing domestic and ECtHR law on adverse possession and the ‘without prejudice’ rule. Given Pye v UK, it was always going to be an uphill struggle for Ms Ofulue, and it was, to say the least, unlikely that the ECtHR would interfere with the ‘without prejudice’ rule where the highest domestic court had spent some considerable time on the issue, expressly balancing the competing interests in the case and coming down on the side of public policy.

This is the Supreme Court judgment on the appeal from the Court of Appeal of what was then called Ali & Ibrahim v Birmingham City Council [2008] EWCA 1228 [our report here]. At issue was whether the Housing Act 1996 s.202 review and s.204 appeal to the County Court procedure was compatible with Article 6 of the European Convention on Human Rights. Or pace Lord Hope:

i) Does an appeal under section 204 of the 1996 Act involve the determination of a “civil right” for the purposes of article 6(1) either generally or in cases such as the present ones where the issue is simply one of fact?
ii) If so, does article 6(1) require that the court hearing such an appeal must have a full fact-finding jurisdiction so that it can determine for itself a dispute of fact either generally or in a case such as these?
iii) If so, can section 204 of the 1996 Act be read compatibly with article 6(1) so as to entitle the county court to exercise that jurisdiction? If not, then a declaration of incompatibility will have to be made.

The short answer by the Supreme Court is:

i) no it doesn’t; and
ii) possibly obiter in view of i) but, no it doesn’t; and
iii) doesn’t arise

With the surprise ending out of the way, let’s look at how the Court got there, as this was a case where, as Lord Hope announced in the main judgment, the Court took ‘the opportunity to introduce a greater degree of certainty into this area of public law’.

A little history
The appellants had both made homeless applications to Birmingham CC and Birmingham had accepted the full housing duty. Both had been made offers of permanent accommodation which they had refused as unsuitable. Birmingham decided they were suitable and discharged duty under s.193 Housing Act 1996. Both applied for review and raised the issue that they had not received offer letters setting out the consequences of refusal as required under s.193(5). Birmigham said that the letters had been sent. Both s.202 reviews upheld Birmingham’s view that the letters were sent and had been received and that the offers were suitable. The s.202 reviews were carried out by more senior officers of Birmingham CC as per the standard review process. Both appellants appealed to the County Court under s.204 and sought to raise non-receipt of the letter as a factual issue to be determined. In both cases, the court refused to consider this on the basis that appeal was on points of law only and that factual issues were for the Council to determine.

The appeal to the Court of Appeal was on the basis that discharge of duty under s.193 was a determination of a civil right, that Art 6 was thereby engaged and that restricting determination of fact to the local authority was not compatible with the Art 6 requirement for determination by an independent tribunal. The Court of Appeal held that the matter fell under Runa Begum v Tower Hamlets LBC [2003] UKHL 5 and that the finding in Tsfayo v UK [2006] ECHR 981 did not change it.

The Supreme Court
The Appellants argued on the main Art 6 point that:

the right to accommodation under section 193 of the 1996 Act is a civil right within the meaning of article 6(1) of the Convention. [...] The effect of the statutory scheme was to confer on the appellants an entitlement to accommodation. This was a right, the correlative of which was a duty on the local housing authority which subsisted until it ceased to be subject to the duty in one or other of the ways provided for by the statute. The right to accommodation was an individual economic right which flowed from specific rules laid down in a statute, according to the Strasbourg court’s reasoning in Salesi v Italy 26 EHRR 187 and Mennitto v Italy 34 EHRR 48. From this it followed that the reviewing officer’s decision, which brought that right to an end, was a determination of the appellants’ civil rights within the meaning of the article.

and

Although a right to accommodation was a right to a benefit in kind rather than a right to a financial payment or a subsidy. But he said this did not in itself disqualify it from being a civil right. A series of Russian cases beginning with Teteriny v Russia, application no 11931/03, 1 July 2005, BAILII: [2005] ECHR 449, and ending with Nagovitsyn v Russia, application no 6859/02, 24 January 2008, BAILII: [2008] ECHR 73, indicated the contrary. It was held in those cases, which arose out of failures to comply with judgments by which the applicants were to be provided with accommodation of a certain size in a specified location, that there had been a violation of article 6(1).

Birmingham did not mount a challenge to this argument, preferring to take the view that if this was a civil right, it was at the border of such cases. Birmingham preferred to deal with the specific cases before them.

However, the Secretary of State for Communities and Local Government, intervening, mounted a full scale opposition to the ‘right to accommodation’ being a civil right for Art 6(1) purposes, on the basis that this would have wide ramifications for administrative practice in many area, not just homeless decisions. The SoS argued that:

Strasbourg case law had limited civil rights to those which were related to individual economic rights which were enforceable through the courts. Any right under section 193 was subject to a large number of decisions that were left to the judgment of the local housing authority. There was also a judgmental decision as to how any such right was to be delivered, as the duty under section 193 was merely to secure that accommodation was available. The inclusion of benefits in kind such as these in the determination of rights protected by article 6(1) was a step further than the Strasbourg court had gone, and this Court should decline to take it.

