Michaelmas Term
[2009] UKSC 8
On appeal from: [2008] EWCA Civ 1445
JUDGMENT
R
(on the application of A) (FC) (Appellant)
v
London
Borough
of
Croydon
(
Respondents)
and one other action
R
(on the application of M) (FC) (Appellant)
v
London
Borough
of Lambeth (
Respondents)
and one other action
before
Lord Hope, Deputy
President
Lord Scott
Lord Walker
Lady Hale
Lord Neuberger
JUDGMENT GIVEN ON
26 November 2009
Heard on 20, 21, 22 & 23 July 2009
Appellant (A) John Howell QC Ian Wise (Instructed by Harter and Loveless Solicitors ) |
|
Respondent (LB of Croydon) Nigel Giffin QC Bryan McGuire
Peggy Etiebet (Instructed by Democratic and Legal Services Division) |
|
|
|
Appellant (M) Timothy Straker QC Christopher Buttler (Instructed by Bennett Wilkins Solicitors ) |
|
Respondent (LB of Lambeth) Charles Bear QC Jon Holbrook (Instructed by Sternberg Reed ) |
|
|
|
Intervener (Secretary of State for the Home Department) Nathalie Lieven QC Deok Joo Rhee (Instructed by Treasury Solicitors) |
|
Intervener in writing (Children's Commissioner) Richard Drabble QC
Ranjiv Khubber (Instructed by The Children's Legal Centre) |
LADY HALE
- So much depends upon how one frames the question.
Put
simply, when disputes arise about the age of some-one who is asking a
local
children's services authority to
provide
him with accommodation under section 20(1) of the Children Act 1989, who decides whether he is a child or not? Section 20(1)
reads
as follows:
"(1) Every
local
authority shall
provide
accommodation for any child in need within their area who appears to them to
require
accommodation as a
result
of –
(a) there being no
person
who has
parental
responsibility
for him;
(b) his being lost or having been abandoned; or
(c) the
person
who has been caring for him being
prevented
(whether or not
permanently,
and for whatever
reason)
from
providing
him with suitable accommodation or care."
By section 105(1) of the Act, a "'child' means . . . a
person
under the age of eighteen".
- The appellants, supported by the Children's
Commissioner
for England, say that, in cases of dispute, the court must decide whether a
person
is a child on the balance of
probabilities.
The
respondent
local
authorities, supported by the Home Secretary, say that the authority must decide the matter, subject only to judicial
review
on the usual
principles
of fairness and
rationality.
The importance of the issue
- No doubt there have always been foundlings, abandoned or
runaway
children whose age was not immediately apparent to the authorities. But with many of these it will at least have been apparent that they were children. And sooner or later it will usually have been
possible
to establish their
exact
age by discovering their identity and obtaining a birth certificate. The
problem
of determining age has come to
prominence
with the
recent
increase in migration and
particularly
in unaccompanied young
people
coming to this country, some of them to claim asylum for their own benefit but some of them also having been trafficked here for the benefit of others. Although the focus of debate has been upon unaccompanied asylum seeking children, we must not lose sight of the other young
people
for whom the issue may also be important.
- The importance comes from two directions. If a young
person
is a child, and otherwise meets the qualifying criteria, he must be
provided
with accommodation and maintenance under sections 20(1) and 23(1) of the 1989 Act. This brings with it a wider
range
of services than other forms of housing and benefit
provision.
These include the services for young
people
who leave social services accommodation which were described in
R
(M)
v
Hammersmith and Fulham
London
Borough
Council
[2008] UKHL 14, [2008] 1 WLR 535,
paras
20 – 24. While once upon a time young
people
may have
resisted
the quasi-
parental
services
provided
for children in need, many now
recognise
that they bring distinct advantages over the housing and welfare benefits available to "home" claimants (as in
R
(M)
v
Hammersmith and Fulham
London
Borough
Council,
above, and
R
(G)
v
Lambeth
London
Borough
Council
[2009] UKHL 26, [2009] 1 WLR 1299) and the National Asylum Support Service ("NASS") support available to asylum seekers, as in the cases before us.
- The Home Secretary also adopts different
policies
in
relation
to asylum seekers who are under eighteen. Legally, these may not be
relevant
to the issue which we have to determine, and in
practice
they are much more susceptible to change than is
primary
legislation such as the 1989 Act. But they are an important
part
of the factual background. Not only are unaccompanied asylum seeking children looked after by the
local
children's services authorities
rather
than by NASS while their claims are decided. Currently, if a claim is
rejected
when the child is under the age of seventeen and a half, the Home Secretary will not
remove
him for three years or until he
reaches
seventeen and a half, whichever is the earlier, unless there are adequate arrangements to look after him in his country of origin. Also, such children will not be detained under the Home Secretary's immigration
powers,
save in
exceptional
circumstances and then normally only overnight.
- When a young
person
who says that he is a child arrives in this country or makes a claim for asylum, immigration officers make a
preliminary
determination based upon his
physical
appearance and demeanour. In a borderline case, the
policy
is to give him the benefit of the doubt and treat him as a child. Under the Secretary of State's 2007
Policy
on Age Dispute cases, if his appearance or demeanour "
very
strongly" suggests that he is aged eighteen or over, the officer will dispute the age unless there is credible documentary or other evidence to show the age claimed. And if his appearance or demeanour "
very
strongly" suggest that he is "significantly" over eighteen then he will be treated as an adult. In the middle, age disputed, category, it is the
policy
to
refer
the case for assessment by the
local
social services authority and to accept that assessment if it is considered to have been
properly
carried out (in accordance with the
procedural
guidance given by Stanley Burnton J in
R
(B)
v
Merton
London
Borough
Council
[2003] EWHC 1689 (Admin), [2003] 4 All ER 280).
- This was the
policy
adopted by the Home Secretary in August 2007. But in February 2007 the Home Office
published
a consultation
paper,
Planning
Better Outcomes and Support for Unaccompanied Asylum Seeking Children; and in January 2008, it
published
its conclusions and
recommendations
in Better Outcomes: The Way Forward, Improving the Care of Unaccompanied Asylum Seeking Children. Key
Reform
Number 4 was to
put
in
place
better
procedures
to assess age, in order to ensure that children and adults are not accommodated together. Both the Children's
Commissioner
and the
Refugee
Council
have been critical of the
present
procedures,
based
partly
upon their own
experience
and observations and
partly
upon
research
conducted by
Professor
Heaven Crawley for the Immigration Law
Practitioners'
Association.
- As Ms Nathalie Lieven QC for the Home Secretary
points
out, the issue before us is not whether the
policy
and
procedures
for assessing age in these cases could be improved, but whether the law
requires
that, in cases which cannot be
resolved
through those
processes,
the court shall make the final determination. However, the one thing which these
proposals
do show is that the assessment of age can be and is carried out quite separately from the assessment of need and the other criteria for accommodation under section 20.
