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On Monday and Tuesday 23 / 24th November, a five strong panel of the Supreme Court (Lords Hope and Brown, Lady Hale and Lords Collins and Kerr) will hear an appeal brought by three homeless persons who were denied local authority accommodation by Birmingham City Council (“BCC”).  The case raises issues of public law and human rights in the context of the Housing Act 1996.  The issue for the Supreme Court to decide is whether the Appellants’ rights to a fair and public hearing under Article 6(1) of the European Convention on Human Rights (“ECHR”) were breached by the two stage process under the Housing Act 1996 pursuant to which BCC’s decision came to be reviewed – and in particular, whether it was lawful for BCC’s internal reviewing officer to decide key points of fact without there being a full right of appeal against that decision.  The Supreme Court’s decision will be interesting because it will fall on the Court to decide between conflicting decisions on the same issue by the House of Lords on the one hand, and the ECHR on the other.

 The facts of the case were as follows.  The Appellants were all individuals who, as was accepted by BCC, satisfied the test under s.193 of the Housing Act 1996 to be provided with suitable local authority accommodation (i.e they were unintentionally homeless, were eligible for assistance, and had priority needs).  They were each offered accommodation by BCC which BCC considered to be suitable, but in each case they refused to accept the offers.  BCC accordingly wrote letters to each of the Appellants stating that BCC considered that it had discharged its duty under s.193.  The letters went on to explain that there was a right under s.202 of the Act to have the decision reviewed internally by BCC’s reviewing officer.  In each case, the Appellants requested a review, and the reviewing officer upheld the decision, sending a second letter which stated that a further right of review existed under s.204 of the Act to the County Court, but only on “any point of law arising from the decision or the earlier decision” (in effect providing a right to judicial review, but not to a full merits appeal including factual witnesses).  The Appellants sought s.204 reviews, citing the fact that they had allegedly failed to receive the s.193 letters as grounds; however, their appeals were dismissed by Birmingham County Court, which held that (i) the question of whether the letters had been received or not was a point of fact, not a point of law, accordingly (ii) that question properly fell to the reviewing officer to decide; and (iii) there was no evidence to suggest that the officer’s decision was irrational or perverse.  The Appellants appealed, seeking a full merits appeal, on the basis that the two stage review process provided for by s.202 and s.204 was a breach of Article 6(1) since the key point of fact had been determined by the housing authority itself, and they had been denied a right of appeal against it.

In Runa Begum v Tower Hamlets London Borough Council [2003] UKHL 5 the House of Lords had previously determined that the review process under s.202 and s.204 was compatible with Article 6(1).  However, the Appellants in Tomlinson contended that Begum could be distinguished.  The decision given by the Housing Officer in the Begum case was whether the accommodation satisfied the test of ‘suitability’, a decision of policy which the Housing Officer was qualified to give, and was not, as in Tomlinson, a determination on a point of fact.  In support of this argument, the Appellants sought to rely on a 2006 decision of the ECHR (Tsfayo v UK [2006] ECHR 60860/00) in which the Strasbourg court held that the determination of points of fact by a Housing Authority (without a full right of appeal) was indeed a breach of Article 6(1) because the Housing Authority was not an independent and impartial tribunal.  BCC contended in reply that Begum could be relied on – the House of Lords had given the s.202 and s.204 procedure a thorough review and concluded that the statutory scheme was a fair and proportionate method of determining issues of social housing.  In particular, the House of Lords had made it clear that they considered there to be very little distinction between a finding of policy based on fact (as taken by the housing officer and subject to JR by way of s.204) and a finding of fact (which as contended would create a separate right of appeal in order to satisfy Article 6(1)); and that allowing full appeals on points of fact would lead to a proliferation of social housing appeals from persons claiming not to have received s.193 letters, which would undermine the efficacity of the whole regime.

The Court of Appeal dismissed the appeals.  Lord Justice Thomas, with whom Lord Justice Rimer and Lord Justice Hughes agreed, held that the reasoning in Begum applied; but even if it did not apply, “it would not be right for this court to draw a distinction between different types of fact finding in a scheme so recently considered by the House of Lords.  If distinctions are to be drawn, particularly where it is to be argued that that it is akin to counting angels on the tip of a pin, then they should be drawn by the House of Lords in a reconsideration of the approach to be taken to the scheme as a whole”. The Court of Appeal saw itself as bound by Begum, with the result that it was strictly unnecessary to consider whether Tsfayo applied: however, Tsfayo was distinguishable in any event, for reasons including the fact that it related to housing benefits, where a slightly different scheme of review was operated. 

Permission to appeal was refused by the Court of Appeal, but was granted by the House of Lords on 8 May 2009, in apparent acceptance that the fairness of the statutory scheme should now be reconsidered.  The UKSC’s decision will be an interesting test of how far ECHR jurisprudence is penetrating national law: will an issue clearly decided one way by the House of Lords as recently as 2003 be decided another way following a contrary decision from Strasbourg?

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