Information Note on the Court’s case-law 189
October 2015
Fazia Ali v. the United Kingdom - 40378/10
Judgment 20.10.2015 [Section IV]
Article 6
Administrative proceedings
Article 6-1
Civil rights and obligations
Independent tribunal
Limited judicial review of administrative decision relating to housing of homeless family: Article 6 § 1 applicable; no violation
Facts – The applicant, a parent of two young children, was a homeless person in priority need of accommodation within the meaning of Part VII of the Housing Act 1996 (“the 1996 Act”). Having turned down a first offer of accommodation by her local authority, she was informed on the telephone that a further viewing had been arranged and that a letter would follow. The letter stated that if she refused that offer without good cause, the authority would consider that it had discharged its duty towards her. The applicant denied ever receiving the letter, but she did view the property and decided to refuse that offer also. The authority then notified her in writing that it considered that it had discharged its duty. Its decision was upheld by the Homelessness Review Officer in an internal review procedure. The applicant’s subsequent appeal to the County Court on points of law was dismissed on the grounds that the only issue was whether she had received the letter of offer relating to the second property and that there was no need for the County Court to hear evidence on that point as it had been properly and fairly determined by the Review Officer. The applicant’s further appeals to the Court of Appeal and Supreme Court were dismissed on the grounds that the County Court had conducted “sufficient review” of the Review Officer’s decision for the purposes of Article 6 § 1 of the Convention.
In the Convention proceedings, the applicant complained that her inability to appeal to an independent and impartial tribunal in respect of the relevant factual finding had amounted to a violation of Article 6 § 1 of the Convention.
Law – Article 6 § 1
(a) Applicability – The applicant had a legally enforceable right by virtue of section 193 of Part VII of the 1996 Act to be provided with accommodation, albeit a right that could cease to exist in certain conditions. The court proceedings in question clearly concerned a “dispute” over the continuing existence, if not the content, of that right; the dispute was genuine and serious; and the result of the proceedings was directly decisive for the right in question.
As to whether the right was a “civil right”, the applicant’s case differed from previous cases in which rights to welfare assistance had been recognised as civil, as the assistance to be provided under section 193 of the 1996 Act not only was conditional but could not be precisely defined (compare, for example, Tsfayo v. the United Kingdom, 60860/00, 14 November 2006), in which the dispute concerned a fixed financial amount of housing benefit). Accommodation was a “benefit in kind” and both the applicant’s entitlement to it and the subsequent implementation in practice of that entitlement by the Council were subject to an exercise of discretion. Nonetheless, the Court was not persuaded that all or any of these factors necessarily militated against recognition of such an entitlement as a “civil right”. There was no convincing reason to distinguish between the applicant’s right to be provided with accommodation and the right to housing benefit that had been asserted by the applicant in Tsfayo. Article 6 § 1 was therefore applicable.
(b) Merits – The Homelessness Review Officer who conducted the internal review could not be regarded as an “independent tribunal” within the meaning of Article 6 § 1 of the Convention. Nevertheless, under the Court’s case-law, where an adjudicatory body determining disputes over “civil rights and obligations” does not comply with Article 6 § 1 in some respect, no violation of the Convention can be found if the proceedings before that body are subject to subsequent control by a judicial body that has “full jurisdiction” and does provide the guarantees of Article 6 § 1. In practice, that requirement will be satisfied where the judicial body in question has exercised “sufficient jurisdiction” or provided “sufficient review”.
In determining that issue, the Court had to examine the whole of the legislative scheme in question, and, in particular, whether the adjudicatory process by which the applicant’s “civil rights” were “determined”, taken as a whole, had provided a due enquiry into the facts. The Court was satisfied that there had existed sufficient factual grounds for the Review Officer to conclude that the applicant had received a letter of offer and noted that, in any event, there was no question of any injustice or unfairness as even if the applicant had not received the letter, she had viewed the property and turned it down for wholly unrelated reasons. The enquiry before the Review Officer had been accompanied by a number of significant procedural safeguards and while the County Court did not have jurisdiction to conduct a full rehearing of the facts, the appeal available to the applicant did permit it to carry out a certain review of both the facts and the procedure.
In considering whether the legislative scheme, taken as a whole, had provided a due enquiry into the facts, the Court also had to have regard to the nature and purpose of the scheme. Indeed, in relation to administrative-law appeals, the question whether the scope of judicial review afforded was “sufficient” may depend not only on the discretionary or technical nature of the subject-matter of the decision appealed against and the particular issue the applicant wished to ventilate before the courts, but also, more generally, on the nature of the “civil rights and obligations” at stake and the nature of the policy objective pursued by the underlying domestic law.
The scheme at issue in the present case was designed to provide housing to homeless persons. It was therefore a legislative welfare scheme covering a multitude of small cases and intended to bring as great a benefit as possible to needy persons in an economical and fair manner. With regard to the “determination” of rights and obligations deriving from such a social welfare scheme, when due enquiry into the facts had already been conducted at the administrative adjudicatory stage, Article 6 § 1 of the Convention could not be read as requiring that the judicial review before a court should encompass a reopening with a rehearing of witnesses, as that would have significant implications for both the statutory scheme and the court and tribunal system.
In sum, the judicial scrutiny in the applicant’s case had been of sufficient scope to satisfy the requirements of Article 6 § 1.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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