Tomlinson & Ors v Birmingham City Council [2010] UKSC 8

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.