Ali v Birmingham City Council [2008] EWCA Civ 1228

[2008] EWCA Civ 1228

Case Nos: B5/2007/2143 & B5/2006/2277 & B5/2007/0931

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

Venue ON APPEAL FROM Birmingham County Court

(1) HH Judge MacDuff QC

(2) HH Judge McKenna

Venue Birmingham Civil Justice Centre

Date 07/11/2008

Before

LORD JUSTICE THOMAS

LORD JUSTICE HUGHES

LORD JUSTICE RIMER

Between

Fazia AliAppellant

Birmingham City CouncilRespondent

Khadra IbrahimAppellant

Birmingham City CouncilRespondent

Emma Louise TomlinsonAppellant

Mr James Goudie QC and Mr Zia Nabi (instructed by the Community Law Partnership) for Appellant (Fazia Ali)

Mr James Goudie QC and Mr Zia Nabi (instructed by the Community Law Partnership) for Appellant (Khadra Ibrahim)

Mr James Goudie QC and Mr Zia Nabi (instructed by the Community Law Partnership) for Appellant (Emma Tomlinson)

Mr Ashley Underwood QC and Miss Catherine Rowlands (instructed by Mirza Ahmad, Birmingham City Council) for Respondent

Mr Richard Drabble QC (instructed by the Treasury Solicitor) for Secretary of State

Hearing Hearing date: 26 June 2008

Judgment

Introduction

[1]Under Part VII of the Housing Act 1996, Birmingham City Council as a housing authority determined it had discharged its duty to two homeless persons on the grounds they had declined suitable accommodation. On review by the authority’s reviewing officer under s.202 of the Act the decisions were upheld on grounds which included findings in each case that the homeless persons had received a letter giving the appropriate statutory notice under s.193. Each appealed to the County Court under s.204 which provides for an appeal on a point of law; that right of appeal is in substance the same as the jurisdiction of the High Court on judicial review. The appellants sought to challenge the finding that they had received the letter containing the statutory notice on the grounds that the reviewing officer had been wrong to find as a fact that they had received the letter.

[2]In Runa Begum v Tower Hamlets London Borough Council

[2003] UKHL 5

(

[2003] 2 AC 430

) the House of Lords concluded that the procedure under which there was a review by a reviewing officer and an appeal to the court on conventional judicial review grounds was compatible with Article 6.1. In that case, the question decided by the reviewing officer and which was challenged on appeal was the suitability of the accommodation offered. The question on these appeals is whether the decision in Runa Begum applies to a determination where the sole issue for the reviewing officer is a simple issue of primary fact as distinct from an issue of fact where the reviewing officer has to use specialist knowledge or have regard to policy considerations (such as those that arise on the question of the suitability of the offered accommodation) – the situation in Runa Begum. The contention advanced is that it does not apply and that there must be a full right of appeal to the court on that issue of fact. It is also contended that the subsequent decision of the Strasbourg Court in Tsfayo v The United Kingdom

[2006] ECHR 60860

/00

[2007] LGR 1

makes it clear that a determination by a housing authority of such an issue is not compliant because it is not an independent and impartial tribunal as required by Article 6.1 of the European Convention on Human Rights; that therefore a right of appeal must lie to the court if the legislation is to be compliant with Article 6.1.

[3]Before turning to that issue, it is necessary to set out the proceedings in the two cases on which argument was heard and refer briefly to a third case where, in view of the offer of housing to the appellant in that case shortly before the hearing, the appeal became academic. The cases all involved Birmingham City Council as the housing authority. They were determined in the County Court at Birmingham. The appeal to this Court was heard at the Civil Justice Centre in Birmingham.

The proceedings in the County Court

(i) Ms Ali

[4]Ms Fazia Ali, a single parent of two young children made a homelessness application in October 2006 under Part VII of the Act. It was common ground that she was homeless, had a priority need and not intentionally homeless. The housing authority therefore had a duty under s.193 of the Act to secure that accommodation was available for occupation by Ms Ali. The relevant provisions of s.193 (as amended) are:

“(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant. … (5) The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section. … (7) The local housing authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6. (7A) An offer of accommodation under Part 6 is a final offer for the purposes of subsection (7) if it is made in writing and states that it is a final offer for the purposes of subsection (7).”

[5]In November 2006, the authority made an offer in the following way: i) On 7 November 2006 the authority notified Ms Ali that she would receive an offer of suitable accommodation and would be contacted separately about the offer. An offer was then made of a flat in Sutton Coldfield which Ms Ali refused. ii) On 14 November 2006 the authority notified her in writing that they were satisfied the accommodation was suitable but that, as she had refused it, the council considered it had discharged its duty under the Act. The letter notified her of the review procedure under s.202 of the Act. She requested a review. iii) That review was carried out in February 2007; the reviewing officer conducting the review agreed that a further offer of accommodation should be made due to an administrative error within the original offer letter. The authority agreed to make that further offer.

