(back to preceding text)

    58. For these reasons I agree with the Court of Appeal that the right of appeal to the court was sufficient to satisfy article 6. I should however say that I do not agree with the view of Laws LJ that the test for whether it is necessary to have an independent fact finder depends upon the extent to which the administrative scheme is likely to involve the resolution of disputes of fact. I think that a spectrum of the relative degree of factual and discretionary content is too uncertain. I rather think that Laws LJ himself, nine months later, in R (Beeson's Personal Representatives) v Secretary of State for Health [2002] EWCA Civ 1812, (unreported) 18 December 2002, had come to the same conclusion. He said, at para 15:

"There is some danger, we think, of undermining the imperative of legal certainty by excessive debates over how many angels can stand on the head of the article 6 pin."

    59. Amen to that, I say. In my opinion the question is whether, consistently with the rule of law and constitutional propriety, the relevant decision-making powers may be entrusted to administrators. If so, it does not matter that there are many or few occasions on which they need to make findings of fact. The schemes for the provision of accommodation under Part III of the National Assistance Act 1948, considered in Beeson's case; for introductory tenancies under Part V of the Housing Act 1996, considered in R (McLellan) v Bracknell Forest Borough Council [2002] 2 WLR 1448; and for granting planning permission, considered in R (Adlard) v Secretary of State for the Environment, Transport and the Regions [2002] 1 WLR 2515 all fall within recognised categories of administrative decision making. Finally, I entirely endorse what Laws LJ said in Beeson's case, at paras 21-23, about the courts being slow to conclude that Parliament has produced an administrative scheme which does not comply with constitutional principles.

    60. This conclusion makes it unnecessary for me to decide whether the council's decision did determine Runa Begum's civil rights. I have proceeded so far on the assumption that it did. But the assumption was vigorously contested by Mr Underwood and Mr Sales and so I shall say something about it.

    61. As I mentioned earlier, the Strasbourg court has extended the notion of a determination of civil rights in two ways: first, to administrative decisions which determine or affect rights in private law and secondly to entitlements under public social security or welfare schemes which are sufficiently well defined to be analogous to rights in private law. Mr Morgan relies upon both of these doctrines. He says, taking them in reverse order, that Runa Begum's right to accommodation under section 193 was within the doctrine by which rights under social welfare schemes may be classified as civil rights. Alternatively, the council's decision that it owed Runa Begum no further duty under section 193 had a decisive effect upon her private law rights as a non-secure tenant of her temporary accommodation in Bow. It enabled the council to terminate that tenancy and they did in fact serve her with a notice to quit.

    62. The starting point for the jurisprudence on social security and social welfare schemes is the decisions of the Court in Feldbrugge v The Netherlands (1986) 8 EHRR 425 and Deumeland v Germany (1986) 8 EHRR 448, two cases in which the judgments were delivered on the same day and are for practical purposes identical. Both concerned claims to social security benefits: Mrs Feldbrugge was claiming a sickness allowance because she said she had been unfit for work and Frau Deumeland was claiming a supplementary widow's pension on the ground that her husband had died in consequence of an industrial accident. Mrs Feldbrugge complained that she had not received a fair hearing from the administrative tribunal which rejected her claim. Frau Deumeland complained that the Berlin Social Security Court had not accorded her a hearing "within a reasonable time". But in both cases the question was whether the claim to the benefit was a "civil right".

    63. In both cases the right was created by public legislation which laid down the qualifying conditions and the rates of payment. It was an assumption by the state of responsibility for the financial security of employees and their dependants. But it had certain affinities with private insurance - employees paid contributions - and, as the court said in a critical passage in Feldbrugge, at p 434, para 37:

"Mrs Feldbrugge was not affected in her relations with the public authorities as such, acting in the exercise of discretionary powers, but in her personal capacity as a private individual. She suffered an interference with her means of subsistence and was claiming a right flowing from specific rules laid down by the legislation in force.

For the individual asserting it, such a right is often of crucial importance; this is especially so in the case of health insurance benefits when the employee who is unable to work by reason of illness enjoys no other source of income. In short, the right in question was a personal, economic and individual right, a factor that brought it close to the civil sphere."

