Missing letters, Reviews and Determinations of Civil Rights

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.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Homeless, Housing law - All and tagged , , , .

16 Comments

  1. With respect to their Lordships (I would appreciate being corrected on the correct style for Judges of the UKSC), and without taking the time yet to read the judgment in full, this seems plainly wrong: the question is not whether this right is analogous to social insurance, it is whether it is a civil right.

    A private law right not sounding in money or in possession of a specific thing is still a civil right; a private law right to freedom, or an injunction of any sort is a civil right; criminal proceedings or proceedings regarding quasi-criminal orders (ASBOs etc) are civil rights. Equally, a the determination of a private law claim in proprietary estoppel is for something where the exact remedy is unknown until fixed by the court.

    Over all, the distinction drawn by the court appears to be completely arbitrary, and depend solely on the fact that the caselaw of Strasbourg first dealt with social welfare payments. That sort of reasoning is applicable to growth of common law rights. It is not really appropriate to the interpretation of statutes.

    Perhaps the most illuminating example to consider would the reverse determination: an authority determining whether or not it would choose to cease to provide accommodation to someone it was at the time housing. If their Lordships are correct, then the only reason to regard that determination as involving a civil right is because it involves determination of the right to possess a specific property; a determination as to whether or not to cease to admit a person to a hostel would, on that view not be a determination of a civil right. This would seem improper, as in either case the effect is to leave a person without the housing that they were previously provided.

    My initial reaction is that almost any right that a person can formulate, and identify the source of sufficiently that it would be capable of being litigated, should fall to be a civil right. However, I haven’t read the caselaw sufficiently to comment on what Strasbourg thinks – my real point here is that the mode of reasoning seems inappropriate.

    • Marcin, I think the point was that their Lordships conspicuously and vigorously refused to put themselves in advance of Strasbourg, assuming that this is even the direction Strasbourg is taking.

      Of course all that you mention is capable of being a civil right once it has been codified in a court order, which the Supreme Court takes to be the import of the Russian cases.

      This is not to say that I disagree. The LA’s duty is to secure accommodation for the homeless person. The manner in which the duty may be fulfilled may be variable – which is the discretion (over)emphasised above – but there is no discretion about the duty to secure accommodation itself. As such, for those eligible, it is pretty clearly defineable.

  2. But, presumably, one could still try and run factual disputes as precedent fact arguments, as per the Croydon age assessment cases? Or not? I’m not sure myself at the moment!

  3. Marcin – in European law it isn’t quite so straight forward. Public law rights (or what we sometimes call civil rights) are not actually civil rights in European jurisdictions. Civil rights only cover what we would call private law rights, e.g. rights derived from contract or tort.

    The ECtHR has gradually widened the concept of civil rights to include some public law rights, but it is not that clear how far they stretch.

    To be fair to their Lordships it isn’t all that easy to work out what is a civil right in welfare benefits until Strasbourg says so.

    I personally take the view that Stec would suggest that it is more likely than not that Strasbourg would have decided that a right to accommodation is a civil right. However, I wouldn’t put my house on it and as NL has said the main reason for Lord Hope’s judgment is that it isn’t for the Supreme Court to second guess Strasbourg.

    J – I would imagine that your question is the next issue to be decided by the Court of Appeal in the next big homelessness case.

    I don’t see why you can’t. I don’t think it was ever argued in this case though.

  4. S – you’re right, this was never pleaded as a precedent fact case. I think that one of the appellants expressly disclaimed such an argument at first instance, but I’m open to correction on that one. I think that this type of case is ripe for a precedent fact argument. Perhaps their Lordships might be more amenable to a purely domestic solution?

  5. But how would you run it? In R(A) v Croydon it’s easy to identify the ‘fact’ which needs to be determined – a person is either a child or they are not. There is no middle ground. Where in Pt 7 does the same binary question arise?

  6. This has been bothering me too. My best answer at the moment is that the requirement that the applicant has “been informed by the authority of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation”, can be formulated as a yes/no question. In this instance: was the letter received? In that sense it becomes a jurisdictional fact, unless the applicant has been informed then the rest of s.193(5) can’t kick in.

    I don’t how this could be applied to Tomlinson’s case though – her appeal was against a finding of intentionality and I’m not sure that s.191 lends itself to the same subdivision of questions into factual and evaluative.

  7. Isn’t there a more significant problem? R(A) v Croydon was considered in Tomlinson and the Supreme Court don’t give any encouragement to the idea that the debate could be framed as one of precedent fact. Once the official law reports come out we’ll know for sure, but, if the appellants raised this argument then, even though not expressly dealt with, one must presume that the Supreme Court rejected it.

  8. I think in a post doherty world there is no reason why you could not a raise a jurisdictional fact issue in s.204 appeals; Lord Kerr is a bit behind the curve.

    If a person’s nationality or age is central to a lawful decision why not any other fact that is central to a lawful decision? If you aren’t properly notified of the consequences of refusing an offer of suitable accommodation then the duty is not discharged. Surely whether you were given any sort of notification at all is a fact that is central to whether the decision is lawful.

  9. Chief and I have been debating this point this afternoon. Isn’t the problem that the Supreme Court looks to have shut this argument down at para [53], by holding that it would fly in the face of the Pt 7 scheme to have some disputed (factual) matters resolved by the county court and not others?

    “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”

    It’s an all or nothing approach. Either all questions can be resolved by the county court making its own decision or none of them can. The Supreme Court has plumped for “none”.

  10. But S is right surely. If you can raise such a factual issue in a Doherty style defence in a posesson action(as has been held to be the case in several lower court decisions subsequently), why not in a s204 appeal? Or else the Supreme Court are contradicting themselves. Heaven forbid!

  11. BY the way, the Doherty point kind of brings up the question of whether there shouldn’t be oral evidence in final s204 hearings??

  12. I’m going to defer to J on this one.

    When I first read the judgment I read para [53] as the Supreme Court distinguising Tsfayo and broadening the reasoning of Bingham in Runa Begum for the purposes of showing that judicial review was article 6 compliant for homelessness appeals.

    There is no reason, however, why the above isn’t also an argument against jurisdictional fact arguments being run in homelessness cases.

    I certainly think there is an argument to be had though. It is not clear at the moment.

  13. Yes I thought it was about JR and the point I was inelegantly making was ‘what is the position with JR and jurisdictional fact post Doherty?’. However for the moment I’m happy to leave it as ‘there is an argument to be had though’and keep the powder dry.

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