[6]A further offer was made in March 2007. i) On 14 March 2007 the authority sent a letter headed, “Final offer of accommodation” offering her a maisonette in Erdington. The letter made it clear this was the one and final offer and spelt out the consequences of a refusal in compliance with the provisions of s.193. It was accepted before the Judge that the letter had been sent and that the offer had been communicated orally prior to the letter being sent. However, there was a dispute as to whether the letter had been received by Ms Ali, as Ms Ali denied receiving it. ii) The maisonette in Erdington was seen by Ms Ali on 19 March 2007. She refused the offer. Her case was that she did so without seeing the authority’s letter. iii) On 21 March 2007 the authority sent a letter stating that the accommodation was, in its opinion, suitable, but that, as it had been refused, the authority considered it had discharged its duty to secure accommodation for her. The letter drew attention to the right to request a review. iv) On 29 March 2007 Ms Ali through solicitors requested a review under s.202 of the Act. The review was carried out in accordance with the procedure specified in s.203 and the regulations made thereunder by an officer who had not been involved in the original decision. It was made clear in the request for the review on behalf of Ms Ali that she had never received a written offer in relation to the maisonette at Erdington, whether in the letter of 14 March 2007 or otherwise. It was accepted before the Judge that Ms Ali knew of the offer, had viewed the property and refused it for reasons wholly unconnected with the failure of the letter of 14 March 2007 to arrive. v) Whilst the review was taking place, Ms Ali was made another offer in respect of accommodation at Teviot Tower. This was not in response to the duty to her as a homeless person but arose under a different power because of her position on the waiting list. It was irrelevant save as to Ms Ali’s evidence as to a conversation she had with the reviewing officer on 1 May 2007 to which I will refer. vi) On 2 May 2007 the reviewing officer sent Ms Ali the decision on the review under s.202. It concluded, in the light of the fact that other letters had been sent to her, that, “We do not accept that you did not receive the offer of accommodation letter.” vii) The decision then continued, “In light of the above I contacted you on the 1 May 2007 to establish the reasons why you had decided not to accept this offer of accommodation as it was apparent from the reasons given in the letter from your representatives, dated 29 March 2007, that you (sic) alleging that you had not received the offer letter was not the reason you had refused the offer of accommodation. I put this to you and you advised that you had in fact received the offer letter and refused the offer of accommodation for a number of other reasons ……”. It was Ms Ali’s subsequent contention that this response referred to the offer of accommodation at Teviot Tower (arising out of her position on the waiting list, as set out at sub-paragraph v) above); there was therefore a misunderstanding. viii) The letter then went on to set out those reasons and the discussion that had taken place in relation to them. The letter then referred to the suitability of the accommodation and concluded, “Taking into account all the above reasons, the offered property was of a suitable size to meet you (sic) and your family’s housing need. The weekly rent was eligible for housing benefit, if you did not have the independent financial means to pay for it yourself, therefore, it was affordable to you. We are not aware of any harassment/violence or any other circumstances, which would make it unreasonable for you to live there. Therefore we consider that it was reasonable for you to accept. Accordingly, we must inform you that we have decided to uphold the discharge of duty decision.” ix) The letter notified Ms Ali of the right to appeal to the County Court under s.204.

[7]S.204 is clear in providing for a right of appeal to the County Court only on a point of law:

“(1) If an applicant who has requested a review under section 202 – (a) is dissatisfied with the decision on the review, or (b) is not notified of the decision on the review within the time prescribed under section 203, he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision.” (a) is dissatisfied with the decision on the review, or (b) is not notified of the decision on the review within the time prescribed under section 203, he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision.”

[8]It was nonetheless contended that in the light of the decision of the Strasbourg Court in Tsfayo that the Court was bound to determine the issue of fact as to whether the letter had been received by Ms Ali.

[9]The appeal was heard by HH Judge MacDuff QC (as he then was), a judge with considerable experience of such cases. It was contended that he should hear evidence from Ms Ali and the reviewing officer and determine whether she had received the letter. It was not argued that the decision was perverse. The Judge concluded in the light of the decision in Runa Begum that the decision made on the review was one the reviewing officer was entitled to make and the court could not re-determine the issue as to receipt of the letter by hearing witnesses: “29. I also make this observation. I acknowledge that there is a difference between a decision(a) that property is/is not suitable and

(b) that a letter has/has not been received. I acknowledge that a reviewing officer or panel does not need a measure of professional knowledge or experience in order to determine that simple issue of fact. However, if I were to hold that this issue should be determined by the court, this could well undermine the whole statutory scheme. It would be open to any appellant to assert that he/she had not received a letter (there are other equally crucial letters along the route to a final determination). The appeal process could thereby be dogged by similar applications, with enormous costs implications. Alternatively there would have to be expensive personal service of such letters. The implications could be very significant. 30. I have reached the conclusion that the decision as to whether that letter had been received was properly and fairly to be made by the reviewing officer or panel. It was part of the whole statutory scheme. It seems to me that she could have reached a decision one way or the other. She was in a good position to consider it. She has to undertake the task fairly and give proper reasons. In those circumstances, I decline the invitation to hear evidence on the point. In reviewing the Local Authority’s decision, it is open to the appellant to take whatever points of law she wishes to take. Those points of law have to be considered and a reasoned decision advanced by the review panel. That occurred here. I think that Mr Nicol concedes that if I hold, as I do, that that is a decision for the homeless review officer and panel, rather than for a decision of this court hearing live evidence, then the decision cannot be gainsaid as being perverse or otherwise capable of being set aside. That is patently the case, particularly when one takes account of the telephone conversation and the admitted terms of that telephone conversation.” (ii). Ms Ibrahim

[10]Khadra Ibrahim’s household comprised herself and six children, four boys and two girls. She originally came to the UK from Finland, but was of Somali origin. She has a limited understanding of English. In May 2005, the housing authority accepted a duty to Ms Ibrahim as a homeless person. An initial offer was made.

