HOUSE OF LORDS SESSION 2002-03

[2003] UKHL 5
on appeal from: [2002] EWCA Civ 239

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Begum (FC) (Appellant)

v.

London Borough of Tower Hamlets (Respondents)

ON

THURSDAY 13 FEBRUARY 2003

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Hoffmann

Lord Hope of Craighead

Lord Millett

Lord Walker

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Begum (FC) (Appellant) v. London Borough of

Tower Hamlets (Respondents)

[2003] UKHL 5

LORD BINGHAM OF CORNHILL

My Lords,

1. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord
Hoffmann and for the reasons which he gives I would dismiss this appeal.

2. The parties were agreed that the appeal raised three questions, which they expressed in this way:

(1) Was Mrs Hayes' decision of 27 July 2001, taken under section 202 of the Housing Act 1996, a
determination of Runa Begum's "civil rights" within the meaning of article 6(1) of the European
Convention on Human Rights?

(2) If so, did Mrs Hayes constitute an "independent and impartial tribunal" for the purposes of article
6(1) of the Convention?

(3) If not, did the county court, on appeal under section 204 of the Housing Act 1996, possess "full
jurisdiction" so as to guarantee compliance with article 6(1) of the Convention?

Lord Hoffmann has clearly explained how, on the facts and the relevant legislation and authorities,
these questions arise.

3. The second of these questions permits of a summary answer. It cannot plausibly be argued that Mrs
Hayes, a re-housing manager employed by the local housing authority, was independent of that
authority when deciding whether the authority had discharged its admitted duty to Runa Begum. So to
hold is not in any way to disparage the conscientiousness or impartiality or professionalism of Mrs
Hayes. It is simply to recognise an integral feature of the statutory scheme.

4. One other question, inherent in the first question, also lends itself to a summary answer: whether
for purposes of domestic law Runa Begum enjoyed anything properly recognised as a right. It was
suggested on behalf of the authority that, because of the broad discretionary area of judgment entrusted
to it under the statutory scheme, she enjoyed no right. I cannot accept this. Section 193(2) imposed a
duty on the authority to secure that accommodation was available for occupation by Runa Begum. This
was a duty owed to and enforceable by her. It related to a matter of acute concern to her. Although
section 206(1) permitted the authority to perform its duty in one of several ways, and although
performance called for the exercise of judgment by the authority, I think it plain that the authority's duty
gave rise to a correlative right in Runa Begum, even though this was not a private law right enforceable
by injunction and damages. Thus the first question, differently expressed, is whether Runa Begum's
right recognised in domestic law was also a "civil right" within the autonomous meaning given to that
expression for purposes of article 6(1) of the Convention.

5. The importance of this case is that it exposes, more clearly than any earlier case has done, the
interrelation between the article 6(1) concept of "civil rights" on the one hand and the article 6(1)
requirement of "an independent and impartial tribunal" on the other. The narrower the interpretation
given to "civil rights", the greater the need to insist on review by a judicial tribunal exercising full
powers. Conversely, the more elastic the interpretation given to "civil rights", the more flexible must be
the approach to the requirement of independent and impartial review if the emasculation (by over-
judicialisation) of administrative welfare schemes is to be avoided. Once it is accepted that "full
jurisdiction" means "full jurisdiction to deal with the case as the nature of the decision requires" (per
Lord Hoffmann, R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport
and the Regions [2001] 2 WLR 1389 at 1416, [2001] UKHL 23 , paragraph 87), it must also be
accepted that the decisions whether a right recognised in domestic law is also a "civil right" and whether
the procedure provided to determine that right meets the requirements of article 6 are very closely
bound up with each other. It is not entirely easy, in a case such as the present, to apply clear rules
derived from the Strasbourg case law since, in a way that any common lawyer would recognise and
respect, the case law has developed and evolved as new cases have fallen for decision, testing the
bounds set by those already decided.

6. The European Court's approach to rights deriving from social welfare schemes has been
complicated by differences of legal tradition in various member states, as Lord Hoffmann explains. But
comparison of Feldbrugge v The Netherlands (1986) 8 EHRR 425 and Deumeland v Germany (1986) 8
EHRR 448 with Salesi v Italy (1993) 26 EHRR 187 and Mennitto v Italy (2000) 34 EHRR 1122 shows
movement from a narrower towards a broader interpretation of "civil rights". Further cases may no
doubt continue that trend. To hold that the right enjoyed by Runa Begum is a "civil right" for purposes
of article 6 would however be to go further than the Strasbourg court has yet gone, and I am satisfied, in
the light of a compelling argument on this point by Mr Sales, that the decision of that court would not,
by any means necessarily, be favourable to Runa Begum. So I would prefer to assume, without
deciding, that Runa Begum's domestic law right is also a "civil right", and to consider whether, on that
assumption, but having regard to the nature of the right, the statutory provision of an appeal to the
county court on a point of law satisfies the requirements of article 6.

7. Although the county court's jurisdiction is appellate, it is in substance the same as that of the High
Court in judicial review: Nipa Begum v Tower Hamlets London Borough Council [2000] 1 WLR
306 Thus the court may not only quash the authority's decision under section 204(3) if it is held to be
vitiated by legal misdirection or procedural impropriety or unfairness or bias or irrationality or bad faith
but also if there is no evidence to support factual findings made or they are plainly untenable or
(Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC
1014 at 1030, per Scarman LJ) if the decision-maker is shown to have misunderstood or been ignorant
of an established and relevant fact. In the present context I would expect the county court judge to be
alert to any indication that an applicant's case might not have been resolved by the authority in a fair,
objective and even-handed way, conscious of the authority's role as decision-maker and of the immense
importance of its decision to an applicant. But I can see no warrant for applying in this context notions
of "anxious scrutiny" (R v Secretary of State for the Home Department Ex p Bugdaycay [1987] AC
514 at 531G, per Lord Bridge of Harwich) or the enhanced approach to judicial review described by
Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at 546-548. I
would also demur at the suggestion of Laws LJ in the Court of Appeal in the present case ([2002] 1
WLR 2491 at 2513, [2002] EWCA Civ 239 , paragraph 44) that the judge may subject the decision to "a
close and rigorous analysis" if by that is meant an analysis closer or more rigorous that would ordinarily
and properly be conducted by a careful and competent judge determining an application for judicial
review.

8. Is this quality of review sufficient to meet the requirements of article 6(1) on the assumption that a
"civil right" is in issue? It is plain that the county court judge may not make fresh findings of fact and
must accept apparently tenable conclusions on credibility made on behalf of the authority. The question
is whether this limitation on the county court judge's role deprives him of the jurisdiction necessary to
satisfy the requirement of article 6(1) in the present context.

9. In approaching this question I regard three matters as particularly pertinent:

(1) Part VII of the 1996 Act is only part of a far-reaching statutory scheme regulating the important
social field of housing. The administration of that scheme is very largely entrusted to local housing
authorities. While the homelessness provisions are of course intended to assist those individuals who are
or may become homeless, there is a wider public dimension to the problem of homelessness, to which
attention was drawn in O'Rourke v Camden London Borough Council [1988] AC 188 at 193 C-E.

(2) Although, as in the present case, an authority may have to resolve disputed factual issues, its
factual findings will only be staging posts on the way to the much broader judgments which the
authority has to make. In deciding whether it owes the full housing duty to an applicant under section
193(1) the authority has to be "satisfied" of three matters and "not satisfied" of another. Under section
193(7)(b) the authority ceases to be subject to the full housing duty if it is "satisfied that the
accommodation [offered to the applicant] was suitable for [the applicant] and that it was reasonable for
him to accept it." Thus it is the authority's judgment which matters, and it is unlikely to be a simple
factual decision. This is exemplified by the letter of 27 July 2001 written to Runa Begum by Mrs Hayes
following the review, which included this passage:

"I consider that the property offered is both suitable for you and your children in that the
physical attributes are in accordance with the Council's Allocation Criteria, and I further
consider that it is reasonable to expect yourself and your household to occupy the property
offered as I consider that the area in which Balfron Towers is located is no different to any other
area within the London Borough of Tower Hamlets . . ."