These two cases
- A arrived in this country from Afghanistan on 13 November 2007 and claimed asylum the following day, stating that his date of birth was 8 April 1992 (making him then fifteen and a half). The immigration officer considered that he was eighteen and
referred
him to
Croydon
for an age assessment. He was interviewed by two social workers who assessed him as an adult. He was therefore
referred
to NASS. Soon afterwards his solicitors
produced
a copy of a birth certificate from Afghanistan showing his date of birth as 8 April 1992. They also arranged for him to be
examined
by a
paediatrician,
who
reported
that in her opinion he was aged between 15 and 17. A claim for judicial
review
of the decision that he was not entitled to accommodation under section 20 of the 1989 Act was made on 7 March 2008 and an interim order made against the authority until the determination of the claim.
- M arrived in this country in November 2006 and claimed asylum three days later, saying that he was born on 15 December 1989 (making him then just under seventeen). His age was disputed and he was
referred
to Lambeth for an age assessment by two social workers who concluded that he was over eighteen. Once again, a
paediatrician's
report
was obtained which concluded that he was indeed aged seventeen. Judicial
review
proceedings
were brought and Lambeth
reviewed
its decision but
provided
further
reasons
for concluding that M was more than twenty years old. Meanwhile an immigration judge heard his appeal against the
refusal
of asylum and the Home Secretary's decision as to his age. The judge was not
referred
to the
local
authority's assessment and accepted the
paediatrician's
report.
The Home Secretary therefore granted M discretionary leave to
remain
which has been
extended
pending
the determination of his application for an
extension
of his leave.
- These two and five other claims for judicial
review
were joined for the
purpose
of deciding a number of
preliminary
issues, with these two being treated as the lead cases. Those issues were (a) whether the
local
authorities' determinations were contrary to the
procedural
protections
in article 6 and/or 8 of the European Convention on Human
Rights;
(b) whether the question of "child or not" for the
purpose
of section 20 of the 1989 Act was one of
precedent
fact for the court to determine on the balance of
probabilities;
and (c) whether in M's case the
local
authority could disagree with the immigration judge's decision.
- On 20 June 2008, Bennett J decided all three issues in favour of the
local
authorities: [2008] EWHC 1364 (Admin). He also declined to decide a fourth issue, as to the evidential
value
of
paediatricians'
reports
in age disputes. That issue has since been determined by Collins J in
R
(A)
v
Croydon
London
Borough
Council;
R
(WK)
v
Kent County
Council
[2009] EWHC 939 (Admin), the Kent case taking the
place
of the Lambeth case as lead case in this issue. Collins J held that the
paediatricians'
views
should be taken into account but that they were not likely to be any more
reliable
or helpful than those of
experienced
social workers and the authorities were entitled to
prefer
the latter. He was, of course, bound by the decision of the Court of Appeal as to the
role
of the courts in these cases.
- On 18 December 2008, the Court of Appeal had dismissed the appellants' appeals from the decisions of Bennett J on the
preliminary
issues of law: [2008] EWCA Civ 1445, [2009]
PTSR
1011. The issues have been slightly
reformulated
for the
purpose
of the appeals before us, but the first two are closely inter-
related:
(i) whether, as a matter of statutory construction, the duty imposed by section 20(1) is owed only to a
person
who appears to the
local
authority to be a child, so that the authority's decision can only be challenged on "Wednesbury"
principles,
or whether it is owed to any
person
who is in fact a child, so that the court may determine the issue on the balance of
probabilities;
(ii) whether the issue "child or not" is a question of "
precedent"
or "jurisdictional" fact to be decided by a court on the balance of
probabilities;
and
(iii) whether section 20(1) gives
rise
to a "civil
right"
for the
purpose
of article 6(1) of the European Convention on Human
Rights
and if so whether the determination of age by social workers subject to judicial
review
on "Wednesbury"
principles
is sufficient to comply with the
requirement
that the matter be determined by a fair hearing before an independent and impartial tribunal.
The construction of section 20(1)
- The argument on construction, advanced by Mr John Howell QC for A, is quite straightforward. The words of section 20(1) themselves distinguish between the statement of objective fact – "any child in need within their area" – and the descriptive judgment – "who appears to them to
require
accommodation as a
result
of" the three listed circumstances – which is clearly left to the
local
authority. The definition of "child" in section 105(1), which applies throughout the 1989 Act, is unqualified: "a
person
under the age of eighteen" – not "a
person
who appears to the
local
authority to be under the age of eighteen" or "a
person
whom the
local
authority or any other
person
making the initial decision
reasonably
believes to be under the age of eighteen".
Reaching
the conclusion that this is what it means in section 20(1)
requires,
as the Court of Appeal accepted, words to be
read
into section 20 which are not there.
- This argument is bolstered by two others. One is derived from the legislative history. Section 20(1) of the 1989 Act is the successor to section 2 of the Child Care Act 1980 which consolidated (without amendment) what had been section 1 of the Children Act 1948 with later legislation. The 1948 Act was an important component of the establishment of the
post-war
welfare state, bringing together all the disparate
powers
and duties of the state to look after children who had no families or whose families were unable to look after them
properly,
and infusing those new duties with a commitment to the welfare of the individual child which had been so lacking before (see
Report
of the Care of Children Committee, Chairman: Miss Myra Curtis, 1946, Cmd 6922).
- Section 1(1) of the 1948 Act,
reproduced
in section 2(1) of the 1980 Act, began "Where it appears to a
local
authority with
respect
to a child in their area appearing to them to be under the age of seventeen . . .". Section 20(1) of the 1989 Act made
various
changes. These included
raising
the age of eligibility to cater for all children, not just those who appeared to be under seventeen. But they also included the change in wording, which no longer limited the duty to those who appeared to the
local
authority to be under the
relevant
age. There is nothing in the
Review
of Child Care Law:
Report
to Ministers of an Interdepartmental Working
Party
(DHSS, 1985) or in the white
paper,
The Law on Child Care and Family Services (1987, Cm 62), which
preceded
the 1989 Act to cast light on the
reasons
for the change in wording. But when
Parliamentary
draftsmen make changes such as this they are normally
presumed
to have done so deliberately and not by mistake.
- The second
point
is that the same definition of "child" applies throughout the 1989 Act. The 1989 Act contains a
variety
of
powers
and duties
relating
to children, some of them
voluntary,
but many of them coercive as against the child or his
parents.
Most of the coercive
powers,
to make orders
relating
to the care and upbringing of children, depend upon court orders. Clearly, in those cases it is for the court to determine any disputes about the age of the child. But there are some coercive
powers
which are operated in the first instance by other authorities, subject to bringing the case to court within a
relatively
short time.
