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In Ali v Birmingham City Council the courts conclusion that article 6 was not engaged by section 193 turned principally on the nature of the right so granted. PRE |
In the words of the headnote: a distinction could be drawn between the class of social security and welfare benefits whose substance was defined precisely, and which could therefore amount to an individual right of which the applicant could consider herself the holder, and those benefits which were, in their essence, d... |
This was the unanimous conclusion of the court following detailed consideration of the authorities domestic and European. PRE |
The case was decided against the background of two domestic cases, in which this or related issues had been discussed at the highest level, but not decided: Runa Begum v Tower Hamlets London Borough Council [2003] 2 AC 430 (in which the House had proceeded on the assumption, without deciding, that article 6 was engaged... |
In the latter case Lady Hale (with whom the other justices agreed), found it unnecessary to reach any firm conclusions on the application of article 6 (para 34), but, after a review of the authorities, commented that she would be most reluctant to accept, unless driven by Strasbourg authority to do so, that article 6 r... |
Concurring, but without specific agreement from the rest of the court, Lord Hope felt that it could now be asserted with reasonable confidence that the authoritys duty under section 20(1) did not give rise to a civil right (para 65). PRE |
In Ali itself, Lord Hope giving the leading speech (agreed by Lady Hale and Lord Brown) noted Lord Hoffmanns observation in Runa Begum (paras 42-44) that it was not in the public interest for funds allocated to social welfare schemes to be unduly consumed in administration and legal disputes, quoting with approval the ... |
Lord Hope observed that the article had now been extended to public law rights, such as social security or other cash under publicly funded schemes, but that no clearly defined stopping point to this process of expansion had been identified. PRE |
He saw the instant case as an opportunity to introduce a greater degree of certainty into this area of public law (paras 5-6). PRE |
He noted that in Runa Begum the House had preferred not to decide the question, one reason being the wish not to inhibit the government from developing the arguments in the Strasbourg court should it become necessary to do so (para 31); the balance of advantage now pointed in the direction of taking a decision and so e... |
Reviewing the judgments in Runa Begum itself (paras 38-39), he noted with approval comments by Lord Bingham that to hold this to be a civil right would go further then Strasbourg had yet gone; by Lord Hoffmann that the whole scheme of Part VII was shot through with discretions ; by Lord Millett that, given the authorit... |
He reviewed the relevant authorities since Runa Begum, including the Croydon case. PRE |
Of the Strasbourg authorities Lord Hope noted in particular Tsfayo v United Kingdom [2007] BLGR 1; 48 EHRR 18, commenting there had been no dispute that the claim to housing benefit in that case concerned the determination of the applicants civil rights: This was not surprising, as the case fell within the mainstream o... |
The case offers important guidance as to what is needed to satisfy the requirements of article 6.1. PRE |
But it takes us no further on the question whether a statutory duty to provide benefits in kind as part of a scheme of social welfare falls within the scope of that article. PRE |
(para 42) He referred to a number of straws in the wind in other cases pointing the other way, and supporting a distinction between - ... the class of social security and welfare benefits that are of the kind exemplified by Salesi v Italy 26 EHRR 187 whose substance the domestic law defines precisely and those benefits... |
(para 43) He referred for example to Loiseau v France (Application No 46809/99), 18 November 2003 (unreported), para 7 where the court had referred to a private right which can be said, at least on arguable grounds, to be recognised under domestic law and to an individual right of which the applicant may consider himse... |
He concluded that article 6 was not engaged by decisions taken by the review officer (para 49). PRE |
Lord Collins referred also to the decision in Schuler-Zgraggen v Switzerland (1993) 16 EHRR 405, relating to a contributory invalidity scheme, in which the Strasbourg court had spoken of the claim as being for an individual, economic right flowing from specific rules laid down in a federal statute (para 65). PRE |
He distinguished the content of the statutory duty under section 193 which lacks precision and gave no right to any particular accommodation. PRE |
Such factors together with the essentially public nature of the duty meant that it did not give rise to an individual economic right (para 73). PRE |
