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07/11/2008

Homelessness fact finding and Article 6

What more could you wish for on a Friday afternoon that a bit of homelessness law in the Court of Appeal?  Don’t answer that.  Anyway, on to Ali & Ibrahim v Birmingham City Council [2008] EWCA 1228.

Two joined appeals, one on behalf of Ms Ali and one on behalf of Ms Ibrahim, came before the Court of Appeal on whether findings of fact made by a review officer under s. 202 of the Housing Act 1996 and the subsequent right of appeal to the County Court under s. 204 were compatible with Article 6 of the ECHR and particularly the ECtHR decision in Tsfayo v UK [2006] ECHR 981.  Central to the case was whether the House of Lords decision in Runa Begum v Tower Hamlets LBC [2003] UKHL 5 covered the issue and whether Runa Begum should be viewed differently in the light of Tsfayo.

Facts – Ali

Ms Ali, a single parent with two young children, made a homelessness application to Birmingham in October 2006.  A full s. 193 duty was duly accepted.  An offer was made in November 2006 of a flat in Sutton Coldfield, which Ms Ali refused.  Birmingham then wrote to her saying that their duty had been discharged and notifying her of her right to a s. 202 review.  Ms Ali requested a review.  This review was carried out in February 2007 and recommended that a further offer be made due to an administrative error in the original offer letter.

In March 2007 Birmingham made an oral offer of a maisonette in Erdington.  They then wrote to her on 14th March 2007.  The letter was headed “Final Offer of Accommodation” and dealt with the consequences of a refusal (s. 193).  Ms Ali denied that she ever received this letter.  She viewed the property on 19th March and refused it.  Birmingham subsequently sent another ‘duty discharged’ letter.  Ms Ali again sought a review.

While this review was going on Ms Ali was made another offer of accommodation, this time in Teviot Tower.  This offer was not made in connection with her homelessness, but because of her position on the waiting list.  Ms Ali also refused this offer.

The reviewing officer sent a decision letter on 2nd May 2007, stating that it was not accepted that Ms Ali had not received the letter of 14th March.  In part this decision relied upon the fact that the reviewing officer had spoken to Ms Ali, who had confirmed that she had received the offer letter. (Ms Ali claimed that in her telephone conversation with the reviewing officer she was referring to the offer letter for Teviot Tower).  The reviewing officer went on to conclude that the property was suitable and the duty was therefore discharged.

Ms Ali pursued a s. 204 review to the County Court where HHJ McDuff QC held that he did not have to determine as an issue of fact whether the letter of 14th March had been received by Ms Ali.

Facts – Ibrahim

Ms Ibrahim has six children.  She is of Somali origin and has a poor understanding of English.  In May 2005 Birmingham accepted a full duty towards her and made her an offer in October 2005.  Unfortunately, they seem to have made a bit of a hash of it.  Birmingham claim that the authority sent Ms Ibrahim two letters at the same time.  One appears to have been an ordinary housing waiting list letter, which clearly did not comply with s. 193.  It was Birmingham’s case that this letter was included by mistake.  The second letter, according to Birmingham, did comply with s. 193(5).

Ms Ibrahim contended that she only ever received the ‘waiting list’ letter, not the ‘s. 193’ letter.  She refused the property, without viewing.  Two subsequent reviews held that the duty had been discharged, so an appeal to the County Court was launched.  Before HHJ McKenna it was argued that Ms Ibrahim had not received the second letter and that the accommodation was not suitable.  HHJ McKenna found that the property was suitable and that the issue as to the receipt of the letter had been determined by the reviewing officer.  Permission to the Court of Appeal was only allowed on the issue of the letter.

A third case was originally to be heard at the appeal.  This related to a finding that an applicant was intentionally homeless, but as Birmingham had since accepted that they owed a full duty to her they argued that her appeal did not need to be heard.  The CA agreed that that her appeal was academic and the point of principle as to the scope of the right to appeal in Part VII of the 1996 Act could be determined by reference to the appeals of Ms Ali and Ms Ibrahim.  In the meantime the Secretary of State for the Communities and Local Government was joined as an interested party.

In a nutshell, the issue on appeal was therefore whether a decision on an issue of primary fact (in these cases whether a letter had been received by an applicant) could be made by a local housing authority’s review officer.