- One of these is the
power
of the
police,
in section 46, "where a constable has
reasonable
cause to believe that a child would otherwise be likely to suffer significant harm" to
remove
a child to suitable accommodation and keep him there. This
power
is not infrequently used to
pick
up young
people
who are camping out in
railway
stations with no apparent
place
to go. If someone who was not a child was
removed
in this way, he could apply immediately for habeas corpus and the court would have to inquire into whether or not he was indeed a child. The section does not
refer
to a "
person
whom the constable has
reasonable
cause to believe to be a child" and where liberty is at stake the court would be slow to
read
it in that way.
- A similar case is
perhaps
more telling for our
purposes
because it is contained in section 25, which, like section 20, appears in
Part
III of the 1989 Act, entitled "
Local
Authority Support for Children and Families". Section 25, and the
regulations
made under it,
place
limits on the circumstances in which "a child who is being looked after by a
local
authority" may be
placed
in "accommodation
provided
for the
purpose
of
restricting
liberty". A child who is being "looked after" by a
local
authority means any child who is subject to a care order or a child who is
provided
with accommodation by a
local
authority under their social services functions, which include section 20(1) (see 1989 Act, section 22(1)). The
regulations
allow a child to be
placed
in secure accommodation – that is, to be locked up – for up to 72 hours without the authority of a court (Children (Secure Accommodation)
Regulations
1991, SI 1991/1505,
reg
10(1)). Again, if a
person
who was not a child was locked up in this way, he could apply for habeas corpus and the court would have to enquire into whether or not he was a child. There is nothing to suggest that the
power
can be
exercised
in
relation
to someone whom the authority
reasonably
believes to be a child.
- Against these arguments, the
respondents
make three main
points.
The first is that section 20(1)
refers
to a "child in need". Section 105(7)
provides
that
references
to a child in need shall be construed in accordance with section 17. Section 17(10)
provides
that:
"For the
purposes
of this
Part
a child shall be taken to be in need if –
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a
reasonable
standard of health or development without the
provision
for him of services by a
local
authority under this
Part;
(b) his health or development is likely to be significantly impaired, or further impaired, without the
provision
for him of such services; or
(c) he is disabled, . . . "
Thus, argues Mr Charles Béar QC for Lambeth, it cannot have been the intention of
Parliament
that the sorts of
professional
value
judgment involved in assessing whether a child is "in need" should be made by the court. "Child in need" is a composite term of art so that the same should apply to the assessment of age as well as need.
- This argument is closely allied to a second and more fundamental argument about the
respective
roles
of
public
authorities and the courts when determining whether the conditions
exist
for the
exercise
of a statutory
power
or duty. The court decides what the words mean and the authority decides whether the facts fit those words. Thus, in the well-known case of
R
v
Barnet
London
Borough
Council,
Ex
p
Shah [1983] 2 AC 309, the court decided what was meant by "ordinarily
resident"
in the criteria for entitlement to a mandatory education grant and sent the case back to the
local
authority to decide. Lord Scarman said this, at
p
341:
"If a
local
education authority gets the law
right,
or, as the lawyers would
put
it, directs itself correctly in law, the question of fact – ie has the student established the
prescribed
residence?
– is for the authority, not the court, to decide. The merits of the application are for the
local
education authority subject only to judicial
review
to ensure that the authority has
proceeded
according to the law."
- To similar effect were the observations of Lord Brightman in
R
v
Hillingdon
London
Borough
Council,
Ex
p
Puhlhofer
[1986] AC 484, where the court decided whether the Housing (Homeless
Persons)
Act 1977 imported any
requirement
that the accommodation currently occupied by a household claiming to be homeless be accommodation which it was
reasonable
for them to continue to occupy. Having decided that it did not, Lord Brightman insisted, at
p
517, that "What is
properly
to be
regarded
as accommodation is a question of fact to be decided by the
local
authority".
- Third in the line of cases cited on this
point
were my own words in
R
(Wahid)
v
Tower Hamlets
London
Borough
Council
[2002] LGR 545, 554, which are
particularly
pertinent
because they
relate
to the duty of
local
social services authorities, under section 21(1)(a) of the National Assistance Act 1948, to
provide
residential
accommodation for
vulnerable
adults who meet the criteria there laid down: "it is for the
local
social services authority to assess whether or not those conditions are fulfilled, and if so, how the need is to be met, subject to the scrutiny of the courts on the ordinary
principles
of judicial
review".
- We are not deciding where the lines of
responsibility
are to be drawn under the National Assistance Act 1948. We are deciding where
Parliament
intended that the lines be drawn under the Children Act 1989. The task in all these cases is to decide what
Parliament
intended. In the Shah case, it was common ground between the
parties
on all sides that it was for the
local
education authority to decide the facts. No-one mounted an argument such as has been mounted in this case. We do not need to decide how it would have fared in 1983, any more than we need to speculate upon how it might be decided now. In the
Puhlhofer
case, the statutory duty to
provide
accommodation for the homeless was clearly
expressed
in terms that the
local
authority was satisfied that the criteria
existed,
as indeed is its successor today. Lord Brightman emphasised, at
p
518, that the 1977 Act "abounds with the formula when, or if, the housing authority are satisfied as to this, or that, or have
reason
to believe this, or that" in support of his conclusion that "
Parliament
intended the
local
authority to be the judge of fact".
- That is not the case with the National Assistance Act 1948, which has gone through several modifications since it was first enacted, when the duty of the
local
authority was to
prepare
a scheme for accommodating the
vulnerable
which had then to be approved by the minister. It is not impossible that
Parliament
did not contemplate that such a duty would be owed to any
particular
individual, whereas this House has clearly held, in
R
(G)
v
Barnet
London
Borough
Council
[2003] UKHL 57, [2004] 2 AC 208, that the duty in section 20(1) of the 1989 Act is owed to the individual child.
- These days,
Parliamentary
draftsmen are more alive to this kind of debate. The 1989 Act draws a clear and sensible distinction between different kinds of question. The question whether a child is "in need"
requires
a number of different
value
judgments. What would be a
reasonable
standard of health or development for this
particular
child? How likely is he to achieve it? What services might bring that standard up to a
reasonable
level? What amounts to a significant impairment of health or development? How likely is that? What services might avoid it? Questions like this are sometimes decided by the courts in the course of care or other
proceedings
under the Act. Courts are quite used to deciding them upon the evidence for the
purpose
of deciding what order, if any, to make. But where the issue is not, what order should the court make, but what service should the
local
authority
provide,
it is entirely
reasonable
to assume that
Parliament
intended such evaluative questions to be determined by the
public
authority, subject to the control of the courts on the ordinary
principles
of judicial
review.
Within the limits of fair
process
and "Wednesbury
reasonableness"
there are no clear cut
right
or wrong answers.
- But the question whether a
person
is a "child" is a different kind of question. There is a
right
or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than
perfect
or conclusive evidence. But that is true of many questions of fact which
regularly
come before the courts. That does not
prevent
them from being questions for the courts
rather
than for other kinds of decision makers.