(3) Although it seems to me obvious, as I have said, that the reviewer is not independent of the
authority which employs him or her, section 203 of the 1996 Act and The Allocation of Housing and
Homelessness (Review Procedures) Regulations 1999 (S1 1999/71) do provide safeguards that the
review will be fairly conducted. Thus the reviewer must be senior to the original decision-maker
(section 203(2)(a), regulation 2), plainly to avoid the risk that a subordinate may feel under pressure to
rubber-stamp the decision of a superior. The reviewer must not have been involved in making the
original decision (ibid), to try to ensure that the problem is addressed with a genuinely open mind. The
applicant has a right to make representations, and must be told of that right (regulation 6(2)). Such
representations must be considered (regulation 8(1)). The applicant is entitled to be represented
(regulation 6(2)). If the reviewer finds a deficiency or irregularity in the original decision, or in the
manner in which it was made, but is nonetheless inclined to make a decision adverse to the applicant,
the applicant must be informed and given an opportunity to make representations (regulation 8(2)). The
reviewer must give reasons for a decision adverse to the applicant (section 203(4)). The applicant must
be told of his right to appeal to the county court on a point of law (section 203(5)). These rules do not
establish the reviewer as an independent and impartial tribunal, but they preclude unreasoned decision-
making by an unknown and unaccountable bureaucrat whom the applicant never has a chance to seek to
influence, and any significant departure from these procedural rules prejudicial to the applicant would
afford a ground of appeal.

10. In the course of his excellent argument, Mr Paul Morgan QC submitted that where, as in the
present case, factual questions rise they should be referred for decision by an independent fact-finder.
This solution received some support from the Court of Appeal in Adan v Newham London Borough
Council [2002] 1 WLR 2120, [2001] EWCA Civ 1916 I have very considerable doubt whether the
resolution of applications for review, or any part of such process, is a function of the authority within
the scope of article 3 of The Local Authorities (Contracting Out of Allocation of Housing and
Homelessness Functions) Order 1996 (SI 1996/3205), from which authority to refer was said to derive.
But even if that question were resolved in Runa Begum's favour, the proposed procedure would, in
cases where it was adopted, (a) pervert the scheme which Parliament established, and (b) open the door
to considerable debate and litigation, with consequent delay and expense, as to whether a factual issue,
central to the decision the reviewer had to make, had arisen. I fear there would be a temptation to avoid
making such explicit factual findings as Mrs Hayes, very properly, did.

11. In relation to the requirements of article 6(1) as applied to the review by a court of an
administrative decision made by a body not clothed with the independence and impartiality required of
a judicial tribunal, the Strasbourg jurisprudence (as in relation to "civil rights") has shown a degree of
flexibility in its search for just and workmanlike solutions. Certain recent authorities are of particular
importance: Zumtobel v Austria (1993) 17 EHRR 116 at 132-133, para 32; ISKCON v United
Kingdom (1994) 18 EHRR CD 133 at 144-145, para 4; Bryan v United Kingdom (1995) 21 EHRR 342
at 354 (concurring opinion of Mr Bratza) and 361, para 47; Stefan v United Kingdom (1997) 25 EHRR
CD 130 at 135; X v United Kingdom (1998) 25 EHRR CD 88 at 97; Kingsley v United Kingdom (2000)
33 EHRR 288 at 302-303, paras 52-54; (2002) 35 EHRR 177 at 186-188, paras 32-34. None of these
cases is indistinguishable from the present, but taken together they provide compelling support for the
conclusion that, in a context such as this, the absence of a full fact-finding jurisdiction in the tribunal to
which appeal lies from an administrative decision-making body does not disqualify that tribunal for
purposes of article 6(1). This is a conclusion which I accept the more readily because it gives effect to a
procedure laid down by Parliament which should, properly operated, ensure fair treatment of applicants
such as Runa Begum.

LORD HOFFMANN

My Lords,

12. On 1 February 2000 Runa Begum, estranged from her husband and no longer welcome at her
mother's house in Wapping, presented herself to the Tower Hamlets London Borough Council ("the
council") as threatened with homelessness. In accordance with its duty under section 184 of the Housing
Act 1996, the council made inquiries to ascertain whether she was eligible for assistance and if so, what
duty she was owed under Part VII of the Act. Meanwhile, as provided in section 188, she and her child
were provided with temporary accommodation; first in an hotel and then in a flat in Limscott House,
Bruce Road, Bow, under a non-secure tenancy, terminable upon a month's notice. After making its
inquiries the council wrote to her on 11 April 2000 saying that it was satisfied that she was homeless,
eligible for assistance and in priority need. Accordingly it owed a duty under section 193 to secure that
accommodation was available for her.

13. In discharge of this duty, the council wrote to her on 6 July 2001 offering her, under Part VI of
the Act, a secure tenancy of a two bedroom flat on the third floor of Balfron Tower in Poplar. The letter
warned her that if she unreasonably refused the offer, the council's duties in respect of her would be
discharged and she would be required to leave the flat in Bow. This reflected section 193(7), which
provides that if an applicant, having been informed of the possible consequence of refusal, refuses to
accept an offer under Part VI and the authority are satisfied "that the accommodation was suitable for
him and that it was reasonable for him to accept it", it may give the applicant notice that its duty under
section 193 has ceased.

14. Runa Begum did not like Balfron Tower and wrote on 12 July 2001 giving four reasons. First, the
area was "drug addicted". Secondly, it was racist. Thirdly, she had actually been robbed by two youths
near the property after a visit. Fourthly, her husband frequently visited the block to see friends.

15. Under section 202 Runa Begum was entitled to request a review of the council's decision. The
procedure for a review is prescribed by the Allocation of Housing and Homelessness (Review
Procedures) Regulations 1999 (SI 1999/71). The reviewing officer must be someone who was not
involved in the original decision and senior to the officer who made it (regulation 2). The council must
notify the applicant of the procedure to be followed and her right to make representations in writing.

16. Runa Begum requested a review, which was conducted by Mrs Sue Hayes, the council's
rehousing manager. Mrs Hayes asked the estate officer about the character of the area and inquired of
the police about the robbery. The investigating officer expressed scepticism about Runa Begum's
credibility; she had contradicted herself and he thought it was a bogus report. Runa Begum wrote
another letter on 16 July (about her husband's friends in the block) and a council officer interviewed her
on the same day. On 27 July Mrs Hayes gave her decision. She rejected Runa Begum's reasons for
refusal as unreasonable: the estate officer had satisfied her that there were no serious drug or racial
problems in the area; she noted discrepancies in the accounts Runa Begum had given of the robbery to
council officers and the police and indicated that she was not persuaded that it had happened. She was
also not satisfied that the relationship between Runa Begum and her husband made it intolerable that
she should risk meeting him in the vicinity of the flats.

17. Section 204 provides that an applicant who is dissatisfied with a decision on review may appeal
to the county court on "any point of law arising from the decision". This enables the applicant to
complain not only that the council misinterpreted the law but also of any illegality, procedural
impropriety or irrationality which could be relied upon in proceedings for judicial review: Nipa Begum
v Tower Hamlets London Borough Council [2000] 1 WLR 306

18. The original grounds of appeal raised the normal judicial review grounds: the council acted
irrationally, it failed to make proper inquiries, did not have regard to material factors and so on. But on
14 December 2001 the Court of Appeal gave judgment in Adan v Newham London Borough
Council [2002] 1 WLR 2120. In that case the council had decided that an applicant for Part VII
accommodation was ineligible because she was not habitually resident in the United Kingdom. The
reviewing officer confirmed the decision and she appealed to the county court. The appeal was heard
and allowed (on the ground of irrationality); the decision was quashed and the matter remitted to the
council for a fresh review. Judgment was given on 6 October 2000, a few days after the Human Rights
Act 1998 had come into force. The judge noted that section 6 of that Act made it unlawful for the
council, as a public authority, to act in a way which was incompatible with a Convention right. He was
concerned that the council, when conducting the fresh review, should not infringe the applicant's right
under article 6 to have her civil rights determined by an "independent and impartial tribunal established
by law". He directed that the review should be conducted by a different reviewing officer who, in
respect of independence and impartiality, complied with article 6.

19. The Court of Appeal set aside the judge's direction on the ground that the county court had no
jurisdiction to make an order of mandamus and that was what the judge had done. The council would
know that it had to comply with section 6(1); the judge, though no doubt only trying to be helpful, could
not tell them how to do so.

20. Having allowed the appeal on that ground, the court went on, in an extended obiter dictum, to
consider the effect of article 6 on decisions under Part VII. In order that article 6 should apply at all, it
was necessary that the council's decision should determine a "civil right" of the applicant within the
meaning of the Convention. That is a question not without complexity, as will appear later, but
in Adan counsel were content to proceed on the assumption that it did. The next question was whether
the original reviewing officer, employed by the council, was an independent and impartial tribunal;
again, it was conceded that he was not. The third question was whether, notwithstanding the lack of
independence of the reviewing officer, the composite procedure of his decision subject to an appeal on
law to an independent county court was sufficient to satisfy article 6.

