Ali v Birmingham City Council

Under Part VII of the Housing Act 1996, Birmingham City Council as a housing authority determined it had discharged its duty to two homeless persons on the grounds they had declined suitable accommodation. On review by the authority’s reviewing officer under s.202 of the Act the decisions were upheld on grounds which included findings in each case that the homeless persons had received a letter giving the appropriate statutory notice under s.193. Each appealed to the County Court under s.204 which provides for an appeal on a point of law; that right of appeal is in substance the same as the jurisdiction of the High Court on judicial review. The appellants sought to challenge the finding that they had received the letter containing the statutory notice on the grounds that the reviewing officer had been wrong to find as a fact that they had received the letter.

In Runa Begum v Tower Hamlets London Borough Council [2003] UKHL 5 ([2003] 2 AC 430) the House of Lords concluded that the procedure under which there was a review by a reviewing officer and an appeal to the court on conventional judicial review grounds was compatible with Article 6.1. In that case, the question decided by the reviewing officer and which was challenged on appeal was the suitability of the accommodation offered. The question on these appeals is whether the decision in Runa Begum applies to a determination where the sole issue for the reviewing officer is a simple issue of primary fact as distinct from an issue of fact where the reviewing officer has to use specialist knowledge or have regard to policy considerations (such as those that arise on the question of the suitability of the offered accommodation) – the situation in Runa Begum. The contention advanced is that it does not apply and that there must be a full right of appeal to the court on that issue of fact. It is also contended that the subsequent decision of the Strasbourg Court in Tsfayo v The United Kingdom [2006] ECHR 60860/00 [2007] LGR 1 makes it clear that a determination by a housing authority of such an issue is not compliant because it is not an independent and impartial tribunal as required by Article 6.1 of the European Convention on Human Rights; that therefore a right of appeal must lie to the court if the legislation is to be compliant with Article 6.1.

Before turning to that issue, it is necessary to set out the proceedings in the two cases on which argument was heard and refer briefly to a third case where, in view of the offer of housing to the appellant in that case shortly before the hearing, the appeal became academic. The cases all involved Birmingham City Council as the housing authority. They were determined in the County Court at Birmingham. The appeal to this Court was heard at the Civil Justice Centre in Birmingham.

Ms Ali

Ms Fazia Ali, a single parent of two young children made a homelessness application in October 2006 under Part VII of the Act. It was common ground that she was homeless, had a priority need and not intentionally homeless. The housing authority therefore had a duty under s.193 of the Act to secure that accommodation was available for occupation by Ms Ali. The relevant provisions of s.193 (as amended) are:

“(2)

Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.

…

(5)

The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, 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 this section.

…

(7)

The local housing authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6.

(7A) An offer of accommodation under Part 6 is a final offer for the purposes of subsection (7) if it is made in writing and states that it is a final offer for the purposes of subsection (7).”

In November 2006, the authority made an offer in the following way:

A further offer was made in March 2007.

S.204 is clear in providing for a right of appeal to the County Court only on a point of law:

“(1)

If an applicant who has requested a review under section 202 –

(a)

is dissatisfied with the decision on the review, or

(b)

is not notified of the decision on the review within the time prescribed under section 203,

he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision.”

It was nonetheless contended that in the light of the decision of the Strasbourg Court in Tsfayo that the Court was bound to determine the issue of fact as to whether the letter had been received by Ms Ali.

The appeal was heard by HH Judge MacDuff QC (as he then was), a judge with considerable experience of such cases. It was contended that he should hear evidence from Ms Ali and the reviewing officer and determine whether she had received the letter. It was not argued that the decision was perverse. The Judge concluded in the light of the decision in Runa Begum that the decision made on the review was one the reviewing officer was entitled to make and the court could not re-determine the issue as to receipt of the letter by hearing witnesses:

“29.

I also make this observation. I acknowledge that there is a difference between a decision (a) that property is/is not suitable and (b) that a letter has/has not been received. I acknowledge that a reviewing officer or panel does not need a measure of professional knowledge or experience in order to determine that simple issue of fact. However, if I were to hold that this issue should be determined by the court, this could well undermine the whole statutory scheme. It would be open to any appellant to assert that he/she had not received a letter (there are other equally crucial letters along the route to a final determination). The appeal process could thereby be dogged by similar applications, with enormous costs implications. Alternatively there would have to be expensive personal service of such letters. The implications could be very significant.

30.