- The arguments advanced by Mr Béar might have to
provide
an answer in cases where
Parliament
has not made its intentions
plain.
But in this case it appears to me that
Parliament
has done just that. In section 20(1) a clear distinction is drawn between the question whether there is a "child in need within their area" and the question whether it appears to the
local
authority that the child
requires
accommodation for one of the listed
reasons.
In section 17(10) a clear distinction is drawn between whether the
person
is a "child" and whether that child is to be "taken to be" in need within the meaning of the Act. "Taken to be" imports an element of judgment, even an element of deeming in the case of a disabled child, which
Parliament
may well have intended to be left to the
local
authority
rather
than the courts.
- I
reach
those conclusions on the wording of the 1989 Act and without
recourse
to the additional argument, advanced by Mr Timothy Straker QC for M, that "child" is a question of jurisdictional or
precedent
fact of which the ultimate arbiters are the courts
rather
than the
public
authorities involved. This doctrine does, as Ward LJ
pointed
out in the Court of Appeal [2008] EWCA Civ 1445, [2009]
PTSR
1011,
para
19, have "an ancient and
respectable
pedigree".
Historically, like the
remedy
of certiorari itself, it was applied to inferior courts and other judicial or quasi-judicial bodies with limited jurisdiction. Thus a tithe
commissioner
could not give himself jurisdiction over land which had
previously
been discharged from tithe (Bunbury
v
Fuller (1853) 9
Ex
111), [1853] EngR 768; and a
rent
tribunal could not give itself jurisdiction over an unfurnished letting (
R
v
Fulham, Hammersmith and Kensington
Rent
Tribunal,
Ex
p
Zerek [1951] 2 KB 1). Although of course such a body would have to inquire into the facts in order to decide whether or not to take the case, if it got the decision wrong, it could not give itself a jurisdiction which it did not have.
- In
R
v
Secretary of State for the Home Department,
Ex
p
Khawaja [1984] AC 74, the same
principle
was applied to the
power
of the Home Office to
remove
an "illegal entrant". The
existence
of the
power
of
removal
depended upon that fact. It was not enough that an immigration officer had
reasonable
grounds for believing the
person
to be an illegal entrant. As Lord Scarman
put
it, ". . . where the
exercise
of
executive
power
depends upon the
precedent
establishment of an objective fact, the courts will decide whether the
requirement
has been satisfied" (
p
110).
- This doctrine is not of
recent
origin or limited to
powers
relating
to the liberty of the subject. But of course it still
requires
us to decide which questions are to be
regarded
as setting the limits to the jurisdiction of the
public
authority and which questions simply
relate
to the
exercise
of that jurisdiction. This too must be a question of statutory construction, although Wade and Forsyth on
Administrative
Law suggest that "As a general
rule,
limiting conditions stated in objective terms will be treated as jurisdictional" (9th ed (2004),
p
257). It was for this
reason
that Ward LJ
rejected
the argument, for he
regarded
the threshold question in section 20 as the composite one of whether the
person
was a "child in need". This was not a limiting condition stated in wholly objective terms so as to satisfy the Wade and Forsyth test (
para
25).
- However, as already
explained,
the Act does draw a distinction between a "child" and a "child in need" and even does so in terms which suggest that they are two different kinds of question. The word "child" is undoubtedly defined in wholly objective terms (however hard it may be to decide upon the facts of the
particular
case). With a few limited
extensions,
it defines the outer boundaries of the jurisdiction of both courts and
local
authorities under the 1989 Act. This is an Act for and about children. If ever there were a jurisdictional fact, it might be thought, this is it.
- The final arguments
raised
against such a conclusion are of a
practical
kind. The only
remedy
available is judicial
review
and this is not well suited to the determination of disputed questions of fact. This is true but it can be so adapted if the need arises: see
R
(Wilkinson)
v
Broadmoor Special Hospital Authority [2001] EWCA Civ 1545, [2002] 1 WLR 419. That the
remedy
is judicial
review
does not dictate the issue for the court to decide or the way in which it should do so, as the cases on jurisdictional fact illustrate. Clearly, as those cases also illustrate, the
public
authority, whether the children's services authority or the UK Border Agency, has to make its own determination in the first instance and it is only if this
remains
disputed that the court may have to intervene. But the better the quality of the initial decision-making, the less likely it is that the court will come to any different decision upon the evidence. If the other members of the Court agree with my approach to the determination of age, it does not mean that all the other judgments involved in the decision whether or not to
provide
services to children or to other client groups must be subject to determination by the courts. They
remain
governed by conventional
principles.
Article 6
- Those conclusions make it unnecessary to
reach
any firm conclusions on the application of article 6 of the Convention to decisions under section 20(1) of the 1989 Act. Article 6(1)
requires
that "in the determination of his civil
rights
and obligations . . . everyone is entitled to a fair and
public
hearing within a
reasonable
time by an independent and impartial tribunal established by law." There are two questions. First, is the decision whether or not to
provide
accommodation under section 20(1) the determination of a "civil
right",
so that article 6 is engaged? Secondly, if it is, what does article 6
require?
Neither question is easy to answer.
- First, it seems to me clear that, once the qualifying criteria are established, the
local
authority has no discretion under section 20(1): the accommodation must be
provided.
The
existence
of the criteria is a matter of judgment, not discretion. Thus it makes sense to talk in terms of a correlative
right
to the accommodation,
rather
than simply a
right
to apply for it. But that does not tell us whether it is a "civil
right"
for the
purpose
of article 6.
- As Lord Hoffmann
explained
in
R
(Alconbury Developments Ltd)
v
Secretary of State for the Environment, Transport and the
Regions
[2001] UKHL 23, [2003] 2 AC 295,
para
78 et seq, the concept of a "civil
right"
in article 6 was originally intended to apply only to
private
rights,
not
rights
arising in
public
law. But that distinction has long been abandoned and the concept of the determination of a civil
right
extended
to many questions arising in
public
law. With that
extension
has gone some modification of what article 6
requires.
- Mr Nigel Giffin QC, appearing for
Croydon,
has helpfully divided the Strasbourg cases into two categories. In the first are those cases where the determination of a
public
law question is also decisive of the
existence
of
private
law
rights.
The obvious
examples
are
Ringeisen
v
Austria (No 1) (1971) 1 EHRR 455, in which a contract for the sale of land between
private
citizens
required
the approval of the
public
authority; and Obermeier
v
Austria (1991) 13 EHRR 290, in which the dismissal of a disabled
person
by a
private
authority
required
the consent of a
public
authority; but the cases concerning the licensing of a trade or
profession,
such as Benthem
v
The Netherlands (1986) 8 EHRR 1, Albert and Le Compte
v
Belgium (1983) 5 EHRR 533, and Kingsley
v
United Kingdom (2002) 35 EHRR 10 , directly affecting
private
contractual
relationships,
also fall into this category.