    64. For these reasons, and despite a powerful dissent from seven members of the court who said that the distinction between public and private law rights was being eroded in a way which would create great uncertainty, the majority decided that the features of private law were cumulatively predominant. It was therefore a civil right within the meaning of article 6.

    65. There was a further development in Salesi v Italy (1993) 26 EHRR 187, when the principle of Feldbrugge was applied to welfare payments which lacked the insurance analogy of social security payments. They were not contributory and unrelated to employment. But the court decided unanimously that the claim was a civil right. It repeated the passage I have cited from Feldbrugge and said that the most important feature of the right to a social welfare payment was that it is individual, economic and flowing from specific statutory rules. In reliance on these decisions and also Mennitto v Italy (2000) 34 EHRR 1122, in which Salesi was followed, Mr Morgan submitted that the right to accommodation under section 193, although a benefit in kind rather than cash, is also personal, economic and flowing from specific statutory rules. The fact that it is a benefit in kind necessarily means that the council has discretion about the nature of the accommodation it will provide, but in principle there is a right to accommodation and not merely a claim to the exercise of the council's discretion.

    66. That was the view taken by Hale LJ in Adan's case [2002] 1 WLR 2120, 2137, para 55. Although, as I have said, the point was conceded, she said:

"Once the local authority are satisfied that the statutory criteria for providing accommodation exist, they have no discretion. They have to provide it, irrespective of local conditions of demand and supply. Hence this is more akin to a claim for social security benefits than it is a claim for social or other services, where the authorities have a greater degree of discretion and resource considerations may also be relevant."

    67. Mr Underwood, on the other hand, drew attention to the elements of discretion both in the steps leading up to the acceptance of a duty under section 193 and in the ways in which it may be discharged. By section 206(1) the council may discharge its duty by providing accommodation itself, or by securing that an applicant obtains accommodation from someone else, or by giving him such advice and assistance as will secure that suitable accommodation is available from someone else. The whole scheme is shot through with discretions in which either the council's duty is dependent upon it being "satisfied" of some state of affairs or can be discharged in various ways of its own choosing. By contrast, in Mennitto (2000) 34 EHRR 1122,1130, para 25, the court said that the management committee of the local public health service

"After verifying that the applicant satisfied the conditions for entitlement to the allowance...should simply have made an arithmetical calculation of the quantum."

    68. The existence of a fair amount of discretion was one of the matters taken into account by the House when it decided in O'Rourke v Camden London Borough Council [1998] AC 188 that Part VII (or rather, its predecessor in the Housing Act 1985) did not give rise to rights in private law, whether for damages or an injunction. But I think it is fair to say that the main ground of decision was that a scheme of social welfare which creates a statutory duty to provide benefits in kind will not ordinarily be taken to confer upon the beneficiaries private law rights in addition to their rights in public law to secure compliance with the duty: see p 193. O'Rourke is certainly authority for the proposition that the rights created by Part VII are not actionable in English private law, but that is very different from the question of whether they are civil rights within the autonomous meaning of that expression in article 6. It is one thing to say that the Parliament did not intend a breach by the council of its statutory duty under Part VII to be actionable in damages; it is quite another to say that the actions of the local authority should be immune from any form of judicial review.

    69. For my part I must say that I find the reasoning of Hale LJ in Adan's case persuasive. But then, as Laws LJ has said, both in the present case [2002] 1 WLR 2491, 2500, and in Beeson's case [2002] EWCA Civ 1812, at paras 17-19, an English lawyer tends to see all claims against the state which are not wholly discretionary as civil rights and to look with indifference upon the casuistry that finds the need to detect analogies with rights in private law. On the other hand, I think that to apply the Salesi doctrine to the provision of benefits in kind, involving the amount of discretion which is inevitably needed in such cases, is to go further than the Strasbourg court has so far gone. This would not matter - domestic courts are perfectly entitled to accord greater rights than those guaranteed by the Convention - provided that it was acceptable that the scope of judicial review should be limited in the way it is by section 204. If, however, it should be decided in Strasbourg that the administration of social welfare benefits falling within the Salesi principle requires a more intrusive form of judicial review, I would not wish to place any obstacle in the way of the UK government arguing that, in a case such as this, the principle does not apply at all.

