CASE OF TSFAYO v. THE UNITED KINGDOM
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
Josep Casadevall;Nicolas Bratza
10. In 1993, the applicant arrived in the United Kingdom from Ethiopia and sought political asylum. She was initially provided with accommodation by the social services department of Hammersmith and Fulham Council (“the Council”). On 21 April 1997, the applicant moved into accommodation owned by a housing association. A member of the housing association's staff assisted the applicant to complete her application for housing and council tax benefit which was submitted to the Council in April 1997. This application was successful. 11. The applicant was required by law to renew her application for housing and council tax benefit on an annual basis. Because of her lack of familiarity with the benefits system and her poor English, the applicant failed to submit a benefit renewal form to the Council by the required time. In September 1998, the applicant received correspondence from the housing association about her rent arrears. As the applicant did not understand the correspondence, she sought assistance from the Council's advice office. After obtaining this advice the applicant realised that her housing and council tax benefit had ceased. She therefore submitted a prospective claim as well as a backdated claim for both types of benefit to 15 June 1998. 12. The prospective claim was successful and the applicant began to receive housing benefit again from 4 October 1998, but on 4 November 1998 the Council rejected the application for backdated benefit because the applicant had failed to show “good cause” why she had not claimed the benefits earlier. 13. During the period from 15 June to 4 October 1998 the applicant lost housing benefit of GBP 860.00, and since her rent in any event exceeded the benefit to which she had been entitled, her rent arrears amounted to GBP 1,068.86. The housing association commenced possession proceedings, seeking the applicant's eviction for non-payment of rent, and the Council also brought proceedings based on the applicant's failure to pay council tax of GBP 163.36 for the year 1998/99. On 19 October 1998 a court order was made allowing the Council to deduct GBP 2.60 per week from the applicant's income support of GBP 35.87. 14. On 9 November 1998, the applicant's legal advisers wrote to the Council requesting that they reconsider their refusal. However, by letter dated 4 February 1999, the Council informed the applicant that they were upholding their initial decision to refuse council tax and housing benefits. 15. The applicant appealed. The case was heard on 10 September 1999 by Hammersmith and Fulham Council Housing Benefit and Council Tax Benefit Review Board (“the HBRB”). The HBRB consisted of three Councillors from the Council. It was advised by a barrister from the Council's legal department. The applicant was represented by Fulham Legal Advice Centre and the Council was represented by a Council benefits officer. The HBRB rejected the applicant's appeal, finding that the applicant must have received some correspondence from the local authority during the period from 15 June to 4 October 1998 concerning the council tax she owed, although no such correspondence was produced to it. 16. On 13 September 1999 the housing association's possession proceedings against the applicant concluded with a court order requiring her to pay off the rent arrears at GBP 2.60 a week (in addition to the GBP 2.60 per week for council tax arrears). 17. On 6 December 1999, the applicant sought judicial review of the HBRB's decision. She complained that the HBRB had acted unlawfully because it had failed to make adequate findings of fact or provide sufficient reasons for its decision. The applicant also alleged that the HBRB was not an “independent and impartial” tribunal under Article 6 § 1 of the Convention. 18. On 31 January 2000, the High Court dismissed the applicant's application for leave to apply for judicial review on the grounds that the Convention had not yet been incorporated into English law, and further dismissed the application on the merits, on the grounds that the HBRB's decision was neither unreasonable nor irrational. The applicant was unable to appeal because legal aid was refused. The applicant subsequently obtained Counsel's opinion that the appeal had no prospects of success. 19. Housing benefit (“HB”) is a means-tested benefit payable towards housing costs in rented accommodation. It is not dependent on or linked to the payment of contributions by the claimant. 20. The HB scheme is administered by the local authority. Payments of HB are subsidised by central Government, normally to the extent of 95%, although where HB is paid as a result of a decision that the claimant had good cause for a late claim the subsidy is only 50%. 