I have reached the conclusion that the decision as to whether that letter had been received was properly and fairly to be made by the reviewing officer or panel. It was part of the whole statutory scheme. It seems to me that she could have reached a decision one way or the other. She was in a good position to consider it. She has to undertake the task fairly and give proper reasons. In those circumstances, I decline the invitation to hear evidence on the point. In reviewing the Local Authority’s decision, it is open to the appellant to take whatever points of law she wishes to take. Those points of law have to be considered and a reasoned decision advanced by the review panel. That occurred here. I think that Mr Nicol concedes that if I hold, as I do, that that is a decision for the homeless review officer and panel, rather than for a decision of this court hearing live evidence, then the decision cannot be gainsaid as being perverse or otherwise capable of being set aside. That is patently the case, particularly when one takes account of the telephone conversation and the admitted terms of that telephone conversation.”

Ms Ibrahim

Khadra Ibrahim’s household comprised herself and six children, four boys and two girls. She originally came to the UK from Finland, but was of Somali origin. She has a limited understanding of English. In May 2005, the housing authority accepted a duty to Ms Ibrahim as a homeless person. An initial offer was made.

On 26 October 2005, the housing authority made an offer of permanent accommodation to Ms Ibrahim at 11 Dawberry Road, Birmingham.

An appeal was made to the County Court. It was heard on 4 October 2006 by HH Judge McKenna, a judge with considerable experience of such appeals. It was contended before him that Ms Ibrahim had not received the second letter; that it was unreasonable for the authority to have concluded that it had discharged its duty as the accommodation was not suitable.

The judge concluded that the issue as to the receipt of the letter had been determined by the reviewing officer. The basis on which the decision on suitability could be challenged was made clear in Runa Begum. On the basis of that decision, the reviewing officer was entitled to conclude that it was reasonable for her to have accepted the accommodation as the accommodation was suitable for her; although the error in the first letter was unfortunate, it was not unreasonable to have expected her to contact the authority and inspected the property before she decided to reject it. The decision was one with which the court could not interfere.

Ms Tomlinson

The appeal brought by Ms Tomlinson to which I referred at paragraph 3 had become academic in the following circumstances. She lived in Birmingham with her husband and two children. In September 2005 she applied to the housing authority on the basis that she was homeless. The authority refused her application on the basis that she was intentionally homeless within the meaning of s.191 on the grounds that she had been evicted from her home on account of rent arrears. After three reviews and appeals, a reviewing officer found on 2 January 2007 that she was intentionally homeless on the basis that she had not acted in good faith in relation to her finances and the way in which she had given up the tenancy. She appealed to the County Court. The appeal was heard by Mr Recorder Lochrane. He decided, applying the decision in Runa Begum, thatan appeal only lay on a point of law and that a finding of fact could not be reviewed save on grounds applicable to judicial review such as that finding was irrational or perverse; after a careful review of the decision, he concluded that the finding could not be impeached on any of those grounds. Her appeal therefore failed.

An application was made in all three cases to appeal to this court. Permission was granted in the case of Ms Ali and Ms Ibrahim by Lloyd LJ on the sole ground that the issue in the case was whether each had received the letter complying with s. 193 – an issue which was not a decision made through an evaluative process on the part of the authority where policy considerations were important, but a decision on an issue of primary fact. Although the issue of fact was more complex in the case of Ms Tomlinson, permission was granted to Ms Tomlinson on a similar basis. Permission was refused on all other grounds on which it had been sought. In granting permission Lloyd LJ made clear at paragraph 10:

“I will grant permission to appeal limited to that point, which is the one point in the Ali case and is one of the points in the other two cases. I refuse permission on the other points, but not intending thereby to preclude argument as to the true scope of the ratio in Begum, and I will direct that all three cases come on together. The appeals should be heard, because of the importance of the point, with as much dispatch as can be arranged consistent with orderly listing.”

Shortly before the hearing the court was told that the authority had accepted the full homelessness duty in respect of Ms Tomlinson and that she had been granted accommodation. In the circumstances, the authority contended that the appeal should be withdrawn by consent as the appeal was academic. This was resisted by those instructed on her behalf on the basis that as the appeals raised an issue of principle, it would be convenient to have the facts in the case of Ms Tomlinson before the court so that the court could consider the scope of the right of appeal in a case where the issue related to homelessness under s.191.

After hearing argument we decided that we would not hear the appeal in the case of Ms Tomlinson. Her appeal was academic and the point of principle as to the scope of the right of appeal in Part VII cases could be determined by reference to the remaining appeals.