[11]On 26 October 2005, the housing authority made an offer of permanent accommodation to Ms Ibrahim at 11 Dawberry Road, Birmingham. i) The authority contended that two letters were sent on 25 October 2005. a) The first letter was the type of letter written to a person on the housing authority’s ordinary waiting list. It described the property at 11 Dawberry Road as a parlour type with three bedrooms and one living room. This was an error as the accommodation had three bedrooms and two living rooms. It also stated that repairs were being carried out and asked Ms Ibrahim to contact a named officer of the authority to discuss the offer. The letter concluded:

“Can you please contact Lisa Downey on 303 7551 by Friday 28 October 2005 to discuss the offer. It is important for you to contact us even if you wish to refuse this offer so that I can amend your application details. This will help us to ensure that future offers are more suitable. Failure to contact us by this date will result in the offer being withdrawn and your application/transfer may not attract any further offers until your details have been reviewed. This offer is made on condition that your circumstances have not changed and you will be required to provide two original proofs of identification for yourself and your partner, one of which must contain your current address. If you accept the property and need to claim Housing Benefit, you will also need to bring proof of you (sic) and your partner’s income, proof of any bank accounts or savings and proof of income for anyone else in your household aged 18 or over.” b) Plainly that letter did not comply with the provisions of s.193. The authority contended that there had been included in the same envelope a second letter. That second letter was applicable to someone to whom the homelessness provisions applied. It did not describe the details of the property but made an offer of accommodation at 11 Dawberry Road. It stated that the authority would make one permanent offer of suitable accommodation. It continued: “The council is satisfied that this accommodation is suitable for the needs of you and your family and that it would be reasonable for you to accept it. I must warn you that if you decide to refuse this offer without good reason to do so, the council will consider that it has discharged its duty to you under Part VII of the Housing Act 1996 and that accordingly no further offers of accommodation will be made. Whether you decide to accept or refuse this offer of accommodation, if you still do not consider that the offer made was suitable to discharge the Council’s duty to provide accommodation on the grounds of homelessness, you have a right to request a review. If you do refuse this offer and the council decides that it has discharged its duty to you to provide accommodation, you may stay on the housing register but you will lose extra points which have been allocated to you because of your homeless status.”

The letter asked Ms Ibrahim to contact the same office of the authority. ii) It was Ms Ibrahim’s contention that she never received the second letter. iii) Ms Ibrahim declined the offer by telephone without viewing the property. The reason recorded by the authority was that she no longer wanted that area. Ms Ibrahim contended that she did so because the property was too small and therefore not suitable. iv) On 3 November 2005 the authority sent Ms Ibrahim a letter stating, in terms similar to the letter to Ms Ali (set out at paragraph 6.iii), that as she had refused an offer of accommodation, the authority had discharged its duty; the letter informed her of her right to seek a review. v) She requested a review. A review was held. It was decided that the council had discharged its duty. vi) There was an initial appeal to the County Court, but that appeal was compromised and a further review undertaken by the authority with representations being put forward by Ms Ibrahim’s current solicitors. vii) On 9 June 2006 the reviewing officer notified Ms Ibrahim of its decision in writing. The letter set out the grounds of challenge that Ms Ibrahim was making:

“In your review request you gave the following reasons why you considered the decision to be incorrect • That the offer of 11 Dawberry Road is in Kings Heath and as such is not in your area of choice and that we have misdirected ourselves in making you this offer. • That the property offered is too small. • That we have acted unfairly in as much as we have failed to consider whether your command of English is such that you were in a position to make an informed decision as to the consequences of refusing an offer. • That we failed to take into account the deficiencies contained within the offer letter of 26 October 2005. • That we have unfairly failed to put adverse matters before you so that you had an opportunity to respond to these matters. • That we failed to take into account the error in the offer letter which stated that the property had one living room and had misled you as to the nature of the accommodation offered. • That we have failed to take into account that the offer letter does not comply with section 193(5) of the Housing Act 1996.” viii) The letter went through each of the complaints and in a careful and reasoned way set out why these were not upheld. It set out the finding that Ms Ibrahim was able to make a fully informed decision on suitability and on the consequences of refusing the offer; that the error in the first of the letters made no difference as Ms Ibrahim should have contacted the housing office and should not have refused the offer without viewing the property; and in any event she was aware that parlour type meant that there were two living rooms; that Ms Ibrahim had received both letters of 26 October 2005. The decision of the reviewing officer concluded in the following terms: “Taking into account all the evidence available to us, we have concluded: Taking into account all the above reasons, the offered property was of a suitable size to meet you (sic) and your family’s housing need. The full weekly rent was eligible for housing benefit, if you did not have the independent financial means to pay for it yourself, therefore, it was affordable to you. We are not aware of any harassment/violence or any other circumstances, which would make it unreasonable for you to live there. Therefore we consider that it was reasonable for you to accept. The size of the property fully complied with the current allocations policy of Birmingham City Council Your previous experience of the allocation system and viewing procedure of this authority indicates that you are fully acquainted with the procedures adopted in a property offer. Your ability to speak English was not detrimental to your understanding of the requirements of the local housing team in the viewing and letting of this property. The offer letter was fully compliant with section 193(5) of the Housing Act 1996. The descriptive element of this type of letter is never intended at any point to be the sole vehicle to the letting agreement but a part of the whole process, physical escorted viewing being the other.”

