House of Lords
|Session 2002 - 03
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Begum (FC) (Appellant) v. London Borough of Tower Hamlets (Respondents)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Begum (FC) (Appellant)
London Borough of Tower Hamlets (Respondents)
THURSDAY 13 FEBRUARY 2003
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Hope of Craighead
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Begum (FC) (Appellant) v. London Borough of
Tower Hamlets (Respondents) UKHL 5
LORD BINGHAM OF CORNHILL
1. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hoffmann and for the reasons which he gives I would dismiss this appeal.
2. The parties were agreed that the appeal raised three questions, which they expressed in this way:
(1) Was Mrs Hayes' decision of 27 July 2001, taken under section 202 of the Housing Act 1996, a determination of Runa Begum's "civil rights" within the meaning of article 6(1) of the European Convention on Human Rights?
(2) If so, did Mrs Hayes constitute an "independent and impartial tribunal" for the purposes of article 6(1) of the Convention?
(3) If not, did the county court, on appeal under section 204 of the Housing Act 1996, possess "full jurisdiction" so as to guarantee compliance with article 6(1) of the Convention?
Lord Hoffmann has clearly explained how, on the facts and the relevant legislation and authorities, these questions arise.
3. The second of these questions permits of a summary answer. It cannot plausibly be argued that Mrs Hayes, a re-housing manager employed by the local housing authority, was independent of that authority when deciding whether the authority had discharged its admitted duty to Runa Begum. So to hold is not in any way to disparage the conscientiousness or impartiality or professionalism of Mrs Hayes. It is simply to recognise an integral feature of the statutory scheme.
4. One other question, inherent in the first question, also lends itself to a summary answer: whether for purposes of domestic law Runa Begum enjoyed anything properly recognised as a right. It was suggested on behalf of the authority that, because of the broad discretionary area of judgment entrusted to it under the statutory scheme, she enjoyed no right. I cannot accept this. Section 193(2) imposed a duty on the authority to secure that accommodation was available for occupation by Runa Begum. This was a duty owed to and enforceable by her. It related to a matter of acute concern to her. Although section 206(1) permitted the authority to perform its duty in one of several ways, and although performance called for the exercise of judgment by the authority, I think it plain that the authority's duty gave rise to a correlative right in Runa Begum, even though this was not a private law right enforceable by injunction and damages. Thus the first question, differently expressed, is whether Runa Begum's right recognised in domestic law was also a "civil right" within the autonomous meaning given to that expression for purposes of article 6(1) of the Convention.
5. The importance of this case is that it exposes, more clearly than any earlier case has done, the interrelation between the article 6(1) concept of "civil rights" on the one hand and the article 6(1) requirement of "an independent and impartial tribunal" on the other. The narrower the interpretation given to "civil rights", the greater the need to insist on review by a judicial tribunal exercising full powers. Conversely, the more elastic the interpretation given to "civil rights", the more flexible must be the approach to the requirement of independent and impartial review if the emasculation (by over-judicialisation) of administrative welfare schemes is to be avoided. Once it is accepted that "full jurisdiction" means "full jurisdiction to deal with the case as the nature of the decision requires" (per Lord Hoffmann, R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  2 WLR 1389 at 1416,  UKHL 23, paragraph 87), it must also be accepted that the decisions whether a right recognised in domestic law is also a "civil right" and whether the procedure provided to determine that right meets the requirements of article 6 are very closely bound up with each other. It is not entirely easy, in a case such as the present, to apply clear rules derived from the Strasbourg case law since, in a way that any common lawyer would recognise and respect, the case law has developed and evolved as new cases have fallen for decision, testing the bounds set by those already decided.