- The second category, however, is more difficult to define. Mr Giffin suggests that it consists of
rights
in
public
law which are closely analogous to
rights
in
private
law. These began with
rights
to contributory state benefits, which are clearly analogous to
rights
under
private
contracts of insurance (Feldbrugge
v
The Netherlands (1986) 8 EHRR 425). They have now been
extended
to
rights
to non-contributory state benefits, which have also been
recognised
as
rights
of
property
for the
purpose
of article 1 of the First
Protocol
(Salesi
v
Italy (1998) 26 EHRR 187; Mennitto
v
Italy (2002) 34 EHRR 48; Mihailov
v
Bulgaria, app no 52367/99, judgment of 21 July 2005, BAILII: [2005] ECHR 519 ) and to the distribution of compensation for forced labour during the second world war (Wos
v
Poland
(2007) 45 EHRR 659). They have also
extended
to some types of
public
sector employment, despite the clear
reluctance
of many European countries (including the United Kingdom) to
regard
public
sector employment in the same light as
private
sector employment (
Vilho
Eskelinen
v
Finland (2007) 45 EHRR 43). But there
remain
limits: taxation
proceedings
do not
raise
issues of civil
rights,
despite their obvious impact upon individual
property
rights
(Ferrazzini
v
Italy (2002) 34 EHRR 45); nor do immigration decisions (
P
v
United Kingdom (1987) 54 DR 211); or decisions about state subsidies to housing associations (Woonbron
Volkshuisvestingsgroep
v
The Netherlands, app no 47122/99, admissibility decision of 18 June 2002, BAILII: [2002] ECHR 856).
- So does a claim to be
provided
with welfare services by the state amount to a civil
right
for this
purpose?
The House of Lords, in
R
(
Runa
Begum)
v
Tower Hamlets
London
Borough
Council
(First Secretary of State intervening) [2003] UKHL 5, [2003] 2 AC 430, was content to assume, without deciding, that a claim to be
provided
with suitable accommodation under the homelessness
provisions
of
Part
VII
of the Housing Act 1996 was such a
right.
But no Strasbourg case had yet gone so far. Mr Howell argues that the court has now done so; a number of cases from
Russia,
about delays in enforcing court judgments that an applicant was entitled to be
provided
with a flat of a certain size, have taken it for granted that this was a civil
right
(see eg Teteriny
v
Russia,
app no 11931/03, judgment of 30 June 2005; Sypchenko
v
Russia,
app no 38368/04, judgment of 1 March 2007). Enforcement only comes within article 6 because it is an intrinsic
part
of the trial. Thus, he argues, the underlying
right
to which the judgment
relates
must be a civil
right.
There is no
requirement
in the Strasbourg case law that the
right
be analogous with a
right
existing
in
private
law, for the non-contributory state benefits have no such equivalent. All that is
required
is that the
right
is economic in nature and
personal
to the individual. This he gets from, for
example,
Salesi
v
Italy, above, where the court said, of a claimant to non-contributory disability allowance, "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" (
para
19). It does not have to be tradable and, he argues, like many ordinary
private
rights,
it may well depend upon evaluative judgments
rather
than specific
rules.
- On the other hand, it does not appear that there was any argument upon the
point
in the
Russian
cases and it is easy to slip into the assumption that once a
right
has been crystallised in a court judgment against a
public
authority it must amount to a civil
right.
In Loiseau
v
France, app no 46809/99, admissibility decision of 18 November 2003, which concerned a freedom of information
request
for sight of the applicant teacher's
personnel
file, the court considered this a
right
of a
private
nature, firstly because "it concerns an individual
right
of which the applicant may consider himself the holder", and secondly because the documents
requested
"
related
directly and
exclusively
to his
personal
situation" (
para
7). Any entitlement under section 20(1) does not depend upon discretion, but it does depend upon an evaluation of some
very
"soft" criteria
rather
than specific
rules,
and it is difficult to say at what
point
the applicant may consider himself to be the holder of such a
right.
Hence, as Lord Walker of Gestingthorpe observed in
Runa
Begum, at
para
115, if a
right
such as this is a "civil
right"
at all, it must lie close to the boundary of the concept and not at the core of what it entails. If so, this may have consequences for the second question, which is what article 6
requires.
- In
Runa
Begum, the House decided that the
process
of decision-making on homelessness claims was sufficient to comply with article 6 if it applied at all. The initial decision was subject to
review
by another officer who had had nothing to do with the original decision and was subject to
procedural
rules
designed to ensure a fair
process.
It was then subject to an appeal to the county court on conventional judicial
review
grounds. The
reviewing
officer was not independent of the
local
authority but she was impartial. If she did not conduct her
review
in an impartial way, the court could correct this.
- In Tsfayo
v
United Kingdom (2009) 48 EHRR 18, the Strasbourg court quoted
extensively
from both Alconbury and
Runa
Begum without
expressing
either approval or disapproval. It drew three distinctions between those cases and the determination of a claim for housing benefit by the
local
authority's housing benefit
review
board. First, the decision on the housing benefit claim was a simply question of whether or not the claimant had good cause for a late claim; it was not an issue
requiring
professional
judgment as the decision on homelessness in
Runa
Begum had been. Second, it was a question of entitlement, not depending upon the application of government
policy
which was
properly
the
province
of the democratically accountable bodies, as the decision on the application of
planning
policy
in Alconbury had been. Third, the
review
board was not merely lacking in independence. It could not be an impartial tribunal because it consisted of
councillors
who were directly connected to the authority which would have to
pay
the benefit if it was awarded.
- Mr Howell argues that the social workers deciding upon section 20 claims cannot be "impartial" as
required
by article 6 because they are employed by an authority with a direct financial interest in the outcome. Although their individual
professionalism
is not in doubt, they may unconsciously be influenced by tacit
pressures
from their seniors, who are only too conscious of the many demands upon the children's services' scarce
resources.
These are not necessarily fully compensated by
payments
from the UK Border Agency. In any event it is not actual bias which matters, for that can hardly ever be
proved,
but the "
public
perception
of the
possibility
of unconscious bias" (in the words of Lord Steyn in Lawal
v
Northern Spirit Ltd [2003] UKHL 35, [2003] ICR 856, at
para
14). Although judicial
review
may be able to cure actual bias, which leads the decision-maker to take irrelevant considerations into account or disregard the
relevant
ones, it cannot cure apparent unconscious bias of this kind.
- I would be most
reluctant
to accept, unless driven by Strasbourg authority to do so, that article 6
requires
the judicialisation of claims to welfare services of this kind. Unlike the arguments based upon statutory construction and jurisdictional fact, Mr Howell's argument cannot sensibly distinguish between the determination of age and the determination of the other criteria of entitlement. Every decision about the
provision
of welfare services has
resource
implications for the
public
authority
providing
the service.