[12]An appeal was made to the County Court. It was heard on 4 October 2006 by HH Judge McKenna, a judge with considerable experience of such appeals. It was contended before him that Ms Ibrahim had not received the second letter; that it was unreasonable for the authority to have concluded that it had discharged its duty as the accommodation was not suitable.

[13]The judge concluded that the issue as to the receipt of the letter had been determined by the reviewing officer. The basis on which the decision on suitability could be challenged was made clear in Runa Begum. On the basis of that decision, the reviewing officer was entitled to conclude that it was reasonable for her to have accepted the accommodation as the accommodation was suitable for her; although the error in the first letter was unfortunate, it was not unreasonable to have expected her to contact the authority and inspected the property before she decided to reject it. The decision was one with which the court could not interfere. (iii). Ms Tomlinson

[14]The appeal brought by Ms Tomlinson to which I referred at paragraph 3 had become academic in the following circumstances. She lived in Birmingham with her husband and two children. In September 2005 she applied to the housing authority on the basis that she was homeless. The authority refused her application on the basis that she was intentionally homeless within the meaning of s.191 on the grounds that she had been evicted from her home on account of rent arrears. After three reviews and appeals, a reviewing officer found on 2 January 2007 that she was intentionally homeless on the basis that she had not acted in good faith in relation to her finances and the way in which she had given up the tenancy. She appealed to the County Court. The appeal was heard by Mr Recorder Lochrane. He decided, applying the decision in Runa Begum, thatan appeal only lay on a point of law and that a finding of fact could not be reviewed save on grounds applicable to judicial review such as that finding was irrational or perverse; after a careful review of the decision, he concluded that the finding could not be impeached on any of those grounds. Her appeal therefore failed.

The appeal to this court

[15]An application was made in all three cases to appeal to this court. Permission was granted in the case of Ms Ali and Ms Ibrahim by Lloyd LJ on the sole ground that the issue in the case was whether each had received the letter complying with s. 193 – an issue which was not a decision made through an evaluative process on the part of the authority where policy considerations were important, but a decision on an issue of primary fact. Although the issue of fact was more complex in the case of Ms Tomlinson, permission was granted to Ms Tomlinson on a similar basis. Permission was refused on all other grounds on which it had been sought. In granting permission Lloyd LJ made clear at paragraph 10:

“I will grant permission to appeal limited to that point, which is the one point in the Ali case and is one of the points in the other two cases. I refuse permission on the other points, but not intending thereby to preclude argument as to the true scope of the ratio in Begum, and I will direct that all three cases come on together. The appeals should be heard, because of the importance of the point, with as much dispatch as can be arranged consistent with orderly listing.”

[16]Shortly before the hearing the court was told that the authority had accepted the full homelessness duty in respect of Ms Tomlinson and that she had been granted accommodation. In the circumstances, the authority contended that the appeal should be withdrawn by consent as the appeal was academic. This was resisted by those instructed on her behalf on the basis that as the appeals raised an issue of principle, it would be convenient to have the facts in the case of Ms Tomlinson before the court so that the court could consider the scope of the right of appeal in a case where the issue related to homelessness under s.191.

[17]After hearing argument we decided that we would not hear the appeal in the case of Ms Tomlinson. Her appeal was academic and the point of principle as to the scope of the right of appeal in Part VII cases could be determined by reference to the remaining appeals.

The argument

[18]The appellants’ case can be summarised: i) The decision taken by the authority in Part VII cases constituted a determination of the civil rights and obligations of the appellants for the purposes of Article 6.1. ii) The review by the authority was not a review by an independent and impartial tribunal as required by Article 6.1. It was therefore necessary, if there was to be compliance with Article 6.1, that the appeal to the County Court under s.204 extend to issues of fact where the decision on the facts did not involve consideration of issues of policy. iii) The decision in Runa Begum was confined to the issue of suitability cases where issues of specialist knowledge and policy were required. It did not extend to other issues of fact. The issue in these appeals was a simple issue of fact requiring no specialist knowledge or application of policy. It followed therefore that nothing in the decision in Runa Begum precluded the court from holding that Article 6.1 required the County Court to hear a full appeal on such issues and determine for itself the issues of fact, by hearing evidence if necessary. iv) The distinction between issues where policy and specialist knowledge were required and other issues had been the basis upon which the Strasbourg Court had distinguished Begum in its decision in Tsfayo. It had held in the case of an appeal from the Housing Benefit Review Board that there was a breach of Article 6.1 where an appeal was confined to a point of law or conventional judicial review grounds. v) It followed that the appellants were entitled in the appeal before the County Court to a full merits appeal and to be able to challenge findings of fact through a full re-hearing, including the hearing of witnesses. It was contended that the judges in the County Court should have carried out a full merits appeal to prevent a breach of Article 6.1; in the alternative, the appellants sought a declaration of incompatibility in respect of s.204(1).