6. The European Court's approach to rights deriving from social welfare schemes has been complicated by differences of legal tradition in various member states, as Lord Hoffmann explains. But comparison of Feldbrugge v The Netherlands (1986) 8 EHRR 425 and Deumeland v Germany (1986) 8 EHRR 448 with Salesi v Italy (1993) 26 EHRR 187 and Mennitto v Italy (2000) 34 EHRR 1122 shows movement from a narrower towards a broader interpretation of "civil rights". Further cases may no doubt continue that trend. To hold that the right enjoyed by Runa Begum is a "civil right" for purposes of article 6 would however be to go further than the Strasbourg court has yet gone, and I am satisfied, in the light of a compelling argument on this point by Mr Sales, that the decision of that court would not, by any means necessarily, be favourable to Runa Begum. So I would prefer to assume, without deciding, that Runa Begum's domestic law right is also a "civil right", and to consider whether, on that assumption, but having regard to the nature of the right, the statutory provision of an appeal to the county court on a point of law satisfies the requirements of article 6.
7. Although the county court's jurisdiction is appellate, it is in substance the same as that of the High Court in judicial review: Nipa Begum v Tower Hamlets London Borough Council  1 WLR 306. Thus the court may not only quash the authority's decision under section 204(3) if it is held to be vitiated by legal misdirection or procedural impropriety or unfairness or bias or irrationality or bad faith but also if there is no evidence to support factual findings made or they are plainly untenable or (Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014 at 1030, per Scarman LJ) if the decision-maker is shown to have misunderstood or been ignorant of an established and relevant fact. In the present context I would expect the county court judge to be alert to any indication that an applicant's case might not have been resolved by the authority in a fair, objective and even-handed way, conscious of the authority's role as decision-maker and of the immense importance of its decision to an applicant. But I can see no warrant for applying in this context notions of "anxious scrutiny" (R v Secretary of State for the Home Department Ex p Bugdaycay  AC 514 at 531G, per Lord Bridge of Harwich) or the enhanced approach to judicial review described by Lord Steyn in R (Daly) v Secretary of State for the Home Department  2 AC 532 at 546-548. I would also demur at the suggestion of Laws LJ in the Court of Appeal in the present case ( 1 WLR 2491 at 2513,  EWCA Civ 239, paragraph 44) that the judge may subject the decision to "a close and rigorous analysis" if by that is meant an analysis closer or more rigorous that would ordinarily and properly be conducted by a careful and competent judge determining an application for judicial review.
8. Is this quality of review sufficient to meet the requirements of article 6(1) on the assumption that a "civil right" is in issue? It is plain that the county court judge may not make fresh findings of fact and must accept apparently tenable conclusions on credibility made on behalf of the authority. The question is whether this limitation on the county court judge's role deprives him of the jurisdiction necessary to satisfy the requirement of article 6(1) in the present context.
9. In approaching this question I regard three matters as particularly pertinent:
(1) Part VII of the 1996 Act is only part of a far-reaching statutory scheme regulating the important social field of housing. The administration of that scheme is very largely entrusted to local housing authorities. While the homelessness provisions are of course intended to assist those individuals who are or may become homeless, there is a wider public dimension to the problem of homelessness, to which attention was drawn in O'Rourke v Camden London Borough Council  AC 188 at 193 C-E.
(2) Although, as in the present case, an authority may have to resolve disputed factual issues, its factual findings will only be staging posts on the way to the much broader judgments which the authority has to make. In deciding whether it owes the full housing duty to an applicant under section 193(1) the authority has to be "satisfied" of three matters and "not satisfied" of another. Under section 193(7)(b) the authority ceases to be subject to the full housing duty if it is "satisfied that the accommodation [offered to the applicant] was suitable for [the applicant] and that it was reasonable for him to accept it." Thus it is the authority's judgment which matters, and it is unlikely to be a simple factual decision. This is exemplified by the letter of 27 July 2001 written to Runa Begum by Mrs Hayes following the review, which included this passage:
(3) Although it seems to me obvious, as I have said, that the reviewer is not independent of the authority which employs him or her, section 203 of the 1996 Act and The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (S1 1999/71) do provide safeguards that the review will be fairly conducted. Thus the reviewer must be senior to the original decision-maker (section 203(2)(a), regulation 2), plainly to avoid the risk that a subordinate may feel under pressure to rubber-stamp the decision of a superior. The reviewer must not have been involved in making the original decision (ibid), to try to ensure that the problem is addressed with a genuinely open mind. The applicant has a right to make representations, and must be told of that right (regulation 6(2)). Such representations must be considered (regulation 8(1)). The applicant is entitled to be represented (regulation 6(2)). If the reviewer finds a deficiency or irregularity in the original decision, or in the manner in which it was made, but is nonetheless inclined to make a decision adverse to the applicant, the applicant must be informed and given an opportunity to make representations (regulation 8(2)). The reviewer must give reasons for a decision adverse to the applicant (section 203(4)). The applicant must be told of his right to appeal to the county court on a point of law (section 203(5)). These rules do not establish the reviewer as an independent and impartial tribunal, but they preclude unreasoned decision-making by an unknown and unaccountable bureaucrat whom the applicant never has a chance to seek to influence, and any significant departure from these procedural rules prejudicial to the applicant would afford a ground of appeal.
