As the High Court did not have jurisdiction, in judicial review proceedings, to rehear evidence or substitute its own views as to the applicant’s credibility with respect to a local authoritity’s review board’s decision, and as that board was not independent of the parties to a dispute, there existed no possibility for the central factual issue at dispute to be determined by an independent and impartial tribunal.
The European Court of Human Rights therefore held, unanimously, that there has been a violation of article 6.1 of the European Convention on Human Rights guaranting the right to a fair hearing.
The applicant, Ms Tiga Tsfayo, was an Ethiopian national born in Ethiopia in 1975 and lived in London.
In September 1999, Hammersmith and Fulham Council housing benefit and council tax benefit review board rejected her appeal against the council’s refusal to pay backdated council tax and housing benefits, as they rejected her evidence that she had not received the relevant correspondence concerning the renewal of her claims.
On January 31, 2000, the High Court dismissed her application for leave to apply for judicial review on the ground that the Convention had not yet been incorporated into English law, and further dismissed the application on the merits, on the ground that the board’s decision was neither unreasonable nor irrational.
Since the coming into force of the Human Rights Act 2000, the English courts had considered on a number of occasions the extent to which judicial review could remedy defects of independence in a first-instance administrative tribunal in decisions such as R v Secretary of State for the Environment, Ex parte Alconbury Developments Ltd and associated cases (The Times May 10, 2001; [2003] 2 AC 295) and Begum (Runa) v Tower Hamlets London Borough Council (The Times February 17, 2003; (2003) 2 AC 430), both House of Lords judgments.
The applicant complained that the review board was not an independent and impartial tribunal, as required by article 6.1 and that those deficiencies were not corrected by her ability to apply for judicial review of their decision.
In its judgment, the European Court of Human Rights held:
I Alleged violation of article 6.1
The review board was composed of five elected councillors from the same local authority which would have been required to pay a percentage of the housing benefit if awarded, and the Government conceded on that ground that the board lacked structural independence.
It contended, however, that the High Court on judicial review had sufficient jurisdiction to ensure that the proceedings as a whole complied with article 6.1.
The Court recalled that even where an adjudicatory body determining disputes over civil rights and obligations did not comply with article 6.1 in some respect, no violation of the Convention could be found if the proceedings before that body were subject to subsequent control by a judicial body that had full jurisdiction and did provide the guarantees of article 6.1: see Albert and Le Compte v Belgium (Case Nos 7299/75 and 7496/76) ([1983] 5 EHRR 533; [1983] Series A No 58, paragraph 29).
In Bryan v United Kingdom (No 19178/91) (The Times December 8, 1995; [1995] 21 EHRR 342; [1995] Series A No 335-A, paragraphs 44-47) the Court held that in order to determine whether the article 6 compliant second-tier tribunal had full jurisdiction, or provided sufficiency of review to remedy a lack of independence at first instance, it was necessary to have regard to such factors as the subject-matter of the decision appealed against, the manner in which that decision was arrived at and the content of the dispute, including the desired and actual grounds of appeal.
In Bryan, the inspector’s decision that there had been a breach of planning controls involved some fact-finding, namely that the buildings which Mr Bryan had erected had the appearance of residential houses rather than agricultural barns.
However, the inspector was also called upon to exercise his discretion on a wide range of policy matters involving development in a green belt and conservation area, and it was those policy judgments, rather than the findings of primary fact, which Mr Bryan challenged in the High Court.
The inspector lacked the requisite appearance of independence from the executive, since the secretary of state had the power, albeit applied only in exceptional circumstances, to withdraw a case from him.
The inspector followed a quasi-judicial procedure, and was under a duty to exercise independent judgment. Any alleged shortcoming in relation to those safeguards could have been subject to review by the High Court, which also had the power to satisfy itself that the inspector’s findings of fact or the inferences based on them were neither perverse nor irrational.
The Court, concluding that there had been no violation of article 6.1, added:
“Such an approach by an appeal tribunal on questions of fact can reasonably be expected in specialised areas of the law such as the one at issue, particularly where the facts have already been established in the course of a quasi-judicial procedure governed by many of the safeguards required by article 6.1.
“It is also frequently a feature in the systems of judicial control of administrative decisions found throughout the Council of Europe member states. Indeed, in the instant case, the subject-matter of the contested decision by the inspector was a typical example of the exercise of discretionary judgment in the regulation of citizens’ conduct in the sphere of town and country planning.”
The Convention organs followed the approach set out in Bryan to find that there had been sufficiency of review in a number of cases against the United Kingdom: see, for example, X v United Kingdom (No 28530/95) Commission decision of January 19, 1998, concerning a determination by the secretary of state that the applicant was not a fit and proper person to be chief executive of an insurance company; Stefan v United Kingdom (No 29419/95) Commission decision of December 9, 1997, concerning proceedings before the General Medical Council to establish whether or not the applicant was mentally ill and thus unfit to practise as a doctor; Wickramsinghe v United Kingdom (No 31503/96) December 9, 1997, concerning disciplinary proceedings before the GMC; and Kingsley v United Kingdom (No 35605/97) The Times January 9, 2001; ([1999] 29 EHRR CD 191); (2000) ECHR 2002-IV paragraph 32)).
The domestic courts had also applied the principles in Bryan, notably the House of Lords in Alconbury and Begum.
In the latter case, the House found that judicial review of a housing officer’s decision that the claimant had been unreasonable in rejecting the accommodation offered to her provided sufficiency of review for the purposes of article 6.1.
The House emphasised that although the housing officer had been called upon to resolve some disputed factual issues, those findings of fact were, to use the words of Lord Bingham of Cornhill, “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.
Although the housing officer could not be regarded as independent, since she was employed by the local authority which had made the offer of accommodation which Runa Begum had rejected, statutory regulations provided substantial safeguards to ensure that the review would be independently and fairly conducted, free from improper external influences. Any significant departure from the procedural rules would have afforded a ground of appeal.
The Court considered that the decision-making process in the present case was significantly different. In Bryan, Begum and the other cases cited above, the issues to be determined required a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims.
In contrast, in the instant case, the review board was deciding a simple question of fact, namely whether there was good cause for the applicant’s delay in making a claim.
On that question, the applicant had given evidence to the review board that the first that she knew that anything was amiss with her claim for housing benefit was the receipt of a notice from her landlord, the housing association, seeking to repossess her flat because her rent was in arrears.
The board found her explanation to be unconvincing and rejected her claim for back-payment of benefit essentially on the basis of their assessment of her credibility.
No specialist expertise was required to determine that issue, which was now, under the new system, determined by a non-specialist tribunal, set up under the Child Support, Pensions and Social Security Act 2000.
Nor, unlike the cases referred to, could 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.
Second, in contrast to the previous domestic and Strasbourg cases referred to above, the review board was not merely lacking in independence from the executive, but was directly connected to one of the parties to the dispute, since it included five councillors from the local authority which would be required to pay the benefit if awarded.
While the High Court had the power to quash the board’s decision if it considered that no there was no evidence to support its factual findings, or that its findings were plainly untenable, or that the board had misunderstood or been ignorant of an established and relevant fact, it did not have jurisdiction to rehear the evidence or substitute its own views as to the applicant’s credibility.
Thus, in this case, there was never the possibility that the central issue would be determined by a tribunal that was independent of one of the parties to the dispute.
The Court therefore held, unanimously, that there had been a violation of article 6.1.
II Application of article 41
The Court awarded the applicant €2,000 in respect of non-pecuniary damage and €5,800 in respect of costs and expenses.
