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Cite as: [2002] EWCA Civ 239, [2002] HLR 543, [2002] WLR 2491, [2003] LGR 205, [2002] 2 All ER 668, [2002] 1 WLR 2491

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London Borough of Tower Hamlets v Begum [2002] EWCA Civ 239 (6th March, 2002)

Neutral Citation Number: [2002] EWCA Civ 239
Case No: B2/2001/2878

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOW COUNTY COURT

Royal Courts of Justice
Strand,
London, WC2A 2LL
6th March 2002

B e f o r e :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
LORD JUSTICE LAWS
and
LORD JUSTICE DYSON

____________________

Between:
London Borough of Tower Hamlets
Appellant
- and -

Runa Begum
Respondent

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Ashley Underwood QC and Kelvin Rutledge (instructed by Tower Hamlets Legal Services) for the appellant
Paul Morgan QC and Steven Woolf (instructed by Messrs Maxim) for the respondent

____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Crown Copyright ©

    Lord Justice Laws:

    INTRODUCTORY

  1. As is well known Article 6( 1) of the European Convention on Human Rights (“ECHR”) provides in part:
  2. “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law,”

    This appeal has required the court to look again at the scope of the expression “civil rights” in the context of the homeless persons legislation. In particular, we have had to examine the impact of the statutory setting in which a civil right is said to arise upon the nature and quality of independent adjudication required to satisfy Article 6(1).

  3. The appeal is brought against the decision of His Honour Judge Roberts given in the Bow County Court on 21st December 2001, when he allowed the respondent’s appeal under s.204(1) of the Housing Act 1996 (“HA”) against the determination of Mrs Hayes, an officer of the appellant local authority, to the effect that certain premises in Tower Hamlets were suitable for the appellant and her family, and that it would have been reasonable for her to accept that accommodation. Permission to appeal was granted by Schiemann LJ on 10th January 2002.
  4. At the invitation of the respondent and without objection from the appellant local authority the judge determined the appeal before him upon a preliminary issue, namely whether the procedure for internal review of a local authority’s decision relating to its homelessness functions, provided for by HA s.202, is compliant with ECHR Article 6(1). The judge held that on facts such as those of the present case it was not, considering he was bound to arrive at that conclusion in light of what had been said in this court only seven days before in Adan v London Borough of Newham [2001] EWCA Civ 1916.
  5. THE LEGISLATION

  6. I have already set out ECHR Article 6(1). I need not cite any of the provisions of the Human Rights Act 1998 (“HRA”). It is obvious that the local authority respondent is a “public authority” within s.6(3) of the Act of 1998. Accordingly by s.6(1) it may not “act in a way which is incompatible with a Convention right”. Thus its procedures must comply with the Convention standards so far as they touch Convention rights; and it is the court’s duty, also by s.6(1), to see that they do so.
  7. The homeless persons legislation is now contained in HA Part VII. I should set out these following provisions.
  8. “175(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere...
    (2) A person is also homeless if he has accommodation but -
    (a) he cannot secure entry to it...
    (3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy....
    177(2) In determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation, regard may be had to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he has applied for accommodation or for assistance in obtaining accommodation...
    179(1) Every local housing authority shall secure that advice and information about homelessness, and the prevention of homelessness, is available free of charge to any person in their district...
    182(1) In the exercise of their functions relating to homelessness and the prevention of homelessness, a local housing authority or social services authority shall have regard to such guidance as may from time to time be given by the Secretary of State...
    184(2) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves-
    (a) whether he is eligible for assistance, and
    (b) If so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.
    (2) They may also make inquiries whether he has a local connection with the district of another local housing authority in England, Wales or Scotland.
    (3) On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision...
    188(1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part….
    189(1) The following have a priority need for accommodation –
    (a) a pregnant woman or a person with whom she resides or might reasonably be expected to reside;
    (b) a person with whom dependent children reside or might reasonably be expected to reside;
    (c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;
    (d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster...
    191(1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy...
    193(1) This section applies where the local authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
    This section has effect subject to section 197 (duty where other suitable accommodation available).
    (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, 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....
    197(1) This section applies if the local housing authority would be under a duty under this Part -
    (a) to secure that accommodation is available for occupation by an applicant, or
    (b) to secure that accommodation does not cease to be available for his occupation,
    but are satisfied that other suitable accommodation is available for occupation by him in their district.
    (2) In that case, their duty is to provide the applicant with such advice and assistance as the authority consider is reasonably required to enable him to secure such accommodation...
    198(1) If the local housing authority would be subject to the duty under section 193 (accommodation for those with priority need who are not homeless intentionally) but consider that the conditions are met for referral of the case to another local housing authority, they may notify that other authority of their opinion.
    The authority need not consider under section 197 whether other suitable accommodation is available before proceeding under this section.
    (2) The conditions for referral of the case to another authority are met if-
    (a) neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with the district of the authority to whom his application was made,
    (b) the applicant or person who might reasonably be expected to reside with him has a local connection with the district of the other authority, and
    (c) neither the applicant nor any person who might reasonably be expected to reside with him will run the risk of domestic violence in that other district...
    202(1) An applicant has the right to request a review of-
    … 
    (b) any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 and 195 to 197 (duties to persons found to be homeless or threatened with homelessness),…
    (f) any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraph (b)…
    (4) On a request being duly made to them, the authority or authorities concerned shall review their decision.
    203(1) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under section 202.
    Nothing in the following provisions affects the generality of this power.
    (2) Provision may be made by regulations-
    (a) requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision, and
    (b) as to the circumstances in which the applicant is entitled to an oral hearing, and whether and by whom he may be represented at such a hearing.
    (3) The authority, or as the case may be either of the authorities, concerned shall notify the applicant of the decision on the review.
    (4) If the decision is-
    (a) to confirm the original decision on any issue against the interests of the applicant, or
    (b) to confirm a previous decision-
    (i) to notify another authority under section 198 (referral of cases), or
    (ii) that the conditions are met for the referral of his case,
    they shall also notify him of the reasons for the decision.
    (5) In any case they shall inform the applicant of his right to appeal to a county court on a point of law, and of the period within which such an appeal must be made (see section 204)...
    (8) Notice required to be given to a person under this section shall be given in writing…
    204(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…
    (3) On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit...
    206(1) A local housing authority may discharge their housing functions under this Part only in the following ways-
    (a) by securing that suitable accommodation provided by them is available,
    (b) by securing that he obtains suitable accommodation from some other person, or
    (c) by giving him such advice and assistance as will secure that suitable accommodation is available from some other person.
    (2) A local housing authority may require a person in relation to whom they are discharging such functions-
    (a) to pay such reasonable charges as they may determine in respect of accommodation which they secure for his occupation (either by making it available themselves or otherwise), or
    (b) to pay such reasonable amount as they may determine in respect of sums payable by them for accommodation made available by another person.”
  9. The Secretary of State has made regulations under section 203. Those current at the times material to this case are the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (“the 1999 Regulations”). (The judge below was mistakenly referred to earlier regulations made in 1996, but nothing turns on that.) I should set out these following provisions.
  10. “2 Where the decision of the authority on a review of an original decision made by an officer of the authority is also to be made by an officer, that officer shall be someone who was not involved in the original decision and who is senior to the officer who made the original decision.
    ...
    6(2).... the authority to whom a request for a review under section 202 has been made shall –
    (a) notify the applicant that he, or someone acting on his behalf, may make representations in writing to the authority in connection with the review;
    (b) if they have not already done so, notify the applicant of the procedure to be followed in connection with the review.
    ....
    8(1) The reviewer shall, subject to compliance with the provisions of regulation 9, consider-
    (a) any representations made under regulation 6....;
    (b) any representations made under paragraph (2) below.
    (2) If the reviewer considers that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant –
    (a) that the reviewer is so minded and the reasons why;
    (b) that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing.”

