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Cite as: [2001] EWHC Admin 986

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Beeson, R (on the Application of the Personal Representatives of v Dorset County Council & Anor [2001] EWHC Admin 986 (30th November, 2001)

Neutral Citation Number: [2001] EWHC Admin 986
Case No: CO/25/2001

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand,
London, WC2A 2LL
30 November 2001

B e f o r e :

THE HONOURABLE MR JUSTICE RICHARDS
____________________


The Queen
(on the application of the Personal Representatives of Christopher Beeson)

Claimants
- and -

Dorset County Council
and
The Secretary of State for Health
Defendant

Interested party
____________________

(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)

____________________

Richard Drabble QC and David Wolfe (instructed by Conrad Haley)
for the Claimants
Jonathan P. Swift (instructed by Dorset County Council's Head of Legal Services)
for the Defendant
Nigel Giffin and Jason Coppel (instructed by the Solicitor to the Department of Health) for the Interested Party

____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Crown Copyright ©

    Mr Justice Richards:

  1. This is a challenge to a decision of the defendant council dated 9 October 2000 confirming an earlier decision that Mr Christopher Beeson had deprived himself of his former property in Weymouth in circumstances that meant that the value of that property fell to be taken into account in assessing his ability to pay for residential care arranged for him by the council. The decision was taken under the National Assistance Act 1948 and related regulations. It is challenged on grounds relating specifically to the individual decision and on the broader ground that the relevant statutory procedure is incompatible with Article 6 of the European Convention on Human Rights. The original claimant was Mr Christopher Beeson himself. Sadly, he died soon after the hearing, at the age of 95. The issues raised, however, affect his estate and are in any event of general importance. I have therefore given permission for the claim to continue with the substitution of his personal representatives as claimants.
  2. Statutory framework

  3. By section 21 of the National Assistance Act 1948:
  4. “(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing -

    (a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them ….”

  5. By section 22, where a person is provided with accommodation the local authority is required to recover from him a payment in accordance with a "standard rate" which is to represent the full cost to the authority of providing that accommodation. Section 22(3) reads:
  6. “Where a person for whom accommodation in premises managed by any local authority is provided, or proposed to be provided, under this Part of this Act satisfies the local authority that he is unable to pay therefor at the standard rate, the authority shall assess his ability to pay and accordingly determine at what lower rate he shall be liable to pay for the accommodation.”

  7. In assessing a person's inability to pay, a local authority is required by section 22(5) to give effect to regulations made by the Secretary of State for the purposes of the subsection. The relevant regulations are the National Assistance (Assessment of Resources) Regulations 1992 ("the 1992 Regulations"), described below.
  8. Section 26 empowers local authorities to contract with third parties for the provision of accommodation and contains provisions corresponding to those in section 22 for the recovery of refunds from the person to whom the accommodation is provided. Thus by section 26(3):
  9. “Subject to subsection (3A) below a person for whom accommodation is provided under any such arrangements shall, in lieu of being liable to make payment therefor in accordance with section 22 of this Act, refund to the local authority any payments made in respect of him under the last foregoing subsection:

    Provided that where a person for whom accommodation is provided, or proposed to be provided, under any such arrangements satisfies the local authority that he is unable to make a refund at the full rate determined under that subsection, subsections (3) to (5) of section 22 of this Act shall, with the necessary modifications, apply as they apply where a person satisfies the local authority of his inability to pay at the standard rate as mentioned in the said subsection (3).”

  10. By section 56, without prejudice to any other method of recovery, any sum due under the Act is recoverable summarily as a civil debt.
  11. The 1992 Regulations, made under section 22(5) of the 1948 Act (see above), contain detailed provisions concerning the assessment of a resident's ability to pay. Part III concerns the treatment of capital. Within that part, regulation 20 provides that no resident is to be assessed as unable to pay for his accommodation at the standard rate if his capital exceeds a specified amount (currently £18,000). Regulation 25 deals with "notional capital". Regulation 25(1) is the provision central to the present case:
  12. “A resident may be treated as possessing actual capital of which he has deprived himself for the purpose of decreasing the amount that he may be liable to pay for his accommodation [subject to immaterial exceptions].”

  13. In relation to materially identical wording in regulation 51 of the Income Support (General) Regulations 1987 ("shall be treated as possessing capital of which he has deprived himself for the purpose of securing entitlement to income support …") it has been held that there has to be a deliberate intention to obtain benefit and that for there to be such an intention the claimant has to be aware of the relevant capital limit rule; it is not enough that the claimant ought to have known of the rule (decision of the Social Security Commissioner dated 11 February 1991 in Case CIS/124/1990).
  14. Of more direct assistance, however, is a judgment of an Extra Division of the Court of Session in Yule v. South Lanarkshire Council [2000] SLT 1249 on regulation 25 of the 1992 Regulations themselves. The judgment provides helpful guidance on the process of assessment and on how to approach the question of purpose:
  15. “28. … The process of assessment, therefore, begins with the requirement for the resident or prospective resident to provide information to the local authority from which the local authority can be satisfied that he is unable to pay the standard charge for the accommodation. The local authority cannot be so satisfied if the capital, both actual and notional, exceeds the specified sum. In determining the matter of notional capital, the local authority can only proceed upon the material which is available to them either from their own sources or upon that material as supplemented by material from the applicant and from such other sources as the local authority can reasonably be expected to apply to. We agree with counsel for the petitioner that in considering whether there is notional capital to be added to the actual capital of an applicant, the local authority must look to the information before them to determine whether a purpose to the effect specified in the regulations can be deduced. But, in our opinion, this is not a matter of onus of proof. Rather, before the local authority can reach such a view, it must have material before it from which it can be reasonably inferred that the deprivation of capital took place deliberately and with a purpose of the nature specified. The local authority cannot look into the mind of the person making the disposition of capital or of others who may be concerned in the transaction. It can only look at the nature of the disposal within the context of the time at which and the circumstances in which that disposal took place ….

    29. … [W]e do not consider … that it is necessary that the claimant should know of 'the' capital limit above which, in terms of the relevant regulations applicable at the time, the local authority is bound to refuse the application, if it is a reasonable inference, looking to the transaction in the whole surrounding circumstances relating to the applicant, that it must have been a purpose of the transaction to avoid having to pay any charges in the event of becoming a resident in residential accommodation provided by the local authority. In this respect we consider that the 1992 Regulations have to be looked at in a different light to those concerned with provision for income related benefits, not least because the purpose of the individual may have formed possibly some time ahead of the prospect that he or she might require to enter such residential accommodation …” (emphasis added).

  16. On the particular facts of the case, where the family "were not able to throw any further light on the purpose of the transaction" beyond what was contained in correspondence (para 30), the court held that "there were sufficient primary facts to entitle the respondent reasonably to conclude that Mrs Yule had deliberately determined to denude herself of her one substantial asset because, by doing so, she might thereby avoid the prospect that if she were to enter residential care in her lifetime, her house would require to be sold and the proceeds, at least in part, would require to be devoted to payment for that care, to the detriment of her family's interest in the succession to her estate on her death" (para 32). Finally the court stated:
  17. “33. We agree with the Lord Ordinary that it is open to a local authority to reach a view as to the purpose of a transaction such as the present, without any specific finding as to the exact state of knowledge or intention of the applicant, so long as the primary facts are such as reasonably to lead to the inference that the purpose was at least in part that specified in reg 25(1).”

  18. As I read the judgment, the court accepted that the relevant "purpose" must be a subjective purpose or intention ("deliberately determined to denude …") albeit that it held that the existence of such a purpose can be established by way of reasonable inference from the primary facts. Although the court held that it is not necessary for the claimant to know of "the" capital limit and that no specific finding is required as to the exact state of knowledge or intention of the applicant, I do not see how an applicant could be found to have the relevant purpose unless he was aware of the possibility that he might be provided with accommodation and that he might be liable to pay for it.
  19. Detailed guidance on the 1992 Regulations has been issued by the Secretary of State. The guidance cannot affect the construction of the regulations themselves, but it is worth noting that the language of the guidance in relation to deprivation of capital, at paras 6.057-6.067, lays stress on the subjective test. For example, it states that "[a]voiding the charge need not be the resident's main motive but it must be a significant one" and it refers to "deliberate deprivation".
  20. I should also explain the regime governing the procedure for complaining against decisions made by local authorities under the 1948 Act and the 1992 Regulations. By section 7B(1) of the Local Authority Social Services Act 1970, the Secretary of State may by order require local authorities to establish a procedure for considering any representations (including any complaints) which are made to them by a qualifying individual, or anyone acting on his behalf, in relation to the discharge of any of their social services functions in respect of that individual. The Local Authority Social Services (Complaints Procedure) Order 1990, made under that provision, requires local authorities to establish "a procedure for considering any representations (including any complaints) which are made to them by a qualifying individual, or anyone acting on his behalf, in relation to the discharge of, or any failure to discharge, any of their social services functions in respect of that individual."
  21. The Order does not specify the content of the procedure to be established. However, the Complaints Procedure Directions 1990, made under s.7B(3) of the 1970 Act, do specify a procedure, involving a number of stages of review. It is common ground that the procedure followed by the defendant council in the present case accords with the Directions. Since it is relevant later in this judgment, however, I should refer specifically to the appointment of a complaints panel at stage 3 of the procedure. Direction 7 requires the local authority to appoint a panel and to refer the complaint to the panel. By direction 2, "panel" is defined as "a panel of three persons at least one of whom must be an independent person", defined in material part as "a person who is neither a member nor an officer of that authority …". Direction 8 requires the panel to decide on its recommendations and to record them in writing. The panel must also give written reasons for the recommendations, as must the local authority for its final decision.
  22. Factual background

  23. Mr Beeson had owned and occupied his house at 7 Brownlow Street, Weymouth for many years, first with his wife and then, after her death in 1989, on his own. It was his only major asset.
  24. Mr Beeson suffered a stroke in March 1997 at the age of 90. He was discharged from hospital in early April and thereafter received intensive home care three times a day, comprising personal care, meal preparation, shopping, cleaning and laundry. For the previous eight years or so he had been in receipt of home care comprising assistance with domestic tasks for three hours a week.
  25. On 14 April 1997, about a week after his discharge from hospital, he transferred the house to his son by deed of gift. The explanation later given was a concern on his part that following the breakdown of his son's marriage his son might become homeless; he wanted his son to have somewhere to move to should the need arise.
  26. With the benefit of the care he was receiving Mr Beeson was able to continue to live in the house for the next two years. In April 1999, however, he was admitted to hospital in a state of collapse and exhaustion. After a period of recuperation he returned home in May, but he became weaker and was re-admitted to hospital in August after a fall. Thereafter he lost confidence in his ability to look after himself. On 3 September 1999 he was assessed by the council as needing residential care.
  27. In a letter dated 9 September 1999 in support of an application for funding the residential care, his son stated:
  28. “Following the stroke [Mr Beeson] was advised that he was really in need of residential care at that point, but because of a strong determination on his part it was agreed that with certain adaptations to his living accommodation and a high level of care provision he could return home. As was said to me only last week by a Senior Social Worker, even two years ago it was 'on a wing and a prayer' that he continued to live at home.”