The appellants’ case can be summarised:

The argument of the housing authority and the Secretary of State (who had joined in the appeal as an interested party in June 2008) can be even more shortly expressed. The decision in Runa Begum covered the issue; the decision in Tsfayo did not cast any doubt upon the principle. Even if it did, then this court was nonetheless bound to follow the decision in Runa Begum; it was for the House of Lords to decide that issue.

Four questions therefore arose:

Were the decisions on appeal a determination of the civil rights of the appellants?

In Runa Begum the House of Lords were prepared to accept without deciding the issue that the decisions on appeal were a determination of the civil rights of the applicants within the scope of Article 6.1: (see the opinions of Lord Bingham of Cornhill at paragraph 6, Lord Hoffmann at paragraphs 60-70, Lord Millett at paragraphs 78-94 and Lord Walker of Gestingthorpe at paragraphs 108-115). Although the Secretary of State’s principal contention was that the process under Part VII was compliant with Article 6.1 as had been decided in Runa Begum, the Secretary of State contended in the alternative that the decision as to whether a duty is owed under Part VII is not a determination of civil rights within Article 6. In the light of the conclusion to which I have come, it is unnecessary to decide this alternative submission and I will proceed on the assumption that Article 6.1 is engaged.

Had the issue on appeal been determined by the decision in Runa Begum?

On this assumption, it is next necessary to consider whether the decision in Runa Begum covers the issue in the instant appeals. In approaching that question, I have at the forefront of my consideration the following:

In that broad context, it is next necessary to refer to what Lord Hoffmann, who gave the opinion with which Lord Bingham, Lord Hope and Lord Walker agreed, decided in relation to fact finding. He made it clear in the light of the general considerations which I have briefly summarised at paragraph 46:

“It therefore seems to me that it would be inappropriate to require that findings of fact for the purposes of administering the homelessness scheme in Part VII should be made by a person or body independent of the authority which has been entrusted with its administration.”

After rejecting the suggestion that findings of fact be entrusted to a contracted out fact finder, he concluded at paragraphs 47 and 50-53:

“47.

Although I do not think that the exercise of administrative functions requires a mechanism for independent findings of fact or a full appeal, it does need to be lawful and fair. It is at this point that the arguments which [counsel for the housing authority] urged about the impartiality of [the reviewing officer] and the regulations for the conduct of reviews become relevant. To these safeguards one adds the supervisory powers of the judge on an appeal under section 204 to quash the decision for procedural impropriety or irrationality. In any case, the gap between judicial review and a full right of appeal is seldom in practice very wide. Even with a full right of appeal, it is not easy for an appellate tribunal which has not itself seen the witnesses to differ from the decision-maker on questions of primary fact and, more especially relevant to this case, on questions of credibility.

…..

50.

All that we are concerned with in this appeal is the requirements of article 6, which I do not think mandates a more intensive approach to judicial review of questions of fact. These nuances are well within the margin of appreciation which the Convention allows to contracting states and which, in a case like this, the courts should concede to Parliament. So I do not propose to say anything about whether a review of fact going beyond conventional principles of judicial review would be either permissible or appropriate. It seems to me sufficient to say that in the case of the normal Part VIIdecision, engaging no human rights other than article 6, conventional judicial review such as the Strasbourg court considered in Bryan v United Kingdom (1995) 21 EHRR 342 is sufficient.”

51.

Is this view consistent with the Strasbourg jurisprudence and with Bryan in particular? I think it is…..

52.

In this case the subject matter of the decision was the suitability of accommodation for occupation by Runa Begum; the kind of decision which the Strasbourg court has on several occasions called a “classic exercise of an administrative discretion”. The manner in which the decision was arrived at was by the review process, at a senior level in the authority's administration and subject to rules designed to promote fair decision-making. The content of the dispute is that the authority made its decision on the basis of findings of fact which Runa Begum says were mistaken.

53.

In my opinion the Strasbourg court has accepted, on the basis of general state practice and for the reasons of good administration which I have discussed, that in such cases a limited right of review on questions of fact is sufficient ….”

As I have made clear, Runa Begum was a case where what was in issue was a question of whether the accommodation offered was suitable. In developing the argument summarised at paragraph 18, Mr Goudie QC on behalf of the appellants emphasised that the question of suitability was an issue where the expertise of the authority’s officers was a material factor in entrusting the decision making to the officer. Although as Lord Hoffmann had said at paragraph 56 the decision on suitability had involved preliminary findings of fact, the ratio of that case was that it was not necessary for a finding of suitability to be subject to anything more than the conventional review under s.204. This was because it was “a classic exercise of administrative discretion”. In the cases on appeal the question of fact was different - it was a simple question of whether a document had been received; that was not a classic exercise of administrative discretion but a simple determination of primary fact. As the decision of the House of Lords in Runa Begum therefore extended only to cases where the issue was one which depended on specialist knowledge and expertise, the issue in these appeals were not within the scope of the decision and, on principle, this court should decide that in these appeals there was a full right of appeal to the court where a finding of primary fact had been made by the reviewing officer, particularly where that finding of fact was determinative of the issue.