    Regulation 9 makes provision for the notification of the review decision within stipulated time limits.

  11. I should also refer to paragraph 3 of the Local Authority (Contracting Out of Allocation Housing Homelessness Functions) Order 1996, which provides:
  12. “Any function of an authority which is conferred under Part VII of the Act (homelessness) ... may be exercised by, or by employees, of such person (if any) as may be authorised in that behalf by the authority whose function it is.”

    THE FACTS

  13. The respondent is a homeless person. On 11th April 2000 the appellant notified her that it had accepted that it owed her the full housing duty as provided for in HA s.193(2). She was given temporary accommodation, of which she took a non-secure tenancy on 15th May 2000. On 6th July 2001 she was offered permanent accommodation in the shape of a two bedroom third floor flat at 19 Balfron Towers, St Leonard’s Road, London E14. The letter stated:
  14. “If you have been accepted as homeless under section 184 of the Housing Act 1996 and you unreasonably refuse this offer, responsibility will be discharged by the homelessness service and you will be required to leave any accommodation provided by the council under Part VII of the Housing Act.”
  15. The respondent viewed the accommodation, but turned it down. She wrote to explain why. She said “this place is [a] drug addicted area”. She said she was worried for her two young children. She claimed the area was racist, and that she had been attacked by two youths shortly after viewing the property. Lastly she said that her estranged husband frequently visited the building.
  16. So it was that Mrs Hayes came to conduct an internal review, under HA s.202, of the appellant’s offer of the flat at 19 Balfron Towers. She gave her decision by letter of 27th July 2001. This was the subject of the appeal to the county court. Mrs Hayes said that she was satisfied that the offered accommodation was suitable for the respondent and her household. I will set out the bulk of the reasons given, as follows:
  17. “2 Following receipt of your representations, information was requested from the Estate Office regarding your allegation that a drug problem exists at the above block, and also your allegation that the area suffers from racial problems. The Estate Officer advises that it has been reported that there are no drug problems at the block, and that this block is served by a concierge facility and is secure in that the entry phone system is extended to cover each individual landing, so that movement through the block is restricted, allowing only unauthorised access to particular areas. The Estate Officer also confirmed that there have not been any major racial incidents at the block in question, your allegations therefore appear unfounded and unsubstantiated.
    3 Your letter of 12 July 2001 gives details of an alleged attack by two youths on yourself, which you later reported to the police. However, I note that there are discrepancies in the details provided by yourself in respect of this incident, in that your letter advises that your purse was taken, but during an interview with one of our Officers, you advised that your purse was not taken, indeed you used money from your purse in order to return to your interim accommodation. Information was sought from the police in respect of the attack reported by yourself in order that further investigations could be made, however we were informed that attempts have been made to contact yourself, but thus far you have remained rather illusive [sic] to the enquiries being made by the police, and I am advised that there were also discrepancies in the original report you made to them.
    4 You advised that your husband frequently visits friends at Balfron Towers, however, you are unable to provide specific names and addresses of those friends in order to corroborate your suggestions. Notwithstanding this you have advised that you saw your husband on the day of the viewing and state that you do not wish to see him again. You have given no reason for this other than that you are no longer on friendly terms with him. I note from your application file my Rehousing Officer phoned your home on 13 July 2001 to discuss your refusal of the offered tenancy, and a gentleman answered who stated that he was your husband and that you had taken your children to the hospital. When asked about this later in the day when you returned her call, firstly you advised that there was nobody in your house, when asked again about who the gentleman was you failed to respond. On balance I consider it strange that a supposedly identified gentleman would answer your telephone whilst you are out, and you are unable to confirm who this person was.
    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. You seem to suggest that you are on bad terms with your husband, and perhaps this would render the property unsuitable for you given an apparent frequency of which he is supposed to visit friends there, however you also report that on the day you met him there was no incident or unpleasantness. Further, you are unable to substantiate this claim by providing details of his friends, and I do not accept that frequent visits to the block by your husband renders the property offered unsuitable.”
  18. The respondent’s appeal against this decision came as I have said before His Honour Judge Roberts sitting at the Bow County Court. At 5D-E of the transcript of his judgment, the judge said this:
  19. “The preliminary point which the appellant [respondent in this court] wished to argue and which the court has considered put very simply is this. It is said in this case that there were here disputed issues of fact which were material to the decision of the council and that accordingly the local authority could not, if the procedure was to be compatible with Article 6(1) of the European Convention on Human Rights, have conducted a final review by its own officer, but was bound at least to have given consideration to using its powers to direct a review by an independent body [sc. under paragraph 3 of the 1996 Contracting Out Order].”