  29. On 20 October 1999 the son completed and submitted a formal application on behalf of his father for financial assistance with the cost of the residential placement. In that application he stated in relation to the transfer of the house: "Transferred to son, as a result of stroke, in April 1997".
  30. A decision letter dated 25 October 1999 from the council's Social Services Directorate noted the transfer of the house by deed of gift in April 1997 and stated:
  31. “Following careful consideration of this matter I am of the opinion that Mr Beeson has deprived himself of an asset with which he could have funded his residential care placement.

    However, as this asset is in the form of a property, which is not immediately realisable, I would be prepared to fund the placement on an interim basis upon your consent to an equitable charge being raised on the property ….”

    The letter referred to a right of "appeal" through the complaints procedure. Strictly the procedure is not one of appeal but a three-stage internal complaints procedure.

  32. Mr Beeson's son invoked stage 1 of the complaints procedure by letter of 13 January 2000. The matter was considered by a Mrs Yates, whose decision was communicated in a letter dated 17 February 2000:
  33. “… Having considered your earlier correspondence, the financial assessment form, deed of gift and this Directorate's earlier involvement with your father's care, I am still of the opinion that your father deprived himself of an asset when he would have been aware that residential or nursing home care may have been an option for the future.”

  34. Mr Beeson's son expressed his dissatisfaction with the decision in a letter of 7 March 2000, which was treated as a formal complaint under stage 2 of the procedure. There followed an investigation and interview by an officer who had not previously been involved in the matter, a Mrs Slade. In a letter dated 12 July 2000 she rejected the complaint:
  35. “After consideration of all the information and documentation made available, my conclusion is to uphold the decision made by the Directorate, i.e. that your father deprived himself of an asset with which he could have funded his care.”

  36. On 30 July 200 Mr Beeson's son requested that the matter be reviewed by a panel. The panel appointed to carry out the review consisted of Mrs Jean Churchill (independent chairperson), Mr David Crowhurst (county councillor) and Mrs Sheila Poupard (county councillor). They held a meeting on 12 September at which Mr Beeson's son presented a prepared statement, a representative of the council's social services directorate "presented the case for Social Services", and the members asked various questions of those present. Written notes of the meeting were prepared.
  37. The statement read out by Mr Beeson's son referred to the fact that the council was claiming that a deliberate deprivation of assets took place in order to avoid paying for care which, in the council's view, was going to be inevitable. He took issue with that view, stating that "the one certainty in my Father's mind at the time of the transfer was that he was returning to live in and ultimately die in his home. The transfer of the property took place several weeks after his return home from hospital and at his request." He repeated what had been set out in previous material, that the reasons for the transfer were that, since the death of his mother, his father had become increasingly reliant on him in all matters of finance, correspondence, household management and property maintenance. At the time in question, his father was particularly concerned that his marriage of 24 years had recently broken up, and his father's principal motivation in making the transfer was to ensure that he had a home. At the time of transfer there had been no indication from social services that residential care and funding was under consideration or ever likely to be needed.
  38. The case for the social services directorate was that Mr Beeson was aged 90 when he had a stroke in March 1997. In the letter dated 9 September 1999, his son had referred to the advice at the time "that he was really in need of residential care at that point" and to the recent comment of a senior social worker that "even two years ago it was 'on a wing and a prayer' that he continued to live at home." In the light of those statements it was reasonable to expect that Mr Beeson would need residential care. The application for financial assistance in 1999 had stated that the property had been transferred to the son as a result of a stroke in April 1997. Health records showed that Mr Beeson had had further strokes since then. It was natural for Mr Beeson to want his son to have the property, but he would have inherited it in any case. There was no need for the property to be transferred, other than to avoid paying for residential care. In summary, the contention was that "the transfer was made so soon after Mr Beeson's strokes that it was reasonable to assume that a deprivation of assets was intended" (para 3.13).
  39. Among the questions asked by members of the panel were these, recorded at paras 3.16 and 3.17 of the notes of the meeting:
  40. “Mr Crowhurst asked Mr Beeson whether he had understood in 1997 that if his father needed residential care he could be required to use his capital asset (i.e. his home) to fund this and that the local authority had a legal right to put a charge on the property. Mr Beeson said that neither he or his father knew this - it had never come into their thoughts.

    Mr Crowhurst said that it was important to understand whether Mr Beeson had understood this, although he needed to make it clear that ignorance of the law is not an excuse. Mr Crowhurst asked what Mr Beeson senior would have assumed about how the fees would be paid if he had to go into residential care. Mr Beeson answered that his father was on income support and would have assumed that the fees would be covered. However it is unlikely that he would have thought that far, as Mr Beeson senior did not expect to enter residential care - he was 'preparing to die' at home.”

  41. After an exchange about the relevant legal provisions, the Finance Manager, Mrs Morton, "quoted a legal ruling which said that local authorities could deem deprivation to have taken place if it could be shown that the avoidance of residential care charges was a significant motive in transferring a property" (para 3.25).
  42. After the meeting the panel made findings as follows:
  43. “The majority decision of the panel was:

    (1) that there was deprivation of assets for the purpose of avoiding payment for accommodation;

    (2) as a consequence, the appeal against the legal charge is not upheld, notwithstanding the time that had elapsed since the property was transferred.”

  44. There followed the actual stage 3 decision, taken by the Director of Social Services. His letter dated 9 October stated:
  45. “I have read the case file and correspondence and note that this matter has been carefully considered through all three stages of the Directorate's complaints procedure. As you will already be aware, the complaints panel upheld the original decision on deprivation of assets. I concur with that finding.”

    The letter went on to clarify the position concerning the legal charge, stating that the council did not have authority to declare a legal charge on the property but was prepared to defer payment of the existing debt and to continue funding Mr Beeson's care if the son agreed to a legal charge on the property.

  46. The Director, Mr Joannides, swore an affidavit relatively late in the course of the proceedings in which he set out a detailed account of the documents that he perused in making his decision, with comments on various of those documents and on his process of reasoning. He concludes:
  47. “I decided that at the time of the gift, it was reasonable for me to assume that the transfer had been arranged, largely, if not solely, as a means of avoiding any charges for residential care that may have been needed in the foreseeable future. I looked at all the circumstances of the deprivation of his home and concluded that it was reasonable for me to decide that avoiding residential charges was a significant motive in Mr C Beeson's mind when he did that ….”

    I allowed that affidavit into evidence, but without prejudice to the claimants' right to raise objections as to its admissibility and weight when I came to consider the reasons for the council's decision.

    Issues

  48. The challenge to the decision falls into two parts: (1) a contention that the council misdirected itself in law in reaching its decision under regulation 25, and (2) a contention that the decision was in breach of Mr Beeson's rights under Articles 6(1) and 14 of the Convention and therefore unlawful.
  49. The Convention issues can be further broken down as follows: (a) whether the case involves "civil rights and obligations" within Article 6(1); (b) whether there has been a "determination" of such civil rights and obligations for the purposes of Article 6(1); (c) whether the Article 6(1) requirement of an independent and impartial tribunal is satisfied (in particular, by the role of the court on judicial review); and (d) whether there was a breach of Article 14.
  50. Misdirection