Lord Hope’s main judgment, with which Lady Hale and Lord Brown agreed, traced the history of cases before and after Runa Begum. His view is that the European cases before Begum, in as much as they applied to public benefits had initially been concerned with benefits analogous to private insurance and then extended in a limited manner to social benefits not analogous to private insurance but where what was at issue was a specific sum of money not at the discretion of the authority concerned and where the decision at issue was directly decisive for the benefit at issue (Salesi v Italy 26 EHRR 187, Mennitto v Italy 34 EHRR 1122).

In Runa Begum (2003), the House of Lords declined to take a step further than the existing Strasbourg case law and, while declining to decide whether a right to accommodation under Part VII Housing Act 1996 was a civil right, there were clear indications in the opinions of Lords Millett, Hoffmann and Bingham that they would, if pressed, decide against, principally on the basis that there was too large a degree of discretion in the provision of accommodation for it to be equated to a right to a specific sum.

Since Begum, there has been Tsfayo v United Kingdom 48 EHRR 18. However, in Tsfayo it was not disputed that the case concerned the determination of a civil right and the case fell within the mainstream of those mentioned above. Tsfayo takes the court no further on the issue of a benefit in kind as a civil right.

Stec v United Kingdom (2005) 41 EHRR SE295 and Loiseau v France application no 46809/99, 18 November 2003 appear to contain suggestions that a civil right is an ‘assetable right’ akin to a ‘private right arguably recognised under domestic law’ or ‘an individual right of which the applicant may consider himself the holder’. These suggestions do not support the view of a benefit in kind as a civil right. Lord Hope quotes himself in R (A) v Croydon London Borough Council [2009] UKSC 8, where the issue was argued, as saying ‘it could be asserted with reasonable confidence that the local authority’s duty, which is to provide accommodation for any child in need within their area who appears to them to require accommodation as a result of the factors mentioned in that subsection, did not give rise to a civil right’.

The Russian cases, while they did concern accommodation, were all about judiical orders that accommodation be provided. There was a clear argument for taking entitlement by judicial order as a civil right, but this was distinct from the right asserted here.

On this basis, Lord Hope finds:

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. The appellants’ right to accommodation under section 193 of the 1996 Act falls into that category. I would hold that article 6 was not engaged by the decisions that were taken in the appellants’ cases by the reviewing officer. [para 49]

On the issue of whether the review/appeal process was Art 6 compliant, although there was no need to find on it, Lord Hope adds that while the argument that the issues in these cases were perhaps closer to Tsfayo than Begum in that the questions at stake were purely ones of fact, whether the letters were received or not was only:

one among a number of questions that had to be addressed to determine whether the respondents’ duty under section 193 had been discharged. They are dealt with together in section 193(5) in a way that shows that they are all interlinked. The scheme of the Act is that they are to be dealt with together both at the initial stage and, in the event of a review, by the reviewing officer. To separate out questions as to whether the formalities laid down by the subsection were complied with from those as to whether the accommodation was suitable would complicate a scheme which, in the interests of speed and economy, was designed to be simple to administer. [para 53]

The decision about whether the letter was received or not was only a staging post along the way. In any event the ECtHR had not given any indication that it disapproved of Runa Begum. The ratio of the decision in Begum should be applied and on that basis “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).” [para 54].

Lord Collins agrees with Lord Hope, with some further discussion of the Strasbourg cases.

Lord Kerr also agrees, but with more misgivings. He had difficulty in finding a principled distinction between social security payments and social welfare provision, but the lack of analogy with private insurance and the extent of discretion in both establishing entitlement and discharging the duty in the ‘right to accommodation’ indicate the difference.

Lord Kerr is also uneasy about judicial review (principles) being sufficient review by an independent tribunal of an administrative review decision. Where the purpose if to remedy a lack of independence at first instance (Tsfayo) and the issue at stake is a purely factual one, judicial review seems inapt, although suited to consideration of evaluative decisions.[para 78]

Nevetheless, Runa Begum continues to ‘occupy this field’, and it is true that Part VII decisions partake of both factual inquiry and discretionary judgment. ‘The nature of the scheme as a whole dictates the answer’.

Brief comment (pending further thought)
I doubt that this judgment comes as a surprise to many. The Court of Appeal more or less sent the case on its way to the Supreme Court with a request that the Art 6/Civil right issue be clearly determined and so it has been. The perceived danger of the spread of the judicialisation of dispute procedures into the administrative realm is set out clearly.