21. HB is awarded for “benefit periods” and entitlement for each period is dependent on a claim being made in time in accordance with the statutory rules. If a claimant makes a late claim, any entitlement to arrears of HB depends on the claimant establishing “good cause” for having missed the deadline. The case-law establishes that the concept of “good cause” involves an objective judgment as to whether this individual claimant, with his or her characteristics such as language and mental health, did what could reasonably have been expected of him or her. 22. At the relevant time, a claim to housing benefit was first considered by officials employed by the local authority and working in the housing department. If the benefit was refused the claimant was entitled to a review of the decision, first by the local authority itself, then by a HBRB, which comprised up to five elected councillors from the local authority. Since 2 July 2001, HBRBs have been replaced by tribunals set up under the Child Support, Pensions and Social Security Act 2000. 23. The procedure before the HBRB was governed by the Housing Benefit (General) Regulations 1987. Regulation 82 provided, as relevant: “(2) Subject to the provisions of these Regulations (a) the procedure in connection with a further review shall be such as the Chairman of the Review Board shall determine; (b) any person affected may make representations in writing in connection with the further review and such representations shall be considered by the Review Board; (c) at the hearing any affected person has the right to (i) be heard, and may be accompanied and may be represented by another person whether that person is professionally qualified or not, and for the purposes of the proceedings at the hearing any representative shall have the rights and powers to which any person affected is entitled under these regulations; (ii) call persons to give evidence; (iii) put questions to any person who gives evidence; (d) the Review Board may call for, receive or hear representations and evidence from any person present as it considers appropriate.” 24. The Review Board's Good Practice Guide provided, inter alia, that “the general principle underlying the proceedings” was the observance of natural justice. The HBRB should “be fair and be seen to be fair to all parties at all times”. The HBRB was “in law, a separate body from the authority” and “independent”. Before the hearing of a case checks were carried out to ensure that Board Members “have had no previous dealings with the case, and that they have no relationship with the claimant or any other person affected”. 25. In the House of Lords' judgment in R. v. Secretary of State for the Environment, ex parte Holding and Barnes, Alconbury Developments Ltd and Legal and General Assurance Society Ltd, [2001] UKHL 23, (“Alconbury”), Lord Slynn of Hadley described the scope of judicial review as follows (§ 50): “It has long been established that if the Secretary of State misinterprets the legislation under which he purports to act, or if he takes into account matters irrelevant to his decision or refuses or fails to take account of matters relevant to his decision, or reaches a perverse decision, the court may set his decision aside. Even if he fails to follow necessary procedural steps - failing to give notice of a hearing or to allow an opportunity for evidence to be called or cross-examined, or for representations to be made or to take any step which fairness or natural justice requires, the court may interfere. The legality of the decision and the procedural steps must be subject to sufficient judicial control.” ... Lord Slynn continued that he was further of the view that a court had power to quash an administrative decision for a misunderstanding or ignorance of an established and relevant fact (§§ 51-53 of the judgment, and see also Lord Nolan at § 61, Lord Hoffman at § 130 and Lord Clyde at § 169) and, where human rights were in issue, on grounds of lack of proportionality. 26. In Runa Begum (FC) v. London Borough of Tower Hamlets [2003] UKHL 5 (see paragraph 30 below), Lord Bingham of Cornhill made it clear that a court on judicial review (§§ 7-8): “... may not only quash the authority's decision ... if it is held to be vitiated by legal misdirection or procedural impropriety or unfairness or bias or irrationality or bad faith but also if there is no evidence to support factual findings made or they are plainly untenable or if the decision maker is shown to have misunderstood or been ignorant of an established and relevant fact ... It is plain that the ... judge may not make fresh findings of fact and must accept apparently tenable conclusions on credibility made on behalf of the authority... .” 27. Since the coming into force of the Human Rights Act 2000, the English courts have considered on a number of occasions the extent to which judicial review can remedy defects of independence in a first instance administrative tribunal. 28. In Alconbury (cited above), the House of Lords considered the procedure whereby the Secretary of State had the power himself to determine certain matters of planning and compulsory purchase, subject to judicial review. Following the Court's judgment in Bryan v. the United Kingdom, no. 19178/91, §§ 44-47, Series A no. 335-A, the House of Lords held unanimously that since the decisions in question involved substantial considerations of policy and public interest it was acceptable, and indeed desirable, that they be made by a public official, accountable to Parliament. Although the Secretary of State was not an independent and impartial tribunal, he (or rather, his Department's decision-making process) offered a number of procedural safeguards, such as an inspector's inquiry with the opportunity for interested parties to be heard, and these safeguards, together with the availability of judicial review (see paragraphs 25-26 above) was sufficient to comply with the requirement for “an independent and impartial tribunal” in Article 6 § 1. 