    70. For that reason only, I would prefer not to decide whether rights under section 193 should be classified as civil rights. It is sufficient to say that, assuming that they are, the right of appeal under section 204 is sufficient to satisfy article 6. As for Mr Morgan's alternative argument, I think that it is highly artificial and I would reject it. Runa Begum's private law rights as an unsecured tenant of the council were unaffected by its decision as to whether or not it continued to owe a duty under section 193. The council was entitled to terminate the tenancy by notice at any time, whatever its duties under Part VII might be. If it terminated her tenancy when she was still owed a duty - for example, because it thought that flat was more suitable for another person - it would have had to find her somewhere else to live. But that statutory duty would not affect her private law rights in respect of the flat in Limscott House.

    71. Mr Morgan relied upon the decision of the Court of Appeal in R (McLellan) v Bracknell Forest Borough Council [2002] 2 WLR 1448, in which it was held that a decision to terminate an introductory tenancy granted under Part V of the 1996 Act affected the tenant's private law rights under his tenancy. It is not necessary to comment upon that case because in my view it is plainly distinguishable. Part V requires the authority to give reasons why it proposes to terminate an introductory tenancy and section 129(2) gives the tenant the right to require the authority to review its decision to terminate. Thus the rights which the Act confers upon the tenant, such as the right to ask for a review, affect his rights as a tenant in private law because unless the authority complies with the Act, it cannot terminate the tenancy. That is quite different from the present case in which the Act contains no restraint upon a decision of the council to terminate a tenancy granted by way of providing temporary accommodation under Part VII.

    72. For these reasons I would dismiss the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

    73. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Hoffmann. I agree with them, and for the reasons which they have given I too would dismiss the appeal.

LORD MILLETT

My Lords,

    74. The questions with which this appeal is concerned arise out of a dispute whether the statutory duties under Part VII of the Housing Act 1996 ("the Act") which the council owed to Runa Begum as an unintentionally homeless person continued to subsist (as she contended) or had ceased (as the council contended). This turned on whether the accommodation which the council had offered her and which she had refused was suitable for her and whether it was reasonable for her to accept it. An officer of the council decided these questions adversely to Runa Begum. She exercised her statutory right to ask for an internal review of the decision. In accordance with the applicable Regulations the review was conducted by Mrs Hayes, the council's rehousing manager, an officer of the council who was not involved in the original decision and was senior to the officer who made it. She made her own investigations into the reasons which Runa Begum gave for refusing the accommodation and confirmed the original decision. Runa Begum then appealed to the county court under section 204 of the Act. This provides that an applicant who is dissatisfied with a decision on review may appeal to the county court but on a point of law only.

    75. The question for your Lordships is whether Runa Begum has been denied her Convention rights under article 6(1) of the European Convention on Human Rights. In the determination of a person's "civil rights and obligations" article 6(1) guarantees him or her "a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". Runa Begum contends that she has been denied such a hearing because (i) her civil rights have been determined on review by an officer of the council, who was not an independent and impartial tribunal as required by article 6(1); and (ii) the defect could be cured only by a right of appeal to a court with "full jurisdiction", which the county court did not possess because it lacked any power to reverse any findings of fact which the reviewing officer had made.

    76. Three issues arise: (i) whether the decision of the reviewing officer determined Runa Begum's "civil rights", for if it did not then article 6(1) is not engaged at all; (ii) whether the reviewing officer was an independent tribunal for the purposes of article 6; and (iii) if she was not, whether her want of independence was cured by a right of appeal to a court on a point of law only.

    77. These issues are closely interrelated, for the greater the scope of article 6(1) the more necessary it becomes to temper its requirements, and in particular the requirement of independence, in the interests of the efficient administration of justice.

The first issue: is article 6(1) engaged?

    78. The question here is whether the reviewing officer's decision that the council no longer owed its full housing duty to Runa Begum constituted a determination of her "civil rights" within the meaning of article 6(1). The European Court of Human Rights ("the Strasbourg Court") has repeatedly stated that the first step is to ascertain whether there was a contestation (dispute) over a "right" which can be said, at least on arguable grounds, to be recognised under national law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and the outcome of the proceedings must be directly decisive of the right in question: see, for example, Mennitto v Italy (2000) 34 EHRR 1122, 1129, para 23.