10. In the course of his excellent argument, Mr Paul Morgan QC submitted that where, as in the present case, factual questions rise they should be referred for decision by an independent fact-finder. This solution received some support from the Court of Appeal in Adan v Newham London Borough Council  1 WLR 2120,  EWCA Civ 1916. I have very considerable doubt whether the resolution of applications for review, or any part of such process, is a function of the authority within the scope of article 3 of The Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996 (SI 1996/3205), from which authority to refer was said to derive. But even if that question were resolved in Runa Begum's favour, the proposed procedure would, in cases where it was adopted, (a) pervert the scheme which Parliament established, and (b) open the door to considerable debate and litigation, with consequent delay and expense, as to whether a factual issue, central to the decision the reviewer had to make, had arisen. I fear there would be a temptation to avoid making such explicit factual findings as Mrs Hayes, very properly, did.
11. In relation to the requirements of article 6(1) as applied to the review by a court of an administrative decision made by a body not clothed with the independence and impartiality required of a judicial tribunal, the Strasbourg jurisprudence (as in relation to "civil rights") has shown a degree of flexibility in its search for just and workmanlike solutions. Certain recent authorities are of particular importance: Zumtobel v Austria (1993) 17 EHRR 116 at 132-133, para 32; ISKCON v United Kingdom (1994) 18 EHRR CD 133 at 144-145, para 4; Bryan v United Kingdom (1995) 21 EHRR 342 at 354 (concurring opinion of Mr Bratza) and 361, para 47; Stefan v United Kingdom (1997) 25 EHRR CD 130 at 135; X v United Kingdom (1998) 25 EHRR CD 88 at 97; Kingsley v United Kingdom (2000) 33 EHRR 288 at 302-303, paras 52-54; (2002) 35 EHRR 177 at 186-188, paras 32-34. None of these cases is indistinguishable from the present, but taken together they provide compelling support for the conclusion that, in a context such as this, the absence of a full fact-finding jurisdiction in the tribunal to which appeal lies from an administrative decision-making body does not disqualify that tribunal for purposes of article 6(1). This is a conclusion which I accept the more readily because it gives effect to a procedure laid down by Parliament which should, properly operated, ensure fair treatment of applicants such as Runa Begum.
12. On 1 February 2000 Runa Begum, estranged from her husband and no longer welcome at her mother's house in Wapping, presented herself to the Tower Hamlets London Borough Council ("the council") as threatened with homelessness. In accordance with its duty under section 184 of the Housing Act 1996, the council made inquiries to ascertain whether she was eligible for assistance and if so, what duty she was owed under Part VII of the Act. Meanwhile, as provided in section 188, she and her child were provided with temporary accommodation; first in an hotel and then in a flat in Limscott House, Bruce Road, Bow, under a non-secure tenancy, terminable upon a month's notice. After making its inquiries the council wrote to her on 11 April 2000 saying that it was satisfied that she was homeless, eligible for assistance and in priority need. Accordingly it owed a duty under section 193 to secure that accommodation was available for her.
13. In discharge of this duty, the council wrote to her on 6 July 2001 offering her, under Part VI of the Act, a secure tenancy of a two bedroom flat on the third floor of Balfron Tower in Poplar. The letter warned her that if she unreasonably refused the offer, the council's duties in respect of her would be discharged and she would be required to leave the flat in Bow. This reflected section 193(7), which provides that if an applicant, having been informed of the possible consequence of refusal, refuses to accept an offer under Part VI and the authority are satisfied "that the accommodation was suitable for him and that it was reasonable for him to accept it", it may give the applicant notice that its duty under section 193 has ceased.