There are a number of considerations to which I have had regard.

Having regard to the considerations I have set out, it is clear to me that the issue in this appeal is determined by the decision in Runa Begum. It is possible to draw the distinctions made by Mr Goudie QC in relation to different types of findings of fact. However I do not see how, having regard to the basis of the decision in Runa Begum and the considerations to which I have had regard, any proper distinction can be drawn between the appeals in this case and the appeal in Runa Begum. I have therefore come to the conclusion that the issue on this appeal has been determined by the decision in Runa Begum.

In these circumstances, although interesting arguments were made by Mr Goudie QC on the form of relief sought by the appellants and how this could be achieved within the scope of s. 204, based upon the observations of Hale LJ in Adan v Newham LBC [2001] EWCA Civ 1919, [2002] 1WLR 2120 at paragraphs 67-78, they do not arise and it is not necessary to consider them.

Should this court in any event leave the determination of the issue to the House of Lords?

In my view, even if the decision in Runa Begum did not cover the precise point in issue, 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 argued that it is akin to counting angels on the tip of 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. This is an even more powerful consideration given the observations of Lord Hope in Doherty v Birmingham City Council [2008] UKHL 57 ([2008] 3 WLR 636at paragraphs 19-21). Furthermore for this Court to draw those distinctions would make administration of the statutory scheme dealing with homelessness very difficult in the period which elapsed while the inevitable appeal was made to the House of Lords. That would do no service to anyone.

In any event therefore, I would have concluded that in my view this court should not seek to distinguish Runa Begum, but leave the question to be considered by the House of Lords on any application for leave to appeal. But that is not the primary reason for my view that the appeal should be dismissed. It is that the issues on this appeal are within the scope of that decision and that there are independent considerations that support that conclusion.

Does the decision of the Strasbourg Court in Tsfayo alter the conclusion that the issue is determined by Runa Begum?

In Tsfayo, the applicant, an asylum seeker, sought housing benefit under a statutory scheme. She was granted housing benefit under that scheme which required periodic renewal. She failed to renew within the appropriate timescale. The local authority allowed her claim for future benefit, but rejected the claim for benefit to be backdated to cover the period in which she had forgotten to make the application. This was on the basis that she had failed to show good cause why she had not claimed the benefits earlier. An appeal was made under the statutory scheme to the local authority’s housing benefit review board (HBRB); this consisted of three councillors advised by a barrister employed by the local authority’s legal department. The appeal failed. It was accepted by the UK that the applicant’s civil rights were determined and that Article 6.1 was applicable.

The Strasbourg Court held, after a review of a number of UK decisions, including Runa Begum, that the statutory scheme and procedure did not fulfil the requirements of Article 6.1. As a consideration of the decision of the House of Lords in Runa Begum was central to their reasoning, it may be helpful to refer to the relevant part of the judgment in full:

“44.

The domestic courts have also applied the principles in Bryan, notably the House of Lords in Alconbury and Runa Begum. In the latter case, the House of Lords found that judicial review of a housing officer's decision that the claimant had been unreasonable in rejecting the accommodation offered to her provided “sufficiency of review” for the purposes of Art. 6.1. The House of Lords stressed that although the housing officer had been called upon to resolve some disputed factual issues, these findings of fact were, to use the words of Lord Bingham in that case, “only staging posts on the way to the much broader judgments” concerning local conditions and the availability of alternative accommodation, which the housing officer had the specialist knowledge and experience to make. Although the housing officer could not be regarded as independent, since she was employed by the local authority which had made the offer of accommodation which Runa Begum had rejected, statutory regulations provided substantial safeguards to ensure that the review would be independently and fairly conducted, free from improper external influences. Any significant departure from the procedural rules would have afforded a ground of appeal.

45.

