LEGAL UPDATE

Housing law

By Andrew Dymond, barrister, Arden Chambers, London

Jurisdiction and article 6

In Begum v Tower Hamlets LBC [2003] UKHL 5, the House of Lords has held that the scheme for reviewing homelessness decisions under sections 202-204 of the Housing Act 1996 satisfies the requirements of article 6 of the European Convention on Human Rights.

This will come as a relief to local authorities after the uncertainty created by the Court of Appeal's obiter dicta in Adan v Newham LBC [2001] EWCA Civ 1916; [2002] 1 WLR 2120.

The appeal involved three questions:

l Was the review decision a determination of the appellant's 'civil rights' within the meaning of article 6?

l If so, did the reviewing officer constitute an 'independent and impartial tribunal' for the purposes of article 6?

l If not, did the county court possess 'full jurisdiction' so as to guarantee compliance with article 6?

Of these three questions, the courts have primarily been concerned with the third, namely whether article 6 could only be satisfied if the county court had a fact-finding jurisdiction or was an appeal in the nature of a judicial review sufficient.

In Adan, the authority conceded the first two points so that the court was only asked to determine whether the county court had full jurisdiction.

The majority (Lord Justice Brooke and Lady Justice Arden) held that article 6 was not satisfied where a reviewing officer had to determine a primary fact which was material to the decision.

They suggested that authorities contract out their reviews to other bodies.

Lady Justice Hale, dissenting, stretched the meaning of 'point of law' in section 204 to include points of fact and held that the county court did have the jurisdiction to determine factual issues.

As the court's observations in Adan were obiter, a differently constituted Court of Appeal (the Lord Chief Justice, Lord Woolf, and Lords Justice Laws and Dyson) was able to revisit the issue in Begum: [2002] EWCA Civ 239; [2002] 1 WLR 2491.

It held that a determination on a review was a determination of an applicant's civil rights and obligations and that the reviewing officer could not be an independent and impartial tribunal.

However, despite its lack of fact-finding powers, the county court was an independent judicial body with full jurisdictional control.

The applicant's appeal to the House of Lords was dismissed.

The main speech was given by Lord Hoffmann; Lord Bingham of Cornhill gave a concurring speech.

Lord Hope of Craighead agreed with both Lord Bingham and Lord Hoffmann, Lord Walker of Gestingthorpe agreed with Lord Hoffmann and Lord Millett gave a concurring speech.

The authority's argument that the reviewing officer was an independent and impartial tribunal was rejected without hesitation.

The appeal was resolved on the issue of whether an appeal which was equivalent to a judicial review was a sufficient safeguard.

On the assumption that the applicant's civil rights were engaged, the committee found that a full fact-finding jurisdiction was not necessary.

Indeed, it was also held that the level of scrutiny provided by normal rather than enhanced judicial review was sufficient.

Accordingly, it was unnecessary for the committee to decide whether a determination of the applicant's civil rights was involved and all the members declined to express a conclusion on the point.

However, the speeches set out the competing arguments fully and provide the starting point for consideration of the meaning of civil rights in future cases.