[19]The argument of the housing authority and the Secretary of State (who had joined in the appeal as an interested party in June 2008) can be even more shortly expressed. The decision in Runa Begum covered the issue; the decision in Tsfayo did not cast any doubt upon the principle. Even if it did, then this court was nonetheless bound to follow the decision in Runa Begum; it was for the House of Lords to decide that issue.

[20]Four questions therefore arose: i) Were the decisions on appeal a determination of the civil rights of the appellants? ii) Had the issue on appeal been determined by the decision in Runa Begum? iii) Should this court in any event leave the determination of the issue to the House of Lords? iv) Does the decision of the Strasbourg Court in Tsfayo alter the conclusion that the issue is determined by Runa Begum? (i). Were the decisions on appeal a determination of the civil rights of the appellants?

[21]In Runa Begum the House of Lords were prepared to accept without deciding the issue that the decisions on appeal were a determination of the civil rights of the applicants within the scope of Article 6.1: (see the opinions of Lord Bingham of Cornhill at paragraph 6, Lord Hoffmann at paragraphs 60-70, Lord Millett at paragraphs 78-94 and Lord Walker of Gestingthorpe at paragraphs 108-115). Although the Secretary of State’s principal contention was that the process under Part VII was compliant with Article 6.1 as had been decided in Runa Begum, the Secretary of State contended in the alternative that the decision as to whether a duty is owed under Part VII is not a determination of civil rights within Article 6. In the light of the conclusion to which I have come, it is unnecessary to decide this alternative submission and I will proceed on the assumption that Article 6.1 is engaged. (ii). Had the issue on appeal been determined by the decision in Runa Begum?

[22]On this assumption, it is next necessary to consider whether the decision in Runa Begum covers the issue in the instant appeals. In approaching that question, I have at the forefront of my consideration the following: i) The determination by the reviewing officer of the housing authority was a determination by an administrator and not by part of the judicial branch of the state; it was not an independent tribunal (see the opinion of Lord Hoffmann at paragraph 27 and of Lord Millett at paragraph 95-96). ii) The jurisdiction under s.204 was appellate and in substance the same as the jurisdiction of the High Court in judicial review cases: see Nipa Begum

[2000] 1 WLR 306

, paragraph 7 of the opinion of Lord Bingham and paragraph 99 of the opinion of Lord Millett. iii) It was permissible to consider whether the composite procedure of administrative decision making together with the right of appeal to the county court was sufficient; the jurisdiction of the appellate court had to be sufficient to deal with the case as the nature of the decision required. A full review was not necessary: (see the opinion of Lord Hoffmann at paragraphs 33-34). iv) The quality and extent of the review has to be judged in the context of the statutory scheme for regulating social housing (see the opinion of Lord Bingham at paragraph 9(1)). Although the authority might have to resolve disputed factual issues, “its factual findings will only be staging posts on the way to much broader judgments which the authority has to make” (see the opinion of Lord Bingham at paragraph 9(2).) v) Although the rule of law required that the judicial branch of the state should be entrusted with certain decisions, notwithstanding utilitarian arguments to the contrary, utilitarian considerations did have their place in schemes for regulation or social welfare. Parliament was entitled to take the view that it was not in the public interest that an excessive proportion of funds available should be consumed in disputes (see the opinion of Lord Hoffmann at paragraphs 42-44).

[23]In that broad context, it is next necessary to refer to what Lord Hoffmann, who gave the opinion with which Lord Bingham, Lord Hope and Lord Walker agreed, decided in relation to fact finding. He made it clear in the light of the general considerations which I have briefly summarised at paragraph 46:

“It therefore seems to me that it would be inappropriate to require that findings of fact for the purposes of administering the homelessness scheme in Part VII should be made by a person or body independent of the authority which has been entrusted with its administration.”

After rejecting the suggestion that findings of fact be entrusted to a contracted out fact finder, he concluded at paragraphs 47 and 50-53:

“47. Although I do not think that the exercise of administrative functions requires a mechanism for independent findings of fact or a full appeal, it does need to be lawful and fair. It is at this point that the arguments which [counsel for the housing authority] urged about the impartiality of [the reviewing officer] and the regulations for the conduct of reviews become relevant. To these safeguards one adds the supervisory powers of the judge on an appeal under section 204 to quash the decision for procedural impropriety or irrationality. In any case, the gap between judicial review and a full right of appeal is seldom in practice very wide. Even with a full right of appeal, it is not easy for an appellate tribunal which has not itself seen the witnesses to differ from the decision-maker on questions of primary fact and, more especially relevant to this case, on questions of credibility. ….. 50. All that we are concerned with in this appeal is the requirements of article 6, which I do not think mandates a more intensive approach to judicial review of questions of fact. These nuances are well within the margin of appreciation which the Convention allows to contracting states and which, in a case like this, the courts should concede to Parliament. So I do not propose to say anything about whether a review of fact going beyond conventional principles of judicial review would be either permissible or appropriate. It seems to me sufficient to say that in the case of the normal Part VIIdecision, engaging no human rights other than article 6, conventional judicial review such as the Strasbourg court considered in Bryan v United Kingdom (1995) 21 EHRR 342 is sufficient.” 51. Is this view consistent with the Strasbourg jurisprudence and with Bryan in particular? I think it is….. 52. In this case the subject matter of the decision was the suitability of accommodation for occupation by Runa Begum; the kind of decision which the Strasbourg court has on several occasions called a “classic exercise of an administrative discretion”