21. The Court of Appeal considered that in practice the composite procedure would in most cases be
sufficient. It would not however be adequate if the housing officers had to "resolve a dispute of fact
which [was] material to the decision": see Brooke LJ at [2002] 1 WLR 2120, 2128. As there was no
appeal on fact, there was in that respect no composite procedure.

22. What in such a case was the council to do? The answer which recommended itself to a majority
of the Court of Appeal was that it should exercise its powers under article 3 of the Local Authorities
(Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996 (SI 1996/ 3205)
which provides in general terms that any function of an authority under Part VII "may be exercised
by...such person...as may be authorised in that behalf by the authority." Thus they could contract out
their reviewing functions as a whole or those which they thought likely to give rise to material disputes
of fact. Hale LJ had very considerable reservations about whether this was a sensible idea and preferred
to give an extended meaning to the right of appeal on points of law, so as to enable the county court to
deal with most questions of fact, but this did not appeal to the majority.

23. A few days after the decision in Adan had been handed down, Runa Begum's solicitors wrote to
the council to say that they proposed to amend the grounds of appeal to allege that it had acted in breach
of section 6 of the 1998 Act by failing to contract out a review decision which turned on questions of
disputed fact. When the appeal came before Judge Roberts on 21 December 2001, he dealt with this
ground as a preliminary point and, with some reservations, followed the majority dicta in Adan and
quashed the decision.

24. The Court of Appeal (Lord Woolf CJ, Laws and Dyson LJJ) allowed the council's appeal. On that
occasion Mr Underwood QC, on behalf of the council, made no concessions on the issues of whether
Runa Begum's "civil rights" were engaged or whether Mrs Hayes was an independent and impartial
tribunal. But the court, in a judgment delivered by Laws LJ, found against him on both points. It was on
the third question, as to whether the composite procedure satisfied article 6 despite the appeal being
only on law, that the Court of Appeal disagreed with the dicta in Adan and allowed the appeal. Laws LJ
said that one could not have different systems of adjudication according to the degree of factual dispute.
One had to look at the scheme of Part VII as a whole. If it was systematically likely to throw up issues
of primary fact, it might be necessary to have either an independent reviewer or a full right of appeal.
On the other hand, if it was systematically likely to require the exercise of discretion or the application
of policy, an appeal limited to the grounds for judicial review would be sufficient. He considered that
Part VII fell into the second category.

25. Runa Begum appeals to your Lordships' House and all three of the issues decided by the Court of
Appeal have been argued by Mr Morgan QC for Runa Begum and Mr Underwood for the council. In
addition, the First Secretary of State was, on account of the general importance of the case for the public
administration, given leave the intervene. Mr Sales on his behalf advanced arguments in support of the
council's position on the first issue - the existence of civil rights to be determined - and the third issue
on the composite procedure.

26. He did not however feel able to support the council on the question of whether Mrs Hayes was an
independent and impartial tribunal. Mr Underwood's submission was that there is no adversarial
relationship between the council, on whose behalf Mrs Hayes made the decision, and Runa Begum. It is
the business of the council to secure accommodation for eligible applicants and if a flat which Runa
Begum preferred was not available, it was not because the council was keeping it for itself but because
it had let it to someone else. Runa Begum's interests are not in conflict with those of the council but
rather with those of other applicants; the council is neutral between them and Mrs Hayes is only
concerned to be fair to everyone. In carrying out the review she has to comply with the fairness
requirements of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999
and therefore acts quasi-judicially.

27. I am sure that this is a correct description of Mrs Hayes's position and the way she does her job.
But the argument misses the point. One of the purposes of article 6, in requiring that disputes over civil
rights should be decided by or subject to the control of a judicial body, is to uphold the rule of law and
the separation of powers: see Golder v United Kingdom (1975) 1 EHRR 524. If an administrator is
regarded as being an independent and impartial tribunal on the ground that he is enlightened, impartial
and has no personal interest in the matter, it follows there need not be any possibility of judicial review
of his decision. He is above the law. That is a position contrary to basic English constitutional
principles. It is also something which the Strasbourg court has been unable to accept. I need refer only
to the series of cases, cited in paragraph 83 of the opinions in R (Alconbury Developments Ltd) v
Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389 , 1415, in which
it has been held that Sweden was in breach of article 6 because there was no possibility of any form of
judicial review of government decisions determining civil rights. It is no disrespect to Mrs Hayes to say
that she is not an independent tribunal simply because she is an administrator and cannot be described
as part of the judicial branch of government.
28. I therefore return to the other two issues in dispute. But before looking at
them in any detail, it is necessary to notice how they are related to each other. The
dissenting opinion in Feldbrugge v The Netherlands (1986) 8 EHRR 425, 444
explains persuasively, by reference to the travaux préparatoires and other
background to the Convention, that the term "civil rights and obligations" was
originally intended to mean those rights and obligations which, in continental
European systems of law, were adjudicated upon by the civil courts. These were,
essentially, rights and obligations in private law. The term was not intended to
cover administrative decisions which were conventionally subject to review (if at
all) by administrative courts. It was not that the draftsmen of the Convention did not
think it desirable that administrative decisions should be subject to the rule of law.
But administrative decision-making raised special problems which meant that it
could not be lumped in with the adjudication of private law rights and made subject
to the same judicial requirements of independence, publicity and so forth. So the
judicial control of administrative action was left for future consideration.

29. In fact there has been no addition to the Convention to deal with
administrative decisions and the Strasbourg court has been left to develop the law.
It has done so in two ways. First, it has been concerned to ensure that state parties
do not exploit the gap left in article 6 by changing their law so as to convert a
question which would ordinarily be regarded as appropriate for civil adjudication
into an administrative decision outside the reach of the article. It has done this by
treating "civil rights and obligations" as an autonomous concept, not dependent
upon the domestic law classification of the right or obligation, which a citizen
should have access to a court to determine. Otherwise, as the court said in Golder v
United Kingdom (1975) 1 EHRR 524, 536, para 35:

"A Contracting State could, without acting in breach of [article 6], do away
with its courts, or take away their jurisdiction to determine certain classes of
civil actions and entrust it to organs dependent on the Government. Such
 assumptions, indissociable from a danger of arbitrary power, would have
serious consequences which are repugnant to [the rule of law] and which the
Court cannot overlook."

30. The second development has been the doctrine, starting with Ringeisen v
Austria (No 1) (1971) 1 EHRR 455, by which the Strasbourg court has extended
article 6 to cover a wide range of administrative decision-making on the ground that
the decision determines or decisively affects rights or obligations in private law. I
traced some of the history of this doctrine in my speech in Alconbury, at pp 1413-
1416, paras 77-88, and need not cover the same ground. More recently the scope of
article 6 has also been extended to public law rights, such as entitlement to social
security or welfare benefits under publicly funded statutory schemes, on the ground
that they closely resemble rights in private law: Salesi v Italy (1993) 26 EHRR 187.

31. I shall have more to say about these extensions of article 6 when I come to
deal with the first issue, but for the moment it is sufficient to note that from an early
stage the Strasbourg court has recognised that the extension of article 6 into
administrative decision-making has required what I called in Alconbury, at p 1415,
para 84, "substantial modification of the full judicial model". The most explicit
recognition of the problem was by the Commission in Kaplan v United
Kingdom (1980) 4 EHRR 64, 90, para 161, where, after noting the limited scope of
judicial review in many contracting states and in the law of the European Union, it
said:

"An interpretation of article 6(1) under which it was held to provide a right
to a full appeal on the merits of every administrative decision affecting
private rights would therefore lead to a result which was inconsistent with
the existing, and long-standing, legal position in most of the Contracting
States."

32. The Commission in Kaplan offered what would seem to an English lawyer an
elegant solution, which was not to classify the administrative decision as a
determination of civil rights or obligations, requiring compliance with article 6, but
to treat a dispute on arguable grounds over whether the administrator had
acted lawfully as concerned with civil rights and obligations, in respect of which the
citizen was entitled to access to a fully independent and impartial tribunal. By this
means a state party could be prevented from excluding any judicial review of
administrative action (as in the Swedish cases which I have mentioned) but the
review could be confined to an examination of the legality rather than the merits of
the decision.

33. The Strasbourg court, however, has preferred to approach the matter in a
different way. It has said, first, that an administrative decision within the extended
scope of article 6 is a determination of civil rights and obligations and therefore
prima facie has to be made by an independent tribunal. But, secondly, if the
administrator is not independent (as will virtually by definition be the case) it is
permissible to consider whether the composite procedure of administrative decision
together with a right of appeal to a court is sufficient. Thirdly, it will be sufficient if
the appellate (or reviewing) court has "full jurisdiction" over the administrative
decision. And fourthly, as established in the landmark case of Bryan v United
Kingdom (1995) 21 EHRR 342, "full jurisdiction" does not necessarily mean
jurisdiction to re-examine the merits of the case but, as I said in Alconbury, at p
1416, para 87, "jurisdiction to deal with the case as the nature of the decision
requires."