  51. Mr Drabble QC for the claimants submits that the decision was based on a legal misdirection, in that there was a failure to apply a subjective test when determining whether Mr Beeson deprived himself of his house "for the purpose of" decreasing the amount that he might be liable to pay for his accommodation under the regulatory scheme. Subjective purpose is not referred to in the original decision or at stages 1 and 2 of the complaints procedure. At stage 3, the observation by one member of the complaints panel that "ignorance of the law is not an excuse" suggests a total misunderstanding of the subjective test. There was no finding that the panel rejected the evidence of Mr Beeson's son that at the time of the transfer his father had intended to live and die in his home and that the funding of residential care had not come into his or his father's thoughts; but if that evidence was not rejected, the adverse finding as to purpose cannot have been based on a subjective test. The actual stage 3 decision did no more than confirm the finding of the panel, which it described as having "upheld the original decision" (a decision which made no reference to subjective purpose). Further, it is to the decision letter rather than to the Director's late affidavit that one should have regard when considering his reasons for the decision.
  52. For the council, Mr Swift submits that in taking the final decision, the Director based himself on an examination of the case file and correspondence, as the decision letter shows, and must have had in mind the appropriate test. Although no reference to subjective purpose was made in the decisions prior to stage 3, regulation 25 was cited in the underlying material and must have been considered. Before the complaints panel, the council's case was presented in terms of an intended deprivation of assets (para 3.13) and reference was made to "a significant motive" when clarification of the relevant law was requested (para 3.25). Moreover the Director, in taking the final decision, looked at the material as a whole and plainly had the correct test under regulation 25 in mind. As to that, Mr Swift accepts that the starting point must be the decision letter itself and that less weight should be given to the contents of the affidavit, but he points out that under the rules the council is expected to file evidence and he submits that the affidavit can properly be taken into account. He submits that, regardless of the affidavit, there was evidence upon which the Director was reasonably entitled to draw the inference that Mr Beeson had deprived himself of capital for the purpose, at least in part, of decreasing the amount he might be liable to pay for his accommodation.
  53. Mr Giffin for the Secretary of State adopts a neutral position on the issue of misdirection.
  54. I accept the case for the claimants on this issue. It is common ground that the correct test is one of subjective purpose and I would apply that test in any event in the light of the wording of regulation 25 and the decisions to which I have previously referred (in particular, Yule v. South Lanarkshire Council). In my judgment the material before the court evidences a failure to identify and apply that test with sufficient clarity. There is nothing to show that the matter was considered by the council in terms of subjective purpose at the time of the original decision or at stages 1 and 2 of the complaints procedure. At stage 3, it is true that the case for the council was presented to the panel in terms of an intended deprivation and that the majority finding of the panel is expressed in terms of deprivation of assets "for the purpose of" avoiding payment. It is far from clear, however, that the panel properly understood that the test was a subjective one. The observation of a panel member that "ignorance of the law is not an excuse" betrays a misunderstanding of the true position in a case where the essential question is whether a particular state of mind existed. I would not be inclined to attach much weight to such an observation if there were sufficient indicators elsewhere that the panel had had the correct test impressed upon them. But the notes of the meeting suggest that the panel was not given as much assistance on this as it should have been. For example, it does not appear to have been shown the Secretary of State's guidance.
  55. The present case differs materially on its facts from Yule v. South Lanarkshire Council, given the existence of evidence from Mr Beeson's son about his and his father's state of mind at the relevant time. This constituted input from the family of a kind that was lacking in Yule. True it is that the key question related to Mr Beeson's own state of mind rather than his son's state of mind and that that still had to be a matter of inference. Nonetheless his son's evidence that funding of residential care did not come into his or his father's thoughts and that the transfer took place at a time when his father intended to live in and ultimately to die in his home was evidence of central importance. If accepted as truthful and reliable evidence, it negatived the existence of a regulation 25 purpose on the correct, subjective test. Conversely, a finding that a regulation 25 purpose existed on the correct test required a rejection of his evidence and an adverse credibility finding. The surrounding circumstances provided material capable of supporting the rejection of his evidence, but any decision whether to reject or accept it required an overall assessment of that material and of the impression created by Mr Beeson's son himself in the course of stating his case and answering questions at the panel hearing.
  56. Those considerations underlie my concerns about the panel's decision. If the panel was truly directing itself by reference to a subjective test when it found the existence of a regulation 25 purpose, then it had to face up to the fact that it was rejecting the evidence of Mr Beeson's son and, in order to give an adequately reasoned decision, it had to explain why it was rejecting that evidence. Yet there is nothing along those lines in the findings. It is possible that the panel thought along those lines but simply failed to state its reasons adequately. Another explanation, however, is that the absence of such reasons betokens a failure on the part of the panel to apply the correct test in the first place: the panel did not spell out the key steps in the reasoning process because it did not appreciate the true nature of the test or, therefore, the reasoning process that was required in the circumstances of the case. In view of the matters to which I have already referred, I consider the latter explanation to be the more likely and I conclude that the panel did not direct itself correctly.
  57. In my judgment that failure infects the final stage 3 decision by the Director, whose decision letter refers to the panel's finding and expresses concurrence with it. It seems to me that the panel's finding must have carried substantial weight. Indeed it would make a nonsense of the panel's role if it did not carry weight, unless of course it was appreciated that the panel had failed to apply the correct legal test. Although the Director had read the case file and correspondence, there is nothing in the letter to indicate any awareness of a problem in the panel's own decision-making process or the carrying out of a fresh analysis without regard to the panel's finding. In any event, if the panel's finding was flawed, I doubt whether the Director could have cured it by a paper exercise alone and without at least hearing oral submissions from Mr Beeson's son.
  58. I have placed little weight on the Director's late affidavit. In my view the focus of attention should be the reasons given in the decision letter, especially where pursuant to the Secretary of State's Directions there is a requirement to give reasons for the decision. Further, the contents of the affidavit do not dispel the concerns I have expressed above about the panel's failure to apply the correct test or about the effect of that on the Director's final decision.
  59. Accordingly the challenge succeeds on this ground, which is a sufficient basis for quashing the decision. Nevertheless I think it right to go on to consider the Convention issues. The Convention grounds may provide an additional (or, if I am mistaken on the misdirection issue, an alternative) basis for a finding in the claimants' favour. They may also affect the procedure to be followed when the decision is retaken.
  60. In considering the Convention, I shall examine the competing submissions of Mr Drabble for the claimants and Mr Giffin for the Secretary of State but will not deal separately with the submissions of Mr Swift for the council, since he adopted Mr Giffin's submissions and did not add materially to them.
  61. Article 6(1): "civil rights and obligations"

  62. In Schuler-Zgraggen v. Switzerland (1993) 16 EHRR 405, a case concerning entitlement to invalidity pension, the European Court of Human Rights referred to the development of the law on the applicability of Article 6(1) to social security disputes initiated by its judgments in Feldbrugge v. Netherlands and Deumeland v. Germany, stating:
  63. “… today the general rule is that Article 6(1) does apply in the field of social insurance, including even welfare assistance.

    As in the two cases decided in 1986, the State intervention is not sufficient to establish that Article 6(1) is inapplicable; other considerations argue in favour of the applicability of Article 6(1) in the instant case. The most important of these lies in the fact that despite the public law features pointed out by the Government, the applicant was not only affected in her relations with the administrative authorities as such but also suffered an interference with her means of subsistence; she was claiming an individual economic right flowing from specific rules laid down in a federal statute.

    In sum, the Court sees no convincing reason to distinguish between Mrs Schuler-Zgraggen's right to an invalidity pension and the rights to social insurance benefits asserted by Mrs Feldbrugge and Mr Deumeland” (430-1, paras 46-47).

  64. Very similar language had been used in Salesi v. Italy (1993) 26 EHRR 187, where, in relation to welfare assistance in the form of a monthly disability allowance, it was held that the balance of considerations lay in favour of the applicability of Article 6(1):
  65. “The most important of these lies in the fact that despite the public law features pointed out by the Government, Mrs Salesi was not affected in her relations with the administrative authorities as such, acting in the exercise of discretionary powers; she suffered an interference with her means of subsistence and was claiming an individual, economic right flowing from specific rules laid down in a statute giving effect to the Constitution” (199, para 19).