    Having been referred to Adan [2001] EWCA Civ 1916, and also to the decision of Richards J in Beeson [2001] EWHC Admin 986, he concluded (10B-D):

    “... the fact of the matter is that I cannot on what is effectively a judicial review, determine whether or not those findings [sc. of Mrs Hayes] have been affected by her connection with one of the parties, namely the local authority in this case.
    It therefore follows in my judgment, that the failure on the part of the local authority either to refer this matter to a wholly independent tribunal for review... or at least to give consideration to doing so, is fatal to their opposition to this appeal. As a matter of law they should have considered at least referring it to an independent tribunal and their failure to do so means that the appellant, in my judgment, must succeed on this appeal because the procedure adopted by the local authority is in contravention of Article 6 of the ECHR.”

    THE ISSUES

  20. Counsel are agreed that these three following issues arise.
  21. (1) Was Mrs Hayes’ decision of 27th July 2001 taken under HA s.202 a determination of the respondent’s “civil rights” within the meaning of ECHR Article 6(1)?

    (2) If so, did Mrs Hayes constitute an “independent and impartial tribunal” for the purposes of Article 6(1)?

    (3) If not, did the county court, on appeal to it under HA s.204, possess “full jurisdiction” (I shall explain the quotation) so as to guarantee compliance with Article 6(1)?

  22. Before I address these issues individually, there are some general observations I should make. By way of introduction, I should indicate at this stage one aspect of the case which is important though uncontentious. It is that the substance of the county court’s jurisdiction under HA s.204, in the limited field to which it relates, is in effect the same as that of the High Court in judicial review save as regards the forms of relief that may be granted. This court so held in Nipa Begum [2000] 1 WLR 306.
  23. The first consideration to which I draw attention is this. By the law of England the quality of independent adjudication to which the individual is entitled at the hands of our courts, in any case where a public authority arrives at a decision of which (possessing a sufficient interest) he seeks to complain in court proceedings, is by no means dependent upon the authority’s decision being categorised in terms of the individual’s “civil rights and obligations”. If he has a good judicial review case, for the purposes of the standards of judicial determination which will apply it is a matter of indifference whether or not it might fall to be so categorised.
  24. Secondly, it is of course true that the judicial review procedure is not generally apt for the adjudication of factual disputes. That is in contrast to the procedure for private law claims, which is precisely suited to that very task. The reason is that judicial review is primarily directed (there are exceptions) to the legality of decisions as regards which it is the duty or province of a body other than the court to find the necessary facts; whereas in private law claims it is generally the court’s duty – more often than not, its most important duty – to ascertain the facts. The distinctions between these procedures are founded, simply, on what is in practice required for the just and efficient judicial disposal of different forms of legal dispute. There is no necessary match between on the one hand the contrast of private and public law forms of process in our domestic system, and on the other the contrast for Article 6 purposes of forms of process which involve “civil rights and obligations” with others which do not.
  25. Having all these considerations in mind, I shall with great respect be more interested in what procedures are needed to arrive at fair resolutions of the real issues arising, having regard to the nature of the scheme that Parliament has put in place in HA Part VII, than in the categorisation of any stage of the process as touching the affected person’s “civil rights”.
  26. I acknowledge, however, that the exercise of categorisation cannot be ignored. The terms of Article 6 require it to be undertaken, and I shall proceed to deal with it. But I should say that I think it important to have in mind that the court’s task under the HRA, in this context as in many others, is not simply to add on the Strasbourg learning to the corpus of English law, as if it were a compulsory adjunct taken from an alien source, but to develop a municipal law of human rights by the incremental method of the common law, case by case, taking account of the Strasbourg jurisprudence as HRA s.2 enjoins us to do.
  27. THE FIRST QUESTION: HA s.202 AND “CIVIL RIGHTS”

  28. In Adan [2001] EWCA Civ 1916, to which I have already referred, it was conceded that “the procedure under Part VII of the 1996 Act involved the determination of Mrs Adan’s civil rights within the meaning of ECHR Article 6(1)”: see per Brooke LJ at paragraph 9. However no such concession is made before us by Mr Underwood QC for the appellant. Mr Morgan QC for the respondent, plainly rightly, does not suggest that we are bound by the court’s acceptance of the concession in Adan. The issue is open to be determined afresh, and we have had the advantage of substantive argument on the point.
  29. It is convenient to start with what Lord Hoffmann said in Alconbury [2001] 2 WLR 1389 at paragraph 79:
  30. “…as we shall see, the European court has not restricted article 6(1) to the determination of rights in private law. The probable original meaning, which Judge Wiarda said in König's case, at p 205, was the ‘classical meaning’ of the term ‘civil rights’ in a civilian system of law, is nevertheless important. It explains the process of reasoning, unfamiliar to an English lawyer, by which the European court has arrived at the conclusion that article 6(1) can have application to administrative decisions. The court has not simply said, as I have suggested one might say in English law, that one can have a ‘civil right’ to a lawful decision by an administrator. Instead, the court has accepted that ‘civil rights’ means only rights in private law and has applied article 6(1) to administrative decisions on the ground that they can determine or affect rights in private law.”
  31. So the question is whether the review decision taken by Mrs Hayes under HA s.202 has determined or affected the respondent’s rights in private law. But this is what I may call a loose question: that is, there is no sharp criterion by which to judge whether the s.202 decision has determined or affected such rights of the respondent. I should notice also that the category of civil rights in Article 6 is not to be understood merely as referring to such rights and obligations as arise in the private law of the States Members of the Council of Europe (or administrative decisions which determine or affect such rights). By the Strasbourg jurisprudence, “civil rights and obligations” is an autonomous concept, at any rate to the extent indicated by the European Court of Human Rights in Pudas 10 EHRR 380 at paragraph 35:
  32. “According to the well established case law of the Court, the concept of ‘civil rights and obligations’ is not to be interpreted solely by reference to the respondent State’s domestic law and Article 6(1) applies irrespective of the status of parties, and of the character of the legislation which governs how the dispute is to be determined and the character of the authority which is invested with jurisdiction in the matter; it is enough that the outcome of the proceedings should be decisive for private right and obligations.”

    With great respect I find this a little difficult to fathom (I am sure the fault is mine). I take it to refer, partly at least, to the different courts, and court processes, established respectively for the resolution of private and public law disputes in civilian systems, and to indicate that differences of that kind cannot conclude the question whether “civil rights and obligations” are at stake. At all events I see no reason here not to apply the touchstone described by Lord Hoffmann at paragraph 79 of Alconbury.