34. It may be that the effect of Bryan is that the Strasbourg court has arrived by
the scenic route at the same solution as the Commission advocated in Kaplan,
namely that administrative action falling within article 6 (and a good deal of
administrative action still does not) should be subject to an examination of its
legality rather than its merits by an independent and impartial tribunal. Perhaps that
is a larger generalisation than the present state of the law will allow. But, looking at
the matter as an English lawyer, it seems to me (as it did to the Commission
in Kaplan) that an extension of the scope of article 6 into administrative decision-
making must be linked to a willingness to accept by way of compliance something
less than a full review of the administrator's decision.

35. In this way the first and third issues are connected with each other. An
English lawyer can view with equanimity the extension of the scope of article 6
because the English conception of the rule of law requires the legality of virtually
all governmental decisions affecting the individual to be subject to the scrutiny of
the ordinary courts. As Laws LJ pointed out in the Court of Appeal [2002] 1 WLR,
2491, 2500, para 14, all that matters is that the applicant should have a sufficient
interest. But this breadth of scope is accompanied by an approach to the grounds of
review which requires that regard be had to democratic accountability, efficient
administration and the sovereignty of Parliament. As will appear, I think that the
Strasbourg jurisprudence gives adequate recognition to all three of these factors.

36. With that introduction, I turn to the two issues. I propose to take the third
issue first. Assuming that the duty owed by the council to Runa Begum under
section 193 was a "civil right", does the right of appeal on law under section 204
enable it to be determined by an independent and impartial tribunal?

37. This resolves itself, following the Strasbourg reasoning which I have
described, into the question of whether the county court had jurisdiction to deal
with the case as the nature of the decision required. Mr Morgan said
that Bryan and Alconbury showed that when a decision turns upon questions of
policy or "expediency", it is not necessary for the appellate court to be able to
substitute its own opinion for that of the decision maker. That would be contrary to
the principle of democratic accountability. But, when, as in this case, the decision
turns upon a question of contested fact, it is necessary either that the appellate court
have full jurisdiction to review the facts or that the primary decision-making
process be attended with sufficient safeguards as to make it virtually judicial.

38.

Bryan, said Mr Morgan, fell into the second of these categories. The court drew
attention, at pp 360-361, para 46, to the

"uncontested safeguards attending the procedure before the inspector: the

quasi-judicial character of the decision-making process; the duty incumbent
 on each inspector to exercise independent judgment; the requirement that
inspectors must not be subject to any improper influence; the stated mission
of the Inspectorate to uphold the principles of openness, fairness and
impartiality."

39. In the present case, while Mrs Hayes was no doubt an experienced local
government officer and statutory procedures existed to ensure basic fairness, there
was nothing like the panoply of quasi-judicial safeguards which attend a planning
inquiry. It follows that nothing less than a full appeal on the facts will do. Mr
Morgan relied, entirely reasonably, upon a dictum of my own in Alconbury, at p
1424, para 117:

"It is only when one comes to findings of fact, or the evaluation of facts,
such as arise on the question of whether there has been a breach of planning
control, that the safeguards are essential for the acceptance of a limited
review of fact by the appellate tribunal."

40. I have to confess that I think that was an incautious remark. The question
in Alconbury was whether the appellate tribunal had to be able to review the
Secretary of State's decisions based on policy. The extent to which it had to be able
to review questions of fact did not arise. To decide that question, it is necessary to
have another look at Bryan.

41. Bryan was certainly a case about the application of article 6 to decisions on
fact. In that respect it was distinguishable from Alconbury. But when one comes to
consider what Bryan decided, it is important to notice not only what the question
was (whether buildings were designed for the purposes of agriculture) but also the
context in which it arose, namely, as a ground of appeal against an enforcement
notice. The inspector's decision that Bryan had acted in breach of planning control
was binding upon him in any subsequent criminal proceedings for failing to comply
with the notice: R v Wicks[1998] AC 92 This part of the appeal against the
enforcement notice was closely analogous to a criminal trial and, as I noted
in Alconbury, at pp 1416-1419, paras 89-97, used to come before the magistrates.

42. A finding of fact in this context seems to me very different from the findings
of fact which have to be made by central or local government officials in the course
of carrying out regulatory functions (such as licensing or granting planning
permission) or administering schemes of social welfare such as Part VII. The rule of
law rightly requires that certain decisions, of which the paradigm examples are
findings of breaches of the criminal law and adjudications as to private rights,
should be entrusted to the judicial branch of government. This basic principle does
not yield to utilitarian arguments that it would be cheaper or more efficient to have
these matters decided by administrators. Nor is the possibility of an appeal
sufficient to compensate for lack of independence and impartiality on the part of the
primary decision maker: see De Cubber v Belgium (1984) 7 EHRR 236.

43. But utilitarian considerations have their place when it comes to setting up, for
example, schemes of regulation or social welfare. I said earlier that in determining
the appropriate scope of judicial review of administrative action, regard must be
had to democratic accountability, efficient administration and the sovereignty of
Parliament. This case raises no question of democratic accountability. As Hale LJ
said in Adan's case [2002] 1 WLR 2120, 2138, para 57:

"The policy decisions were taken by Parliament when it enacted the 1996
Act. Individual eligibility decisions are taken in the first instance by local
housing authorities but policy questions of the availability of resources or
equity between the homeless and those on the waiting list for social housing
are irrelevant to individual eligibility."

44. On the other hand, efficient administration and the sovereignty of Parliament
are very relevant. Parliament is entitled to take the view that it is not in the public
interest that an excessive proportion of the funds available for a welfare scheme
should be consumed in administration and legal disputes. The following passage
from the joint dissenting opinion in Feldbrugge v The Netherlands (1986) 8 EHRR
425, 443 did not persuade the majority to restrict the application of article 6 but
nevertheless seems to me highly material when one comes to consider the
procedures which will comply with it:

"The judicialisation of dispute procedures, as guaranteed by article 6(1), is

eminently appropriate in the realm of relations between individuals but not
necessarily so in the administrative sphere, where organisational, social and
economic considerations may legitimately warrant dispute procedures of a
less judicial and formal kind. The present case is concerned with the
operation of a collective statutory scheme for the allocation of public
welfare. As examples of the special characteristics of such schemes,
material to the issue of procedural safeguards, one might cite the large
numbers of decisions to be taken, the medical aspects, the lack of resources
or expertise of the persons affected, the need to balance the public interest
for efficient administration against the private interest. Judicialisation of
procedures for allocation of public welfare benefits would in many cases
necessitate recourse by claimants to lawyers and medical experts and hence
lead to an increase in expense and the length of the proceedings."

45. In similar vein, Justice Powell, delivering the opinion of the United States
Supreme Court in Matthews v Eldridge (1976) 424 US 319, 347 commented on the
requirements of "due process" in the administration of a disability benefit scheme:

"In striking the appropriate due process balance the final factor to be
assessed is the public interest. This includes the administrative burden and
other societal costs that would be associated with requiring, as a matter of
constitutional right, an evidentiary hearing upon demand in all cases prior to
the termination of disability benefits. The most visible burden would be the
incremental cost resulting from the increased number of hearings and the
expense of providing benefits to ineligible recipients pending decision...We
only need say that experience with the constitutionalizing of government
procedures suggests that the ultimate additional cost in terms of money and
administrative burden would not be insubstantial."

In Adan's case, counsel for Newham London Borough Council told the Court of
Appeal that the housing department received 3,000 applications a year under Part
VII, of which 500 went on to a review: [2002] 1 WLR 2120, 2126, para 10. This is
of course only a part of the duties of the housing department and, by contrast with
this experience of a single London borough, the number of appeals received by the
Planning Inspectorate for the whole of England in the year 2001-2002 was 16,776
(www.planning-inspectorate.gov.uk/forms/report_statistical_2001_2002

.pdf). In most cases there will probably also be more urgency about a decision on
homelessness than a planning appeal.