I confess to finding the arguments based on the extent of the discretion involved in the evaluation of whether a duty is owed under Part VII to be perhaps exaggerated, and maybe likewise the views on the extent of the discretion over the means by which the duty to accommodate may be discharged. However, it is clear that the view that ‘the content of the statutory duty lacks precision’ (Lord Collins) is what enabled the Court to separate a right to accommodation from a right to benefits.

Strong rumour has it that this case may now be taken to Europe. Given the analysis of the Strasbourg cases on the issue set out in this judgment, that certainly would settle the question of whether the ECtHR has reached the limit of its expansion of the concept of a Civil Right under Art 6 or not.

In the meantime – business as usual.

This was a s.204 appeal, heard by Mr Recorder Hollington QC, of a s.202 review decision, purportedly by Barnet, upholding their decision that an offer of temporary accommodation had been suitable. The s.202 decision was actually made by Mr Minos Perdios, the director of Housing Reviews Limited (HRL), a private limited company.

The s.204 appeal was on grounds that:
1. The review was a breach of Art. 6, as it was not a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law
2. Alternatively, the review was vitiated by common law bias, as a fair minded observer would perceive there to be a real possibility of bias towards Barnet.
3. The decisions should be quashed on its merits as failing to take into account the level of support the appellant received from family, making errors of fact on traveling times, unreasonable in its decision that the appellant did not need the help of her family and unfair in not giving the appellant a chance to respond to the finding that the appellant could have found a new local nursery. (The issue of suitability turned on the location of the property).

The Court held that the review was vitiated by the appearance of bias on the part of Mr Perdios, but went to to consider the other grounds of appeal, including finding that there was an Art 6 breach in delegating the review decision to an independent contractor, and that the decision was flawed in that all material factors relating to family support had not been taken into account.

On apparent bias, the Court noted that the website for HRL stated:

We have dealt with over 3,500 reviews with unparallel [sic] success. Out of these cases 158 have been appealed in the County Court with 95% of cases successfully defended.

and under ‘course aims’:

The course will also provide ideas on writing s.184 decision letters. Too often courses do not provide homeless officers with the tools needed to make adequate enquiries, be able to obtain all the relevant information during the crucial initial interview through effective questioning and use the information obtained to write a ‘watertight’ s.184. The course also provides practical advice on how to write a ‘watertight’ s.184.

The Court found that the references to ‘success’ and to ‘watertight’ decision-making could only be references to findings adverse to the applicant. It was wrong for a person acting in a quasi-judicial capacity to be focussing on such cases. In a position where the only relationship with Barnet was commercial, there were no professional constraints or procedural safeguards beyond those in the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, and no evidence of Mr Perdios’ skills or experience beyond a mention that he used to be a local authority review officer, there was a clear appearance of bias in his choosing to promote himself in these terms.

[A list of Councils for which Mr Pedios/HRL has provided services is on HRL's site, here. The site has been edited a little, removing the reference to success in appeals, but the passage on 'watertight' s.184s is still there.]

On Article 6, Barnet had relied on the Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996 and the 1999 Regulations, arguing that it was permitted by Parliament to contract out the review functions and no other safeguards had been imposed other than the 1999 Regs. The court should be very reluctant to hold Parliament’s intention fell foul of Art 6.

However, the Court found that, while there is a power to contract out the s.202 function, it depends on the terms and circumstances of the sub-contracting as to whether there is an Art 6 breach. The 1996 Order contemplates that the Local Authority will exercise its sub-contracting power in a manner as will avoid a breach, e.g. by not contracting to an organisation whose integrity, competence and experience were clearly deficient, even leaving bias out of the picture. No compliance with the procedural safeguards in the 1999 Regs nor any power of judicial review could cure the manifest defects in such a case. And deciding Art 6 compliance requires a view to the composite decision-making process, including but not limited to the judicial review process (R (Alconbury Developments Limited) v SS for the Environment, Transport and Regions [2003] 2 AC 295, Runa Begum [2003] 2 AC 430 and Adan v Newham LBC [2002] 1 WLR 2120. Ironically, in Adan, the applicant’s submisison was that the LA was obliged to contract out, to ensure independence. This was rejected by the Court of Appeal).

Hale LJ and Brooke LJ in Adan agreed that the constitution and procedures of the body to whom reviews were contracted out would be relevant to judging compliance with Art 6. In Runa Begum, the Lords expressed concerns over the Art 6 compliance of the independence of ‘a contracted fact finder, whose services could be dispensed with’ (Lord Hoffmann) and Lords Bingham and Millett doubted that ‘the exercise of quasi-judical powers is a function of the authority within the meaning of the 1996 Order’ and doubted that 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 for art 6(1)’. These were all dicta in those cases, though.

