FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 60860/00 by Tiga TSFAYO against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 24 August 2004 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mr J. Casadevall , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mrs E. Fura-Sandström , Ms L. Mijović, and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application, introduced on 25 July 2000 and registered 14 September 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Tiga Tsfayo, is an Ethiopian national, who was born in Ethiopia in 1975 and lives in London. She is represented before the Court by Mr Draycott, a lawyer practising at the Fulham Legal Advice Centre, London. The respondent Government are represented by Mr J. Grainger, Foreign and Commonwealth Office.

A. The circumstances of the case

In 1993, the applicant arrived in the United Kingdom from Ethiopia and sought political asylum. She was initially provided with accommodation by the social services department of Hammersmith and Fulham Council (“the Council”). In April 1997, the applicant moved into accommodation owned by a housing association. A member of the housing association's staff assisted the applicant to complete her application for housing and council tax benefit which was submitted to the Council in April 1997. This application was successful.

The applicant was required by law to renew her application for housing and council tax benefit on an annual basis. Because of her lack of familiarity with the benefits system and her poor English, the applicant failed to submit a benefit renewal form to the Council by the required time. In September 1998, the applicant received correspondence from the housing association about her rent arrears. As the applicant did not understand the correspondence she sought assistance from the Council's advice office. After obtaining this advice the applicant realised that her housing and council tax benefit had ceased. She therefore submitted a prospective claim as well as a backdated claim for both types of benefit to 15 June 1998. The prospective claim was successful.

On 4 November 1998, the Council rejected the application for backdated benefit because the applicant had failed to show “good cause” why she had not claimed the benefits earlier. On 9 November 1998, the applicant's legal advisers wrote to the Council requesting that they reconsider their refusal. However, by letter dated 4 February 1999, the Council informed the applicant that they were upholding their initial decision to refuse benefit.

On 17 February 1999, the applicant appealed to the HBRB. The applicant was interviewed by the Council on 12 April 1999, when she informed them that two of her close friends had committed suicide in the last two years; she was traumatised by this experience but unwilling to seek medical assistance due to her mistrust of doctors.

On 10 September 1999 the applicant's appeal against the Council's refusal to backdate the claim for housing and council tax benefit was heard by Hammersmith and Fulham Council Housing Benefit and Council Tax Benefit Review Board (“the HBRB”). The HBRB consisted of three Councillors from the Council. It was advised by a barrister from the Council's legal department. The applicant was represented by Fulham Legal Advice Centre and the Council was represented by a Council benefits officer.

The HBRB rejected the applicant's appeal. On 6 December 1999, the applicant sought judicial review of the decision. She complained that the HBRB had acted unlawfully because it had failed to make adequate findings of fact or provide sufficient reasons for its decision. The applicant also alleged that the HBRB was not an “independent and impartial” tribunal under Article 6 § 1 of the Convention.

On 31 January 2000, the High Court dismissed the applicant's application for leave to apply for judicial review on the grounds that the Convention had not yet been incorporated into English law, and further dismissed the application on the merits, on the grounds that the HBRB's decision was neither unreasonable nor irrational. The applicant was unable to appeal because legal aid was refused. The applicant subsequently obtained counsel's opinion that the appeal had no prospects of success.

B. Relevant domestic law and practice

1. Housing benefit

Housing benefit is payable to people on low incomes by the local authority. It is not dependent on or linked to the payment of contributions by the claimant.

2. The Housing Benefit Review Board

At the relevant time, a claim to housing benefit was first considered by officials employed by the local authority and working in the housing department. If the benefit was refused the claimant was entitled to a review of the decision, first by the local authority itself, then by a HBRB, which comprised up to five elected councillors from the local authority. Since 2 July 2001, HBRBs have been replaced by tribunals set up under the Child Support, Pensions and Social Security Act 2000.

Procedure before the HBRB was governed by the Housing Benefit (General) Regulations 1987. Regulation 82 provided, as relevant:

“(2) Subject to the provisions of these Regulations

(a) the procedure in connection with a further review shall be such as the Chairman of the Review Board shall determine;

(b) any person affected may make representations in writing in connection with the further review and such representations shall be considered by the Review Board;

(c) at the hearing any affected person has the right to

(i) be heard, and may be accompanied and may be represented by another person whether that person is professionally qualified or not, and for the purposes of the proceedings at the hearing any representative shall have the rights and powers to which any person affected is entitled under these regulations;

(ii) call persons to give evidence;

(iii) put questions to any person who gives evidence;

(d) the Review Board may call for, receive or hear representations and evidence from any person present as it considers appropriate.”

The Review Board's Good Practice Guide provided, inter alia , that “the general principle underlying the proceedings” was the observance of natural justice. The HBRB should “be fair and be seen to be fair to all parties at all times”. The HBRB was “in law, a separate body from the authority” and “independent”. Before the hearing of a case checks were carried out to ensure that Board Members “have had no previous dealings with the case, and that they have no relationship with the claimant or any other person affected”.

3. Consideration of the HBRB under the Human Rights Act 2000

Since the coming into force of the Human Rights Act 2000, the English courts have considered on a number of occasions the extent to which judicial review can remedy defects of independence in the first instance tribunal.