  66. Schouten & Meldrum v. Netherlands (1994) 19 EHRR 432 concerned social security contributions. The Court stated that it was the first time it had had to rule on the applicability of Article 6(1) to a dispute concerning contributions under social security schemes, as distinct from entitlement to benefits under such schemes, and that the approaches to benefits and to contributions were not necessarily the same. The reasoning in Schuler-Zgraggen and Salesi could not automatically be applied to disputes concerning the obligation to pay contributions. Nor was it sufficient to show that a dispute was "pecuniary" in nature. In accordance with the method of analysis adopted in Feldbrugge, the Court analysed in turn the various features of public and private law contained in the social security legislation in order to determine whether the contested obligation was "civil" for the purposes of Article 6(1).
  67. The features of public law identified were the character of the legislation, the compulsory nature of social security schemes and the assumption by the State or by public or semi-public institutions of full or partial responsibility for ensuring social protection. The first feature of private law considered was the alleged "personal and economic nature" of the right to benefits. The reasoning in Schuler-Zgraggen and Salesi concerning interference with a person's means of subsistence "cannot be transposed to the present cases, which concern contributions for whose payment the employer is made responsible and which as a rule are not of crucial importance to his very livelihood" (para 57). A feature of greater import was the link between the social insurance schemes and the contract of employment: the provisions formed one of the constituents of the relationship between employer and employee. The final feature of relevance was the similarity between the social security schemes and private insurance, which was available to cover largely the same risks as covered by the schemes.
  68. The Court's examination of the relative cogency of the features of public and private law present in the instant cases led it to find that the private law features were of greater significance than those of public law. On balance the disputes in issue were to be regarded as having involved the determination of civil rights and obligations and Article 6(1) was therefore applicable.
  69. Mr Drabble submits that the reasoning in Schuler-Zgraggen and Salesi, reflecting that in Feldbrugge, is applicable to the present case and leads to the conclusion that Article 6(1) applies. The subject matter of the impugned decision is more like a welfare benefit than a contribution. The 1948 Act is concerned with the provision of welfare assistance and the decision involved an interference with Mr Beeson's means of subsistence. Further, he was claiming an individual economic right flowing from specific rules laid down in statute. The existence of a discretion in the public authority does not preclude the application of Article 6(1). In any event, under regulation 25 the council has a discretion to treat a person as possessing capital only if he has deprived himself of it for the stated purpose. If Mr Beeson did not have that purpose, as was his case, then no discretion arose. In R (Bewry) v. Norwich City Council [2001] EWHC Admin 657, a case concerning entitlement to housing benefit in respect of payments of rent, counsel for the Secretary of State conceded that the claimant was seeking a determination of a civil right. Mr Drabble submits that the situation in the present case is analogous and that Article 6(1) should similarly apply.
  70. A different strand in Mr Drabble's argument, on which greater weight was placed in his written than in his oral submissions, places stress on the characterisation of this as a pecuniary obligation. The decision gives rise to a requirement to make payments that are recoverable summarily as a civil debt. It is submitted that the reasoning in Schouten & Meldrum concerning the applicability of Article 6(1) to the determination of social security contributions supports its applicability in this context too.
  71. Mr Giffin, for the Secretary of State, submits that it is wrong to look at regulation 25 in isolation from the statutory scheme as a whole. In itself it cannot be determinative of civil rights since it determines nothing. It is a single variable in a formula the whole of which has to be worked through. The local authority has to determine a number of questions as part of a single exercise which involves specialist judgment and discretionary decisions. If the local authority cannot operate as a "one-stop shop" for the whole exercise, there must either be a right of appeal on everything (but that would be plainly inappropriate for parts of the exercise) or it is necessary to adopt a divided approach in which some parts are subject to appeal whilst others are not (which is both impracticable and undesirable).
  72. The 1948 Act, submits Mr Giffin, forms part of the welfare state and is a classic measure of public law. The powers and duties of local authorities under s.21(1) depend upon approvals and directions of the Secretary of State. The charging provisions apply equally where there is a duty to provide accommodation and where the provision of accommodation is purely a matter of discretion. Whether a duty is owed in a given case is dependent on an assessment involving specialist judgment, and in making a decision an authority is entitled to have regard to the limits of its own financial resources (R v. Sefton MBC, ex parte Help the Aged [1997] 4 All ER 532). The measure is a welfare provision of last resort, as shown by the words "which is not otherwise available" in s.21(1) and by the terms of s.21(8). By s.21(2A), in determining whether care and attention are otherwise available, an authority is to disregard capital exceeding the limit for the purposes of s.22; which shows that the s.22 calculation is not a distinct exercise and that the same person should decide whether a person needs care and attention as decides the question under s.22. There are judgments to be made and discretions to be exercised under s.22 itself and under s.23 (management of the premises). In the application of s.22(3) there has to be a judgment on the person's ability to pay ("where a person … satisfies the local authority that he is unable to pay"); and determining whether a person is unable to pay is part of the same exercise as determining "at what lower rate he shall be liable to pay". Where a decision is made on charging, accommodation is offered on those terms and it is a matter for the individual whether to accept or not. A duty to provide the accommodation is created only if the individual accepts it on the terms offered.
  73. Similarly, submits Mr Giffin, the 1992 Regulations contain discretionary provisions. Regulation 5 provides that in assessing a "less dependent resident's" ability to pay for his accommodation, a local authority need not apply Parts II to V of the Regulations (including calculation of capital) "if they consider it reasonable in all the circumstances". Although Mr Beeson was probably not a less dependent resident, the application of Article 6(1) must be assessed by reference to the provisions as a whole; and a discretion of the kind conferred by regulation 5 cannot be separated from the decisions to be made under regulation 25 but equally cannot sensibly be given to an independent tribunal. A similar discretion arises under regulation 21 and paragraph 18 of schedule 4, which provides that the value of premises occupied by a third party can be disregarded "where the local authority consider it would be reasonable" to disregard it. Finally, under regulation 25 itself, even where a person has deprived himself of capital for the purposes of decreasing the amount he may be liable to pay for his accommodation the authority has a discretion as to whether or not to take that capital into account.
  74. For all those reasons Mr Giffin contrasts the statutory scheme here in issue with that under consideration in Bewry, where there was an entitlement to housing benefit if the specified criteria were met. He also contrasts it with the statutory provisions governing income support, which identify a specific entitlement and do not contain the same important discretions. Although the 1992 Regulations draw on the income support regulations for drafting purposes, the existence of those discretions on the part of the local authority make it a very different scheme in substance.
  75. Mr Giffin further submits that on the approach of the Court in Salesi the discretionary elements of the scheme indicate that the matters in issue fall within the area of public law and are not civil rights and obligations within the meaning of Article 6(1). The fact that a decision has pecuniary consequences is not enough to cause Article 6(1) to apply; nor is the fact that if the accommodation is accepted on the terms offered, a summarily recoverable debt is created. If the case is analysed as one of welfare assistance, as it should be, then the benefit is the discretionary provision of accommodation on certain terms. Regulation 25 is concerned with the setting of those terms rather than the provision of a free-standing benefit. The provision of accommodation on terms does not involve "an interference with the means of subsistence". There is no claim to "an individual, economic right flowing from specific rules". If, on the other hand, the case is analysed as involving the payment of contributions, then the reasoning in Schouten & Meldrum is helpful to the Secretary of State's case: the main factors causing the Court to hold that Article 6(1) applied in that case, namely the link between the social insurance schemes and the contract of employment and the similarity between the schemes and private insurance, are altogether lacking here.
  76. In reply, Mr Drabble points out first that the present statutory scheme dates only from 1993. Prior to that the funding of a placement of Mr Beeson in a private home would have been by way of means-tested income support and attendance allowance and any dispute about it would have been appealable to an independent tribunal. The method of funding now operated, it is submitted, does not alter the essential character of the question or make it inappropriate for determination by an appeal tribunal. Under the present scheme there are distinct stages: first there is the assessment of need; and once need is found, then there is a duty to provide accommodation and to determine what charge is to be made for it. Where accommodation is to be provided by contract with a private nursing home, it is funded by the local authority subject to recovery of funds if the person's means allow it. This amounts to welfare assistance, not tax or a social security contribution. Further, the fixing of the charge and therefore. of the extent of public funding is analytically indistinguishable from the determination of the amount of income support in the pre-1993 scheme or e.g. from the determination of housing benefit in the Bewry context.
  77. As to Mr Giffin's reliance on the discretionary aspects of the scheme, Mr Drabble submits that only a few discretions have been identified and that the discretionary part of regulation 25 is not in play if Mr Beeson's version of the facts is correct: he is entitled not to be charged for the accommodation.
  78. Although the arguments have been extensive, it seems to me that the essential points fall within a narrow compass and that I can state my conclusions on this issue relatively briefly.
  79. Looked at in the round, the statutory scheme is in my view a measure of welfare assistance falling to be examined in accordance with the reasoning in Salesi and Schuler-Zgraggen. It involves extensive public law features, including the numerous judgments and exercises of discretion to which Mr Giffin has referred. There is no entitlement to be provided with accommodation. In that respect it is distinguishable from the statutory schemes which confer an entitlement to income support or to housing benefit where defined conditions are met. Decisions as to whether there is a need and what accommodation should be provided to meet that need cannot be said to involve civil rights and obligations. Nor can the various discretionary decisions that may arise under the scheme.
  80. I do not accept, however, that the general character of the scheme is determinative of the characterisation of every element in the scheme. In my view it is necessary, in the application of the Convention, to focus carefully on the facts and issues relevant to the particular case. In the present case the assessment of need had been made and was not in dispute. A duty to provide Mr Beeson with accommodation had arisen under the statute and a decision had been taken as to the accommodation to be provided. The provisions relating to the making of payments or the recovery of refunds had been engaged. The regulations concerning the assessment of his ability to pay had not been disapplied under regulation 5. Although it was for Mr Beeson to satisfy the council under s.22(3) or s.26(3) that he was unable to pay or to make a refund at the full rate, a crucial component in that decision was the determination under regulation 25 as to whether he had deprived himself of his house for the purpose of decreasing the amount that he might be liable to pay. If his case with regard to purpose was accepted, then he was entitled not to have the value of the house taken into account (and in reality, as the other circumstances of the case make clear, he could not reasonably be required to pay at the full rate). If his case was rejected, he was liable to have the value of the house taken into account, albeit that the council still had a discretion not to take it into account. This was a means-testing exercise in which a wrong decision had potentially serious economic consequences for Mr Beeson: it would expose him to a liability to make a payment which he could not afford to make out of his retained assets.
  81. In my judgment those considerations bring the particular situation within the scope of the reasoning that led the Court to hold in Salesi and Schuler-Zgraggen that Article 6(1) applied. Of course, the situation is not on all fours with a claimed entitlement to a benefit such as income support or housing benefit. For the reasons I have indicated, it is not as simple as saying that Mr Beeson was entitled to accommodation without payment at the full rate. Nevertheless there is a benefit in the form of funding, in whole or in part, of the accommodation provided. And it can fairly be said that on this issue, where he was claiming to be entitled to have the value of his house left out of account in the determination of his liability to pay and, therefore, of the extent to which funding would be provided by the local authority, he "was not affected in [his] relations with the administrative authorities as such, acting in the exercise of discretionary powers; [he] suffered an interference with [his] means of subsistence and was claiming an individual, economic right flowing from specific rules laid down in a statute" (Salesi, para 19).
  82. That conclusion is reinforced by consideration of the fact that the impact of the decision on Mr Beeson is the same as a decision would have been under the funding arrangements that operated pre-1993 or would be in the means-testing that operates under income support and similar schemes. I acknowledge that there are material differences between the schemes, but on this particular issue the same essential question arises as to whether he is entitled to have the value of his house left out of account in the assessment of his ability to pay. It would be surprising if the difference in funding arrangements caused Article 6(1) not to apply here when it applies, as is accepted, in those other contexts.
  83. It should be clear from the above that I reject Mr Giffin's analysis to the effect that the authority was offering accommodation on terms which it was open to Mr Beeson to accept or reject, and that a duty to provide the accommodation arose only if the terms offered were accepted. In my judgment the result of the assessment of need was to generate a duty under the statute to provide accommodation and a separate duty to recover payment for it in accordance with the provisions of s.22 and s.26. The various duties and entitlements arose directly through the operation of the statute, not by way of offer and acceptance. Nor is my conclusion affected by the fact that in certain cases the provision of accommodation can arise through the exercise of a discretion rather than the discharge of a duty. The statutory provisions governing payment are the same and the same reasoning can be applied to the means-testing exercise under regulation 25.
  84. On the other hand, I accept Mr Giffin's submission that under the statutory scheme the question of purpose under regulation 25 falls to be decided by the local authority and that it forms only one part of the authority's overall decision-making process. Its relationship with other elements in the scheme is highlighted by the fact that regulation 25 itself confers a discretion on the authority not to take the value of the house into account even where the stated purpose is found to have existed. That does not make it impossible or inappropriate, however, to identify the question of purpose under regulation 25 as a discrete issue. Further, many of Mr Giffin's objections to the applicability of Article 6(1) relate to the inappropriateness of entrusting discretionary decisions to another body or the impracticality or undesirability of fragmenting the decision-making process. For the reasons given later in this judgment, however, I do not consider that those are necessary consequences of holding Article 6(1) to apply in the particular context. Compliance with Article 6(1) can be achieved within the existing statutory framework by the additional procedural safeguard of appointing only independent members to the complaints panel, leaving the functions of the local authority untouched. The concerns expressed by Mr Giffin are in my view unwarranted.
  85. For completeness, I should mention that if the case were held to fall within the scope of the reasoning in Schouten & Meldrum, i.e. as a case about contributions rather than benefits, I would still hold that it involves civil rights and obligations. The balancing exercise in Schouten & Meldrum was based on features that are mainly absent here and the decision itself does not give any direct assistance. But in the light of the various considerations to which I have already referred I take the view that on this particular issue the balance comes down in favour of the conclusion that Article 6(1) applies.
  86. Accordingly I hold that the issue under regulation 25 is an issue involving Mr Beeson's civil rights and obligations within the meaning of Article 6(1).
  87. Article 6(1): "determination"