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. I certainly see nothing to recommend the recourse
to contracting out which was suggested by the majority in Adan's case. Some of the
arguments against it are well made by Hale LJ at p 2144, paras 77-78 of her
judgment. Four points seem to me important. First, if contracting out is not adopted
across the board, it would be bound to generate disputes about whether the factual
questions which had to be decided by the housing officer were sufficiently material
to require contracting out. Secondly, if it were adopted in every case, it would add
significantly to the cost and delay. Thirdly, it would mean that the housing officer,
instead of being able to exercise his discretionary powers, such as whether he
considered accommodation suitable for the applicant, on a first-hand assessment of
the situation, would be bound by a written report from the independent fact finder.
Fourthly, I am by no means confident that Strasbourg would regard a contracted
fact finder, whose services could be dispensed with, as more independent than an
established local government employee. In Adan's case, at pp 2134-2135, para 44,
Brooke LJ declined to become involved in "the practical difficulties that may arise
when trying to ensure that the third party has the requisite independence" but they
are worth thinking about.

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 Mr Underwood urged
about the impartiality of Mrs Hayes 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.

48. Mr Sales drew attention to the expanding scope of judicial review which, he
said, may, in a suitable case allow a court to quash a decision on the grounds of
misunderstanding or ignorance of an established and relevant fact: see the views of
Lord Slynn of Hadley in R v Criminal Injuries Compensation Board, Ex p A [1999]
2 AC 330 , 344-345 and in the Alconbury case [2001] 2 WLR 1389 , 1407, para 53
or, at least in cases in which Convention rights were engaged, on the ground of lack
of proportionality: R (Daly) v Secretary of State for the Home Department [2001] 2
AC 532 He said that this should be taken into account in deciding whether the
jurisdiction of the county court was adequate.

49. I do not think that it is necessary to discuss the implications of these

developments. No doubt it is open to a court exercising the review jurisdiction
under section 204 to adopt a more intensive scrutiny of the rationality of the
reviewing officer's conclusions of fact but this is not the occasion to enter into the
question of when it should do so. When one is dealing with a welfare scheme
which, in the particular case, does not engage human rights (does not, for example,
require consideration of article 8) then the intensity of review must depend upon
what one considers to be most consistent with the statutory scheme. In this case,
Laws LJ [2002] 1 WLR 2491, 2513, para 44, said that the county court judge was
entitled to subject Mrs Hayes's decision to "a close and rigorous analysis". On the
other hand 17 years ago Lord Brightman, speaking for a unanimous Appellate
Committee in R v Hillingdon London Borough Council, Ex p Puhlhofer [1986] AC
484, 518, made it clear that their Lordships contemplated a fairly low level of
judicial interventionism:

"Parliament intended the local authority to be the judge of fact. The Act
abounds with the formula when, or if, the housing authority are satisfied as
to this, or that, or have reason to believe this, or that. Although the action or
inaction of a local authority is clearly susceptible to judicial review where
they have misconstrued the Act, or abused their powers or otherwise acted
perversely, I think that great restraint should be exercised in giving leave to
proceed by judicial review"

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 VII decision, engaging no human rights other than article 6,
conventional judicial review such as the Strasbourg court considered in
the Bryan case (1995) 21 EHRR 342 is sufficient.

51. Is this view consistent with the Strasbourg jurisprudence and with Bryan in
particular? I think it is. The great principle which Bryan decided, at p 360, para 45,
was that

"in assessing the sufficiency of the review...it is necessary to have regard to

matters such as the subject matter of the decision appealed against, the
manner in which that decision was arrived at, and the content of the dispute,
including the desired and actual grounds of appeal."

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. In Bryan , at p
361, para 47, the court said:

"Such an approach by an appeal tribunal on questions of fact can reasonably

be expected in specialised areas of the law such as the one at issue,
particularly where the facts have already been established in the course of a
quasi-judicial procedure governed by many of the safeguards required by
article 6(1). It is also frequently a feature in the systems of judicial control
of administrative decisions found throughout the Council of Europe
Member States."

54. The word "particularly" indicates that the court did not think that the full
range of "safeguards" which exist at a planning inquiry would always be needed
and I have already explained why I think that Bryan was an exceptional case in
which the court could reasonably have been expected to show some anxiety on the
question of safeguards. In the normal case of an administrative decision, however,
fairness and rationality should be enough.

55. This interpretation is in my view confirmed by dicta of the court cited with
approval by the Grand Chamber in Kingsley v United Kingdom (2002) 35 EHRR
177, 187. That concerned a decision by the Gaming Board as to whether Kingsley
was a fit and proper person to hold a management position in the gaming industry.
The question turned entirely upon the truth of allegations by the Board that he had
been involved in various undesirable practices. After a hearing, the Board decided
that the allegations were proved. One of the complaints made by Kingsley and
upheld both in the English courts and in Strasbourg was that the chairman of the
Board had shown bias by pre-judging his case. But the English courts said that no
domestic remedy existed because the Gaming Board, including its chairman, was
the only body with statutory power to decide whether he was a fit and proper person
or not. The Strasbourg court ((2001) 33 EHRR 288) held that because there was no
remedy, English law was in breach of article 6. None of this is relevant to our
present concerns. But Kingsley also made a general complaint about the adequacy
of the hearing. This the court rejected, at p 302, para 53:

"The court notes that the present case concerns the regulation of the gaming
industry, which, due to the nature of the industry, calls for particular
monitoring. In the United Kingdom, the monitoring is undertaken by the
Gaming Board pursuant to the relevant legislation. The subject matter of the
decision appealed against was thus a classic exercise of administrative
discretion, and to this extent the current case is analogous to the case
of Bryan, where planning matters were initially determined by the local
authority and then by an inspector...The court does not accept the applicant's
 contentions that, because of what was at stake for him, he should have had
the benefit of a full court hearing on both the facts and the law."

56. The key phrases in the judgments of the Strasbourg court which describe the
cases in which a limited review of the facts is sufficient are "specialised areas of the
law" (Bryan's case, at p 361, para 47) and "classic exercise of administrative
discretion" (Kingsley's case, at p 302, para 53). What kind of decisions are these
phrases referring to? I think that one has to take them together. The notion of a
specialised area of the law should not be taken too literally. After all, I suppose
carriage of goods by sea could be said to be a specialised area of the law, but no one
would suggest that shipping disputes should be decided otherwise than by normal
judicial methods. It seems to me that what the court had in mind was those areas of
the law such as regulatory and welfare schemes in which decision-making is
customarily entrusted to administrators. And when the court in Kingsley spoke of
the classic exercise of administrative discretion, it was referring to the ultimate
decision as to whether Kingsley was a fit and proper person and not to the particular
findings of fact which had to be made on the way to arriving at that decision. In the
same way, the decision as to whether the accommodation was suitable for Runa
Begum was a classic exercise of administrative discretion, even though it involved
preliminary findings of fact.

57. National traditions as to which matters are suitable for administrative

decision and which require to be decided by the judicial branch of government may
differ. To that extent, the Strasbourg court will no doubt allow a margin of
appreciation to contracting states. The concern of the court, as it has emphasised
since Golder's case (1975) 1 EHRR 524 is to uphold the rule of law and to insist
that decisions which on generally accepted principles are appropriate only for
judicial decision should be so decided. In the case of decisions appropriate for
administrative decision, its concern, again founded on the rule of law, is that there
should be the possibility of adequate judicial review. For this purpose, cases
like Bryan and Kingsley make it clear that limitations on practical grounds on the
right to a review of the findings of fact will be acceptable.
58. For these reasons I agree with the Court of Appeal that the right of appeal to
the court was sufficient to satisfy article 6. I should however say that I do not agree
with the view of Laws LJ that the test for whether it is necessary to have an
independent fact finder depends upon the extent to which the administrative scheme
is likely to involve the resolution of disputes of fact. I think that a spectrum of the
relative degree of factual and discretionary content is too uncertain. I rather think
that Laws LJ himself, nine months later, in R (Beeson's Personal Representatives) v
Secretary of State for Health [2002] EWCA Civ 1812, (unreported) 18 December
2002, had come to the same conclusion. He said, at para 15:

"There is some danger, we think, of undermining the imperative of legal

certainty by excessive debates over how many angels can stand on the head
of the article 6 pin."

59. Amen to that, I say. In my opinion the question is whether, consistently with
the rule of law and constitutional propriety, the relevant decision-making powers
may be entrusted to administrators. If so, it does not matter that there are many or
few occasions on which they need to make findings of fact. The schemes for the
provision of accommodation under Part III of the National Assistance Act 1948,
considered in Beeson's case; for introductory tenancies under Part V of the Housing
Act 1996, considered in R (McLellan) v Bracknell Forest Borough Council [2002] 2
WLR 1448; and for granting planning permission, considered in R (Adlard) v
Secretary of State for the Environment, Transport and the Regions [2002] 1 WLR
2515 all fall within recognised categories of administrative decision making.
Finally, 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.

60. This conclusion makes it unnecessary for me to decide whether the council's
decision did determine Runa Begum's civil rights. I have proceeded so far on the
assumption that it did. But the assumption was vigorously contested by Mr
Underwood and Mr Sales and so I shall say something about it.