In R (Hussain) v. Asylum Support Adjudicator [2001] EWHC Admin 852, Stanley Burnton J observed that:

“Where the decisions of a tribunal are likely to depend to a substantial extent on disputed questions of primary fact, and the tribunal is clearly not independent, judicial review should not suffice to produce compliance with Article 6. The scope for review of findings of primary facts is too narrow to be considered a 'full jurisdiction' in such a context. Fact dependent decisions must be made by fully independent tribunals: the scope for judicial review of primary findings of fact, and particularly findings as to the credibility of witnesses, is generally too narrow to cure a want of independence at the lower level. I think that courts should lean against accepting judicial review as a substitute for the independence of the tribunal. If the availability of judicial review is too easily regarded as curing a want of independence on the part of administrative tribunals, the incentive for the executive and the legislature to ensure the independence of tribunals is considerably weakened.”

In Bewry (R. on the application of) v. Norwich City Council [2001] EWHC Admin 657, the Secretary of State conceded that the Housing Benefit Review Board lacked the appearance of an independent and impartial tribunal. The determination of the central issues of fact in the case depended on an assessment by the Review Board whether the claimant was telling the truth. On the question whether judicial review proceedings were sufficient to remedy the problem, Moses J observed:

“There is however, in my judgment, one insuperable difficulty. Unlike an inspector [in a planning case], whose position was described by Lord Hoffman [in R. v. Secretary of State for the Environment, ex parte Holding and Barnes, Alconbury Developments Ltd and Legal and General Assurance Society Ltd, [2001] UKHL 23; [2001] 2 All ER 929: see Holding and Barnes plc v. the United Kingdom (dec.), no. 2352/02 , ECHR 2002] as independent, the same cannot be said of a councillor who is directly connected to one of the parties to the dispute, namely the Council. The dispute was between the claimant and the Council. The case against payment of benefit was presented by employee of the Council and relied upon the statement of an official of the Council (the Fraud Verification Officer in the Council's Revenue office). ...

The reasoning carefully set out by the Board enables the court to ensure that there has been no material error of fact. Even in relation to a finding of fact, this court can exercise some control if it can be demonstrated that the facts found are not supported by the evidence. But, in that respect, the court can only exercise limited control. It cannot substitute its own views as to the weight of the evidence ... In my judgment, the connection of the councillors to the party resisting entitlement to housing benefit does constitute a real distinction between the position of a [planning] inspector and a Review Board. The lack of independence may infect the independence of judgment in relation to the finding of primary fact in a manner which cannot be adequately scrutinised or rectified by this court. One of the essential problems which flows from the connection between a tribunal determining facts and a party to the dispute is that the extent to which a judgment of fact may be infected cannot easily be, if at all, discerned. The influence of the connection may not be apparent from the terms of the decision which sets out the primary facts and the inferences drawn from those facts. ...

Thus it is no answer to a charge of bias to look at the terms of a decision and to say that no actual bias is demonstrated or that the reasoning is clear, cogent and supported by the evidence. This court cannot cure the often imperceptible effects of the influence of the connection between the fact finding body and a party to the dispute since it has no jurisdiction to reach its own conclusion on the primary facts; still less any power to weigh the evidence. Accordingly, I conclude that there has been no determination of the claimant's entitlement to housing benefit by an independent and impartial tribunal. The level of review which this court can exercise does not replenish the want of independence in the Review Board, caused by its connection to a party in the dispute.”

The Secretary of State was granted leave to appeal against this judgment but, in the event, decided not to appeal.

The Bewry judgment was followed by Richards J. in Beeson (R. on the application of) v. Dorset County Council [2001] EWHC Admin 986, which also concerned a claim for assistance with housing. In allowing the claimant's application for judicial review, Richards J. said:

“The issue which fell for decision here ... involved a finding of fact which was dependent to a significant extent on an assessment of credibility ...

What Moses J. says about the risk that their judgment might be affected (or infected) by their connection with one of the parties to the dispute, namely the Council, seems to me to apply with equal force here. The effect may be imperceptible and it may be something of which the members themselves were unaware. One cannot dismiss the risk as negligible in a case such as this which has resource implications for the Council and where the Council has already pinned its colours to the mast and is presenting to the panel a case in support of the original decision. ... In the circumstances it is in my view impossible for the court on judicial review to determine whether the panel's findings and the Director's decision have been affected by their connection with the Council or not. That is why, like Moses J. in Bewry , I reach the conclusion that judicial review cannot compensate for the lack of an independent element in the decision making process so as to ensure overall competence with Article 6 § 1.”

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention about the lack of independence and impartiality of the Housing Benefit Review Board.

THE LAW

The applicant complains of a breach of Article 6 § 1, which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

The Government accept that the applicant's civil rights were in issue in the proceedings in question. They further accept that the Review Board did not present the requisite appearance of independence and impartiality. However, they submit that the combination of the Review Board procedure, which included a number of safeguards, and the availability of judicial review, satisfied the requirements of Article 6 § 1.

The Court considers that the application raises complex issues of law and fact under Article 6 of the Convention, the determination of which should depend on an examination of the merits. It concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits.

Michael O'Boyle Matti Pellonpää Registrar President