Public
authorities
exist
to serve the
public.
They do so by
raising
and spending
public
money. If the officers making the decisions cannot be
regarded
as impartial, and the
problem
cannot be cured by the ordinary
processes
of judicial
review
based upon the usual criteria of legality, fairness and
reasonableness
or
rationality,
then tribunals will have to be set up to determine the merits of claims to children's services, adult social services, education services and many more.
Resources
which might be spent on the services themselves will be diverted to the decision-making
process.
Such a conclusion would be difficult, if not impossible, to
reconcile
with the decision of this House in
Runa
Begum. The degree of judicialisation
required
of an
administrative
decision, in the
view
of Lord Hoffmann in Alconbury, depends upon the "nature of the decision" (
para
87,
repeated
in
Runa
Begum,
para
33).
- If this is a civil
right
at all, therefore, I would be inclined to hold that it
rests
at the
periphery
of such
rights
and that the
present
decision-making
processes,
coupled with judicial
review
on conventional grounds, are adequate to
result
in a fair determination within the meaning of article 6.
Conclusion
- For the
reasons
given earlier, however, I would allow these appeals and set aside the order of the Court of Appeal. The
result
is that if live issues
remain
about the age of a
person
seeking accommodation under section 20(1) of the 1989 Act, then the court will have to determine where the truth lies on the evidence available. It is not, however, entirely clear what
relief
the appellants now seek and so I would invite submissions upon this, and upon the question of costs, within fourteen days.
LORD HOPE
- This case
raises
two distinct issues of general
public
importance. Their importance
extends
well beyond the facts of the two cases that are before us. On the one hand there is the question whether the word "child" in section 20(1) of the Children Act 1989 means, as the Court of Appeal held, a
person
whom the
local
authority has
reasonable
grounds for believing to be a child: [2008] EWCA Civ 1445; [2009]
PTSR
1011,
paras
30-31; or whether it
raises
a question of
precedent
fact which must be determined, if necessary, by a court. On the other there is the question whether a decision that the
local
authority makes as to whether or not to
provide
accommodation for a child in need under section 20(1) is a determination of a "civil
right"
within the meaning of article 6(1) of the European Convention on Human
Rights.
- As to the first issue, it has wider implications because the appellants are both asylum seekers. The immediate question is how it is to be determined whether the appellants are under the age of eighteen and thus entitled to be considered for
local
authority support under
Part
III of the Children Act 1989. But, as the Secretary of State
points
out, an asylum seeker's age will have implications too for the way in which his or her application for asylum will be treated. This is because the Secretary of State's
policy
on
returning
unaccompanied minors usually leads to those whom he considers to be under the age of 18 being given discretionary leave to
remain.
Age, as such, is not a determinant as to a
person's
immigration status. But it is
relevant
to the way the Secretary of State discharges his immigration and asylum functions and the
exercise
of his
powers
and duties to
provide
asylum support. In
practice,
in disputed age cases, the Secretary of State follows the assessment that has been arrived at by the
local
authority. As a
result
any challenges to the lawfulness of the
local
authority's assessment are likely to affect the way that the Secretary of State acts in
reliance
on the assessment. His concern is that the appellant A's contention that the question whether or not a
person
is a child is, in the event of challenge, to be determined by a court will
result
in an inappropriate judicialisation of the
process.
The suggestion is that this will slow down the
process
and make it harder to administer.
- As to the second, a holding that the
local
authority's decision as to whether or not to
provide
accommodation under section 20(1) of the 1989 Act amounted to the determination of a "civil
right"
would have far
reaching
implications. This because the
right
which is guaranteed by article 6(1) is to a decision by "an independent and impartial tribunal established by law." As the House
recognised
in
Runa
Begum
v
Tower Hamlets
London
Borough
Council
(First Secretary of State intervening) [2003] UKHL 5, [2003] 2 AC 430, it cannot
plausibly
be argued that the employees of the
local
authority who take decisions of this kind on its behalf are independent of the authority: see Lord Bingham of Cornhill,
para
3, and Lord Hoffmann,
para
27. The question then is what must be done if the article's
requirements
are to be satisfied. In
Runa
Begum the House held that the county court's appellate jurisdiction under section 204 of the Housing Act 1996,
exercising
the normal judicial
review
jurisdiction of the High Court, was sufficient to satisfy the
requirements
of the article. But, although the housing officer in that case could not be
regarded
as independent, no question was
raised
as to her impartiality. In this case the impartiality of the social workers is challenged. This in turn
raises
questions as to the intensity of any judicial
review
that must be undertaken if the
requirements
of article 6(1) are to be satisfied. This will have implications as to the way decisions are taken in the
provision
of a wide
range
of
public
services.
- The facts of these appeals and the general background to the issues they
raise
have been summarised by Lady Hale. I accept her
valuable
description of them with gratitude. I wish to add only a few words on the first issue, as I am in full agreement with what she says. As for the second, I agree with her that it follows from our decision on the first issue that it is unnecessary to
reach
any firm conclusions on it. But I think that it is
reasonably
clear from the
present
state of the authorities how it should be answered. In
view
of its general importance I should like to
explain
the answer that I would give to it.
The section 20(1) issue
- It seems to me that the question whether or not a
person
is a child for the
purposes
of section 20 of the 1989 Act is a question of fact which must ultimately be decided by the court. There is no denying the difficulties that the social worker is likely to face in carrying out an assessment of the question whether an unaccompanied asylum seeker is or is not under the age of 18.
Reliable
documentary evidence is almost always lacking in such cases. So the
process
has to be one of assessment. This involves the application of judgment on a
variety
of factors, as Stanley Burnton J
recognised
in
R
(B)
v
Merton
London
Borough
Council
[2003] EWHC Admin 1689, [2003] 4 All ER 280,
para
37. But the question is not whether the
person
can
properly
be described as a child. Section 105(1) of the Act
provides:
"In this Act –
…
"child" means, subject to
paragraph
16 of Schedule 1, a
person
under the age of eighteen."
The question is whether the
person
is, or is not, under the age of eighteen. However difficult it may be to
resolve
the issue, it admits of only one answer. As it is a question of fact, ultimately this must be a matter for the court.
- In the Court of Appeal and in the argument before us,
reference
was made to the
rule
that where the
exercise
of
executive
power
depends upon the
precedent
establishment of an objective fact, the courts will, if called upon to do so in a case of dispute, decide whether the
requirement
has been satisfied:
R
v
Secretary of State for the Home Department,
Ex
p
Khawaja [1984] AC 74, 110,
per
Lord Scarman. On the other hand, as Sir Thomas Bingham MR observed in
R
v
Secretary of State for the Home Department,
ex
p
Onibiyo [1996] QB 768, 785, where the question is one that is to be determined by the
executive
itself, its determinations will be susceptible to challenge only on Wednesbury
principles:
R
v
Secretary of State for the Home Department,
Ex
p
Bugdaycay [1987] AC 514. In order to decide into which class of judgment the case falls one must, of course, first construe the statutory language used and the scheme of the legislation.