14. Runa Begum did not like Balfron Tower and wrote on 12 July 2001 giving four reasons. First, the area was "drug addicted". Secondly, it was racist. Thirdly, she had actually been robbed by two youths near the property after a visit. Fourthly, her husband frequently visited the block to see friends.
15. Under section 202 Runa Begum was entitled to request a review of the council's decision. The procedure for a review is prescribed by the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (SI 1999/71). The reviewing officer must be someone who was not involved in the original decision and senior to the officer who made it (regulation 2). The council must notify the applicant of the procedure to be followed and her right to make representations in writing.
16. Runa Begum requested a review, which was conducted by Mrs Sue Hayes, the council's rehousing manager. Mrs Hayes asked the estate officer about the character of the area and inquired of the police about the robbery. The investigating officer expressed scepticism about Runa Begum's credibility; she had contradicted herself and he thought it was a bogus report. Runa Begum wrote another letter on 16 July (about her husband's friends in the block) and a council officer interviewed her on the same day. On 27 July Mrs Hayes gave her decision. She rejected Runa Begum's reasons for refusal as unreasonable: the estate officer had satisfied her that there were no serious drug or racial problems in the area; she noted discrepancies in the accounts Runa Begum had given of the robbery to council officers and the police and indicated that she was not persuaded that it had happened. She was also not satisfied that the relationship between Runa Begum and her husband made it intolerable that she should risk meeting him in the vicinity of the flats.
17. Section 204 provides that an applicant who is dissatisfied with a decision on review may appeal to the county court on "any point of law arising from the decision". This enables the applicant to complain not only that the council misinterpreted the law but also of any illegality, procedural impropriety or irrationality which could be relied upon in proceedings for judicial review: Nipa Begum v Tower Hamlets London Borough Council  1 WLR 306.
18. The original grounds of appeal raised the normal judicial review grounds: the council acted irrationally, it failed to make proper inquiries, did not have regard to material factors and so on. But on 14 December 2001 the Court of Appeal gave judgment in Adan v Newham London Borough Council  1 WLR 2120. In that case the council had decided that an applicant for Part VII accommodation was ineligible because she was not habitually resident in the United Kingdom. The reviewing officer confirmed the decision and she appealed to the county court. The appeal was heard and allowed (on the ground of irrationality); the decision was quashed and the matter remitted to the council for a fresh review. Judgment was given on 6 October 2000, a few days after the Human Rights Act 1998 had come into force. The judge noted that section 6 of that Act made it unlawful for the council, as a public authority, to act in a way which was incompatible with a Convention right. He was concerned that the council, when conducting the fresh review, should not infringe the applicant's right under article 6 to have her civil rights determined by an "independent and impartial tribunal established by law". He directed that the review should be conducted by a different reviewing officer who, in respect of independence and impartiality, complied with article 6.
19. The Court of Appeal set aside the judge's direction on the ground that the county court had no jurisdiction to make an order of mandamus and that was what the judge had done. The council would know that it had to comply with section 6(1); the judge, though no doubt only trying to be helpful, could not tell them how to do so.
20. Having allowed the appeal on that ground, the court went on, in an extended obiter dictum, to consider the effect of article 6 on decisions under Part VII. In order that article 6 should apply at all, it was necessary that the council's decision should determine a "civil right" of the applicant within the meaning of the Convention. That is a question not without complexity, as will appear later, but in Adan counsel were content to proceed on the assumption that it did. The next question was whether the original reviewing officer, employed by the council, was an independent and impartial tribunal; again, it was conceded that he was not. The third question was whether, notwithstanding the lack of independence of the reviewing officer, the composite procedure of his decision subject to an appeal on law to an independent county court was sufficient to satisfy article 6.
21. The Court of Appeal considered that in practice the composite procedure would in most cases be sufficient. It would not however be adequate if the housing officers had to "resolve a dispute of fact which [was] material to the decision": see Brooke LJ at  1 WLR 2120, 2128. As there was no appeal on fact, there was in that respect no composite procedure.