29. Lord Hoffmann explained the democratic principles underlying this approach as follows (§§ 69 and 73): “In a democratic country, decisions as to what the general interest requires are made by democratically elected bodies or persons accountable to them. Sometimes the subject-matter is such that Parliament can itself lay down general rules for enforcement by the courts. Taxation is a good example; Parliament decides on grounds of general interest what taxation is required and the rules according to which it should be levied. The application of those rules, to determine the liability of a particular person, is then a matter for independent and impartial tribunals such as the General or Special Commissioners or the courts. On the other hand, sometimes one cannot formulate general rules and the question of what the general interest requires has to be determined on a case by case basis. Town and country planning or road construction, in which every decision is in some respects different, are archetypal examples. In such cases Parliament may delegate the decision-making power to local democratically elected bodies or to ministers of the Crown responsible to Parliament. In that way the democratic principle is preserved. ... There is however another relevant principle which must exist in a democratic society. That is the rule of law. When ministers or officials make decisions affecting the rights of individuals, they must do so in accordance with the law. The legality of what they do must be subject to review by independent and impartial tribunals. This is reflected in the requirement in Article 1 of Protocol No. 1 that a taking of property must be 'subject to the conditions provided for by law'. The principles of judicial review give effect to the rule of law. They ensure that administrative decisions will be taken rationally, in accordance with a fair procedure and within the powers conferred by Parliament. ...” 30. The House of Lords returned to these issues in Runa Begum (cited above). The appellant had been offered a flat by the local authority, but considered it unsuitable for herself and her children because, she alleged, it was on a housing estate known for drugs and crime and in close proximity to a friend of her ex-husband. She requested a review of the local authority's decision. The reviewing officer was a re-housing manager employed by the same local authority but who had not been involved in the original decision and who was senior to the original decision-maker. She found that there were no serious problems on the estate and that the relationship between Runa Begum and her husband was not such as to make it intolerable for them to risk meeting each other. 31. It was accepted that the case involved the determination of civil rights and that the reviewing officer was not, in herself, an “independent and impartial tribunal”. The House of Lords held unanimously that the existence of judicial review was sufficient in this context for the purposes of Article 6 § 1. In reaching this conclusion, Lord Bingham of Cornhill considered three matters as “particularly pertinent”: first, that the legislation in question was part of a far-reaching statutory scheme regulating the important social field of housing, where scarce resources had to be divided among many individuals in need; secondly, that although the council had to decide a number of factual issues, these decisions were “only staging posts on the way to the much broader judgments” concerning local conditions and the availability of alternative accommodation, which the housing officer had the specialist knowledge and experience to make; thirdly, the review procedure incorporated a number of safeguards to ensure that the reviewer came to the case with an open mind and took into account the applicant's representations. Lord Bingham commented, generally, on the inter-relation between the Article 6 § 1 concept of “civil rights” and the requirement for an “independent and impartial tribunal”, that (§ 5): “the narrower the interpretation 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 given to 'civil rights', the more flexible must be the approach to the requirement of independent and impartial review if the emasculation (by over-judicialisation) of administrative welfare schemes is to be avoided. ...” 