  33. On this issue Mr Underwood accepts, plainly rightly, that once a homeless person becomes a tenant he or she thereby enjoys and owes civil rights and obligations: the rights and obligations which are incidents of the tenancy as a matter of private law. However he submits that an acceptance by the council of the full housing duty under HA s.193(2) does not of itself “determine or affect” (Alconbury) such rights nor is it “decisive” of it (Pudas), because it remains open to the council, after the s.193(2) stage, to determine the mode in which they will perform the duty they have accepted. There are three such modes: see HA s.206(1) which I have set out. Mr Underwood says that the homeless person’s civil rights (that is, those flowing from the tenancy) are inchoate until a specific property has been identified for his occupation. If these arguments are right, a review decision under s.202 cannot amount to a determination of a civil right if the s.193(2) decision does not.
  34. More broadly Mr Underwood submits that it is clear from authority of their Lordships’ House that decisions under these provisions of the HA do not determine civil rights and obligations. He referred to O’Rourke [1998] AC 188. In that case the plaintiff brought an action for damages against the council following his eviction from temporary accommodation provided for him pursuant to s.63(1) of the Housing Act 1985 (the predecessor of HA s.188(1)). The defendant council applied to strike out the claim. The Court of Appeal held that s.63(1) created a private law duty sounding in damages. Their Lordships’ House disagreed. Lord Hoffmann emphasised particular features of the legislation. First, it was a scheme of social welfare intended to confer benefits in the general public interest (193D). Secondly, the duty to provide accommodation depended upon “a good deal of judgment on the part of the local housing authority” (194B). Then this passage at 196C-H:
  35. “Lord Bridge went on [sc. In Cocks v Thanet]… to say that a duty in private law would arise once the housing authority had made a decision in the applicant's favour. He said [1983] 2 AC 286, 292-293:
    ‘On the other hand, the housing authority are charged with executive functions. Once a decision has been reached by the housing authority which gives rise to the temporary, the limited or the full housing duty, rights and obligations are immediately created in the field of private law. Each of the duties referred to, once established, is capable of being enforced by injunction and the breach of it will give rise to a liability in damages. But it is inherent in the scheme of the Act that an appropriate public law decision of the housing authority is a condition precedent to the establishment of the private law duty.’
    My Lords, I must say with all respect that I cannot accept this reasoning. There is no examination of the legislative intent, the various considerations which I have discussed earlier as indicating whether or not a statute was intended to create a duty in private law sounding in damages. The fact that the housing authority is ‘charged with executive functions’ is treated as sufficient to establish a private law duty. No doubt because the question did not have to be decided, Lord Bridge did not undertake a careful examination of the statutory intent such as he afterwards made in Reg. v. Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 AC 58, 157-161. I feel sure that if he had, he would have expressed a different opinion.
    The concept of a duty in private law which arises only when it has been acknowledged to exist is anomalous. It means that a housing authority which accepts that it has a duty to house the applicant but does so inadequately will be liable in damages but an authority which perversely refuses to accept that it has any such duty will not. This seems to me wrong. Of course a private law relationship may arise from the implementation of the housing authority's duty. The applicant may become the authority's tenant or licensee and so brought into a contractual relationship. But there seems to me no need to interpose a statutory duty actionable in tort merely to bridge the gap between the acknowledgement of the duty and its implementation.”
  36. It is instructive also to look at the decision of Stanley Burnton J in Husain [2001] EWHC Admin 852, a case whose subject-matter was far distant from the housing legislation. It was concerned (as the judge put it at the beginning of his judgment) with “the constitutionality of the office of asylum support adjudicators”. But the judge made some general observations. Paragraph 26:
  37. “… Article 6 does not apply to the exercise by public authorities of their discretion, as distinguished from their compliance with their obligations owed to citizens. Obligations give rise to rights; discretionary payments and discretionary support do not.”

    Paragraph 27:

    “A line has to be drawn between those decisions which, in a democratic society, must be given to an independent tribunal and those which need not. Article 6 draws this line by restricting the requirement to the determination of criminal charges and civil rights and obligations. A right by definition is something to which the citizen is entitled, to which he has an enforceable claim. A discretionary benefit, one that a government may give or refuse as it wishes, cannot be the subject of a right.”

  38. This reasoning of Stanley Burnton J seems to me to be correct. And it touches, though it cannot determine, the present issue. The regime established by HA Part VII is by no means confined to the conferment of discretions upon the local authority. Giving full weight, with respect, to Lord Hoffmann’s emphasis on what may be called the judgmental characteristics of the scheme (O’Rourke, 194B-E), it is to my mind clear that in administering it the authority has to resolve a series of matters which sit at different points on a spectrum between what is wholly objective and what is wholly subjective. The issues arising under s.193(1) – non-intentional homelessness, eligibility for assistance, priority need – are good examples. They may include the question, obviously objective, whether a woman applicant is pregnant: s.189(1)(a). But whether an applicant is intentionally homeless within the statute’s meaning involves matters far less hard-edged. And whether the council is satisfied that other suitable accommodation is available for an applicant (ss.193(1), 197(1)) comes closer to an exercise of discretion. So the system has some elements akin to a discretionary regime, others distant from it.
  39. In these circumstances the court has to make a judgment as to the engagement of “civil rights and obligations” which cannot be arrived at by the application of any brightline rule; as I have already said, Lord Hoffmann’s formulation in Alconbury raises a loose question – whether the decision in issue “can determine or affect rights in private law” – not susceptible of answer by reference to any sharp criterion. I prefer the view that the homeless person’s civil rights and obligations are engaged by a determination under HA s.202. Such a determination leads to the grant or withholding of a tenancy. And I think that the subject-matter of the scheme, dealing with the urgent provision of living accommodation for persons who will often be gravely disadvantaged (or the refusal to provide it) so touches their well-being that as a matter of our domestic law of human rights we should lean towards the application of the Article 6(1) discipline. This conclusion is in no sense inconsistent with their Lordships’ decision in O’Rourke, since it is not a necessary incident of a “civil right” attracting the protections of Article 6(1) that the law allows its owner to maintain an action for damages to make the right good. In addition it is, I think, supported by the holding of this court in McLellan [2001] EWCA Civ 1510 that the function of the review panel under HA s.129(2), in the context not of homelessness but of the introductory tenancy regime created by HA Part V, engages Article 6 civil rights and obligations: see paragraphs 79 – 83 in the judgment of Waller LJ. Further support is to be found in the approach of the European Court of Human Rights to the application of Article 6(1) to a statutory regime for welfare assistance in Salesi (1993) 26 EHRR 187 at paragraph 19. Finally it is to be noted that in Husain, to which I have referred, Stanley Burnton J concluded that there was a “civil right” to asylum support: see paragraphs 54 and 55. The jurisprudence in England and Strasbourg alike demonstrate that “civil right”, for the purpose of Article 6, may and often does travel wider than the common law conception of cause of action.
  40. For these reasons I would conclude that Mrs Hayes’ decision of 27th July 2001 taken under HA s.202 constitutes a determination of the respondent’s “civil rights” within the meaning of ECHR Article 6(1).
  41. THE SECOND QUESTION: s.202 AND “INDEPENDENT AND IMPARTIAL TRIBUNAL”