61. As I mentioned earlier, the Strasbourg court has extended the notion of a
determination of civil rights in two ways: first, to administrative decisions which
determine or affect rights in private law and secondly to entitlements under public
social security or welfare schemes which are sufficiently well defined to be
analogous to rights in private law. Mr Morgan relies upon both of these doctrines.
He says, taking them in reverse order, that Runa Begum's right to accommodation
under section 193 was within the doctrine by which rights under social welfare
schemes may be classified as civil rights. Alternatively, the council's decision that it
owed Runa Begum no further duty under section 193 had a decisive effect upon her
private law rights as a non-secure tenant of her temporary accommodation in Bow.
It enabled the council to terminate that tenancy and they did in fact serve her with a
notice to quit.

62. The starting point for the jurisprudence on social security and social welfare
schemes is the decisions of the Court in Feldbrugge v The Netherlands (1986) 8
EHRR 425 and Deumeland v Germany (1986) 8 EHRR 448, two cases in which the
judgments were delivered on the same day and are for practical purposes identical.
Both concerned claims to social security benefits: Mrs Feldbrugge was claiming a
sickness allowance because she said she had been unfit for work and Frau
Deumeland was claiming a supplementary widow's pension on the ground that her
husband had died in consequence of an industrial accident. Mrs Feldbrugge
complained that she had not received a fair hearing from the administrative tribunal
which rejected her claim. Frau Deumeland complained that the Berlin Social
Security Court had not accorded her a hearing "within a reasonable time". But in
both cases the question was whether the claim to the benefit was a "civil right".

63. In both cases the right was created by public legislation which laid down the
qualifying conditions and the rates of payment. It was an assumption by the state of
responsibility for the financial security of employees and their dependants. But it
had certain affinities with private insurance - employees paid contributions - and, as
the court said in a critical passage in Feldbrugge, at p 434, para 37:

"Mrs Feldbrugge was not affected in her relations with the public authorities
as such, acting in the exercise of discretionary powers, but in her personal
capacity as a private individual. She suffered an interference with her means
 of subsistence and was claiming a right flowing from specific rules laid
down by the legislation in force.
For the individual asserting it, such a right is often of crucial importance;
this is especially so in the case of health insurance benefits when the
employee who is unable to work by reason of illness enjoys no other source
of income. In short, the right in question was a personal, economic and
individual right, a factor that brought it close to the civil sphere."

64. For these reasons, and despite a powerful dissent from seven members of the
court who said that the distinction between public and private law rights was being
eroded in a way which would create great uncertainty, the majority decided that the
features of private law were cumulatively predominant. It was therefore a civil right
within the meaning of article 6.

65. There was a further development in Salesi v Italy (1993) 26 EHRR 187, when
the principle of Feldbrugge was applied to welfare payments which lacked the
insurance analogy of social security payments. They were not contributory and
unrelated to employment. But the court decided unanimously that the claim was a
civil right. It repeated the passage I have cited from Feldbrugge and said that the
most important feature of the right to a social welfare payment was that it is
individual, economic and flowing from specific statutory rules. In reliance on these
decisions and also Mennitto v Italy (2000) 34 EHRR 1122, in which Salesi was
followed, Mr Morgan submitted that the right to accommodation under section 193,
although a benefit in kind rather than cash, is also personal, economic and flowing
from specific statutory rules. The fact that it is a benefit in kind necessarily means
that the council has discretion about the nature of the accommodation it will
provide, but in principle there is a right to accommodation and not merely a claim
to the exercise of the council's discretion.

66. That was the view taken by Hale LJ in Adan's case [2002] 1 WLR 2120,
2137, para 55. Although, as I have said, the point was conceded, she said:

"Once the local authority are satisfied that the statutory criteria for providing
accommodation exist, they have no discretion. They have to provide it,
irrespective of local conditions of demand and supply. Hence this 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
resource considerations may also be relevant."

67. Mr Underwood, on the other hand, drew attention to the elements of

discretion both in the steps leading up to the acceptance of a duty under section 193
and in the ways in which it may be discharged. By section 206(1) the council may
discharge its duty by providing accommodation itself, or by securing that an
applicant obtains accommodation from someone else, or by giving him such advice
and assistance as will secure that suitable accommodation is available from
someone else. The whole scheme is shot through with discretions in which either
the council's duty is dependent upon it being "satisfied" of some state of affairs or
can be discharged in various ways of its own choosing. By contrast,
in Mennitto (2000) 34 EHRR 1122,1130, para 25, the court said that the
management committee of the local public health service

"After verifying that the applicant satisfied the conditions for entitlement to
the allowance...should simply have made an arithmetical calculation of the
quantum."

68. The existence of a fair amount of discretion was one of the matters taken into
account by the House when it decided in O'Rourke v Camden London Borough
Council [1998] AC 188 that Part VII (or rather, its predecessor in the Housing Act
1985) did not give rise to rights in private law, whether for damages or an
injunction. But I think it is fair to say that the main ground of decision was that a
scheme of social welfare which creates a statutory duty to provide benefits in kind
will not ordinarily be taken to confer upon the beneficiaries private law rights in
addition to their rights in public law to secure compliance with the duty: see p
193. O'Rourke is certainly authority for the proposition that the rights created by
Part VII are not actionable in English private law, but that is very different from the
question of whether they are civil rights within the autonomous meaning of that
expression in article 6. It is one thing to say that the Parliament did not intend a
breach by the council of its statutory duty under Part VII to be actionable in
damages; it is quite another to say that the actions of the local authority should be
immune from any form of judicial review.

69. For my part I must say that I find the reasoning of Hale LJ in Adan's case
persuasive. But then, as Laws LJ has said, both in the present case [2002] 1 WLR
2491, 2500, and in Beeson's case [2002] EWCA Civ 1812, at paras 17-19, an
English lawyer tends to see all claims against the state which are not wholly
discretionary as civil rights and to look with indifference upon the casuistry that
finds the need to detect analogies with rights in private law. On the other hand, I
think that to apply the Salesi doctrine to the provision of benefits in kind, involving
the amount of discretion which is inevitably needed in such cases, is to go further
than the Strasbourg court has so far gone. This would not matter - domestic courts
are perfectly entitled to accord greater rights than those guaranteed by the
Convention - provided that it was acceptable that the scope of judicial review
should be limited in the way it is by section 204. If, however, it should be decided
in Strasbourg that the administration of social welfare benefits falling within
the Salesi principle requires a more intrusive form of judicial review, I would not
wish to place any obstacle in the way of the UK government arguing that, in a case
such as this, the principle does not apply at all.

70. For that reason only, I would prefer not to decide whether rights under
section 193 should be classified as civil rights. It is sufficient to say that, assuming
that they are, the right of appeal under section 204 is sufficient to satisfy article 6.
As for Mr Morgan's alternative argument, I think that it is highly artificial and I
would reject it. Runa Begum's private law rights as an unsecured tenant of the
council were unaffected by its decision as to whether or not it continued to owe a
duty under section 193. The council was entitled to terminate the tenancy by notice
at any time, whatever its duties under Part VII might be. If it terminated her tenancy
when she was still owed a duty - for example, because it thought that flat was more
suitable for another person - it would have had to find her somewhere else to live.
But that statutory duty would not affect her private law rights in respect of the flat
in Limscott House.

71. Mr Morgan relied upon the decision of the Court of Appeal in R (McLellan) v
Bracknell Forest Borough Council [2002] 2 WLR 1448, in which it was held that a
decision to terminate an introductory tenancy granted under Part V of the 1996 Act
affected the tenant's private law rights under his tenancy. It is not necessary to
comment upon that case because in my view it is plainly distinguishable. Part V
requires the authority to give reasons why it proposes to terminate an introductory
tenancy and section 129(2) gives the tenant the right to require the authority to
review its decision to terminate. Thus the rights which the Act confers upon the
tenant, such as the right to ask for a review, affect his rights as a tenant in private
law because unless the authority complies with the Act, it cannot terminate the
tenancy. That is quite different from the present case in which the Act contains no
restraint upon a decision of the council to terminate a tenancy granted by way of
providing temporary accommodation under Part VII.

72. For these reasons I would dismiss the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

73. I have had the advantage of reading in draft the speeches of my noble and
learned friends Lord Bingham of Cornhill and Lord Hoffmann. I agree with them,
and for the reasons which they have given I too would dismiss the appeal.