22. What in such a case was the council to do? The answer which recommended itself to a majority of the Court of Appeal was that it should exercise its powers under article 3 of the Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996 (SI 1996/ 3205) which provides in general terms that any function of an authority under Part VII "may be exercised by...such person...as may be authorised in that behalf by the authority." Thus they could contract out their reviewing functions as a whole or those which they thought likely to give rise to material disputes of fact. Hale LJ had very considerable reservations about whether this was a sensible idea and preferred to give an extended meaning to the right of appeal on points of law, so as to enable the county court to deal with most questions of fact, but this did not appeal to the majority.
23. A few days after the decision in Adan had been handed down, Runa Begum's solicitors wrote to the council to say that they proposed to amend the grounds of appeal to allege that it had acted in breach of section 6 of the 1998 Act by failing to contract out a review decision which turned on questions of disputed fact. When the appeal came before Judge Roberts on 21 December 2001, he dealt with this ground as a preliminary point and, with some reservations, followed the majority dicta in Adan and quashed the decision.
24. The Court of Appeal (Lord Woolf CJ, Laws and Dyson LJJ) allowed the council's appeal. On that occasion Mr Underwood QC, on behalf of the council, made no concessions on the issues of whether Runa Begum's "civil rights" were engaged or whether Mrs Hayes was an independent and impartial tribunal. But the court, in a judgment delivered by Laws LJ, found against him on both points. It was on the third question, as to whether the composite procedure satisfied article 6 despite the appeal being only on law, that the Court of Appeal disagreed with the dicta in Adan and allowed the appeal. Laws LJ said that one could not have different systems of adjudication according to the degree of factual dispute. One had to look at the scheme of Part VII as a whole. If it was systematically likely to throw up issues of primary fact, it might be necessary to have either an independent reviewer or a full right of appeal. On the other hand, if it was systematically likely to require the exercise of discretion or the application of policy, an appeal limited to the grounds for judicial review would be sufficient. He considered that Part VII fell into the second category.
25. Runa Begum appeals to your Lordships' House and all three of the issues decided by the Court of Appeal have been argued by Mr Morgan QC for Runa Begum and Mr Underwood for the council. In addition, the First Secretary of State was, on account of the general importance of the case for the public administration, given leave the intervene. Mr Sales on his behalf advanced arguments in support of the council's position on the first issue - the existence of civil rights to be determined - and the third issue on the composite procedure.
26. He did not however feel able to support the council on the question of whether Mrs Hayes was an independent and impartial tribunal. Mr Underwood's submission was that there is no adversarial relationship between the council, on whose behalf Mrs Hayes made the decision, and Runa Begum. It is the business of the council to secure accommodation for eligible applicants and if a flat which Runa Begum preferred was not available, it was not because the council was keeping it for itself but because it had let it to someone else. Runa Begum's interests are not in conflict with those of the council but rather with those of other applicants; the council is neutral between them and Mrs Hayes is only concerned to be fair to everyone. In carrying out the review she has to comply with the fairness requirements of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 and therefore acts quasi-judicially.
27. I am sure that this is a correct description of Mrs Hayes's position and the way she does her job. But the argument misses the point. One of the purposes of article 6, in requiring that disputes over civil rights should be decided by or subject to the control of a judicial body, is to uphold the rule of law and the separation of powers: see Golder v United Kingdom (1975) 1 EHRR 524. If an administrator is regarded as being an independent and impartial tribunal on the ground that he is enlightened, impartial and has no personal interest in the matter, it follows there need not be any possibility of judicial review of his decision. He is above the law. That is a position contrary to basic English constitutional principles. It is also something which the Strasbourg court has been unable to accept. I need refer only to the series of cases, cited in paragraph 83 of the opinions in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  2 WLR 1389, 1415, in which it has been held that Sweden was in breach of article 6 because there was no possibility of any form of judicial review of government decisions determining civil rights. It is no disrespect to Mrs Hayes to say that she is not an independent tribunal simply because she is an administrator and cannot be described as part of the judicial branch of government.