  42. In Adan it was common ground that an officer conducting a review under HA s.202 could not constitute an “independent and impartial tribunal” within the meaning of Article 6(1): see, again, paragraph 9 per Brooke LJ. In this case Mr Underwood makes no such concession.
  43. The Strasbourg jurisprudence is clear and consistent. Purely by way of example, the Court stated in Findlay (1997) 24 EHRR 221 at paragraph 73:
  44. “…in order to establish whether a tribunal can be considered ‘independent’, regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of impartiality… As to the question of ‘impartiality’, there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. The concepts of independence and impartiality are closely linked…”

  45. There is no suggestion of actual bias on the part of Mrs Hayes. The question is as to the appearance of the thing, in light of the manner of her appointment and the presence or absence of “objective guarantees” of independence and impartiality. Mr Underwood emphasises in particular the rule as to seniority and no previous involvement in the case: paragraph 2 of the 1999 Regulations. He submits also that the appellant council had no or no substantial financial interest in the outcome of the s.202 review, and there is no reason to suppose that a council officer in Mrs Hayes’ position would entertain any inclination to support the original decision-maker.
  46. In my judgment there are not here sufficient objective guarantees, visible as it were to the outside world, so as to clothe the reviewing officer’s role under s.202 with the necessary qualities of independence and impartiality, if it is looked at in isolation. This is not the slightest criticism of Mrs Hayes. I have already said that this is a question of appearances; but this is a context in which appearances are very significant. It is also to be noted that (as I understand it) the review officer sits in private, and a public hearing is one of the conditions of Article 6(1). I should add that this conclusion by no means sidelines the s.202 review process so as to deprive it of any real significance for the problems which this appeal exposes. As I will show, the machinery of HA s.203 and of paragraphs 6 and 8 of the 1999 Regulations, which I have set out, is of considerable importance for the correct resolution of the third question, to which I now turn.
  47. THE THIRD QUESTION: THE COUNTY COURT AND “FULL JURISDICTION”

  48. There is of course no contest as to the independence and impartiality of the county court. The issue on this part of the case, which I regard as the nub of the appeal, is whether or not HA s.204 suffices to satisfy Article 6(1), given that the section only enables the county court to examine questions of law; the court does not revisit the review officer’s decision under s.202 with full power to decide the factual merits for itself. The approach in Strasbourg to cases where a first instance decision-maker does not of itself satisfy Article 6(1), but it is claimed that the defect is as it were cured by a right of appeal to or review by an independent court, is to ascertain whether in the circumstances the court possesses what has been called “full jurisdiction”. The genesis of this expression is I think to be found in Albert and Le Compte v Belgium (1983) 5 EHRR 533. That was a case in which doctors suspended from practice by a disciplinary tribunal complained of violations of Article 6(1). It is convenient to refer to the relevant passage as it is quoted by Lord Hoffmann in Alconbury, where it is followed by reasoning to which with respect I would attach considerable importance in the context of the present case:
  49. “86 In… Albert and Le Compte v Belgium (1983) 5 EHRR 533… the court said, at paragraph 29, that although disciplinary jurisdiction could be conferred upon professional bodies which did not meet the requirements of article 6(1) (e g because they were not ‘established by law’ or did not sit in public):
    ‘None the less, in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of article 6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of article 6(1).’
    87 The reference to ‘full jurisdiction’ has been frequently cited in subsequent cases and sometimes relied upon in argument as if it were authority for saying that a policy decision affecting civil rights by an administrator who does not comply with article 6(1) has to be reviewable on its merits by an independent and impartial tribunal. It was certainly so relied upon by counsel for the respondents in these appeals. But subsequent European authority shows that ‘full jurisdiction’ does not mean full decision-making power. It means full jurisdiction to deal with the case as the nature of the decision requires.
    88 This emerges most clearly from the decisions on the English planning cases… But the leading European authority for the proposition that it is not necessary to have a review of the merits of a policy decision is Zumtobel v Austria (1993) 17 EHRR 116. The Zumtobel partnership objected to the compulsory purchase of their farming land to build the L52 by-pass road in the Austrian Vorarlberg. The appropriate government committee heard their objections but confirmed the order. They appealed to an administrative court, which said that the government had taken proper matters into account and that it was not entitled to substitute its decision for that of the administrative authority. They complained to the Commission and the European court that, as the administrative court could not ‘independently assess the merits and the facts of the case’, it did not have ‘full jurisdiction’ within the meaning of the Albert and Le Compte formula. The European court said, at para 32, that its jurisdiction was sufficient in the circumstances of the case, ‘Regard being had to the respect which must be accorded to decisions taken by the administrative authorities on grounds of expediency and to the nature of the complaints made by the Zumtobel partnership.’”

