Tomlinson and another v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | LORD COLLINS,Lady Hale,Lord Brown,LORD KERR,LORD HOPE |
| Judgment Date | 17 February 2010 |
| Neutral Citation | [2010] UKSC 8 |
| Date | 17 February 2010 |
| Court | Supreme Court |
[2010] UKSC 8
Lord Hope, Deputy President
Lady Hale
Lord Brown
Lord Collins
Lord Kerr
and others (FC)
Appellant
James Goudie QC
Zia Nabi
(Instructed by Community Law Partnership)
Respondent
Andrew Arden QC
Christopher Baker
(Instructed by Birmingham City Council)
Intervener (Secretary of State for Communities and Local Government)
Natalie Lieven QC
(Instructed by Treasury Solicitor)
LORD HOPE, with whom Lady Hale and Lord Brown agree
The respondents, Birmingham City Council, are a local housing authority within the meaning of Part VII of the Housing Act 1996. This is the Part of the Act which sets out the duties that local housing authorities owe to a person who is homeless or threatened with homelessness. Among its provisions is section 193, which identifies the duty that the authority owes where it is satisfied that an applicant is homeless, eligible for assistance and has a priority need and is not satisfied that he became homeless intentionally. In that situation the duty that the authority owes is to secure that accommodation is available for the applicant: section 193(2). The section also defines circumstances in which the authority will cease to be subject to that duty. Various circumstances will bring this about. The one that is relevant to these appeals is where the applicant, having been informed of the possible consequences of refusal, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under the section: section 193(5).
The applicant has the right to request a review of any decision of a local housing authority as to what duty, if any, is owed to him under section 193: section 202(1)(b). The procedure for review requires that the reviewing officer must be someone who was not involved in the decision and who is senior to the officer who made it. If the applicant is dissatisfied with the decision on the review he may appeal to the county court. But he may only do so on a point of law arising from the decision: section 204(1). The jurisdiction which the county court exercises under that provision is one of judicial review. There is no general right of appeal against the decision of the reviewing officer. The county court judge may not make fresh findings of fact. He must accept the conclusions on credibility that have been reached by the reviewing officer.
The question which these appeals raise is whether a decision that the local housing authority take under section 193(5) of the 1996 Act that they have discharged their duty to the applicant is a determination of his "civil rights" within the meaning of article 6(1) of the European Convention on Human Rights and, if so, whether the quality of review that the statute provides for is sufficient to meet the requirements of that article.
Underlying these questions, however, there is a wider and more fundamental issue which has prompted the Secretary of State for Communities and Local Government to intervene. His interest arises because he has policy responsibility for the 1996 Act. But he is concerned at the effect, if these appeals are successful, that this result will have on the conduct of local government homelessness decision-making across England and Wales and upon the way proceedings have to be conducted in the county court if these decisions are taken to appeal. He suggests that the outcome could affect indirectly the way decisions are made in other areas of local and central government activity such as community care and education.
Lord Hoffmann drew attention to this problem in Runa Begum v Tower Hamlets London Borough Council [2003] UKHL 5, [2003] 2 AC 430, paras 42-44. As he pointed out, it is one thing for the rule of law to require that certain decisions, such as findings of breaches of the criminal law or adjudications of private rights, be entrusted to the judicial branch of government. But there are other areas where utilitarian considerations have their place. It is not in the public interest that an excessive proportion of the funds available for schemes for the regulation of social welfare should be consumed in administration and legal disputes. He referred to a passage in the joint dissenting opinion in Feldbrugge v The Netherlands (1986) 8 EHRR 425, 443, para 15 which, as he said, seems highly material in this context. It contains the following sentence:
"The judicialisation of dispute procedures, as guaranteed by article 6(1), is eminently appropriate in the realm of relations between individuals but not necessarily so in the administrative sphere, where organisational, social and economic considerations may legitimately warrant dispute procedures of a less judicial and formal kind."
