Runa Begum v Tower Hamlets London Borough Council

JurisdictionUK Non-devolved
JudgeLORD BINGHAM OF CORNHILL,LORD HOFFMANN,LORD HOPE OF CRAIGHEAD,LORD MILLETT
Judgment Date13 February 2003
Neutral Citation[2003] UKHL 5
Date13 February 2003
CourtHouse of Lords
Begum (FC)
(Appellant)
and
London Borough of Tower Hamlets
(Respondents)

[2003] UKHL 5

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Hoffmann

Lord Hope of Craighead

Lord Millett

Lord Walker

HOUSE OF LORDS

LORD BINGHAM OF CORNHILL

My Lords,

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 [2001] 2 WLR 1389 at 1416, [2001] 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 [2000] 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 [1977] 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 [1987] 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 [2001] 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 ( [2002] 1 WLR 2491 at 2513, [2002] 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 [1988] 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:

"I consider that the property offered is both suitable for you and your children in that the physical attributes are in accordance with the Council's Allocation Criteria, and I further consider that it is reasonable to expect yourself and your household to occupy the property offered as I consider that the area in which Balfron Towers is located is no different to any other area within the London Borough of Tower Hamlets …"

(3) Although it seems to me obvious, as I have said, that the reviewer is not...

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