Availability of Judicial Review Insufficient to Protect Article 6 Rights.

The European Court of Human Rights (ECHR) has found the United Kingdom to have violated an individual's right to a fair hearing by failing to provide an independent and impartial tribunal to hear her appeal against a refusal of backdated housing and council tax benefits. The judgment in Tsfayo v United Kingdom (Application 60860/00) is particularly significant for its finding that the availability of judicial review to challenge the disputed decision was insufficient to make the decision-making process fair as a whole for the purposes of Article 6 of the European Convention on Human Rights, which provides the right to a fair hearing. The judgment marks a departure from the previous trend of decisions on this issue.

Background

The applicant made a successful application for housing and council tax benefits, but failed to appreciate that these applications had to be renewed annually. This resulted in her losing benefits for a few months. When she realized what had happened, having received a letter from her housing association landlord about rent arrears, the applicant made a claim for backdated benefit for the relevant period. This application was refused on the basis that the applicant had failed to show good cause why she had not claimed the benefits sooner. The applicant appealed to the local authority's Housing Benefit and Council Tax Benefit Review Board, comprised of a number of councillors from the local authority. The main reason advanced by the applicant for the lateness of her claim was that she had received no correspondence alerting her to what had happened. The board rejected her appeal, finding that the applicant's evidence was not credible and that she must have received some correspondence from the local authority.

The applicant applied for judicial review of the board's decision, arguing that: (i) the board had acted unlawfully because it had failed to make adequate findings of fact or provide sufficient reasons for its decision; and (ii) it was not an 'independent and impartial' tribunal under Article 6(1) of the convention. The application failed at the permission stage on the grounds that the convention had not been incorporated into English law at the time and the decision was not unreasonable. The applicant was unable to appeal because legal aid was refused; she subsequently received counsel's opinion that an appeal had no prospect of success.

Issues

Was the board an independent and impartial tribunal? On the question of whether the board was an independent and impartial tribunal for the purposes of Article 6(1), the UK government conceded that the board did not satisfy these requirements, since its members were elected councillors from the local authority that would, had the applicant succeeded, have been paying the benefits. Therefore, it could not be said that the board was independent of the parties to the dispute. Judicial review as a cure for lack of independence at first instance

Despite the board's lack of "structural independence", the government argued that the jurisdiction of the High Court on judicial review was sufficient to ensure that the decision-making process as a whole complied with Article 6. In support of this contention, it relied on a series of cases - both before the ECHR and before the domestic courts - in which it had been found that Article 6 was not violated where the second-tier body reviewing an administrative decision had "full jurisdiction".

In the judgment issued on November 22 1995 in Bryan v United Kingdom, a case involving an Article 6 challenge to the decision of a planning inspector, the court held that, in order to determine whether a second-tier tribunal provided "sufficiency of review", it was necessary to have regard to a number of factors, including the subject matter of the decision appealed against and the manner in which that decision was arrived at by the first-tier decision maker. The court held that there had been no violation of Article 6: although the planning inspector lacked the requisite appearance of independence from the executive, it was held that the subject of Bryan's challenge was really the inspector's policy judgments on a range of matters involving development in a conservation area. Discretionary judgments of this kind could be supervised adequately by way of judicial review.

Similarly, in Runa Begum (FC) v London Borough of Tower Hamlets ([2003] UKHL 5), which followed the approach of the ECHR in Bryan, the House of Lords held that judicial review provided sufficiency of review for Article 6 purposes in the context of a challenge to a housing officer's decision that the claimant had been unreasonable in rejecting an offer of accommodation. Begum's main complaint was that the reviewing officer's decision was based on incorrect assessments of primary fact. However, in the judgment it was emphasized that although the housing officer had made some findings of fact, what she was really doing was making judgments concerning wider policy issues which she had the specialist knowledge and experience to make. It was also relevant that statutory regulations provided substantial safeguards to ensure that the review was fair.

Decision

Having reviewed the relevant authorities, the court's starting point in this case was to consider whether the scope of judicial review constituted full jurisdiction in the particular context of a review of the board's decision. Referring to the House of Lords judgments in R v Secretary of State for the Environment ([2001] UKHL 23) and Begum, it was noted that a court could quash a decision on judicial review on the basis of a lack of evidence to support factual findings or where the decision maker had misunderstood or been ignorant of a relevant fact. However, the reviewing court did not have the power to make fresh findings of fact and, following Lord Bingham's pronouncement in Begum, had to "accept apparently tenable conclusions on credibility made on behalf of the authority".

The court compared the board's decision-making processes with those considered in Bryan, Begum and other cases and found a significant difference. This was not, it held, a case in which the decision reflected specialist expertise or knowledge and the exercise of administrative discretion pursuant to wider policy aims. The board had simply been required to decide a question of fact, namely whether the applicant had good cause for having failed to claim the benefits sooner. Although the High Court on an application for judicial review was able to quash the decision on a number of fact-related grounds, it did not have jurisdiction to rehear the evidence or substitute its own views as to the applicant's credibility. This was especially problematic in the particular circumstances of this case, where the decision-making body was directly connected to one of the parties to the dispute. On that basis, given the limitations of judicial review, the ECHR held that it would not have been possible for the central issue to be determined by an independent tribunal. Therefore, Article 6 had been violated.

Comment

Decisions of the kind considered in this case are no longer taken by the board, such bodies having been replaced by specialist tribunals in 2001. However, the case is nonetheless a significant development, marking as it does a departure from the previous trend of decisions by the court on this issue. Regulators cannot simply rely on the availability of judicial review to cure any defects in their decision-making processes, but would be well advised to ensure that such processes comply as far as possible with Article 6.

In light of this case, the position for decision makers facing an Article 6 challenge will depend on: (i) the nature of the first-tier decision-making body and, in particular, how close it is to having a fair procedure and complying structurally with the requirement of independence; and (ii) the nature of the error made by the first-tier decision maker and whether it is one of professional judgment(1) or fact. The more the decision depends on a finding of fact, the greater chance there will be of it being found to be incompatible with Article 6. However, the grounds of judicial review are fluid. If, in particular, mistake of fact as a ground for judicial review continues to develop,(2) it may become easier for the courts to conclude that judicial review is an adequate way of complying with Article 6.