Arguments

On behalf of Ms Ali and Ms Ibrahim it was argued that:

The decision taken by an authority in cases under Part VII of the 1996 Act was a determination of their civil rights and obligations, thereby engaging Art 6(1);
The review by the authority was not by an “independent and impartial tribunal” – in order to comply with Art 6(1) an appeal to the County Court under s. 204 must extend to issues of fact where the decision on the facts did not involve consideration of issues of policy;
Runa Begum could be distinguished as only covering those decisions where issues of specialist knowledge and policy were required.  It did not extend to cases, such as the instant case, where simple issues of fact were involved;
The ECtHR had distinguished Runa Begum on this basis when giving its decision in Tsfayo;
Consequently Ms Ali and Ms Ibrahim were entitled to a full merits appeal and should be able to challenge findings of fact through a full re-hearing, including the hearing of witnesses;
Therefore the County Court should have carried out a full merits appeal to prevent a breach of Article 6.1; in the alternative, the appellants sought a declaration of incompatibility in respect of s.204(1).

The arguments of Birmingham and the Secretary of State are expressed by Thomas LJ in just two sentences at [19]:
The decision in Runa Begum covered the issue; the decision in Tsfayo did not cast any doubt upon the principle. Even if it did, then this court was nonetheless bound to follow the decision in Runa Begum; it was for the House of Lords to decide that issue.

Consequently, four questions arose:

1. Were the decisions on appeal a determination of the civil rights of the appellants?
2. Had the issue on appeal been determined by the decision in Runa Begum?
3. Should this court in any event leave the determination of the issue to the House of Lords?
4. Does the decision of the Strasbourg Court in Tsfayo alter the conclusion that the issue is determined by Runa Begum?

Thomas LJ gave the only reasoned judgment, which Rimer and Hughes LJJ agreed with.  I will quote fairly large parts of it, but I think that it is a clear and well structured judgment, which does not really need much summarising.

Determination of civil rights

The Secretary of State’s main submission was that Part VII was consistent with Art 6(1), an alternative additional submission was put forward that the decision as to whether a duty is owed under Part VII is not a determination of civil rights within Article 6.  Thomas LJ was able to decide the case in the Secretary of State’s (and Birmingham’s) favour without needing to decide whether that alternative submission was correct and therefore assumed that Art 6(1) was engaged, much as had been done in Runa Begum.

Did Runa Begum cover this issue?

Thomas LJ then turned to consider whether Runa Begum covered the issue on appeal.  At [25] he sets out the considerations to which he has had regard.  He felt that in practice it was “far from easy to draw the distinction advanced” between the finding of suitability in Runa Begum and the findings of primary fact in the instant cases, as a “finding of suitability is itself a finding based on conclusions of primary fact” (point i of [25]).  It followed that ([25.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.

Furthermore ([25.iii]):

That complexity would be compounded in cases where there are multiple issues before the reviewing officer (as in the case of Ibrahim in the instant appeal). There would then be the danger, as Lord Bingham pointed out at paragraph 10 of Runa Begum, that “there would be a temptation to avoid making such explicit factual findings as [the reviewing officer] very properly did”. Moreover, if the extent of the review by the court was determined by the answer to the question 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. The importance of drawing these distinctions would be the more significant if the suggested right of appeal involved the court hearing witnesses in the one type of appeal but not in the other.

The issue before this court does not ultimately depend on drawing such distinctions between types of finding of fact… the issue is determined by an examination of the scheme as a whole. ([25.iv])

In Thomas LJ’s view it was also relevant that ([25.v]):

The additional review which would be provided by the suggested full right of appeal on fact would not in practice be very wide. On an appeal applying conventional judicial review principles, the court cannot substitute its own findings of fact for those of the decision-making authority if there was evidence to support them; questions as to the weight to be given to a particular piece of evidence and the credibility of witnesses are for the decision-maker and not for the court… The context in which an appellate court in accordance with these principles reviews a finding of fact by a lower court is that the finding was that of the judicial branch of the state and therefore an independent and impartial tribunal.