I would venture to suggest that those words are as true today as when they were written over twenty years ago.
In that case the minority were unable to persuade the majority to restrict the application of article 6, in the civil sphere, to rights and obligations in private law. It has now been extended to public law rights, such as social security or other cash under publicly funded schemes. No clearly defined stopping point to this process of expansion has yet been identified by the Strasbourg court. But concerns about over-judicialisation of dispute procedures in the administration of social and welfare benefits have not gone away. I believe that this case provides us with an opportunity to introduce a greater degree of certainty into this area of public law.
The facts
The Court of Appeal heard argument in two cases, those of Ms Fazia Ali and Ms Khadra Ibrahim. There was a third case, that of Ms Emma Tomlinson. The respondents refused her application that she was homeless on the basis that she was intentionally homeless. This was because she had been evicted from her home on account of rent arrears. Their decision was confirmed by the reviewing officer, who held that she had not acted in good faith in relation to her finances and the way she had given up her tenancy. Her appeal to the county court was dismissed on the grounds that an appeal lay on a point of law only and that the finding of the reviewing officer was not irrational or perverse. But her case had become academic by the time it reached the Court of Appeal as the respondents, having accepted that the homelessness duty was owed to her, had provided her with accommodation. So the Court of Appeal declined to hear her appeal: [2008] EWCA Civ 1228, para 17. It did however hear the appeals in the cases of Ms Ali and Ms Ibrahim.
The way the Court of Appeal dealt with their appeals was strongly influenced by the approach which the House of Lords took to issues arising under Part VII of the 1996 Act in Runa Begum v Tower Hamlets London Borough Council [2003] 2 AC 430. In that case the question decided by the reviewing officer, and on appeal to the county court on conventional judicial review grounds, was whether the accommodation offered to Runa Begum, which she had refused, was suitable. The House heard argument as to whether the decision of the reviewing officer under section 202 was a determination of Runa Begum's "civil rights" within the meaning of article 6(1) of the Convention. But it declined to express a concluded view one way or the other on this issue. As Lord Bingham of Cornhill explained in para 6, it preferred to assume, without deciding, that her domestic law right was also a "civil right" and to consider, on that assumption, whether the statutory provision of an appeal to the county court on a point of law satisfied the requirements of that article. Having done so, it concluded that the context did not require a full fact-finding jurisdiction and that the county court's appellate jurisdiction was sufficient to satisfy its requirements.
The Court of Appeal too proceeded on the assumption that article 6(1) was engaged in these cases: para 21. The issue that they raised was not, as in Runa Begum, whether the accommodation was suitable. For reasons that I shall explain, they raised simple questions of primary fact which were decided against the appellants by the reviewing officer. It was submitted that, as these questions did not depend on specialist knowledge or expertise, the appellants' cases were not within the scope of the decision in Runa Begum. The Court of Appeal rejected this argument. Thomas LJ said that no proper distinction could be drawn between these appeals and the appeal in that case. The appellants seek to persuade this court that, where simple questions of fact are in issue, the court must exercise a full fact-finding jurisdiction if the requirements of article 6(1) are to be satisfied. They submit that the decisions of the review officers should be remitted to the county court for consideration on their merits or that it be declared that section 204(1) of the 1996 Act is incompatible with the appellants' rights under that article.
The question that arose in the cases of Ms Ali and Ms Ibrahim was indeed, a very simple one, and it was a question of fact. It was whether they received a letter from the respondents of the kind that section 193(5) requires, informing them of the possible consequences if they were to refuse their offer of accommodation under that section. The respondents' case is that the letters were sent as required by the statute. The appellants maintain that they never received them. The circumstances in which this issue arose in each case are as follows.
(a) Ms Ali
Ms Ali is single and has two children. She applied for assistance under Part VII of the 1996 Act in October 2006. By letter dated 7 November 2006 the respondents notified her that they were satisfied that she was eligible...
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