    79. This requirement is clearly satisfied in the present case. Once a local housing authority is satisfied that an applicant is homeless, eligible for assistance, and has a priority need, and is not satisfied that the applicant has become homeless intentionally, it is under a statutory duty to secure that accommodation is made available for his or her occupation. It is not a duty to secure the provision of accommodation if it thinks fit, which would make the outcome of the application unpredictable. It is a duty to secure the provision of accommodation in the case of any applicant who satisfies the statutory criteria. Once the duty arises, the applicant has a corresponding legal right to its performance. The housing authority has a wide discretion as to the manner in which it will perform its duty, but that is not inconsistent with the existence of a corresponding right. An applicant has a legal right, recognised by our domestic law, to have the duty performed by the local housing authority in one or other of the ways which are open to it.

    80. Runa Begum fulfilled the relevant criteria and accordingly, as the council acknowledged, it owed her the full housing duty and she had a corresponding legal right to its performance. But it claimed that its statutory duty, and with it her corresponding right, had ceased, because it had offered her suitable accommodation and she had unreasonably refused it.

    81. Whether the accommodation which the council had offered to her and whether it was reasonable for her to occupy it depended in large measure on housing conditions prevailing in the area. The determination of the dispute therefore called for an exercise of judgment on the part of a reviewing officer with experience of such conditions. These factors made the dispute one which was eminently suitable for determination by a senior officer of the council's housing department, but they do not prevent it from involving a determination of her legal rights.

    82. Whether those rights should be classified as "civil rights" within the meaning of article 6(1) is, however, a very difficult question. According to the consistent case law of the Strasbourg court the concept of "civil rights and obligations" is autonomous. Its scope cannot be determined solely by reference to the domestic law of the respondent state: König v Federal Republic of Germany (1978) 2 EHRR 170, 192-193, para 88; Benthem v Netherlands (1985) 8 EHRR 1, 9, para 34. Any other conclusion could lead to results incompatible with the object and purpose of the Convention, since it would be open to contracting states, by reclassifying the rights granted by their own domestic legal systems, to exclude particular categories of civil actions from the operation of article 6(1). The fact that Runa Begum's statutory rights fall to be classified by English law as rights in public law is, therefore, not conclusive.

    83. While the concept of "civil rights" is autonomous, however, the content of the right in question under domestic law is highly relevant. As the Strasbourg court observed in König v Federal Republic of Germany, at p 193, para 89:

"Whether or not a right is to be regarded as civil within the meaning of this expression in the Convention must be determined by reference to the substantive content and effects of the right - and not its legal classification - under the domestic law of the State concerned. In the exercise of its supervisory functions, the Court must also take account of the object and purpose of the Convention and of the national legal systems of the other contracting States."

    84. The difficulty in deciding whether Runa Begum's claim to accommodation was an assertion of her "civil rights" within the meaning of article 6(1) arises from the fact that the jurisprudence of the Strasbourg court in relation to the scope of article 6(1) is still in course of development.

    85. Article 6(1) was originally intended to have a more limited application than a common lawyer would suppose. It is confined to the determination of civil rights and criminal charges, and in civilian systems these do not cover the whole field. There are three systems of justice in Europe, civil, criminal, and administrative, the last-named covering all actions against the state. In Ferrazini v Italy (2001) 34 EHRR 1068 the Strasbourg court held that the article 6(1) guarantee of a fair trial within a reasonable time does not apply to tax cases. Taxation is a core prerogative of the state and in civilian systems does not involve the taxpayer's civil rights. Many alleged criminals and civil litigants have obtained rulings from the Strasbourg court that the long delays inherent in the Italian justice system infringe article 6(1); but ordinary taxpayers cannot do so.

    86. This is not because taxpayers are ranked lower than bogus asylum seekers, suspected terrorists and alleged criminals, including those charged with tax fraud, but because article 6(1) was intended to be supplemented by further measures in relation to the making of administrative decisions. These would, no doubt, have included guarantees of fairness, impartiality and a hearing within a reasonable time; but any requirement that the hearing should be in public before an independent tribunal would have serious consequences for efficient administration. The background is described in the dissenting opinion in Feldbrugge v The Netherlands (1986) 8 EHRR 425, 444, and is summarised in the speech of my noble and learned friend Lord Hoffmann.