- If, as the
respondents
contend, and Ward LJ in the Court of Appeal,
para
25, accepted, the
phrase
"child in need" which sets the threshold for the
provision
of accommodation under section 20 must be taken as a whole, the judgment that must be made will fall into the latter category. But the definition of "child" in section 105(1) applies to the Act as a whole, without qualification or
exception.
The question whether the child is "in need" is for the social worker to determine. But the question whether the
person
is or is not a child depends entirely upon the
person's
age, which is an objective fact. The scheme of the Act shows that it was not
Parliament's
intention to leave this matter to the judgment of the
local
authority.
- As for the
practical
consequences, the
process
begins with the carrying out of an assessment of the
person's
age by the social worker.
Resort
to the court will only be necessary in the event of a challenge to that assessment. So I do not accept that our conclusion will inevitably
result
in an inappropriate judicialisation of the
process.
It may, of course,
require
a judicial decision in some cases. But I would hope that the fact that the final decision
rests
with the court will assist in
reducing
the number of challenges. The initial decision taker must appreciate that no margin of discretion is enjoyed by the
local
authority on this issue. But the issue is not to be determined by a consideration of issues of
policy
or by a
view
as to whether
resort
to a decision by the court in such cases is inappropriate. It depends entirely on the meaning of the statute. We must construe the Act as we find it. As I have said, when the subsection is
properly
construed in the light of what section 105(1)
provides,
the question admits of only one answer.
The article 6(1) issue
- Much of the background to the questions which this issue
raises
was
explored
in
Runa
Begum
v
Tower Hamlets
London
Borough
Council
[2003] 2 AC 430. With that advantage we can
examine
the issue from the
point
where that decision left it. On the other hand I would be
very
reluctant
to take anything away from the carefully balanced conclusion that the House
reached
in that case unless driven to do so by subsequent guidance from Strasbourg. As Lord Bingham
explained
in
para
5, that case
exposed
more clearly than any earlier case had done the interrelation between the article 6(1) concept of "civil
rights"
on the one hand and the article 6(1)
requirement
of "an independent and impartial tribunal" on the other. The narrower the interpretation that is given to "civil
rights",
the greater the need to insist on
review
by a judicial tribunal
exercising
full
powers.
Conversely, the more elastic the interpretation that is given to the
expression,
the more flexible must be the approach to the
requirement
if over-judicialisation of welfare schemes is to be avoided. What the House did in that case was to assume, without deciding, that
Runa
Begum's domestic
right
was also a "civil
right"
and, having made that assumption, to hold that the absence of a full fact-finding jurisdiction in the tribunal from which an appeal lay from the
administrative
decision-making body did not disqualify the tribunal for the
purposes
of article 6(1): Lord Bingham,
paras
6, 11; Lord Hoffmann,
paras
58, 70.
- In this case, having held that it was for the social workers to decide the age of the applicant, the Court of Appeal held that judicial
review
of their decision was sufficient to satisfy the
requirements
of article 6(1): [2008] EWCA Civ 1445, [2009]
PTSR
1011,
para
84. Although he
recognised
that, having
reached
that
view,
it was not necessary for him to do so, Ward LJ went further and held that the
right
of accommodation given by section 20(1) was a
right
but that it could not be classified as a "civil
right"
within the meaning of article 6(1) because too much discretion was given to the
local
authority to decide what kind of accommodation is to be
provided:
para
59. Maurice Kay LJ and Sir John Chadwick
expressed
some hesitation as to whether this was a
right
at all:
paras
92, 93. The effect of our decision that the question whether the applicant is or is not under eighteen is an objective fact which must ultimately be one for the court is that the issue will, in the event of a dispute, be decided by an independent and impartial tribunal with
powers
which fully satisfy the
requirements
of article 6(1). The question whether the applicant is a child "in need" must then be for the social worker to deal with. But it is
very
hard to see how an unaccompanied child who is an asylum seeker could be otherwise than in need. This is not an issue that has been
raised
in these appeals.
- In this situation it is open to us to
regard
the article 6(1) issue as academic and to say no more about it. But the questions were fully and carefully argued before us, and they are of general
public
importance. We are as well informed about the
present
state of the jurisprudence of the Strasbourg court as we can be. With that advantage, I would
venture
these observations.
- The most significant development since the decision in the
Runa
Begum case is the decision of the Strasbourg court in Tsfayo
v
United Kingdom (2009) 48 EHRR 18. The applicant in that case had failed to
renew
her application for housing and
council
tax benefit. After taking advice she submitted a
prospective
claim and a backdated claim for both types of benefit. The
council
accepted the
prospective
claim but
rejected
the backdated one on the ground that the applicant had failed to show good cause why she had not claimed these benefits earlier. The
council's
housing benefit and
council
tax benefit
review
board
rejected
her appeal against this decision. Her complaint was that the board was not an independent and impartial tribunal, contrary to article 6(1). The court held that disputes about entitlement to social security and welfare benefits generally fell within the scope of article 6(1). It agreed with the
parties
that the applicant's claim concerned the determination of her civil
rights,
that article 6(1) applied and that she had a
right
to a fair hearing before an independent and impartial tribunal:
para
40. It held that the
requirements
of article 6(1) had been
violated.
The board, which included five
councillors
from the
local
authority which would be
required
to
pay
the benefit, lacked independence and the safeguards built into its
procedure
were not adequate to overcome this fundamental lack of objectivity. The
review
board had
power
to quash the
council's
decision. But it did not have jurisdiction to
rehear
the evidence or substitute its own
views
as to the applicant's credibility:
paras
47, 48.
- The question whether the claim concerned the determination of the applicant's civil
rights
was not disputed. This was not surprising, as the case fell within the mainstream of cases where the issue was one as to the entitlement to an amount of benefit that was not in the discretion of the
public
authority. This is shown by the cases
referred
to in a footnote to
para
40: Salesi
v
Italy (1998) 26 EHRR 187,
para
19; Schuler-Zgraggen
v
Switzerland (1993) 16 EHRR 405,
para
46; Mennitto
v
Italy (2002) 34 EHRR 48,
para
28. As Lord Walker of Gestingthorpe said in
Runa
Begum
v
Tower Hamlets
London
Borough
Council
[2003] 2 AC 430,
para
112, these cases, which started with Feldbrugge
v
The Netherlands (1986) 8 EHRR 425, indicate that article 6(1) is likely to be engaged when the applicant has
public
law
rights
which are of a
personal
and economic nature and do not involve any large measure of official discretion. As the court
put
in Salesi
v
Italy,
para
19, the applicant was claiming an individual, economic
right
flowing from specific
rules
laid down in a statute. In Mennitto
v
Italy,
para
23, the court said that the outcome of the
proceedings
must be directly decisive for the
right
in question.