The Court considers that the decision-making process in the present case was significantly different. In Bryan, Runa Begum and the other cases cited in para.[43] above, the issues to be determined required a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims. In contrast, in the instant case, the HBRB was deciding a simple question of fact, namely whether there was “good cause” for the applicant's delay in making a claim. On this question, the applicant had given evidence to the HBRB that the first that she knew that anything was amiss with her claim for housing benefit was the receipt of a notice from her landlord— the housing association— seeking to repossess her flat because her rent was in arrears. The HBRB found her explanation to be unconvincing and rejected her claim for back-payment of benefit essentially on the basis of their assessment of her credibility. No specialist expertise was required to determine this issue, which is, under the new system, determined by a non-specialist tribunal (see para.[21] above). Nor, unlike the cases referred to, can the factual findings in the present case be said to be merely incidental to the reaching of broader judgments of policy or expediency which it was for the democratically accountable authority to take.

46.

Secondly, in contrast to the previous domestic and Strasbourg cases referred to above, the HBRB was not merely lacking in independence from the executive, but was directly connected to one of the parties to the dispute, since it included five councillors from the local authority which would be required to pay the benefit if awarded. As Mr Justice Moses observed in Bewry, this connection of the councillors to the party resisting entitlement to housing benefit might infect the independence of judgment in relation to the finding of primary fact in a manner which could not be adequately scrutinised or rectified by judicial review. The safeguards built into the HBRB procedure (paras [22] – [23] above) were not adequate to overcome this fundamental lack of objective impartiality.

47.

The applicant had her claim refused because the HBRB did not find her a credible witness. Whilst the High Court had the power to quash the decision if it considered, interalia, that there was no evidence to support the HBRB's factual findings, or that its findings were plainly untenable, or that the HBRB had misunderstood or been ignorant of an established and relevant fact (see paras [24] – [25] above), it did not have jurisdiction to rehear the evidence or substitute its own views as to the applicant's credibility. Thus, in this case, there was never the possibility that the central issue would be determined by a tribunal that was independent of one of the parties to the dispute.

Mr Goudie QC’s submission was in essence to adopt the court’s reasoning which I have set out and to invite us either to distinguish Runa Begum or not to follow it, if we concluded that the decision in Runa Begum otherwise applied to the issues on the appeal.

As to the second argument, this court is bound by the decision of the House of Lords in Runa Begum. Even if the Strasbourg Court has decided the issue differently from the way in which the House of Lords decided Runa Begum this court is bound by the decision in Runa Begum: see Kay v Lambeth, Leeds City Council v Price [2006] UKHL 10 [2006] 2 AC 465 at paragraphs 42-45.

In my view, however, the Strasbourg Court did not decide the issue in this case in a manner that would require a different answer to the issue on these appeals which I have reached on the basis of the decision in Runa Begum. In the first place the Strasbourg Court relied on the decision in Runa Begum in reaching its conclusion and said nothing that cast doubt on the correctness of the decision. Secondly, the decisions in Runa Begum and Tsfayo each turned on a careful examination of the whole of the statutory scheme relevant to the particular case. Thirdly, it is apparent from the details of the scheme considered in Tsfayo that whereas in the case of prospective benefit, central government reimbursed the local authority 95% of what it was required to pay, it only reimbursed 50% of backdated awards (see paragraph 19 of the decision); this fact had been heavily relied upon in argument (see paragraph 37 of the decision) for the powerful contention that the hearing had taken place before a tribunal consisting of members of an authority which would be required to pay 50% of the benefit if it made an award in the applicant’s favour; the HBRB was not independent of the parties. Finally when the housing benefits scheme was looked upon as a whole, it was readily apparent that a conclusion could be reached, in contradistinction to the scheme under Part VII of the Housing Act, that the particular scheme was not compliant with Article 6.1

I, of course, accept that it is possible to construct the attractive argument advanced by Mr Goudie QC based on passages in the paragraphs of the judgment which I have cited. However in my view, the issue must be approached by an examination of the scheme as a whole. For the reasons I have already given, I would not have been persuaded, even if it was open to me to be persuaded, that the decision in Tsfayo mandates a different approach to the Part VII scheme or to the type of appeal for decisions of primary fact within that scheme.

However it is not for this Court, in my view, to decide that question. It is for the House of Lords or for the Court in Strasbourg to determine whether they wish to hear that issue.

I would therefore dismiss both appeals.

We were asked in the course of the submissions that if we reached the conclusion that we were bound by Runa Begum, we should grant leave to appeal. As is clear from observations I have already made, I would not grant leave. The statutory scheme was considered in Runa Begum; if in the light of the distinction sought to be drawn in this case between types of fact finding and the decision of the Strasbourg Court in Tsfayo, the House of Lords considers that the issues need reconsideration, then that should be a decision for the House of Lords and not for this court.

I agree.

I also agree.