  50. Later in his speech in Alconbury Lord Hoffmann referred to the case of Bryan v UK (1995) 21 EHRR 342, and in particular to the opinion of Mr Nicolas Bratza (as he then was) in the Commission:
  51. “107… [Mr Bratza] said, at p 354:

    ‘It appears to me that the requirement that a court or tribunal should have “full jurisdiction” cannot be mechanically applied with the result that, in all circumstances and whatever the subject matter of the dispute, the court or tribunal must have full power to substitute its own findings of fact, and its own inferences from those facts, for that of the administrative authority concerned. Whether the power of judicial review is sufficiently wide to satisfy the requirements of article 6 must in my view depend on a number of considerations, including the subject matter of the dispute, the nature of the decision of the administrative authorities which is in question, the procedure, if any, which exists for review of the decision by a person or body acting independently of the authority concerned and the scope of that power of review.’
    110 Mr Bratza's particular insight, if I may respectfully say so, was to see that a tribunal may be more or less independent, depending upon the question it is being called upon to decide. On matters of policy, the inspector was no more independent than the Secretary of State himself. But this was a matter on which independence was unnecessary—indeed, on democratic principles, undesirable—and in which the power of judicial review, paying full respect to the views of the inspector or Secretary of State on questions of policy or expediency, was sufficient to satisfy article 6(1). On the other hand, in deciding the questions of primary fact or fact and degree which arose in enforcement notice appeals, the inspector was no mere bureaucrat. He was an expert tribunal acting in a quasi-judicial manner and therefore sufficiently independent to make it unnecessary that the High Court should have a broad jurisdiction to review his decisions on questions of fact.”

    Lord Hoffmann proceeded to point out that Mr Bratza’s opinion had influenced the decision of the Court in Bryan, which said in paragraph 45 of the judgment:

    “… in assessing the sufficiency of the review available to Mr Bryan on appeal to the High Court, it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal.”
  52. Against this background, we have to consider whether, in light of the nature and details of the scheme established in HA Part VII, the county court’s function under s.204 fulfils the Article 6(1) standards: in the language of Strasbourg, whether in the context of Part VII it possesses “full jurisdiction”. In Adan this court concluded by a majority that it did not. That conclusion was obiter, though of course entitled to great respect. I should briefly explain how it was that the court came to pronounce on the matter. The appellant, who was a Dutch lady, applied to the local authority for accommodation as a homeless person. She was turned down on the ground that she was not habitually resident in this country (that being a requirement under Regulations). She sought a review under s.202, but the original decision was upheld. She appealed to the county court under s.204. Her appeal was allowed. The judge directed that a further s.202 review should be conducted by a different reviewing officer who should be compliant with Article 6(1). That direction was challenged on appeal by the council. This court concluded that there was no power to make such a direction. That was the end of the live appeal. But the court was invited, on pressing and responsible grounds, to deliver an opinion upon the question whether the procedures given by HA Part VII fulfilled Article 6. It was conceded (as I have said) that the respondent’s civil rights were engaged. It was conceded also that the review officer did not constitute an “independent and impartial tribunal”: see paragraph 9. There remained the question, the very question arising in this case, whether the county court’s function under s.204 validated the Part VII process for the purpose of Article 6(1).
  53. I should cite these passages from the judgment of Brooke LJ:
  54. “43 It follows that if a case arises on a section 202 review where there is a dispute about the primary facts of a kind which has to be resolved because it is material to the decision-making process, then the danger will arise that the proceedings, taken as a whole, will not be ECHR compliant. The reviewing officer will lack the independent status of the planning inspector in the Alconbury case and the county court does not have full jurisdiction to decide questions of disputed fact (except in a Wednesbury, or super-Wednesbury, sense). If such a case arises before the law is changed in order to correct the deficiencies identified in this judgment, then it appears to me that the local authority will have to exercise its contracting-out powers so as to ensure that any such dispute is determined by a tribunal with the appropriate attributes of independence and impartiality.
    47 … we were shown three recent judgments in the Administrative Court in which conclusions were reached which are similar to that to which I have found myself driven in the present case. I refer to the judgments of Richards J in R (Kathro) v Rhondda Cynan Taff County Borough Council [2001] EWHC Admin 527 at [28]-[29]; Moses J in R (Bewry) v Norwich City Council [2001] EWHC Admin 657 at [58]-[62]; and Stanley Burnton J in Husain v Asylum Support Adjudicator [2001] EWHC Admin 832 AT [78]-[79]. It is sufficient for present purposes to recite a passage in the last of these judgments. In Husain Stanley Burnton J said (paras 78-79):
    ‘... where the decisions of a tribunal are likely to depend to a substantial extent on disputed questions of primary fact, and the tribunal is clearly not independent, judicial review should not suffice to produce compliance with Article 6. The scope for review of findings of primary facts is too narrow to be considered a ‘full jurisdiction’ in such a context. Fact-dependent decisions must be made by fully independent tribunals: the scope for judicial review of primary findings of fact, and particularly of findings as to the credibility of witnesses, is generally too narrow to cure a want of independence at the lower level.
    I think that the Court should lean against accepting judicial review as a substitute for the independence of tribunals. If the availability of judicial review is too easily regarded as curing a want of independence on the part of administrative tribunals, the incentive for the executive and the legislature to ensure the independence of tribunals is considerably weakened.’
    I agree.”
  55. Hale LJ took a different view. She said:
  56. “61 An appeal which is limited to points of law as that has traditionally been understood cannot fill all the gaps. Until this case, the understanding was that the county court acted on the same principles as the High Court had previously acted when judicial review was the only remedy in homelessness cases: see Nipa Begum v Tower Hamlets London Borough Council [2001] 1 WLR 306. This means that it has a jurisdiction over error both in procedure and in law which is, as Sedley LJ observed at p327B, ‘at least as wide as that of a court of judicial review’. Its powers are in some respects wider, as section 204(3) permits it to ‘make such order confirming, quashing or varying the decisions as it thinks fit’.
    79… if the local authority for whatever reason do not provide a reviewing system which is adequate to comply with Article 6 in the particular case, the county court would have to say so. As we are agreed that the court cannot send the case back with a direction to comply, the court is required to fill the gap itself. This is no more radical an interpretation of section 204 as a whole than is the suggestion that the local authority be required as a matter of law to adopt a different decision-making process. Of course, if they were so required, but did not do so, this would clearly be a question of law for the court to resolve.
    80… I am prepared to accept that the local authority may choose to contract out some or all of its reviews to a body whose constitution and procedures enable the decision to comply with Article 6 (even though this would change the character of reviews and deprive applicants of much that is valuable in them). But if they do not do so, and the particular issues in the case require an independent decision, then the court should fill the gap.”