  88. If the claimant's civil rights and obligations were in issue, the next question is whether the case gives rise to any "determination" of those rights or obligations under Article 6(1). The case for the claimant is that the council was resolving a dispute ("contestation") between it and the claimant: there was a dispute as to the application of regulation 25, with the claimant submitting that it produced one result and the authority submitting that it produced another. The case for the Secretary of State is that this was merely the exercise of a legal power by the council, not the resolution of a dispute: the substance of the statutory provision is in terms of the authority being "satisfied", not in terms of an entitlement on the part of the claimant. Further, the decision of itself created no legal obligation to pay (which arises only if the offer of accommodation is accepted). The situation is therefore distinguishable from R (Alconbury Developments) v. Secretary of State for the Environment [2001] 2 WLR 1389, where a decision on planning permission was held to fall within Article 6(1) on the basis that it directly affects, in the sense of being decisive for, private law rights: the grant or refusal of planning permission directly determines what a landowner may lawfully do with his land, whereas a decision under regulation 25 merely establishes what the individual will be liable to pay if he accepts the offer of accommodation. Any dispute about the lawfulness of the decision falls to be resolved by the High Court on judicial review, but that will always comply with Article 6(1).
  89. In my view there is a degree of artificiality in separating this issue from the question whether the case involves civil rights and obligations within Article 6(1). In any event, however, if the case does involve such rights and obligations, as I have held, I am satisfied that the application of Article 6(1) cannot be avoided on the basis that there is no relevant "determination". The matter can be analysed in either of two ways, each of which produces the result that Article 6(1) applies: either there was a determination at the stage of the final decision by the council, or the decision triggered a dispute which is the subject of a determination by this court. In each case the real question is whether the process as a whole satisfies the requirements of Article 6(1), in particular the requirement of an independent and impartial tribunal, and in each that will depend in practice upon the adequacy of judicial review
  90. That approach seems to me to accord with the approach adopted in Alconbury (see e.g. per Lord Hoffmann at para 135) and by the Court of Appeal in McLellan v. Bracknell Forest BC and Secretary of State for Transport, Local Government and the Regions [2001] EWCA Civ 1510 (see in particular per Waller LJ at paras 80-83).
  91. If, however, anything turned on whether a determination was made by the council, I would be inclined to hold that it was, since that would better reflect the reality of the complaints procedure. It is because Mr Beeson, through his son, was disputing the original decision that the procedure was invoked; and had he sought judicial review of the original decision he would no doubt have been told that the application was premature and that he should pursue the complaints procedure as an alternative remedy. The panel was considering the respective cases advanced by the council and by Mr Beeson's son. There was a real dispute between them as to whether the specified purpose existed or not. Although this was a review rather than an appeal and the final decision was again made by the council, acting under the same powers as in making the original decision, it seems to me that the ultimate decision could properly be characterised as the resolution of a dispute rather than as the mere exercise of a legal power by the council.
  92. Article 6(1): "independent and impartial tribunal"

  93. It is common ground that the impugned decision was not taken by an independent and impartial tribunal within the meaning of Article 6(1). The complaints procedure by itself was inadequate to secure the requisite degree of independence and impartiality. There was only one independent member on the panel, the other two members of the panel being members of the defendant council. In any event the actual decision was taken by the council's own Director of Social Services.
  94. It is also common ground, however, that whether there is a breach of Article 6(1) must be considered by reference to the decision-making process as a whole. As was held in Albert and Le Compte v. Belgium (1983) 5 EHRR 533, compliance with Article 6(1) is achieved where the original decision-maker complies with its requirements or is "subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1)". Full jurisdiction does not mean full decision-making power; it means full jurisdiction to deal with the case as the nature of the decision demands (see per Lord Hoffmann in Alconbury at para 87). The essential question, therefore, is whether the Administrative Court on judicial review has full jurisdiction to deal with the present case as the nature of the decision demands.
  95. In Alconbury it was held that judicial review was capable in principle of providing sufficient judicial control of a planning decision by the Secretary of State. For present purposes it suffices to observe that an issue of particular concern was the fact-finding aspect of the decision-making process. As to that, it was held that the relevant procedures, including in particular the fact-finding role of the inspector and its attendant procedural safeguards, combined with the court's power to review a decision on the basis of factual error, were sufficient to ensure compliance with Article 6(1) overall. Lord Hoffmann, for example, placed particular weight on the observations of one of the Commission members, Mr Bratza, in Bryan v. United Kingdom (1995) 21 EHHR 342:
  96. “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 …. 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” (para 110).

    Coming back to this later in his speech, he stated:

    “The second strand concerns the facts. These are found by the inspector and must be accepted by the Secretary of State, unless he has first notified the parties and given them an opportunity to make representations …. This is the point upon which, in my opinion, the Bryan case … is authority for saying that the independent position of the inspector, together with the control of the fairness of the fact-finding by the court in judicial review, is sufficient to satisfy the requirements of article 6” (para 128).

  97. In R (Kathro) v. Rhondda Cynon Taff Borough Council [2001] EWHC Admin 527 I considered the implications of Alconbury for the decision-making process of a local planning authority, in circumstances where the authority lacked the requisite degree of independence or impartiality since it was going to decide on the grant or refusal of permission for its own development. Having referred to the importance attached in Alconbury to the role of the inspector, I stated (paras 28 and 29):
  98. “By contrast, there is no equivalent in the decision-making process of a local planning authority. That process includes a right to make representations and to submit evidence, and persons may be heard orally at a meeting of the relevant committee. But there is nothing like a public inquiry, no opportunity for cross-examination and no formal procedure for evaluating the evidence and making findings of fact. The report of the planning officer to the committee generally contains an exposition of relevant facts, including any areas of factual dispute, but does not serve the same function as an inspector's report. In general there will be no express findings of fact by the committee itself. All of this considerably reduces the scope for effective scrutiny of the planning decision on an application for judicial review. It makes it more difficult, if not impossible, to determine whether the decision has been based on a misunderstanding or ignorance of an established and relevant fact, or has been based on a view of the facts that was not reasonably open on the evidence.

    For those reasons there is in my view a real possibility that, in certain circumstances involving disputed issues of fact, a decision of a local planning authority which is not itself an independent and impartial tribunal might not be subject to sufficient control by the court to ensure compliance with article 6 overall.”

  99. In R (Bewry) v. Norwich City Council, to which I have already referred, the court was concerned with the statutory scheme relating to housing benefit. One of the conditions of entitlement to housing benefit is a liability to pay rent in respect of a dwelling. The claimant disputed a finding that he was under no such liability. There existed a review procedure similar to that applied in the present case, though it has since been replaced by a right of appeal to an independent tribunal. The complaint was that the procedure lacked the requirement of independence and impartiality for the purposes of Article 6(1). It was conceded on behalf of the Secretary of State that the claimant was seeking determination of a civil right, namely his statutory entitlement to housing benefit, and that the appointment of council members to sit on the review board undermined the appearance of independence and impartiality of that board. Moses J held that, although the decision predated the coming into force of the Human Rights Act 1998, the common law provided no lesser protection to the claimant than that provided by Article 6. He therefore relied on the case-law under Article 6 in reaching his conclusion. He concluded that there had been no determination by an independent and impartial tribunal.
  100. The reasoning in support of that conclusion is important for the present case and it is helpful to cite an extensive passage from paras 53-65 of his judgment:
  101. “53. The resolution of the question in the instant case must depend upon the adequacy of scrutiny which this court is able to undertake in the light of the issues in dispute. The limited review of the facts which this court can undertake is only acceptable if there are sufficient safeguards in place to ensure independent judgment and procedural fairness ….

    ….

    56. I acknowledge that there are many procedural safeguards within the practice document governing the procedures of the Review Board. Indeed, the Review Board appears faithfully to have followed those procedures in this case. This claimant had every opportunity to present his case. The decision gives full reasons for rejecting his assertion that he was liable to pay rent in respect of his occupation. It was a model of cogency and clarity. The court is thus in a position to examine whether the Review Board failed to take into account relevant considerations; whether the decision was irrational; or whether the primary facts found failed to support the conclusions ….

    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. In my judgment, the connection of the councillors to the party resisting entitlement to housing benefit does constitute a real distinction between the position of an inspector and the Review Board. The lack of independence 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. One of the essential problems which flows from the connection between a tribunal determining facts and a party to the dispute, is that the extent to which a judgment of fact may be infected cannot easily be, if at all, discerned. The influence of the connection may not be apparent within the terms of the decision which sets out the primary facts and the inferences drawn from those facts. But the decision does not, and indeed should not, set out all the evidence.