LORD MILLETT

My Lords,

74. The questions with which this appeal is concerned arise out of a dispute
whether the statutory duties under Part VII of the Housing Act 1996 ("the Act")
which the council owed to Runa Begum as an unintentionally homeless person
continued to subsist (as she contended) or had ceased (as the council contended).
This turned on whether the accommodation which the council had offered her and
which she had refused was suitable for her and whether it was reasonable for her to
accept it. An officer of the council decided these questions adversely to Runa
Begum. She exercised her statutory right to ask for an internal review of the
decision. In accordance with the applicable Regulations the review was conducted
by Mrs Hayes, the council's rehousing manager, an officer of the council who was
not involved in the original decision and was senior to the officer who made it. She
made her own investigations into the reasons which Runa Begum gave for refusing
the accommodation and confirmed the original decision. Runa Begum then
appealed to the county court under section 204 of the Act. This provides that an
applicant who is dissatisfied with a decision on review may appeal to the county
court but on a point of law only.

75. The question for your Lordships is whether Runa Begum has been denied her
Convention rights under article 6(1) of the European Convention on Human Rights.
In the determination of a person's "civil rights and obligations" article 6(1)
guarantees him or her "a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law". Runa Begum contends that
she has been denied such a hearing because (i) her civil rights have been determined
on review by an officer of the council, who was not an independent and impartial
tribunal as required by article 6(1); and (ii) the defect could be cured only by a right
of appeal to a court with "full jurisdiction", which the county court did not possess
because it lacked any power to reverse any findings of fact which the reviewing
officer had made.

76. Three issues arise: (i) whether the decision of the reviewing officer
determined Runa Begum's "civil rights", for if it did not then article 6(1) is not
engaged at all; (ii) whether the reviewing officer was an independent tribunal for
the purposes of article 6; and (iii) if she was not, whether her want of independence
was cured by a right of appeal to a court on a point of law only.

77. These issues are closely interrelated, for the greater the scope of article 6(1)
the more necessary it becomes to temper its requirements, and in particular the
requirement of independence, in the interests of the efficient administration of
justice.

The first issue: is article 6(1) engaged?

78. The question here is whether the reviewing officer's decision that the council
no longer owed its full housing duty to Runa Begum constituted a determination of
her "civil rights" within the meaning of article 6(1). The European Court of Human
Rights ("the Strasbourg Court") has repeatedly stated that the first step is to
ascertain whether there was a contestation (dispute) over a "right" which can be
said, at least on arguable grounds, to be recognised under national law. The dispute
must be genuine and serious; it may relate not only to the actual existence of a right
but also to its scope and the manner of its exercise; and the outcome of the
proceedings must be directly decisive of the right in question: see, for
example, Mennitto v Italy (2000) 34 EHRR 1122, 1129, para 23.

79. This requirement is clearly satisfied in the present case. Once a local housing
authority is satisfied that an applicant is homeless, eligible for assistance, and has a
priority need, and is not satisfied that the applicant has become homeless
intentionally, it is under a statutory duty to secure that accommodation is made
available for his or her occupation. It is not a duty to secure the provision of
accommodation if it thinks fit, which would make the outcome of the application
unpredictable. It is a duty to secure the provision of accommodation in the case of
any applicant who satisfies the statutory criteria. Once the duty arises, the applicant
has a corresponding legal right to its performance. The housing authority has a wide
discretion as to the manner in which it will perform its duty, but that is not
inconsistent with the existence of a corresponding right. An applicant has a legal
right, recognised by our domestic law, to have the duty performed by the local
housing authority in one or other of the ways which are open to it.

80. Runa Begum fulfilled the relevant criteria and accordingly, as the council
acknowledged, it owed her the full housing duty and she had a corresponding legal
right to its performance. But it claimed that its statutory duty, and with it her
corresponding right, had ceased, because it had offered her suitable accommodation
and she had unreasonably refused it.

81. Whether the accommodation which the council had offered to her and
whether it was reasonable for her to occupy it depended in large measure on
housing conditions prevailing in the area. The determination of the dispute therefore
called for an exercise of judgment on the part of a reviewing officer with experience
of such conditions. These factors made the dispute one which was eminently
suitable for determination by a senior officer of the council's housing department,
but they do not prevent it from involving a determination of her legal rights.

82. Whether those rights should be classified as "civil rights" within the meaning
of article 6(1) is, however, a very difficult question. According to the consistent
case law of the Strasbourg court the concept of "civil rights and obligations" is
autonomous. Its scope cannot be determined solely by reference to the domestic law
of the respondent state: König v Federal Republic of Germany (1978) 2 EHRR 170,
192-193, para 88; Benthem v Netherlands (1985) 8 EHRR 1, 9, para 34. Any other
conclusion could lead to results incompatible with the object and purpose of the
Convention, since it would be open to contracting states, by reclassifying the rights
granted by their own domestic legal systems, to exclude particular categories of
civil actions from the operation of article 6(1). The fact that Runa Begum's statutory
rights fall to be classified by English law as rights in public law is, therefore, not
conclusive.

83. While the concept of "civil rights" is autonomous, however, the content of the
right in question under domestic law is highly relevant. As the Strasbourg court
observed in König v Federal Republic of Germany, at p 193, para 89:

"Whether or not a right is to be regarded as civil within the meaning of this

expression in the Convention must be determined by reference to the
substantive content and effects of the right - and not its legal classification -
under the domestic law of the State concerned. In the exercise of its
supervisory functions, the Court must also take account of the object and
purpose of the Convention and of the national legal systems of the other
contracting States."

84. The difficulty in deciding whether Runa Begum's claim to accommodation

was an assertion of her "civil rights" within the meaning of article 6(1) arises from
the fact that the jurisprudence of the Strasbourg court in relation to the scope of
article 6(1) is still in course of development.

85. Article 6(1) was originally intended to have a more limited application than a
common lawyer would suppose. It is confined to the determination of civil rights
and criminal charges, and in civilian systems these do not cover the whole field.
There are three systems of justice in Europe, civil, criminal, and administrative, the
last-named covering all actions against the state. In Ferrazini v Italy (2001) 34
EHRR 1068 the Strasbourg court held that the article 6(1) guarantee of a fair trial
within a reasonable time does not apply to tax cases. Taxation is a core prerogative
of the state and in civilian systems does not involve the taxpayer's civil rights.
Many alleged criminals and civil litigants have obtained rulings from the
Strasbourg court that the long delays inherent in the Italian justice system infringe
article 6(1); but ordinary taxpayers cannot do so.

86. This is not because taxpayers are ranked lower than bogus asylum seekers,
suspected terrorists and alleged criminals, including those charged with tax fraud,
but because article 6(1) was intended to be supplemented by further measures in
relation to the making of administrative decisions. These would, no doubt, have
included guarantees of fairness, impartiality and a hearing within a reasonable time;
but any requirement that the hearing should be in public before an independent
tribunal would have serious consequences for efficient administration. The
background is described in the dissenting opinion in Feldbrugge v The
Netherlands (1986) 8 EHRR 425, 444, and is summarised in the speech of my noble
and learned friend Lord Hoffmann.

87. No such measures have been introduced, and in their absence the Strasbourg
court has found it necessary to extend the scope of article 6(1) to cover some, but
not all, administrative decisions. The process has been a gradual one, and may not
yet be complete. Underlying the process there must, I think, have been a desire not
to restrict the guarantees of a fair hearing within a reasonable time by an impartial
tribunal. But the Strasbourg court has not proceeded by reference to principle or on
policy grounds; instead it has adopted an incremental and to English eyes
disappointingly formalistic approach, making it difficult to know where the line will
finally come to be drawn.

88. At a relatively early stage the Strasbourg court held that article 6(1) extends
beyond private law disputes in the traditional sense, that is to say between
individuals or between an individual and the state acting as a private individual and
subject to private law: it covers all proceedings which are decisive of private rights
and obligations: Ringeisen v Austria (No 1) (1971) 1 EHRR 455, 489-490, para 94.
The character of the national legislation and that of the authority which is invested
with jurisdiction in the matter are not determinative: "only the character of the right
at issue is relevant": König v Federal Republic of Germany, at p 194, para 90.

89. The next step was taken in Feldbrugge v The Netherlands (1986) 8 EHRR
425 and Deumeland v Germany (1986) 8 EHRR 448. The former was concerned
with sickness allowance; the latter with industrial injury benefits. Both involved
administrative decisions in the grant of contributory social security benefits. The
Strasbourg court held that the dispute in each case had features of a public law
character - the character of the legislation, the compulsory nature of the insurance,
and the assumption by the state of responsibility for social protection; but these
were outweighed by features of a private law nature - the personal and economic
nature of the right asserted, the close connection with the contract of employment,
and the affinities with insurance under the ordinary law. The right asserted was
therefore a "civil right" within article 6(1). The decision in each case was strongly
dependent on the contributory nature of the scheme and the analogy with private
insurance.