. The manner in which the decision was arrived at was by the review process, at a senior level in the authority's administration and subject to rules designed to promote fair decision-making. The content of the dispute is that the authority made its decision on the basis of findings of fact which Runa Begum says were mistaken. 53. In my opinion the Strasbourg court has accepted, on the basis of general state practice and for the reasons of good administration which I have discussed, that in such cases a limited right of review on questions of fact is sufficient ….”

[24]As I have made clear, Runa Begum was a case where what was in issue was a question of whether the accommodation offered was suitable. In developing the argument summarised at paragraph 18, Mr Goudie QC on behalf of the appellants emphasised that the question of suitability was an issue where the expertise of the authority’s officers was a material factor in entrusting the decision making to the officer. Although as Lord Hoffmann had said at paragraph 56 the decision on suitability had involved preliminary findings of fact, the ratio of that case was that it was not necessary for a finding of suitability to be subject to anything more than the conventional review under s.204. This was because it was “a classic exercise of administrative discretion”. In the cases on appeal the question of fact was different - it was a simple question of whether a document had been received; that was not a classic exercise of administrative discretion but a simple determination of primary fact. As the decision of the House of Lords in Runa Begum therefore extended only to cases where the issue was one which depended on specialist knowledge and expertise, the issue in these appeals were not within the scope of the decision and, on principle, this court should decide that in these appeals there was a full right of appeal to the court where a finding of primary fact had been made by the reviewing officer, particularly where that finding of fact was determinative of the issue.

[25]There are a number of considerations to which I have had regard. i) It is far from easy to draw the distinction advanced in practice. A finding of suitability is itself a finding based on conclusions of primary fact: in Runa Begum Lord Hoffmann made that clear at paragraph 52 (which I have set out above). ii) There would be considerable complexity in administering a scheme with these distinctions. A scheme which enabled certain factual issues to be subject to a full right of appeal and others which would not be so subject would be too uncertain and too complex. For example, if a reviewing officer set out the primary findings of fact in relation to suitability and reached the conclusion that the premises were suitable, then following Runa Begum, the right of appeal to the County Court would be one confined to conventional judicial review grounds; there would be no full right of appeal on the primary findings of fact which led to the factual conclusion. But if, for example, the decision was one where a finding could be isolated as determinative (given the way the present decisions were framed), there would be a full right of appeal on the facts. The rejection by Lord Hoffmann at paragraph 58 of his opinion in Runa Begum of the suggested independent fact finder was based on similar considerations; as he observed:

“I think that a spectrum of the relative degree of factual and discretionary content is too uncertain” iii) That complexity would be compounded in cases where there are multiple issues before the reviewing officer (as in the case of Ibrahim in the instant appeal). There would then be the danger, as Lord Bingham pointed out at paragraph 10 of Runa Begum, that “there would be a temptation to avoid making such explicit factual findings as [the reviewing officer] very properly did”

. Moreover, if the extent of the review by the court was determined by the answer to the questions of whether a finding of fact was a primary finding, or whether that finding required expertise or whether that finding was determinative, the room for argument and uncertainty would be considerable. The importance of drawing these distinctions would be the more significant if the suggested right of appeal involved the court hearing witnesses in the one type of appeal but not in the other. iv) The issue before this court does not ultimately depend on drawing such distinctions between types of finding of fact. Although it may be possible ultimately to draw distinctions between a finding of fact which involves no specialist knowledge or issues of policy and a finding of fact which may also involve a question of policy (see the observations of Lord Phillips of Worth Matravers in Home Secretary v MB

[2006] EWCA Civ 1140

(

[2007] QB 415

) at paragraph 56) and overcome the complexities inherent in administering the scheme with such a distinction, the issue is determined by an examination of the scheme as a whole. v) The additional review which would be provided by the suggested full right of appeal on fact would not in practice be very wide. On an appeal applying conventional judicial review principles, the court cannot substitute its own findings of fact for those of the decision-making authority if there was evidence to support them; questions as to the weight to be given to a particular piece of evidence and the credibility of witnesses are for the decision-maker and not for the court. However as Lord Hoffmann noted at paragraph 47 (set out above) the gap between a full right of appeal and judicial review is seldom in practice very wide; Lord Millett at paragraph 99 made the same point about the limitations on a judicial review:

“they are not very different from the limitations which practical considerations impose on an appellate court with full jurisdiction to entertain appeals on fact or law but which deals with them on the papers only and without hearing oral evidence.”

At paragraphs 12 to 23 of the judgment of Clarke LJ in Assicurazioni Generali Spa v Arab Insurance Group (B.S.C.)