To similar effect, Lord Kerr acknowledged the difficulty of finding a principled basis for the distinction between social security payments and social welfare provision, given that both require the expenditure of public resources, provide a valuable resource to the recipient; and are activated by a need on the part of ... |
He concluded however that - the lack of similarity to (or, rather, the distinction that can be made with) a private insurance scheme, and the dependence on discretionary judgments not only to establish entitlement but also to discharge the states obligation and the way in which the obligation can be met, all combine to... |
This is not an assertable right as that term was used in Stec v United Kingdom (2005) 41 EHRR SE 295. Ratio |
(para 75) Ratio |
I should note briefly Nzolameso v Westminster City Council [2015] UKSC 22; [2015] PTSR 549, the most recent Supreme Court decision to which we were referred on Part VII of the 1996 Act (taken with the Children Act 2004). Ratio |
That was principally concerned with the circumstances in which the authority could reasonably make a final offer of accommodation in another area (in that case more than an hour away from where she and her family had lived for many years). Ratio |
The councils decision was set aside on the facts of the case. Ratio |
However, the court recognised the pressures facing authorities dealing with such cases, and the range of considerations which needed to be taken into account, including the resources available to them, the availability of accommodation in their own areas, and the similar pressures on adjoining authorities. Ratio |
Finally, of the domestic authorities, mention should be made of R (King) v Secretary of State for Justice [2016] AC 384; [2015] UKSC 54, in which it was held that a disciplinary decision by a prison governor to order segregation did not engage article 6.1. PRE |
Lord Reed (in a judgment agreed by the other members of the court) referred (para 113) to the Grand Chamber judgment in Boulois v Luxembourg (2012) 55 EHRR 32, concerned with release on licence, in which the court had said that for the civil limb of article 6.1 to be engaged there must be a dispute over a right which c... |
The starting-point must be the provisions of the relevant domestic law and their interpretation by the domestic courts. PRE |
This court would need strong reasons to differ from the conclusions reached by the superior national courts by finding, contrary to their view, that there was arguably a right recognised by domestic law. PRE |
Later in the judgment Lord Reed noted that the article had also been applied to cases concerning rights in public law regarded as closely resembling rights in private law, such as rights to state benefits. PRE |
He commented that in Ali v Birmingham City Council - the critical feature of cases in the latter category was identified as being that the benefits in question were the subject of precise definition and could therefore amount to an individual right of which the applicant could consider herself the holder. PRE |
Those were distinguished from benefits which were, in their essence, dependent on the exercise of judgment by the relevant authority. PRE |
That is consistent with the approach adopted by the Grand Chamber in Boulois. PRE |
(para 121) PRE |
Ali v United Kingdom PRE |
I turn to the judgment of the Strasbourg court. Ratio |
As part of the history of the case (paras 20-24) it referred to extracts from Lord Hopes judgment in Ali v Birmingham City Council (paras 20-24), but without further discussion of the courts reasoning. Ratio |
Under a section headed Judicial consideration of Part VII of the Housing Act 1996 it referred to only two cases: Adan v Newham London Borough Council [2002] 1 WLR 2120 CA, and Runa Begum in this court. Ratio |
Of the former, the judgment noted that the Court of Appeal had set aside the order of the County Court on jurisdictional grounds, but had gone on in an extended obiter dictum to consider the effect of article 6: In this regard, Hale LJ opined that the right to accommodation under section 193 is more akin to a claim for... |
(para 32) Of Runa Begum, the judgment referred to the courts conclusion that the review mechanism under Part VII complied with article 6, assuming it applied. Ratio |
On the issue whether article 6 did apply, the only citation was of the comments of Lord Millett (paras 91 and 93), in which he had noted the features which took the case beyond the existing case law, and which made it inappropriate for determination by the ordinary judicial process; but had found it more difficult, at ... |
The court summarised the submissions of the parties, including the submission on the part of the UK government that the applicant had only a general right to be housed, not to any specific property; this was contrasted with the provision of a financial benefit where both the entitlement and the amount were determined b... |
Under the heading The Courts assessment the judgment began by setting out general principles including the need to start from the interpretation of the relevant provisions by the domestic courts (para 54). Ratio |