32. It was argued before the House of Lords that when, as in Bryan and Alconbury, the decision turned upon questions of policy or “expediency”, it was not necessary for the appellate court to be able to substitute its own opinion for that of the decision-maker; that would be contrary to the principle of democratic accountability. However, where, as in Runa Begum, the decision turned upon a question of contested fact, it was necessary either that the appellate court should have full jurisdiction to review the facts or that the primary decision-making process should be attended with sufficient safeguards as to make it virtually judicial. In response, Lord Hoffmann (§§ 37-44) underlined that the fact-finding in Bryan had been closely analogous to a criminal trial, since the inspector's decision that Mr Bryan had acted in breach of planning control would be binding on him in any subsequent criminal proceedings for failing to comply with the enforcement notice. Lord Hoffmann continued: “A finding of fact in this context seems to me very different from the findings of fact which have to be made by central or local government officials in the course of carrying out regulatory functions (such as licensing or granting planning permission) or administering schemes of social welfare such as [housing the homeless]. The rule of law rightly requires that certain decisions, of which the paradigm examples are findings of breaches of the criminal law and adjudications as to private rights, should be entrusted to the judicial branch of government. This basic principle does not yield to utilitarian arguments that it would be cheaper or more efficient to have these matters decided by administrators. Nor is the possibility of an appeal sufficient to compensate for lack of independence and impartiality on the part of the primary decision-maker (see De Cubber v. Belgium [judgment of 26 October 1984, Series A no. 124-B]). But utilitarian considerations have their place when it comes to setting up, for example, schemes of regulation or social welfare. I said earlier that in determining the appropriate scope of judicial review of administrative action, regard must be had to democratic accountability, efficient administration and the sovereignty of Parliament. This case raises no question of democratic accountability. ... On the other hand, efficient administration and the sovereignty of Parliament are very relevant. Parliament is entitled to take the view that it is not in the public interest that an excessive proportion of the funds available for a welfare scheme should be consumed in administration and legal disputes ... .” 33. Following the House of Lords' judgment in Alconbury, but before that in Runa Begum, the High Court examined whether the HRRB procedure at issue in the present application was compliant with Article 6, in a case where the determination of the central issues of fact depended on an assessment whether the claimant was telling the truth: Bewry (R. on the application of) v. Norwich City Council [2001] EWHC Admin 657. The Secretary of State conceded that the HBRB lacked the appearance of an independent and impartial tribunal. On the question whether judicial review proceedings were sufficient to remedy the problem, Moses J observed: “There is however, in my judgment, one insuperable difficulty. Unlike an inspector [in a planning case], whose position was described by Lord Hoffman [in R. v. Secretary of State for the Environment, ex parte Holding and Barnes, Alconbury Developments Ltd and Legal and General Assurance Society Ltd, [2001] UKHL 23; [2001] 2 All ER 929: see Holding and Barnes plc v. the United Kingdom (dec.), no. 2352/02, ECHR 2002] 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. The dispute was between the claimant and the Council. The case against payment of benefit was presented by employee of the Council and relied upon the statement of an official of the Council (the Fraud Verification Officer in the Council's Revenue office). ... The reasoning carefully set out by the Board enables the court to ensure that there has been no material error of fact. Even in relation to a finding of fact, this court can exercise some control if it can be demonstrated that the facts found are not supported by the evidence. But, in that respect, the court can only exercise limited control. It cannot substitute its own views as to the weight of the evidence ... 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 a [planning] inspector and a 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 from the terms of the decision which sets out the primary facts and the inferences drawn from those facts. ... Thus it is no answer to a charge of bias to look at the terms of a decision and to say that no actual bias is demonstrated or that the reasoning is clear, cogent and supported by the evidence. 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. 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 in the dispute.” The Secretary of State was granted leave to appeal against this judgment but, in the event, decided not to appeal. The Bewry judgment was approved and followed, after the House of Lords' judgment in Runa Begum, by the High Court in R. (Bono and another) v. Harlow District Council [2002] EWHC 423. 34. In each of its annual report between 1988/89 and 1997/98, the Council on Tribunals (a statutory advisory committee which reports to the Lord Chancellor) recommended the abolition of the HBRB system, because of concerns about lack of independence and the potential for injustice.