[2002] EWCA Civ 1642

(

[2003] 1 WLR 577

)there is a valuable analysis of the scope of the power of an appellate court when it is considering issues of fact:

“Thus, for example, in cases in which the court was asked to reverse a judge's findings of fact which depended upon his view of the credibility of the witnesses, it would only do so if satisfied that the judge was plainly wrong.”

The context in which an appellate court in accordance with these principles reviews a finding of fact by a lower court is that the finding was that of the judicial branch of the state and therefore an independent and impartial tribunal. vi) The full right of appeal sought from a review officer on fact might have to be significantly different from an appeal from a court. The housing review officer is part of the executive branch of the state and not the judicial branch. The question must arise as to whether the conventional scope of a full appeal would be sufficient, if the decision made is not made by an independent and impartial tribunal? It is important to have regard to the application in the case of Ms Ali to Judge MacDuff that he hear evidence to which I have referred at paragraph 9. In many cases where there is a simple issue of credibility, it is difficult to see how there could be a full right of appeal unless the judge was asked to come to a fresh decision by hearing the evidence; the procedure adopted by the reviewing officer in reaching findings of fact is informal and there are no transcripts of evidence. vii) There would then be the danger, as Lord Bingham pointed out at paragraph 10 of Runa Begum, that “there would be a temptation to avoid making such explicit factual findings as [the reviewing officer] very properly did”. Moreover, if the extent of the review by the court was determined by the answer to the questions of whether a finding of fact was a primary finding, or whether that finding required expertise or whether that finding was determinative, the room for argument and uncertainty would be considerable. The importance of drawing these distinctions would be the more significant if the suggested right of appeal involved the court hearing witnesses in the one type of appeal but not in the other. viii) There would therefore clearly be significant implications for not only the statutory scheme but for the court and tribunal system, if this court were to hold that a full right of appeal was required on findings of primary fact or on issues of primary fact where the finding was determinative, particularly if the appeal encompassed the re-hearing of evidence. The fact that there are such implications would not, of course, be determinative, but it is an important consideration. The statutory scheme for housing and the statutory scheme for the method of appeals in respect of courts and tribunals are determined by Parliament; funds are provided for their finance by Parliament. As Lord Hoffmann emphasised at paragraph 59: “I entirely endorse what Laws LJ said in Beeson's case, at paras 21–23, about the courts being slow to conclude that Parliament has produced an administrative scheme which does not comply with constitutional principles.” ix) The present scope of the appeal provides a real measure of protection for homeless appellants. It is clear from the careful judgments of Judge MacDuff QC and Judge McKenna that both considered that the housing authority had fairly treated both appellants in cases where the determinative issue was a question of fact. This conclusion reinforces the view I have expressed that the review by the County Court in cases of this kind was sufficient and that there is no reason to attempt to find that it is outside the scope of the decision in Runa Begum. It demonstrates, as Lord Bingham observed at paragraph 11, that the scheme properly operated should ensure fair treatment. I consider that it does whether the decision turns on a simple issue of primary fact or a conclusion of fact based on primary facts (such as a conclusion on suitability).

[26]Having regard to the considerations I have set out, it is clear to me that the issue in this appeal is determined by the decision in Runa Begum. It is possible to draw the distinctions made by Mr Goudie QC in relation to different types of findings of fact. However I do not see how, having regard to the basis of the decision in Runa Begum and the considerations to which I have had regard, any proper distinction can be drawn between the appeals in this case and the appeal in Runa Begum. I have therefore come to the conclusion that the issue on this appeal has been determined by the decision in Runa Begum.

[27]In these circumstances, although interesting arguments were made by Mr Goudie QC on the form of relief sought by the appellants and how this could be achieved within the scope of s. 204, based upon the observations of Hale LJ in Adan v Newham LBC

[2001] EWCA Civ 1919

[2002] 1WLR 2120

at paragraphs 67-78, they do not arise and it is not necessary to consider them. (iii). Should this court in any event leave the determination of the issue to the House of Lords?

[28]In my view, even if the decision in Runa Begum did not cover the precise point in issue, it would not be right for this court to draw a distinction between different types of fact finding in a scheme so recently considered by the House of Lords. If distinctions are to be drawn, particularly where it is argued that it is akin to counting angels on the tip of pin, then they should be drawn by the House of Lords in a reconsideration of the approach to be taken to the scheme as a whole. This is an even more powerful consideration given the observations of Lord Hope in Doherty v Birmingham City Council

[2008] UKHL 57

(

[2008] 3 WLR 636

at paragraphs 19-21). Furthermore for this Court to draw those distinctions would make administration of the statutory scheme dealing with homelessness very difficult in the period which elapsed while the inevitable appeal was made to the House of Lords. That would do no service to anyone.

[29]In any event therefore, I would have concluded that in my view this court should not seek to distinguish Runa Begum, but leave the question to be considered by the House of Lords on any application for leave to appeal. But that is not the primary reason for my view that the appeal should be dismissed. It is that the issues on this appeal are within the scope of that decision and that there are independent considerations that support that conclusion. (iv). Does the decision of the Strasbourg Court in Tsfayo alter the conclusion that the issue is determined by Runa Begum?