- In Tsfayo
v
United Kingdom the court directed its attention to the decision-making
process.
It quoted, with approval, Lord Bingham's description of the interrelation between the article 6(1) concept of "civil
rights"
and the
requirement
for an "independent and impartial tribunal":
para
31. The case was decided against the United Kingdom because, in contrast to
Runa
Begum and Bryan
v
United Kingdom (1996) 21 EHRR 342 where the issues to be decided
required
a measure of
professional
knowledge or
experience
and the
exercise
of discretion
pursuant
to wider
policy
aims, the
review
board in Ms Tsfayo's case was deciding a simple question of fact, namely whether there was good cause for her delay in making the claim. So far as it goes, this decision supports the
view
that in cases which concern the
provision
of welfare services of the nature at issue in these appeals judicial
review
of the kind contemplated in
Runa
Begum will meet the
requirements
of article 6(1). As the court
explained
in
para
46:
"No specialist
expertise
was
required
to determine this issue, which is, under the new system, determined by a non-specialist tribunal. Nor, unlike the cases
referred
to [Bryan and
Runa
Begum], can the factual findings in the
present
case be said to be merely incidental to the
reaching
of broader judgments of
policy
or
expediency
which it was for the democratically accountable authority to take."
- I
read
this
passage
as an endorsement of the
point
that Lord Bingham made in
Runa
Begum,
para
5, that if an elastic interpretation is given to the article 6(1) concept of "civil
rights"
flexibility must also be given to the
procedural
requirements
of that article if over-judicialisation of the
administrative
welfare schemes is to be avoided. But it is important, too, to
recognise
that in Tsfayo, as in
Runa
Begum, the question whether, and if so at what
point,
administrative
welfare schemes fall outside the scope of article 6(1) altogether was not tested. Tsfayo, as I have said, fell within the mainstream of cases about social security and welfare benefits. In
Runa
Begum the House
preferred
not to take a decision on this issue.
- There are, however, a number of straws in the wind that have been generated by the decisions from Strasbourg since
Runa
Begum that suggest that a distinction can now be made between the class of social security and welfare benefits that is of the kind
exemplified
by Salesi
v
Italy and those benefits which are, in their essence, dependent upon the
exercise
of judgment by the
relevant
authority. The
phrase
"civil
rights"
is, of course, an autonomous concept: eg Woobron
Volkshuisvestingsgroep
v
The Netherlands, application no 47122/99), 18 June 2002 (unreported). But it does convey the idea of what, in Stec
v
United Kingdom (2005) 41 EHRR SE18,
para
48, the Strasbourg court
referred
to as "an assertable
right".
In that
paragraph,
having declared that the Convention must be
read
as a whole and interpreted in such a way as to
promote
internal consistency and harmony between its
various
provisions,
and in
para
49 that it is in the interests of the Convention as a whole that the autonomous concept of "
possession"
in article 1 of
Protocol
No 1 should be interpreted in a way which is consistent with the concept of
pecuniary
rights
in article 6(1), the court said, at
para
51:
"In the modern, democratic state, many individuals are, for all or
part
of their lives, completely dependent for survival on social security and welfare benefits. Many domestic legal systems
recognise
that such individuals
require
a degree of certainty and security, and
provide
for benefits to be
paid
– subject to the fulfilment of the conditions of eligibility – as of
right.
Where an individual has an assertable
right
under domestic law to a welfare benefit, the importance of that interest should also be
reflected
by holding article 1 of
Protocol
No 1 to be applicable."
- The court's
references
in Loiseau
v
France application no 46809/99, 18 November 2003 (unreported),
para
7, to "a '
private
right'
which can be said, at least on arguable grounds, to be
recognised
under domestic law" and to "an individual
right
of which the applicant may consider himself the holder" are consistent with this approach. So too are the
references
in Mennitto
v
Italy (2002) 34 EHRR 48,
para
23, to "a '
right'
which can be said, at least on arguable grounds, to be
recognised
under domestic law", where the court added:
"The dispute must be genuine and serious; it may
relate
not only to the actual
existence
of a
right
but also to its scope and the manner of its
exercise.
The outcome of the
proceedings
must be directly decisive for the
right
in question." [emphasis added]
Cases where the award of benefit is dependent upon a series of evaluative judgments as to whether the statutory criteria are satisfied and, if so, how the need for it as assessed ought to be met do not answer to that description.
- The
exact
limits of the autonomous concept
remain
elusive. One can be confident that cases where the
relationship
between the beneficiary and the
public
authority is of a
public
law character, as in Woodbron
v
The Netherlands, where the
role
of the applicant associations in
regard
to the construction and maintenance of
public
housing was of a typically general interest character, fall outside its scope. Mr Howell QC submitted that there is no distinction to be drawn between the forms in which welfare benefits may be
provided.
But none of the Strasbourg authorities go that far, and the carefully worded
passages
from Loiseau
v
France and Stec
v
United Kingdom to which I have
referred
seem to me to contradict his
proposition.
The series of cases about the enforcement of judgments made by the courts about social housing in
Russia
to which he
referred,
of which the latest is Nagovitsyn
v
Russia
application no 6859/02, 24 January 2008 (not
reported,
BAILII: [2008] ECHR 73 ), offer no assistance as the question whether a duty to
provide
social housing gives
rise
to a "civil
right"
was not argued.
- For these
reasons
I think that it can now be asserted with
reasonable
confidence that the duty of the
local
authority under section 20(1) of the 1989 Act to
provide
accommodation for any child in need within their area who appears to them to
require
accommodation as a
result
of the factors mentioned in that subsection does not give
rise
to a "civil
right"
within the meaning of article 6(1) of the Convention.
LORD SCOTT
- I have found Lady Hale's discussion of the issues
raised
illuminating and her
reasons
for the conclusions she has
expressed
convincing. I cannot usefully add anything or improve upon those
reasons
and gratefully associate myself with them. I would, therefore, for the
reasons
she has given, allow these appeals and adopt the suggestion she has made in the last sentence of her opinion.
LORD WALKER
- I am in full agreement with the judgment of Lady Hale. In his judgment Lord Hope gives
powerful
reasons
for concluding that a
local
authority's duty under section 20(1) of the Children Act 1989 is not a "civil
right"
for the
purposes
of Article 6(1). But the Court does not have to decide that
point
in order to dispose of this appeal. The Strasbourg jurisprudence is still developing. I would
prefer
to leave the
point
open, while acknowledging the force of Lord Hope's
reasoning.
LORD NEUBERGER
- For the
reasons given by Lady Hale, I too would allow this appeal.