    63. The weight and impression given by that evidence will be a matter for the judgment of those before whom it is presented. The extent to which they have been influenced will not be manifest from the decision and it may indeed be something of which they themselves are unaware. That is, after all, the origin of the principle which determines the question of bias in terms of risk of bias and not of actual bias. Real possibility and real danger are necessarily tests for the very reason that actual bias cannot readily be demonstrated.

    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.

    65. Accordingly, I conclude that there has been no determination of the claimant's entitlement to housing benefit by an independent and impartial tribunal. The level of review which this court can exercise does not replenish the want of independence in the Review Board, caused by its connection to a party to the dispute. ”

  102. By written submissions after the hearing in the present case, counsel have drawn my attention to three additional recent decisions. First, Friends Provident Life & Pensions Ltd v. Secretary of State for Transport, Local Government and the Regions [2001] EWHC Admin 820, which involved a challenge to a decision of the Secretary of State not to call in an application for planning permission. In considering Article 6(1), Forbes J referred to counsel's categorisation of the types of issue which can arise in cases of administrative decision-making, including "(i) the decision may depend on the administrative decision maker making a finding as to some present or future fact - typically in enforcement proceedings (see Lord Hoffmann in Alconbury …)" (para 89). Later, having himself referred to what Lord Hoffmann said in Alconbury about findings of fact or the evaluation of facts, Forbes J went on:
  103. “As it seems to me, this is a reference by Lord Hoffmann to the type of dispute which requires the making of findings of primary and immediate fact by the administrative decision maker - findings which are needed to resolve substantial issues of fact in the dispute in question, which issues have to be resolved in order to make the decision which will determine the dispute. In my view, it is that sort of dispute which typically comes within [counsel's] category (i). I accept that the 'safeguards' of the quasi-judicial process of a public inquiry before an independent inspector may well be needed in such a type of investigation, if the High Court's power of review is to be sufficient for the purposes of Article 6. However, I do not believe that there is an absolute rule of law to that effect, although it may be difficult to think of exceptions to it. In my opinion, each case must be judged upon its own facts when deciding, in any particular case, whether the High Court's power of review is sufficient to make the overall 'composite process' Article 6 compliant - i.e. to decide whether the High Court has 'full jurisdiction' for the purposes of Article 6” (para 93).

  104. McLellan v. Bracknell Forest BC and Secretary of State for Transport, Local Government and the Regions [2001] EWCA Civ 1510 is a decision concerning introductory tenancies to which I have already referred. In considering whether a combination of a review panel and judicial review were enough to meet the requirements of Article 6(1), Waller LJ referred to passages in Alconbury and stated:
  105. “What those passages support are the follow propositions in considering whether judicial review, plus the procedures, are Article 6 compliant:-

    1. it is relevant whether findings of fact are material to the decision;

    2. if findings of fact are material to the decision, that will not finally determine whether judicial review provides a remedy in compliance with Article 6;

    3. if the facts have themselves been found by 'an expert tribunal' sufficiently independent to make it unnecessary for the court to have a broad jurisdiction to review those decisions of fact, that is likely to lead to the conclusion that judicial review is sufficient” (para 89).

  106. Later he examined whether material facts were likely to be an issue. He pointed out that in relation to rent arrears, for example, the facts can be established with certainty and the question is likely to be whether it was reasonable to terminate the introductory tenancy. He went on:
  107. “97. There may however be circumstances of a more difficult nature. If the council in providing reasons alleges acts constituting nuisance, and if the allegations themselves are disputed that at first sight seems to raise issues of fact. But under the introductory tenancy scheme it is not a requirement that the council should be satisfied that breaches of the tenancy agreement have in fact taken place. The right question under the scheme will be whether in the context of allegation and counter-allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy. That is again a matter which can be dealt with under judicial review either of the traditional kind or if it is necessary so to do intensified so as to ensure that the tenant's rights are protected.

    ….

    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 interests 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 in 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.

    101. Thus, it is my view (i) that there is no reason to hold that the review procedure cannot be operated fairly, and (ii) that there is no reason to hold that the remedy of judicial review will not provide an adequate safeguard to tenants ….”

  108. Finally, in R (Husain) v. Asylum Support Adjudicator (judgment of 5 October 2001) Stanley Burnton J observed:
  109. “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” (para 78).

  110. By reference to those authorities Mr Drabble submits that if judicial review is to provide sufficient control by the court, there must be a sufficiently independent assessment of the facts (albeit not necessarily by a tribunal that itself meets the requirements of Article 6). There was no such assessment here. At the heart of this case was a disputed issue of fact involving an assessment of the credibility of Mr Beeson's son. The complaints panel, with only one independent member out of three, was not sufficiently independent to perform that task, and the requirement to give a reasoned decision does not meet the fundamental point that arises here in relation to the credibility of a witness. A fortiori the council's own Director of Social Services was not sufficiently independent. The council was deciding whether to demand a payment from Mr Beeson. Its decision had resource implications. The risk of this influencing the members of the panel and the Director is obvious. Adequate safeguards are lacking. The problem is therefore the same as that identified by Moses J in Bewry and the court should follow his reasoning.
  111. Mr Drabble further submits that Friends Provident is positively supportive of the claimants' case. The present case falls into the category where the judge held that there is a need for safeguards if the overall system is to be Article 6 compliant. Although he said that there is no absolute rule of law to that effect, the present case cannot be regarded as an exception. McLellan is distinguishable because in this case one is not concerned with whether it is reasonable to adopt a particular course in the context of a balance of competing interests; the question here is one of pure fact, to be decided in a context free of policy considerations or any balance of competing interests. The statutory scheme creates a precise entitlement not to have the value of the house taken into account, dependent upon the existence of a primary fact.
  112. In the circumstances, it is submitted, judicial review is plainly not adequate to ensure overall compliance with Article 6(1). Nor is there any practical problem in having recourse to an independent tribunal in a case such as this. No policy issue is involved and resolution of the factual issue requires exactly the same exercise as is carried out by appeal tribunals in, for example, the field of income support.
  113. For the Secretary of State, Mr Giffin submits that what is required for compliance with Article 6(1) depends on the circumstances and that a balance must be struck between the needs of the individual and legitimate matters of public concern. It is inherently a matter of fact and degree, and in so far as Moses J in Bewry proceeded on the basis that there is an absolute rule that fact-finding must be done by an inspector or someone like him, he was wrong. It is always context dependent. That there is no absolute rule is shown by Zumtobel v. Austria (1994) 17 EHRR 116, Stefan v. UK (1997) 25 EHRR CD 130, Kingsley v. UK (European Court judgment of 7 November 2000) and Kathro.
  114. In relation to that point Mr Giffin also relies on the recent authorities. He submits that McLellan disposes of the claimants' contention that the existence of a dispute of fact is conclusive against judicial review as an adequate remedy. The case also supports the view that significant weight should be placed upon the role of the complaints panel. The panel here was more independent than the reviewing officer in McLellan. As to Friends Provident, Mr Giffin points out that the judge's views on the application of Article 6(1) to category (i) were obiter and that the comments were made in the specific context of planning law and procedure. The judge was right to note that there is no absolute rule of law, but in the light of McLellan his observations overall can be seen to have been too broadly stated.
  115. Mr Giffin further submits that four key considerations should lead to the conclusion that judicial review ensures compliance with Article 6(1) in this case: (1) Under s.22(3) of the 1948 Act the local authority must be "satisfied". To allow any person other than the local authority to substitute his own view of the matter would be to alter the substantive law, which Article 6(1) cannot do. (2) The factual assessment of purpose under regulation 25 is just one element in a decision-making process which includes matters of judgment and discretion which should not be given to anyone else (and it would not be sensible to separate out the fact-finding role). (3) The complaints procedure does introduce an independent element, albeit not sufficient by itself to meet the requirements of Article 6(1). The panel does not bind the authority but there must be a proper reasoned basis for departing from it: R v. Avon County Council, ex parte M (1999) 2 CCLR 185. The panel must also give reasons, which makes it easier for the court to exercise a review function. (4) In the instant case, the dispute is not about what happened but about why it happened. The substantive issue is one that judicial review is well placed to deal with (contrast the issue in Bewry as to whether documents were genuine). The fact that credibility is in issue and the panel had the opportunity to see the witness is not decisive.
  116. If I am against Mr Giffin on his primary submission that judicial review in its present form provides sufficient judicial control, then he submits that the court should expand the scope of judicial review for that purpose. Section 6 of the Human Rights Act 1998 requires the court to act so as to secure compliance with Article 6(1). There is no reason why the Administrative Court should not become in effect an appellate court, prepared to examine a decision on grounds corresponding to those applied by the Privy Council in appeals from decisions of the Professional Conduct Committee of the General Medical Council: cf. Ghosh v. General Medical Council [2001] 1 WLR 1915, where it was explained that the Board's jurisdiction is appellate, not supervisory, and that the appeal is by way of a rehearing in which the Board is fully entitled to substitute its own decision for that of the Committee. "The fact that the appeal is on paper and that witnesses are not recalled makes it incumbent on the appellant to demonstrate that some error has occurred in the proceedings before the Committee or in its decision, but this is true of most appellate processes" (para 33). In this case the court has ample written material on which to conduct that exercise.
  117. Mr Giffin submits that McLellan is binding authority for the proposition that the ambit of judicial review may be expanded in human rights cases so as to ensure that no breach of the Convention arises. In that case Waller LJ questioned whether it was right to contemplate that only the traditional form of judicial review would apply in such a context (paras 90-91). Later he stated:
  118. “Judicial control over the legality of a decision does not require a complete rehearing of the merits. But it seems to me that in considering whether a section of a statute is compatible or not, this court should be inclined to assume that the administrative court will at least be likely to ensure that its procedures will enable it to test the legality of a decision, and in particular whether that decision infringes the human rights of a tenant such as the tenants in the appeals before us …” (para 95).