    The third member of the court was David Steel J, who (paragraph 94) agreed with Brooke LJ:

    “Whatever may be the true analysis of the decision [sc. in R v A [2001] UKHL 25], I still agree with the conclusion of Brooke LJ that it does not permit an interpretation, as to allow the county court to fill any ‘gap’ that renders the words ‘appeal on a point of law’ as including ‘appeal on a point of fact’. Straining the language cannot achieve that end. Nor is a dispute of fact rendered a dispute of law by reason of what would otherwise be a shortfall in ECHR compliance as regards the provision for resolution of that dispute. Nor, in the further alternative, is there any need to imply words to that effect. The Court is simply not boxed into a corner where the only option is the implication of the words “fact or” or a declaration of incompatibility. The local authority simply has to contract out the review process, either generally or in appropriate cases.”
  57. We were referred to the three cases which Brooke LJ mentions at paragraph 47 in Adan, and I have already cited extracts from Stanley Burnton J’s decision in Husain in considering the first issue in the appeal. I mean no disrespect if I do not travel further into the detail of those judgments save for the decision of Moses J in Bewry. That case was concerned with the functions of a Review Board, manned by local councillors, to which a person refused housing benefit by the local authority might apply for a fresh determination. Moses J said this:
  58. “57 But Mr Squires asserts that at the heart of this case lay an issue of credibility. The Secretary of State submits that the reasoning of the Review Board makes it plain that their decision was based upon the questions to which the documents gave rise which the claimant singularly failed to answer or to clarify. The question of credibility, he submits, did not depend upon oral evidence but upon inferences to be drawn from the documents to which the Review Board referred. Had the reasons for rejecting the claimant’s assertions not stacked up, this court would have been in a good position to identify that failure. The reasoning demonstrates, it is submitted, an independence of approach.
    58 There is, however, in my judgment, one insuperable difficulty. Unlike an inspector, whose position was described by Lord Hoffmann as independent, the same cannot be said of a councillor who is directly connected to one of the parties to the dispute, namely the Council. In my judgment, the position of councillors chosen to sit on a Review Board cannot be likened to that of the Planning Inspectorate…
    62 … The lack of independence [sc. of the councillors on the Board] may infect the independence of judgment in relation to the finding of primary fact in a manner which cannot be adequately scrutinised or rectified by this court…
    64 … This court cannot cure the often imperceptible effects of the influence of the connection between the fact-finding body and a party to the dispute since it has no jurisdiction to reach its own conclusion on the primary facts, still less any power to weigh the evidence.”

    I should say that these conclusions were arrived at by the judge through what he saw as the application of common law principle, the relevant events having happened before the Convention rights were patriated by the HRA on 2nd October 2000. Moses J’s judgment, and much of the other learning in this area, was cited at some length by Richards J in Beeson [2001] EWHC Admin 986 (to which as I have said the judge in the present case referred). Beeson concerned certain statutory arrangements for the provision of residential accommodation under the National Assistance Act 1948. The judge found that like considerations to those which moved Moses J applied in the circumstances before him.

  59. These decisions (right or wrong: Moses J’s judgment was doubted, though very much in passing and as was acknowledged without hearing full argument, by Waller LJ in McLellan at paragraph 75, and we were told that Beeson is currently subject to appeal) seem to me to reflect an important truth about the relationship between the “first instance” decision and the decision of the court on appeal or review, in this class of case where it is said that the later court process guarantees Article 6 compliance where that is not satisfied by the earlier determination. We have seen that in such cases the later court must possess “full jurisdiction” (Albert and Le Compte), and that this means “full jurisdiction to deal with the case as the nature of the decision requires” (Alconbury paragraph 87). But what “the nature of the decision requires” is by no means limited to a consideration of the question whether, in light of the subject-matter of the case, a court compliant with Article 6 standards must possess the power to investigate and decide the facts for itself. Assuming only that in any particular milieu disputes of fact may arise, it is necessary also to confront the question whether the “first instance” decision-maker – internal review, Review Board, whatever it may be – is established and constituted in such a way that it may be expected to arrive at fair and reasonable decisions. That may be a live and real question even though, for want of sufficient independence, or publicity, or any other factor, such a first instance decision-maker does not itself satisfy Article 6. Its failure to meet the Article 6 standards by no means closes off the relevance of its processes for the overall judgment that has to be made which takes account also of the second stage review or appeal in an independent court.
  60. This aspect of cases like the present is I think reflected in Waller LJ’s reasoning in McLellan at paragraphs 99 and 100:
  61. “99 It is in my view legitimate to take into account in this context that the review panel is a body chosen by Parliament. If, of course, it was simply impossible for such a tribunal to reach a fair decision, that would lead inevitably to the conclusion that the scheme could not work without infringement of Article 6. Would it be impossible for there to be a fair decision from any person who would be appointed to review matters under the introductory tenancy scheme? Would a court inevitably come to the conclusion that any officer, however senior, could not constitute a fair tribunal for hearing the matter? Is the position such that judicial review could not provide the check as to whether a decision had been reached fairly and lawfully?
    100 One has to remember that the council are in reality making decisions which are not simply decisions as to whether it has a right to terminate. The council is not anxious to terminate unless other considerations prevail. The council is having to have regard to competing interests of other tenants and the competing interest of others who need the housing that they can supply. In my view there is no reason to think that such a decision cannot be taken fairly at a senior level of the council reviewing the decisions already reached by less senior people. Furthermore it seems to me that judicial review will be able to check the fairness and legality of decisions taken.”