On the application of those principles to the facts of the case, it is appropriate to set out the substance of the reasoning in full: 56. Ratio |
In the case of [Runa] Begum the House of Lords accepted that section 193(2) of the 1996 Act imposed a duty on the Council to secure that accommodation was available for occupation by Ms Begum. Ratio |
Thus, a duty was owed which was enforceable by Ms Begum and which related to a matter of acute concern for her. Ratio |
In the present case the Council acknowledged in its letter of 7 November 2006 to the applicant that it owed her the main housing duty to provide accommodation to her and her family The Government also accept that she had a general right to be housed although the applicant could not point to any property to which she ha... |
57. Ratio |
The Court is satisfied that in the present case the applicant had a legally enforceable right by virtue of section 193 of Part VII of the 1996 Act to be provided with accommodation, albeit that this was a right that could cease to exist in certain conditions Moreover, the court proceedings in question clearly concerned... |
It therefore falls to the Court to decide whether or not the right in question was a civil right for the purposes of article 6 para 1 of the Convention. Ratio |
58. Ratio |
It is now well-established that disputes over entitlement to social security or welfare benefits generally fall within the scope of article 6 para 1 of the Convention [the footnote cites eg Tsfayo v United Kingdom 48 EHRR 18 para 40, Feldbrugge v Netherlands 8 EHRR 425, Deumeland v Germany (1986) 8 EHRR 448 and Schuler... |
The Court has even recognised a right to a non- contributory welfare benefit as a civil right [citing eg Salesi v Italy (1993) 26 EHRR 187, para 19, and Tsfayo v United Kingdom, para 40]. Ratio |
However, the present case differs from previous cases concerning welfare assistance, as the assistance to be provided under section 193 of the 1996 Act not only was conditional but could not be precisely defined [comparing eg Tsfayo, in which the dispute concerned a fixed financial amount of housing benefit]. Ratio |
It concerns, as the Government noted, a benefit in kind and the Court must therefore consider whether a statutory entitlement to such a benefit may be a civil right for the purposes of article 6 para 1 59. Ratio |
It is true that accommodation is a benefit in kind and that both the applicants entitlement to it and the subsequent implementation in practice of that entitlement by the Council were subject to an exercise of discretion. Ratio |
Nonetheless, the Court is not persuaded that all or any of these factors necessarily militate against recognition of such an entitlement as a civil right. Ratio |
For example, in Schuler-Zgraggen v Switzerland 16 EHRR 405, in which the applicants entitlement to an invalidity pension depended upon a finding that she was at least 66.66% incapacitated, the Court accepted that article 6 para 1 applied. Ratio |
In any case, the discretion in the present case had clearly defined limits: once the initial qualifying conditions under section 193(1) had been met, pursuant to section 206(1) the Council was required to secure that accommodation was provided by one of three means, namely by providing accommodation itself; by ensuring... |
In this regard, the Court agrees with Hale LJ in Adan v Newham London Borough Council, in which she opined that the right to accommodation under section 193 is more akin to a claim for social security benefits than it is a claim for social or other services, where the authorities have a greater degree of discretion and... |
60. Ratio |
In light of the above, as far as the applicability of article 6 para 1 is concerned, the Court sees no convincing reason to distinguish between the applicants right to be provided with accommodation, as acknowledged by the Council in its letter of 7 November 2006, and the right to housing benefit asserted by the applic... |
Article 6 para 1 therefore applies and, as such, the applicant had a right to a fair hearing before an independent and impartial tribunal. Ratio |
Having decided that article 6 did apply, the court agreed with the domestic courts that the procedure under Part VII was compliant, notwithstanding that the County Court did not have jurisdiction to conduct a full rehearing of the facts (para 83), but taking as a whole the legislative welfare scheme by virtue of which ... |
Discussion of issue (1) Ratio |
The review of the domestic authorities noted above, from Runa Begum onwards, shows a continuing debate on this issue, against the background of the uncertain Strasbourg jurisprudence. Ratio |
The unanimous judgment of this court in Ali v Birmingham City Council was intended to settle the issue at domestic level, after a full review of all the relevant Strasbourg authorities. Ratio |
Against this background it is necessary to consider whether the reasoning in the recent Chamber decision makes it necessary or appropriate for us to depart from that decision. Ratio |