  119. I turn to my conclusions on this issue. Again the detailed account of the authorities and submissions enables me to state them relatively briefly.
  120. The crucial issue in this case, given the absence of an independent and impartial tribunal at the decision-making stage, is whether judicial review is adequate to ensure compliance overall with Article 6(1). The question is whether the court has "full jurisdiction" to deal with the case as the nature of the decision demands (see Alconbury).
  121. In general terms, the authorities to which I have referred indicate that in relation to issues of fact, the original decision-making process must be attended by procedural safeguards, such as the role of the inspector in planning decisions, if judicial review is to be adequate for the purpose. I accept, however, that there is no absolute rule to that effect and that one cannot leap from the very existence of a factual dispute to the conclusion that judicial review is inadequate. The question whether the court has full jurisdiction to deal with the case as the nature of the decision demands requires careful examination of the nature of that decision and of the grounds of challenge to it in order to determine whether in the particular circumstances the decision can be subject to effective supervision by the court.
  122. Thus, for example, there may be cases where the final decision depends, on proper analysis, not on the resolution of a factual dispute but on the making of a judgment in the light of that dispute. That was the position in McLellan, where the right question was held to be whether it was reasonable to terminate the introductory tenancy in the context of the factual dispute and having regard to the balance of competing interests. In that context, as the court held, the combination of the decision-making procedures and judicial review was sufficient to comply with Article 6(1).
  123. I also have in mind what Lord Slynn said in Alconbury at para 53, that "the court has jurisdiction to quash for misunderstanding or ignorance of an established and relevant fact". More generally, in accordance with ordinary principles of judicial review, the court may be able to exercise effective supervision in relation to factual issues on the basis that the decision-maker has failed to have regard to relevant facts or has made a finding of fact not reasonably open to him on the evidence, or has approached the factual assessment on a legally mistaken basis. The last of those situations applies in the present case, where I have found that the decision was vitiated by a misdirection - a point to which I shall return.
  124. The present case, however, is different from any of those situations. The issue that fell for decision here - whether Mr Beeson had the purpose specified in regulation 25 - involved a finding of fact which was dependent to a significant extent on an assessment of credibility. It is true that the exercise required the drawing of an inference and that there was no dispute about many of the primary facts. For the reasons given earlier in the context of misdirection, however, a conclusion could not properly be reached without deciding whether to accept or reject the evidence of Mr Beeson's son; and that should have turned in part upon an assessment by the complaints panel of the impression created by him in the course of stating his case and answering questions.
  125. It is that consideration which in my view brings this case within the ambit of the reasoning of Moses J in Bewry. I have set out the relevant passages from his judgment at length and do not propose to repeat the reasoning here. At the heart of that case was an issue of credibility; and although the precise subject matter of the credibility issue was different, the essential point was the same. There too the court was concerned with the role of a review board upon which council members sat. What Moses J says about the risk that their judgment might be affected (or infected) by their connection with one of the parties to the dispute, namely the council, seems to me to apply with equal force here. The effect of that influence may be imperceptible and it may be something of which the members themselves are unaware. One cannot dismiss the risk as negligible in a case such as this, which has resource implications for the council and where the council has already pinned its colours to the mast and is presenting to the panel a case in support of the original decision. Nor can one ignore altogether the fact that, with a panel consisting of one independent member and two councillors, the actual findings of the panel were by a majority of two to one (though the court does not know who voted in favour of the findings and who voted against them). The problems in relation to the panel apply a fortiori to the final decision by the Director.
  126. In the circumstances it is in my view impossible for the court on judicial review to determine whether the panel's findings and Director's decision have been affected by their connection with the council or not. That is why, like Moses J in Bewry, I reach the conclusion that judicial review cannot compensate for the lack of an independent element in the decision-making process so as to ensure overall compliance with Article 6(1).
  127. In my view it is neither appropriate nor permissible for the court to seek to overcome that problem by expanding its jurisdiction in the manner contended for by Mr Giffin. The procedure in Ghosh, upon which he relied, was one of appeal and it seems to me that what he seeks to do is to persuade the court here to entertain an appeal rather than a review. The jurisdiction of the Administrative Court, however, is supervisory save where a right of appeal has been conferred specifically by statute. Moreover, in order to deal with the problem adequately the court would have to hear the evidence and be prepared to substitute its own decision on the regulation 25 issue. But that would not be permissible since Parliament has conferred the relevant power of decision-making on the local authority, not the court. As Mr Giffin stressed, it is for the local authority to be satisfied under s.22 as to a person's inability to pay and for that purpose to apply the various criteria set out in the 1992 Regulations.
  128. In any event it would in my view be inappropriate for the Administrative Court to alter or extend its function in the way suggested by Mr Giffin in order to cure a deficiency in the council's decision-making process. I do not read the passages cited from the judgment of Waller LJ in McLellan as requiring the court to adopt that course. In my view what Waller LJ had in mind was the more intensive scrutiny that is generally recognised to be appropriate in various human rights contexts but which does not require a fundamental change in the function of the court. Nor do I accept that s.6 of the Human Rights Act 1998 requires such a course. The court can perform its duty to act in compliance with the Convention by quashing a decision that was reached in breach of Convention rights. It does not have to go down the path suggested by Mr Giffin.
  129. Although I have found a breach of Article 6(1) in the present case, I should stress the limited nature of that breach. In my view all that is required in order to achieve compliance with Article 6(1) in relation to the decision in issue is the injection of a sufficient independent element into the decision-making process by way of the appointment of an independent complaints panel. That would provide a sufficient procedural safeguard when combined with the supervision of the court on judicial review. There would be an assessment of credibility and findings of fact by an independent body, which would have to give reasons for its findings. The final decision-maker would also have to give reasons, and if the decision departed from the panel's findings it would have to disclose a properly reasoned basis for doing so. In those circumstances the court would be able exercise effective supervision and in principle there would be overall compliance with Article 6(1).
  130. I can see nothing in the regulatory framework to prevent a local authority from appointing an independent panel and thereby removing the existing obstacle to compliance with Article 6(1). I have mentioned the relevant Directions in paragraph 14 above. They require the council to appoint a panel of three people, "at least one" of whom must be an independent person. Thus the Directions permit the appointment of more than one independent person; they permit the appointment of a fully independent panel. No legislative change is required, simply a change of practice.
  131. That would meet the various concerns of policy and practicality expressed by Mr Giffin. The local authority would remain the decision-maker, as required under the existing statutory scheme. There would be no disruption to the decision-making process, no division of functions, no handing over of judgments and policy decisions to others. The process would operate as it does now save for the fact that all the members of the complaints panel, rather than just one of them, would be independent of the council. In my view compliance with Article 6(1) does not necessitate the introduction of a right of appeal to an independent body. With the procedural safeguard of an independent panel, the availability of judicial review would be sufficient to achieve compliance.
  132. What I have said about non-compliance with Article 6(1) in this case may need qualification in one respect. If I am right that the panel proceeded on the basis of a misdirection, then it could be said that judicial review is sufficient to deal with the actual problem in this particular case, so that in practice there has been no breach of Article 6(1). If, on the other hand, I am mistaken in my conclusion about a misdirection and it were held that the panel applied the correct legal test, then the problem I have identified under Article 6(1) would be a real one and, for the reasons I have given, judicial review would not be an adequate remedy. Thus it might technically be said that the claimants lose on the Article 6(1) issue if they succeed on the misdirection issue and that they succeed on the Article 6(1) issue if they lose on the misdirection issue. In substance, however, it seems to me that the claimants succeed on the Article 6(1) notwithstanding their success on the misdirection issue, since I have accepted, albeit on a limited basis, their case that the procedures in place for the determination of the particular question arising under regulation 25 are not Article 6(1) compliant.
  133. Article 14

  134. It is not strictly necessary for me to give separate consideration to Article 14, but I have heard full argument on it and it may be helpful for me to set out the submissions and my conclusions.
  135. Article 14 provides that "[t]he enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status". Mr Drabble submits that there has been a violation of the claimant's rights under Article 14 in that he has been unlawfully discriminated against in the enjoyment of his rights under Article 6(1). An alternative submission, which it is unnecessary to consider further, is that there has been a violation of Article 14 even if Article 6(1) is not in play.
  136. The basis of the submission is that Mr Beeson's situation should be compared with that of persons refused benefits for like reasons under other statutory schemes. For example, as already mentioned, regulation 51 of the Income Support (General) Regulations 1987 contains a provision similar to regulation 25 of the 1992 Regulations ("a claimant shall be treated as possessing capital of which he has deprived himself for the purposes of securing entitlement to income support or increasing the amount of that benefit …"). There is also similar statutory wording in relation to housing benefit and income based jobseekers allowance. Under those other schemes a person refused benefit on the ground of an adverse finding as to his purpose in depriving himself of capital has a right of appeal to an independent appeal tribunal. Indeed, such a right of appeal has been introduced with effect from 2 July 2001 for persons challenging a refusal of housing benefit, replacing the former review procedure which was similar to that operated in the context of the 1948 Act. The denial of a corresponding right of appeal to an independent tribunal in the context of the 1948 Act amounts to discrimination against the claimant within Article 14. There is no objective justification for such discrimination: there is no obvious legitimate aim in allocating a means test to the local authority in one case and to an independent tribunal in another, and in any event there is no reasonable relationship of proportionality between the means employed and the ends sought to be realised (see Wallbank v. Parochial Church Council [2001] 3 WLR 1323 at para 49 for a summary of the applicable principles).
  137. Mr Giffin meets those submissions first by the argument that the claimant has failed to establish that, if there is any discrimination, it is on any of the grounds prohibited by Article 14. The only limb of article 14 on which the claimant might be thought to be able to rely is that relating to "other status". However, in St Brice v. London Borough of Southwark [2001] EWCA Civ 1138, the Court of Appeal explained what is meant by that expression. Kennedy LJ stated (at para 24):
  138. “[I]n order to establish a claim under Article 14 an individual must show that he has been discriminated against on the basis of a 'personal characteristic (status) by which persons or groups or persons are distinguishable from each other' (see Kjeldsen, Madsen and Pedesen v. Denmark (1975) 1 EHRR 711.”