    87. No such measures have been introduced, and in their absence the Strasbourg court has found it necessary to extend the scope of article 6(1) to cover some, but not all, administrative decisions. The process has been a gradual one, and may not yet be complete. Underlying the process there must, I think, have been a desire not to restrict the guarantees of a fair hearing within a reasonable time by an impartial tribunal. But the Strasbourg court has not proceeded by reference to principle or on policy grounds; instead it has adopted an incremental and to English eyes disappointingly formalistic approach, making it difficult to know where the line will finally come to be drawn.

    88. At a relatively early stage the Strasbourg court held that article 6(1) extends beyond private law disputes in the traditional sense, that is to say between individuals or between an individual and the state acting as a private individual and subject to private law: it covers all proceedings which are decisive of private rights and obligations: Ringeisen v Austria (No 1) (1971) 1 EHRR 455, 489-490, para 94. The character of the national legislation and that of the authority which is invested with jurisdiction in the matter are not determinative: "only the character of the right at issue is relevant": König v Federal Republic of Germany, at p 194, para 90.

    89. The next step was taken in Feldbrugge v The Netherlands (1986) 8 EHRR 425 and Deumeland v Germany (1986) 8 EHRR 448. The former was concerned with sickness allowance; the latter with industrial injury benefits. Both involved administrative decisions in the grant of contributory social security benefits. The Strasbourg court held that the dispute in each case had features of a public law character - the character of the legislation, the compulsory nature of the insurance, and the assumption by the state of responsibility for social protection; but these were outweighed by features of a private law nature - the personal and economic nature of the right asserted, the close connection with the contract of employment, and the affinities with insurance under the ordinary law. The right asserted was therefore a "civil right" within article 6(1). The decision in each case was strongly dependent on the contributory nature of the scheme and the analogy with private insurance.

    90. This is not a principled basis on which to draw the distinction between "civil rights" which are within the protection of article 6(1) and other rights which are not, and it is not surprising that the line could not be held. The meaning of "civil rights" and hence the scope of article 6(1) was extended further in Salesi v Italy (1993) 26 EHRR 187 and most recently in Mennitto (2000) 34 EHRR 1122. Both cases were concerned with non-contributory disability allowances. In Salesi the court referred to "the development in the law initiated by" the judgments in Feldbrugge and Deumeland and commented that the differences between social insurance and welfare assistance could not be regarded as fundamental "at the present stage of development of social security law". In these passages the Strasbourg court recognised that its jurisprudence was still developing. The decisions had the effect of extending article 6(1) to disputes in connection with non-contributory welfare schemes. In each case the critical feature which brought it within article 6(1) was that the claimant

"suffered an interference with her means of subsistence and was claiming an individual, economic right flowing from specific rules laid down in a statute giving effect to the Constitution" (p 199, para 19).

    91. The present case undoubtedly goes further still. It has four features which take it beyond the existing case law:

(i) it is concerned with a benefit in kind;

(ii) it therefore involves priority between competing claimants. There is only a finite amount of housing stock, whether it belongs to the local housing authority or is bought in; and if one applicant is allowed to remain on the unintentionally homeless register it will be to the detriment of other homeless persons;

(iii) the housing authority has a discretion as to the manner in which it will discharge its duties; and

(iv) ultimately the question for determination calls for an exercise of judgment: whether the applicant has behaved reasonably in refusing an offer of accommodation, having regard to all the circumstances, and in particular housing conditions in the area.

    92. I do not suppose that the first of these is significant in itself; a right to be housed is not a right to subsistence, though it would be invidious to distinguish the two. But it leads to the others, which are significant. Runa Begum cannot be said to be claiming "an individual, economic right flowing from specific rules laid down in a statute".

    93. It is not difficult to conclude that the nature of the dispute in her case makes it inappropriate for determination by the ordinary judicial process. But it is more difficult, at least in principle, to justify withdrawing it from the protection of article 6(1). Most European States possess limited judicial control of administrative decisions; and if such decisions are outside the scope of article 6(1) then judicial control could be dispensed with altogether. The individual could be left without any right to a tribunal which was impartial or to a hearing within a reasonable time. This would be incompatible with the fundamental human right which article 6(1) was designed to secure.