The Chamber acknowledged (in line with the Grand Chamber decision in Boulois) the weight to be given to the interpretation of the relevant provisions by the domestic courts. Ratio |
It is disappointing therefore that it failed to address in any detail either the reasoning of the Supreme Court, or indeed its concerns over judicialisation of the welfare services, and the implications for local authority resources (see para 23 above). Ratio |
Instead the Chamber concentrated its attention on two admittedly obiter statements, respectively by Hale LJ (as she then was) in the Court of Appeal in Adan, and Lord Millett in Runa Begum. Ratio |
However, its treatment of these two statements is open to the criticism that they were taken out of context, and without regard to their limited significance in the domestic case law. Ratio |
In Adan the application of article 6 had been conceded by counsel. Ratio |
It is not clear that the passage quoted from the judgment of Hale LJ (para 55) was doing more than recording the basis of the concession. Ratio |
It is true that the passage was mentioned with approval by Lord Hoffmann in Runa Begum (paras 66-69). Ratio |
However, her own considered view on the issue is apparent from both her own judgment in the Croydon case, and her agreement with the leading judgment in Ali (in which Adan did not merit a mention). Ratio |
Nor is it clear from the decision that the Chamber fully appreciated the width of the discretion given to the authority, including questions of resource allocation (emphasised by Lady Hale herself in other cases). Ratio |
Lord Milletts comments needed to be read with the following sentence of his speech, which expressed his view that most European states possess limited judicial control of administrative decisions so that, if article 6 did not apply, such decisions might be outside judicial control altogether (para 93). Ratio |
It would have been interesting to know to what extent that perception of the inadequacies of other administrative law systems was shared by the members of the Chamber, with the benefit of their more direct knowledge. Ratio |
In any event, Lord Milletts views on this point were not shared by the rest of the House, and were overtaken by the considered and unanimous view of this court in Ali itself. Ratio |
Questionable also, with respect, is the Chambers reliance on the decision in Schuler-Zgraggen v Switzerland as an example of entitlement subject to discretion. Ratio |
As Lord Collins pointed out in Ali (at para 61), it was treated by the 1993 court as a claim to an individual economic right flowing from specific rules laid down in the statute. Ratio |
The case report shows that the statute in question gave a right to a full invalidity pension where incapacity of at least 66.66% was established (para 35). Ratio |
Once that level of incapacity was established, the financial entitlement followed as a matter of right, not discretion. Ratio |
It is hard to see any fair comparison with the range of factors, including allocation of scare resources, to which authorities are entitled to have regard in fulfilling their obligations under the housing legislation. Ratio |
In fairness to the Chamber, it may be that this was not spelt out in the governments submissions, as fully as it has been in recent domestic cases (see eg para 27 above). Ratio |
Our duty under the Human Rights Act 1998 section 2 is take account of the decision of the court. Ratio |
There appears to be no relevant Grand Chamber decision on the issue, but we would normally follow a clear and constant line of chamber decisions (see Manchester City Council v Pinnock [2011] 2 AC 104, para 48). Ratio |
This might perhaps be said of some of the previous decisions referred to in the judgment, including most recently Tsfayo v United Kingdom (2006) in which the application of article 6 was conceded by the government. Ratio |
However, it is apparent from the Chambers reasoning (see para 58 cited above) that it was consciously going beyond the scope of previous cases. Ratio |
In answer to Lord Hopes concern that there was no clearly defined stopping point to the process of expansion, its answer seems to have been that none was needed. Ratio |
That is a possible view, but one which should not readily be adopted without full consideration of its practical implications for the working of the domestic regime. Ratio |
The scope and limits of the concept of a civil right, as applied to entitlements in the field of public welfare, raise important issues as to the interpretation of article 6, on which the views of the Chamber are unlikely to be the last word. Ratio |
In my view, this is a case in which, without disrespect to the Chamber, we should not regard its decision as a sufficient reason to depart from the fully considered and unanimous conclusion of the court in Ali. Ratio |
It is appropriate that we should await a full consideration by a Grand Chamber before considering whether (and if so how) to modify our own position. Ratio |
Issue (2) - the correct test and reasons Ratio |
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