Just a quick note on the Admin Court decision in Gilboy, R (on the application of) v Liverpool City Council & Anor [2007] EWHC 2335 (Admin).

The Anti-Social Behaviour Act 2003 modifies Housing Act 1985 and 1996 to allow a secure tenancy to be changed to a ‘demoted tenancy’ via an application by the Council to the Court for a ‘demotion order’, on the basis of anti-social behaviour. The demoted tenancy has lesser security and rights. In fact, in most ways, a demoted tenancy is functionally identical to an introductory tenancy.

The only difference is that where a local authority decides to move to possession proceedings against a demoted tenancy, there is a necessary procedure to follow, set out in Part V Housing Act 1996. Under s.143E(2)(d) the tenant must be notified of their right to seek a review of the decision to bring possession proceedings. The nature of the review is set out in s.143F:

(1) Before the end of the period of 14 days beginning with the date of service of a notice for possession of a dwelling-house let under a demoted tenancy the tenant may request the landlord to review its decision to seek an order for possession.

(2) If a request is made in accordance with subsection (1) the landlord must review the decision.

(3) The Secretary of State may by regulations make provision as to the procedure to be followed in connection with a review under this section.

(4) The regulations may include provision –

(a) requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision;

(b) as to the circumstances in which the tenant is entitled to an oral hearing, and whether and by whom he may be represented at the hearing.

(5) The landlord must notify the tenant –

(a) of the decision on the review;

(b) of the reasons for the decision.

(6) The review must be carried out and notice given under subsection (5) before the date specified in the notice of proceedings as the date after which proceedings for possession of the dwelling-house may be begun.

There are Regulations governing the review process, but of limited importance to the issue here.

The challenge in this case was to the validity of the review of the decision being carried out by another officer of the local authority – a challenge brought under Art 6 – ‘right to independent and impartial tribunal in determining civil rights and obligations or criminal charge’.

McLellan v Bracknell Forest Borough Council [2001] EWCA Civ 1510, [2002] QB 1129 decided that a similar review provision for determining Introductory Tenancies did engage Art.6, but that there was an adequate remedy in Judicial Review.

The argument here was that McLellanhad been superseded by Tsfayo v UK [2007] ECHR 656, an ECHR case which said the Housing Benefit and Council Tax Benefit Review Board was not an independent tribunal as the officers of a local authority sat in judgment on the decision of the local authority on the entitlement to HB payment by the local authority. On this argument, the 2004 Regulations were incompatible with Art 6.

Outcome…
Mr Justice Burton was deeply sceptical that the review provisions even engaged Art 6, as he did not consider them the review decisive of civil rights and obligations – that was properly the realm of the County Court to determine the tenancy. However, bound by McLellan, Art 6 was at issue.

However, Tsfayo didn’t bind the Court and McLellan was convincing in the response to Art 6. The review decision was not a finding of fact, but of reasonableness of the decision to pursue the possession order. Even if Tsfayo and McLellan did conflict, the Court would be obliged to follow McLellan as precedent.

Suggestions that in this case the review made findings of fact were beside the point, as in order to breach Art 6, the constitution and form of the review must be at fault, not the specific findings of an individual review.

As Judicial Review remained a remedy for an unreasonable review decision, pace McLellan, no breach of Art 6. In any case, Mr Justice Burton added:

that even if I had found that the decision made by Mr Morris infringed the Claimant’s Convention rights under Article 6, I should not have made a declaration that the Regulations are incompatible. There are two reasons for this. The first is that the Regulations do not compel a local housing authority to instruct one of its officers to carry out the review. It follows that it could instruct someone other than one of its officers (such as an officer or another authority, or a solicitor or barrister instructed for that purpose) to do so. Whether that would be satisfactory to the authority in relation to the policy considerations involved in the decision is another question, which is irrelevant to the question of incompatibility. Secondly, I do not see how the requirements of section 4(4)(b) of the Human Rights Act 1998 could be satisfied.

Personally, I think there are some dubious elements in this decision, on binding precedent in particular. However, the basic thrust is clear. Art 6 covers (fact finding) tribunals, determinative of rights and obligations, not reviews of reasonableness. Hmm.