[30]In Tsfayo, the applicant, an asylum seeker, sought housing benefit under a statutory scheme. She was granted housing benefit under that scheme which required periodic renewal. She failed to renew within the appropriate timescale. The local authority allowed her claim for future benefit, but rejected the claim for benefit to be backdated to cover the period in which she had forgotten to make the application. This was on the basis that she had failed to show good cause why she had not claimed the benefits earlier. An appeal was made under the statutory scheme to the local authority’s housing benefit review board (HBRB); this consisted of three councillors advised by a barrister employed by the local authority’s legal department. The appeal failed. It was accepted by the UK that the applicant’s civil rights were determined and that Article 6.1 was applicable.

[31]The Strasbourg Court held, after a review of a number of UK decisions, including Runa Begum, that the statutory scheme and procedure did not fulfil the requirements of Article 6.1. As a consideration of the decision of the House of Lords in Runa Begum was central to their reasoning, it may be helpful to refer to the relevant part of the judgment in full: “44. The domestic courts have also applied the principles in Bryan, notably the House of Lords in Alconbury and Runa Begum. In the latter case, the House of Lords 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 Art. 6.1. The House of Lords stressed that although the housing officer had been called upon to resolve some disputed factual issues, these findings of fact were, to use the words of Lord Bingham in that case, “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.45. The Court considers that the decision-making process in the present case was significantly different. In Bryan, Runa Begum and the other cases cited in para.[43] 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 HBRB was deciding a simple question of fact, namely whether there was “good cause” for the applicant's delay in making a claim. On this question, the applicant had given evidence to the HBRB 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 HBRB 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 this issue, which is, under the new system, determined by a non-specialist tribunal (see para.[21] above). Nor, unlike the cases referred to, 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.

46. Secondly, in contrast to the previous domestic and Strasbourg cases referred to above, the HBRB 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. As Mr Justice Moses observed in Bewry, this connection of the councillors to the party resisting entitlement to housing benefit might infect the independence of judgment in relation to the finding of primary fact in a manner which could not be adequately scrutinised or rectified by judicial review. The safeguards built into the HBRB procedure (paras [22] – [23] above) were not adequate to overcome this fundamental lack of objective impartiality.

47. The applicant had her claim refused because the HBRB did not find her a credible witness. Whilst the High Court had the power to quash the decision if it considered, interalia, that there was no evidence to support the HBRB's factual findings, or that its findings were plainly untenable, or that the HBRB had misunderstood or been ignorant of an established and relevant fact (see paras [24] – [25] above), 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.

[32]Mr Goudie QC’s submission was in essence to adopt the court’s reasoning which I have set out and to invite us either to distinguish Runa Begum or not to follow it, if we concluded that the decision in Runa Begum otherwise applied to the issues on the appeal.

[33]As to the second argument, this court is bound by the decision of the House of Lords in Runa Begum. Even if the Strasbourg Court has decided the issue differently from the way in which the House of Lords decided Runa Begum this court is bound by the decision in Runa Begum: see Kay v Lambeth, Leeds City Council v Price

[2006] UKHL 10

[2006] 2 AC 465

at paragraphs 42-45.

[34]In my view, however, the Strasbourg Court did not decide the issue in this case in a manner that would require a different answer to the issue on these appeals which I have reached on the basis of the decision in Runa Begum. In the first place the Strasbourg Court relied on the decision in Runa Begum in reaching its conclusion and said nothing that cast doubt on the correctness of the decision. Secondly, the decisions in Runa Begum and Tsfayo each turned on a careful examination of the whole of the statutory scheme relevant to the particular case. Thirdly, it is apparent from the details of the scheme considered in Tsfayo that whereas in the case of prospective benefit, central government reimbursed the local authority 95% of what it was required to pay, it only reimbursed 50% of backdated awards (see paragraph 19 of the decision); this fact had been heavily relied upon in argument (see paragraph 37 of the decision) for the powerful contention that the hearing had taken place before a tribunal consisting of members of an authority which would be required to pay 50% of the benefit if it made an award in the applicant’s favour; the HBRB was not independent of the parties. Finally when the housing benefits scheme was looked upon as a whole, it was readily apparent that a conclusion could be reached, in contradistinction to the scheme under Part VII of the Housing Act, that the particular scheme was not compliant with Article 6.1

[35]I, of course, accept that it is possible to construct the attractive argument advanced by Mr Goudie QC based on passages in the paragraphs of the judgment which I have cited. However in my view, the issue must be approached by an examination of the scheme as a whole. For the reasons I have already given, I would not have been persuaded, even if it was open to me to be persuaded, that the decision in Tsfayo mandates a different approach to the Part VII scheme or to the type of appeal for decisions of primary fact within that scheme.

[36]However it is not for this Court, in my view, to decide that question. It is for the House of Lords or for the Court in Strasbourg to determine whether they wish to hear that issue.

[37]I would therefore dismiss both appeals.

Leave to appeal

[38]We were asked in the course of the submissions that if we reached the conclusion that we were bound by Runa Begum, we should grant leave to appeal. As is clear from observations I have already made, I would not grant leave. The statutory scheme was considered in Runa Begum; if in the light of the distinction sought to be drawn in this case between types of fact finding and the decision of the Strasbourg Court in Tsfayo, the House of Lords considers that the issues need reconsideration, then that should be a decision for the House of Lords and not for this court.

[39]I agree.

[40]I also agree.