  62. Now I may gather the threads together. We are dealing with a state of affairs in which a first instance decision-maker, whose determination touches the citizen’s civil rights, does not meet the standards imposed by ECHR Article 6(1). Such a state of affairs arises within a setting or regime created by Act of Parliament. There will generally be access to a court by way of review or appeal against the first decision. It may be provided (as it is by HA s.204) by the Act itself. If the Act is silent, then at common law recourse may be had to the judicial review court. If the Act gives a right of appeal to a court on the merits, factual as well as legal, Article 6 is plainly complied with: such a court on any view possesses “full jurisdiction”. But the commoner situation is where the right of appeal is on law only. Subject to the remedies provided for (and to any points of procedure), that will be equivalent to judicial review. The critical question, then, is this: in these two-tier cases, what are the conditions which determine whether the court process at the second tier, taken with the first instance process, guarantees compliance with Article 6(1)?
  63. As I have shown, the extent to which the first instance process may be relied on to produce fair and reasonable decisions is plainly an important element. But it is not to be viewed in isolation. The matter can only be judged by an examination of the statutory scheme as a whole; that is the necessary setting for any intelligent view as to what is fair and reasonable. Where the scheme’s subject-matter generally or systematically involves the resolution of primary fact, the court will incline to look for procedures akin to our conventional mechanisms for finding facts: rights of cross-examination, access to documents, a strictly independent decision-maker. To the extent that procedures of that kind are not given by the first instance process, the court will look to see how far they are given by the appeal or review; and the judicial review jurisdiction (or its equivalent in the shape of a statutory appeal on law) may not suffice. Where however the subject-matter of the scheme generally or systematically requires the application of judgment or the exercise of discretion, especially if it involves the weighing of policy issues and regard being had to the interests of others who are not before the decision-maker, then for the purposes of Article 6 the court will incline to be satisfied with a form of inquisition at first instance in which the decision-maker is more of an expert than a judge (I use the terms loosely), and the second instance appeal is in the nature of a judicial review. It is inevitable that across the legislative board there will lie instances between these paradigms, sharing in different degrees the characteristics of each. In judging a particular scheme the court, without compromise of its duty to vindicate the Convention rights, will pay a degree of respect on democratic grounds to Parliament as the scheme’s author.
  64. I intend the whole of this approach to be consonant with Lord Hoffmann’s reasoning in Alconbury, and with Waller LJ’s reasoning in McLellan, and I believe it to be so. And what was said by Lord Hoffmann in Alconbury at paragraph 79 (see paragraph 19 above) is, I think, reflected by the circumstance that civil rights are more likely to be directly engaged in a scheme where the finding of fact is a general or systematic feature; but where judgment, discretion, and issues of policy predominate, the scheme is more likely to be one in which decisions made under it “determine or affect” civil rights.
  65. There remains of course the task of applying these principles to the present case. In Pereira 31 HLR 317 Hobhouse LJ as he then was cited what Lord Brightman had said about the homeless persons legislation, and made further observations in addition, at 320 – 321:
  66. “In ex parte Puhlhofer [1986] AC 484 at page 517, Lord Brightman said:
    ‘It is an Act to assist persons who are homeless, not an Act to provide them with homes... It is intended to provide for the homeless a lifeline of last resort; not to enable them to make inroads into the local authority’s waiting list of applicants for housing. Some inroads there probably are bound to be, but in the end the local authority will have to balance the priority needs of the homeless on the one hand and the legitimate aspirations of those on their housing waiting list on the other hand.’
    (See also ex parte Awua [1996] 1 AC 55 at 72 and ex parte Kihara (1996) 29 HLR 147 at 155). It, thus, has to be borne in mind that any priority system involves striking a balance between the needs of one group of homeless persons and another. To grant priority to one person involves the deferment of another.
    In the context of old age, the guidance [sc. given by the Secretary of State under what is now HA s.182(1)] directs the authority to consider the extent to which the age of the applicant makes it hard for him to fend for himself (paragraph 6.9). In relation to mental illness or handicap or physical disability, the guidance states that the authority should consider the ‘relationship between the illness or handicap and the individual’s housing difficulties’ (paragraph 6.10). In relation to ‘victims of violence or abuse or sexual and/or racial harassment’, the guidance demonstrates the breadth of the factors to be taken into account – ‘authorities should secure wherever possible that accommodation is available for men and women without children who have suffered violence at home or are at risk of further violence if they return home’”.

    For my own part I have already stated (paragraph 24) that the issues which may fall for decision on a homeless person’s application lie across a spectrum between questions of fact and questions of judgment or discretion. It is important also to have in mind the procedures given by HA s.203 and paragraphs 2, 6 and 8 of the 1999 Regulations. I have already set out this material. It seems to me to provide very significant safeguards, in the applicant’s interest, for the integrity of the s.202 process.

  67. I should indicate moreover that although there were sharp issues of primary fact falling for determination in the present case, that is not a necessary feature in a s.202 review, and certainly not a systematic one. As often as not there will be no real question of fact, and the decision will turn on the weight to be given to this or that factor against an undisputed background: whether the offered accommodation is too far from the children’s school; whether there are too many stairs given the claimant’s ill health; whether there are enough bedrooms given the size of the family; and so on. Now, clearly the statutory scheme is either compliant with Article 6 or it is not. Its compliance or otherwise cannot vary case by case, according to the degree of factual dispute arising. That would involve a wholly unsustainable departure from the principle of legal certainty. In my opinion, judged as a whole, this statutory scheme lies towards that end of the spectrum where judgment and discretion, rather than fact-finding, play the predominant part.
  68. I think it important also to recognise the potential scope of the judicial review jurisdiction, replicated in this scheme in HA s.204. The judge has ample power to decide whether the review officer’s decision was one which was properly available to her on the evidence which she had. In this particular case it will be open to the judge to scrutinise the s.202 decision letter of 27th July 2001, which I have set out at paragraph 10, to see whether it really dealt with the points which concerned the respondent. Given that (as I would find) the s.202 process does not of itself fulfil Article 6, the judge is perfectly entitled, within the jurisdiction given him by s.204, to subject the earlier decision to a close and rigorous analysis.
  69. For all these reasons I conclude that HA s.204 in its context confers “full jurisdiction” on the county court within the meaning of Albert and Le Compte, and satisfies the requirements of our developing domestic law of human rights. I am conscious that in so holding I am propounding a view which is contrary to the conclusions of the majority in this court in Adan; contrary also to the view of Hale LJ (paragraph 80) that the county court should “fill the gap” by assuming a fact-finding role as necessary. On the approach I favour, there is no gap to fill. I take this position with real diffidence. I would venture only to emphasise the concessions made in that case, that s.202 engages the claimant’s civil rights, and that the s.202 review does not satisfy Article 6. I do so without the least criticism, since as will be plain both concessions are in my view entirely correct. But had they not been made the court might have found it necessary to undertake a more specific examination of the statutory scheme, and in doing so might have arrived at a different conclusion as to the bite of Article 6. One of the most important insights which in my view the authorities furnish is that the three issues which I have identified and addressed in this judgment are not hermetically sealed, each from the others. They engage overlapping considerations; the edge between administration and adjudication is cousin to the edge between judgment and fact-finding.
  70. I would allow the appeal. If my Lords agree, we should no doubt hear argument as to what orders should be made in consequence.
  71. Lord Justice Dyson:

  72. I agree.
  73. Lord Woolf CJ:

  74. I also agree.
  75. Order: Appeal allowed; agreed minute of order submitted to court; leave to appeal refused.
    (Order does not form part of the approved judgment)


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