It is hard to believe that nearly 6 years have elapsed since the Supreme Court heard the appeals in Ali and others v Birmingham CC (our note here), where the Court decided that a decision on a homelessness application involving a dispute of fact was not a determination of a civil right under Art 6(1) ECHR.
The ECtHR has finally delivered its judgement in Ali v UK , and despite finding against the applicant, the Court has resolved some of the tensions in the SC judgement. The facts of the case can be found in our earlier note. The sticking point for Lord Hope in the SC was that there could not be a determination of a civil right under Art 6(1) where the award of benefit was based on an evaluative judgement. Lord Kerr conversely had difficulty finding a distinction between social security payments on the one hand and social welfare provision on the other (para.75).
The ECtHR’s view in Ali is that benefits can be treated as a civil right even where there is an exercise of discretion. But even though a reviewing officer could not be described as an ‘independent tribunal’, there were procedural safeguards inherent in the s.202 and s.204 process (set out at paras.82 and 83) which were sufficiently compliant. It was also important for the Court that there was nothing in the letter that prevented Ms A from making the necessary submissions on review (para.81). The Court also observed that to require a court on appeal to reopen a case with live witnesses would have resource implications for the scheme and the court system.
The relevance of Convention rights to housing can be seen in another recent case: Vrountou v Cyprus. Here the applicant sought to benefit from a scheme whereby the dependants of a holder of a refugee card were entitled to housing assistance from the State. Ms V’s mother was the holder of such a card. Unfortunately, this assistance was only extended to dependants of male, not female refugees. So, when her request was refused, Ms V complained of breaches of A1P1 coupled with Art 14.
The ECtHR held that because the right to housing flowed from the possession of a refugee card, it fell within A1P1. The question then was whether the difference in treatment was justified under Art. 14. The difference was premised on a view that women played a secondary role within the family unit, which could not be regarded as sufficient justification. Damages of 25,500 EUR were awarded.