The Court found that the review was ‘a classic administrative decision, involving a high degree of discretion and subjective judgment’. The decision maker must be expert and also take into account policy considerations,, such as local housing and financial constraints. The ‘was a decision that Parliament had delegated to a democratically accountable institution, not the courts.’ Article 6 respected that democratic principle (per Lord Hoffmann in Alconbury, para 69).

When Barnet contracted out the review function to a person such as Mr Perdios and HRL, the decision-making ceased to be that of a democratically accountable institution. The respondent had relied on that very independence in arguing no breach of Art 6. It follows that all the reasons for the deference to the Local Authority’s judgment and discretion that are present in Article 6 fall away.

In order to comply with Art 6, contracted out review functions would either have to mean greater powers of review on merits for the courts than are given in s.204 or greater safeguards in the procedure of the review process than those in the 1999 Regulations. The review process in this case breached Art 6.

[Edit: It should be noted that it was common ground in this case that it did involve a determination of civil rights, but Barnet expressly reserved the position to argue to the contrary in the House of Lords.]

This is, of course, just a County Court s.204 appeal. It is also primarily decided on the appearance of bias rather than the article 6 point, but the argument is interesting and clearly has further to go. Two previous s.204 appeals on the issue are mentioned in relation to Mr Perdios’ review decisions and Art 6 – HHJ Dedman at Southend on Sea County Court in April 2008 found no objection, while HHJ Barnett QC at Colchester Couty Court in October 2008 held there was a valid objection. We’d be happy if anyone with any further information on those cases would contact us.

So, we’ll see what the Court of Appeal makes of the issue this time round. Again, any information on those forthcoming appeals gratefully received.

The appeal, was by general consent, on one issue alone. Does the internal review procedure for reconsideration by local housing authorities of a decision to terminate a demoted tenancy established by sections 143E-143F of the Housing Act 1996 and the Demoted Tenancies (Review of Decisions (England) Regulations 2004 violate Article 6 of ECHR?

My previous notes contain the meat of the issue. The argument, extended from the High Court Tsfayo issues, was that the availability of Judicial Review could not satisfy Art 6 requirements in regard to the Local Authority review of a decision to make a mandatory possession claim for a demoted tenancy, because the issues in the review, as in this case, are often matters of fact and not amenable to JR.

Thus, argues the Appellant, there is no impartial judicial tribunal for the possession claim other than ensuring the procedure has been followed via JR or County Court (as in Donoghue and McCann in the ECtHR- but these were Art 8 cases)

The stumbling block was a Court of Appeal decision on a similar set of procedures in Introductory Tenancies, McLellan v Bracknell Forest Borough Council [2001] EWCA Civ 1510 [2002] QB 1129, which held that Art 6 was engaged, but the provisions were compliant.

The Court of Appeal decided that the differences between introductory and demoted tenancy provisions were not enough to distinguish McLellan. The House of Lords had in effect approved McLellan in Kay v Lambeth London Borough Council [2006] 2 AC 465.

There follows an interesting discussion of McCann. It is pointed out that McCann concerns a ‘bypassing’ of the procedural and statutory processes of secure tenancy. In short, the Court of Appeal considers that Art 6 and Art 8 are closely entwined, such that it is unlikely that a procedure that was Art 8(2) compliant would separately be found in breach of Art 6, and in the McCann judgment, there was

nothing to indicate that the European Court disapproved as violating Article 8 (or indeed Article 6) any of the schemes which make up what the court describes as “a complex system for the allocation of public housing.”

This looks like the first attempt at a limitation of the impact of McCann seen in the wild.

In conclusion:

• Contra the High Court judgment, it must be a local authority officer that conducts the review.
• There is no good reason to change the view in McLellan that Art 6 is engaged, contra the High Court judgment.
• However, there is no statutory requirement that the review involve findings of fact and, even if they do, they are ‘simply staging posts on the way to much broader judgements’ in the exercise of discretion, which remain amenable to JR.
• There is no material distinction between the introductory and demoted tenancy schemes inasmuch as they are both ‘within recognised categories of administrative decision-making’. McLellan also covers demoted tenancies.

Appeal dismissed.

This judgment will certainly merit some further thought, in particular on the treatment of McCann.

So I just want to note that in MB, the House of Lords went some way towards ending the loathsome, offensive and unjust practice of control orders being made on the basis of secret evidence never put to the Defendant, whose only representation would be a ‘special advocate’ unable to take the client’s instruction.

Unfortunately, the majority only went as far as saying that a control order made mainly on the secret evidence constitutes a breach of Art 6 and didn’t take the further step of declaring the whole procedure as set out in the Schedule to the Prevention of Terrorism Act 2005 incompatible. But it is a start.

Given the farcical situation that we know has occurred in at least one case in the SIAC (and who knows how many more may have been missed), I’m not sure that a remittance to the Administrative Court is a sufficient safeguard. But at least the principle that a control order must be justifiable on the basis of the open evidence has now been set.