    By reference to that consideration the Court of Appeal rejected an argument that certain rules of court were discriminatory against litigants in the county court as against litigants in the High Court. Likewise in the present case it is submitted by Mr Giffin that the fact that Mr Beeson sought exemption from fees for residential accommodation does not amount to a personal characteristic distinguishing him from others who claim income support or other benefits. Further, the complaint falls squarely within the ratio of St Brice since it is a complaint that the rules governing the jurisdiction of one tribunal, the Administrative Court, are narrower than those governing others such as social security appeal tribunals.

  139. In practice the question of "status" within Article 14 is closely linked with the need to establish discrimination between persons in a relevantly similar position. In National & Provincial Building Society and Others v. United Kingdom (1998) 25 EHRR 127 the European Court did not even mention "status" as a separate issue but stated (para 88):
  140. “The Court reiterates that Article 14 of the Convention affords protection against discrimination in the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention. However, not every difference in treatment will amount to a violation of this Article. Instead, it must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment, and that there is no reasonable or objective justification for this distinction …”

  141. In Magee v. United Kingdom (judgment of the European Court of Human Rights dated 6 June 2000), a case involving an alleged difference of treatment of detained suspects in Northern Ireland as compared with other parts of the United Kingdom, the court stated (para 50):
  142. “The Court recalls that Article 14 of the Convention protects against a discriminatory difference in treatment of persons in analogous positions in the exercise of the rights and freedoms recognised by the Convention and its Protocols. It observes in this connection that in the constituent parts of the United Kingdom there is not always a uniform approach to legislation in particular areas. Whether or not an individual can assert a right derived from legislation may accordingly depend on the geographical reach of the legislation at issue and the individual's location at the time. For the Court, in so far as there exists a difference of treatment of detained suspects under the 1988 Order and the legislation of England and Wales on the matters referred to by the applicant, that difference is not to be explained in terms of personal characteristics, such as national origin or association with a national minority, but on the geographical location where the individual is arrested and detained. This permits legislation to take account of regional differences and characteristics of an objective and reasonable nature. In the present case, such a difference does not amount to discriminatory treatment within the meaning of Article 14 of the Convention.”

  143. In so far as it arises as a separate issue, as I think it must do on the authority of St Brice, I accept Mr Giffin's submission that the discrimination alleged here is not based on the personal characteristics of the claimant. The mere fact that a claimant to, for example, income support has a right of appeal to an independent tribunal whereas Mr Beeson had no such right of appeal in respect of the charges payable for accommodation offered to him under the 1948 Act is nothing to do with his personal characteristics. It arises instead out of objective differences between the various statutory regimes.
  144. That leads straight into the question whether Mr Beeson was in a relevantly similar situation to that of an applicant for income support or like benefit. I accept the thrust of Mr Giffin's submissions that he was not. There are undoubted similarities in relation to means-testing, to which I have referred in support of my conclusion that Article 6(1) applies. But the decision-maker is different and there are various differences in the statutory schemes, including the discretionary elements in the scheme under the 1948 Act. Overall, I accept that it is not appropriate to isolate one aspect of two disparate schemes for the purposes of Article 14 and to demand precise equivalence of treatment under them.
  145. Mr Giffin relies in the further alternative on the existence of an objective justification for any discrimination that might otherwise be found to exist under Article 14. The issue raises similar points to those I have already considered, but I do not think it necessary in the circumstances to reach any conclusion on the issue.
  146. For the reasons I have given, I reject the claimants' case under Article 14.
  147. Conclusions

  148. In the result, the claimants succeed both on the ground of misdirection and on Article 6(1). The council's decision will be quashed and will have to be reconsidered.
  149. I will hear counsel on any other questions of relief and on consequential orders, but my provisional view is that no further relief is necessary. The observations I have made on the limited steps that are needed and are available in order to secure compliance with Article 6(1) suggest that no declaration is called for.
  150. ***************

    MR JUSTICE RICHARDS: For the reasons given in the judgment being handed down the claim for judicial review succeeds and the decision under challenge will be quashed.PRIVATE 

    MR CHAKRABARTI: My Lord, I understand my learned friend, Mr Giffin, will be making an application for permission. If I may have an opportunity to speak to you after that.

    MR JUSTICE RICHARDS: First of all should we deal with costs?

    MR CHAKRABARTI: I would ask the court for legal aid assessment and costs.

    MR JUSTICE RICHARDS: You are seeking costs against the first defendants.

    MR CHAKRABARTI: First defendants. There may be an issue of apportionment of the costs between the defendants to two different issues. One was taken by the Secretary of State and indeed one was taken by the Council ----

    MR JUSTICE RICHARDS: We will see about that. Yes, I see. You want an order for costs and detailed assessment for legal aid purposes, which you can have plainly in any event. Let me hear from others first about costs.

    MR CHAKRABARTI: May I make one other short point.

    MR JUSTICE RICHARDS: Yes.

    MR CHAKRABARTI: The draft judgment received by Mr Drabble QC yesterday.

    MR JUSTICE RICHARDS: Yes, owing I understand to an error in his clerk's room.

    MR CHAKRABARTI: I am not entirely aware of what the reasons were. Neither Mr Drabble nor Mr Woolf were in London yesterday. There is one matter, my instructing solicitors's names do not appear on the draft judgment.

    MR JUSTICE RICHARDS: Have you looked at the handed down version?

    MR CHAKRABARTI: No. Public Law Project.

    MR JUSTICE RICHARDS: The claimant is instructed by Conrad Haley, the Public Law Project. Is that good enough for you?

    MR CHAKRABARTI: Is it possible to insert that now?

    MR JUSTICE RICHARDS: It is Conrad Haley of the Public Law Project. I am sure we can insert that on the front sheet.

    MR CHAKRABARTI: I am grateful.

    MR JUSTICE RICHARDS: That will be done.

    MR SWIFT: My Lord, the application for costs is not surprising. However, can I just respectfully invite you before you exercise that power to bear in mind the following. That in essence one would be moving funds from one public body to another. If you order the costs to be paid by the County Council or even a portion of them then you are simply inflicting on the rate payers of Dorset the burden which is carried in the sense of the claimant's costs by public body with public funds.

    MR JUSTICE RICHARDS: That is an old line I recall used occasionally to succeed ten years ago, but in more recent times when there is great attention to public accounting it is important which pot the money comes out of.

    MR SWIFT: Well, my Lord, I appreciate that, there is not much else I can say.

    MR JUSTICE RICHARDS: Thank you. Mr Giffin?

    MR GIFFIN: My Lord, I resist any order for costs against the Secretary of State. As your Lordship knows the second respondent or defendant will not normally get its costs if successful, and in my submission the converse ought to apply here where first of all our participation has not in any way increased the cost. The only points that I argued were the ones which would otherwise have been and would have been argued by Mr Swift. And insofar as any relief was sought against us which was a declaration of regulations were unlawful in the original claim form and subsequently by amendment declarations of incompatibility. Those arguments have failed. Indeed, as your Lordship records in the judgment, the actual outcome has turned on a point with which we had nothing to do, namely the misdirection. The claimant certainly does not need to get an order for costs against us to be made, the County Council being, one hopes, solvent, and in my submission therefore there is no reason for an order to be made against the Secretary of State.

    MR JUSTICE RICHARDS: Thank you very much. I will order Dorset County Council to pay the costs on the basis that the misdirection issue which related only to them was dispositive of the case in favour of the claimant. I accept that the points argued by the Secretary of State would in any event have been argued by Dorset and the Secretary of State's intervention in the event did not increase the costs of the case.

    MR GIFFIN: My Lord, there is the question of permission to appeal.

    MR JUSTICE RICHARDS: You need not address me on that. I will hear from the claimant, if you are making an application for permission, why I should not grant it.

    MR GIFFIN: May I mention one point. Since obviously I am merely seeking permission on the Article 6 issue, there might be a technical question as to whether your Lordship needed to grant a declaration in order for there to be something to appeal against unless permission to appeal has been given on the case as a whole.

    MR JUSTICE RICHARDS: I quash the decision. If I grant permission to appeal it will be against the matter as a whole because I think the matter has to be looked at as a whole, and therefore I do not think that any further relief is required.

    MR GIFFIN: That would follow.

    MR JUSTICE RICHARDS: Yes. Mr Chakrabarti, do you want to say anything about permission to appeal? I know it is really difficult for you coming into a case of this sort at this stage.

    MR CHAKRABARTI: My Lord, my only point in relation to permission is that which you have already made, that if permission is granted it is granted on the case as a whole and not just on the Article 6 point.

    MR JUSTICE RICHARDS: I propose to grant permission. The case does in my view merit the attention of the Court of Appeal. I am not satisfied that there is no real prospect of success on appeal and the Article 6 issues in particular are ones of wider importance than this individual case. So permission is granted without any limitation as to what may be appealed against.

    MR GIFFIN: My Lord, I am instructed to ask for a very small extension of the time to file the appellant's notice to 21st December, which I think makes it Friday rather than Monday. It is just to give a little more time for consultation amongst government departments.

    MR JUSTICE RICHARDS: Yes, you may have that extension. Can I apologise to everybody that it has taken so long to get this judgment out, much longer than I would have wished.

    MR GIFFIN: My Lord, we obviously understand your commitments in Wales and it certainly gave us the opportunity to bombard your Lordship with the other material to look at.

    MR JUSTICE RICHARDS: It was very useful, thank you.


© 2001 Crown Copyright


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