Gilboy, R (on the application of) v Liverpool City Council & Ors [2008] EWCA Civ 751 is the appeal from the Judical Revew decision noted in this previous post.

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.