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 housing review officer is part of the executive branch of the state and not the judicial branch. The question must arise as to whether the conventional scope of a full appeal would be sufficient, if the decision made is not made by an independent and impartial tribunal? … In many cases where there is a simple issue of credibility, it is difficult to see how there could be a full right of appeal unless the judge was asked to come to a fresh decision by hearing the evidence; the procedure adopted by the reviewing officer in reaching findings of fact is informal and there are no transcripts of evidence. ([25.vi])

There would then be the danger, as Lord Bingham pointed out at paragraph 10 of Runa Begum, that “there would be a temptation to avoid making such explicit factual findings as [the reviewing officer] very properly did”. Moreover, if the extent of the review by the court was determined by the answer to the question 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. The importance of drawing these distinctions would be the more significant if the suggested right of appeal involved the court hearing witnesses in the one type of appeal but not in the other. ([25.vii])

It is quite obvious from what Thomas LJ has said above that ([25.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, particularly if the appeal encompassed the re-hearing of evidence.

In any event, the “present scope of the appeal provides a real measure of protection for homeless appellants” ([25.ix]).

Given all of this it is not surprising that Thomas LJ concluded that the issue in this appeal was covered by Runa Begum.

Should the CA leave the matter up to the HL?

Short answer: yes.  Slightly longer answer:

[28] In my view, even if the decision in Runa Begum did not cover the precise point in issue, it would not be right for this court to draw a distinction between different types of fact finding in a scheme so recently considered by the House of Lords. If distinctions are to be drawn, particularly where it is argued that it is akin to counting angels on the tip of pin, then it should be drawn by the House of Lords in a reconsideration of the approach to be taken to the scheme as a whole.  This is an even more powerful consideration given the observations of Lord Hope in Doherty v Birmingham City Council [2008] UKHL 57 [2008] 3 WLR 636 at paragraphs 19-21. Furthermore for this Court to draw those distinctions would make administration of the statutory scheme dealing with homelessness very difficult in the period which elapsed while the inevitable appeal was made to the House of Lords. That would do no service to anyone.

[29] In any event therefore, I would have concluded that in my view this court should not seek to distinguish Runa Begum, but leave the question to be considered by the House of Lords on any application for leave to appeal. But that is not the primary reason for my view that the appeal should be dismissed. It is that the issues on this appeal are within the scope of that decision and that there are independent considerations that support that conclusion.

Tsfayo and Runa Begum

Thomas LJ then turned to question of whether the decision in Tsfayo altered the conclusion that the issue is determined by Runa BegumTsfayo related to a system for backdating housing benefit that had not been claimed at the appropriate time.  In his view the ECtHR had not decided the issue in the instant case in a manner that would require a different answer than simply applying Runa Begum.  At [34] he cited four key reasons:

1. The ECtHR relied on Runa Begum and said nothing to cast doubt on its correctness;
2. Both decisions turned on a very careful examination of the particular statutory scheme that applied;
3. Due to the different rates that local authorities could recoup housing benefit and backdated housing benefit from central government there was a powerful contention that the Housing Benefits Review Board was not independent of the parties;
4. Looking at the schemes as a whole it was readily apparent that a conclusion could be reached that the housing benefits scheme was not compliant with Art 6(1).  This was not the case with Part VII of the 1996 Act.

The appeals were therefore dismissed and the Court refused to grant leave to appeal.

chief is a barrister in the big city. he specialises in public law, landlord & tenant, football and rock 'n' roll (the last two are only when his clerks aren't watching). he sometimes pops by here, but not as often as he'd like. he will occasionally eschew capital letters. the reasons for this odd affectation are lost in the mists of time.

5 Comments

  1. PP

    I recognise the Court of Appeal considered itself bound by precedent and also that any other outcome would have far reaching constitutional implications. However, having read the judgment I’m still left thinking the question of whether a letter was received or not and the credibility of the applicant’s account in respect thereof is wholly analogous with Tsfayo. You surely don’t need “a measure of professional knowledge or experience” or be exercising “administrative discretion pursuant to wider policy aims” to determine such questions. Its interesting to note Thomas LJ accepted it is possible to construct the appellant’s “attractive argument” based on the very passages from Tsfayo he cited.

    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?

    Reply
  2. J

    @PP – Yes, if their Lordships were to decline to hear the appeal or were to dismiss the appeal, then Ali et al could petition the ECtHR. You can’t petition the ECtHR until you’ve exhausted all domestic remedies (Art. 34 ECHR).

    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.

    Reply
  3. PP

    I appreciate the far reaching implications and the executive’s reluctance. The potential cost must be alarming.

    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.

    Reply
  4. chief

    Hat-tip to Garden Court Bulletin, the House of Lords has now granted leave to appeal.

    Reply
  5. M

    I see on the Supreme Court’s site that they’re to hear the appeal on 23rd & 24th November.

    Reply

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