90. This is not a principled basis on which to draw the distinction between "civil
rights" which are within the protection of article 6(1) and other rights which are not,
and it is not surprising that the line could not be held. The meaning of "civil rights"
and hence the scope of article 6(1) was extended further in Salesi v Italy (1993) 26
EHRR 187 and most recently in Mennitto (2000) 34 EHRR 1122. Both cases were
concerned with non-contributory disability allowances. In Salesi the court referred
to "the development in the law initiated by" the judgments
in Feldbrugge and Deumeland and commented that the differences between social
insurance and welfare assistance could not be regarded as fundamental "at the
present stage of development of social security law". In these passages the
Strasbourg court recognised that its jurisprudence was still developing. The
decisions had the effect of extending article 6(1) to disputes in connection with non-
contributory welfare schemes. In each case the critical feature which brought it
within article 6(1) was that the claimant

"suffered an interference with her means of subsistence and was claiming an

individual, economic right flowing from specific rules laid down in a statute
giving effect to the Constitution" (p 199, para 19).

91. The present case undoubtedly goes further still. It has four features which
take it beyond the existing case law:

(i) it is concerned with a benefit in kind;

(ii) it therefore involves priority between competing claimants. There is only
a finite amount of housing stock, whether it belongs to the local housing
authority or is bought in; and if one applicant is allowed to remain on the
unintentionally homeless register it will be to the detriment of other
homeless persons;
(iii) the housing authority has a discretion as to the manner in which it will
discharge its duties; and
(iv) ultimately the question for determination calls for an exercise of
judgment: whether the applicant has behaved reasonably in refusing an offer
of accommodation, having regard to all the circumstances, and in particular
housing conditions in the area.

92. I do not suppose that the first of these is significant in itself; a right to be
housed is not a right to subsistence, though it would be invidious to distinguish the
two. But it leads to the others, which are significant. Runa Begum cannot be said to
be claiming "an individual, economic right flowing from specific rules laid down in
a statute".

93. It is not difficult to conclude that the nature of the dispute in her case makes it
inappropriate for determination by the ordinary judicial process. But it is more
difficult, at least in principle, to justify withdrawing it from the protection of article
6(1). Most European States possess limited judicial control of administrative
decisions; and if such decisions are outside the scope of article 6(1) then judicial
control could be dispensed with altogether. The individual could be left without any
right to a tribunal which was impartial or to a hearing within a reasonable time. This
would be incompatible with the fundamental human right which article 6(1) was
designed to secure.
94. I am persuaded by these considerations that extending the scope of article
6(1) is a desirable end in itself, but needs to go hand in hand with moderating its
requirements in the interests of efficient administration where administrative
decisions are involved. In the light of the unsettled state of the jurisprudence of the
Strasbourg court, therefore, I am content to assume, without deciding, that Runa
Begum's claim involved a determination of her civil rights within the meaning of
article 6(1).

The second issue: was Mrs Hayes an independent tribunal?

95. There is no reason to doubt Mrs. Hayes' impartiality. My noble and learned
friend Lord Bingham of Cornhill has referred to the many safeguards in place to
avoid the danger that she might be unfairly influenced by the decision which she
was reviewing, and there is no suggestion that she had any personal interest in the
outcome.

96. But I do not see how she can sensibly be said to be independent. The question
she had to decide was whether the council was under a continuing duty towards
Runa Begum. She was an officer of the very council which was alleged to owe the
duty. The council contended that it had no interest in the outcome either. It was
concerned to house the homeless, not to avoid performing its statutory duty; the real
dispute was not between Runa Begum and the council, but between her and others
on the homeless register. But these considerations go to Mrs Hayes' impartiality,
not to her independence, which is a separate requirement. The review which Mrs
Hayes conducted was an internal review carried out by the council itself in order to
determine the extent of its own statutory obligations. The want of independence is
manifest.

97. It was suggested that where, as in the present case, factual disputes arise for
decision, the case should be referred to an external fact-finder independent of the
local housing authority. Like my noble and learned friend Lord Bingham, I doubt
that the exercise of quasi-judicial powers is a function of the authority within the
meaning of the relevant Order, which is concerned in very general terms with
deregulation and the subcontracting of ordinary local authority functions. But in any
case I do not see how a person appointed ad hoc by the authority directly concerned
and lacking any kind of security of tenure could constitute an "independent …
tribunal established by law" as required by article 6(1). Moreover, while the legality
of farming out the decision-making function in relation to disputes of fact which
arise in the course of the hearing is open to doubt, there can be no doubt that it
would create an administrative nightmare. It is notable that Parliament has
established no similar procedure for any of the great number and variety of
decisions that it has devolved to administrative bodies.

The third issue: did the county court have "full jurisdiction"?

98. The fact that, on an appeal under section 204 of the Act, the county court has
been said to possess the full judicial review jurisdiction (see Nipa Begum v Tower
Hamlets London Borough Council [2000] 1 WLR 306 should not obscure the fact
that its jurisdiction is appellate and not merely supervisory. Before the Act there
was no right of appeal to the county court, and decisions of local housing
authorities could be challenged only by way of judicial review in the High Court.
This was both expensive and inconvenient, and a right of appeal to the county court
on a point of law was substituted. The change was made in the interests of the
efficient administration of justice and was not intended to cut down the scope for
judicial control by excluding, for example, challenges based on procedural
unfairness or impropriety or the adequacy of the reasons given for the decision.

99. Where, however, the jurisdiction of the court to entertain an appeal depends
on whether it involves a question of fact or law, there is no need to refer to the
supervisory jurisdiction of the court in judicial review. The controlling authority
is Edwards v Bairstow [1956] AC 14, which explains the scope of an appeal on a
point of law. It is accurately summarised in Bryan v United Kingdom [1995] 21
EHRR 342, 349-350, paras 25, 26. A decision may be quashed if it is based on a
finding of fact or inference from the facts which is perverse or irrational; or there
was no evidence to support it; or it was made by reference to irrelevant factors or
without regard to relevant factors. It is not necessary to identify a specific error of
law; if the decision cannot be supported the court will infer that the decision-
making authority misunderstood or overlooked relevant evidence or misdirected
itself in law. The court cannot substitute its own findings of fact for those of the
decision-making authority if there was evidence to support them; and questions as
to the weight to be given to a particular piece of evidence and the credibility of
witnesses are for the decision-making authority and not the court. But these are the
only significant limitations on the court's jurisdiction, and 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.

100. Where an administrative decision is determinative of the claimant's civil

rights, including his or her right to social security benefits or welfare assistance, the
Strasbourg court has accepted that it may properly be made by a tribunal which is
not itself possessed of the necessary independence, provided that measures to
safeguard the impartiality of the tribunal and the fairness of its procedures are in
place and its decisions are subject to ultimate judicial control by a court with "full
jurisdiction".

101. It is clear from the decision of the Strasbourg court in Bryan v United
Kingdom (1995) 21 EHRR 342 that "full jurisdiction" in this context does not
necessarily mean full jurisdiction on fact or law but, as my noble and learned friend
Lord Hoffmann described it in R v (Alconbury Developments Ltd) v Secretary of
State for the Environment, Transport and the Regions [2001] 2 WLR 1389 , 1416,
para 87, "jurisdiction to deal with the case as the nature of the decision requires".

102.

Bryan was concerned with the decision of a planning inspector whose decision
was subject to appeal to the High Court on a point of law. The question was
whether buildings which had been erected in the Green Belt could, from their
appearance and layout, be considered to have been designed for the purposes of
agriculture. This was a question of fact and degree. The Strasbourg court ruled that,
despite the many safeguards in place, the inspector was not an independent tribunal
for the purpose of article 6(1). But it also held that the jurisdiction of the High
Court was sufficient to comply with article 6(1), even though it could not substitute
its own decision on the merits for that of the inspector. The decision of the
Strasbourg court was a strong one, for while the primary facts were not in dispute
the inspector's decision was a conclusion of fact drawn from the primary facts.

103. In Bryan the Strasbourg court held that in assessing the adequacy of the
appellate procedure which was available to the claimant, regard must be paid to the
subject-matter of the decision appealed against, the manner in which that decision
was arrived at, and the content of the dispute, including the desired and actual
grounds of appeal. The court noted the extensive jurisdiction of the High Court and
that, while it could not substitute its own conclusion for that of the inspector, it was
bound to satisfy itself that his conclusion was neither perverse nor irrational. The
court observed that such an approach to questions of fact was a feature of the
systems of judicial control of administrative decisions found throughout the
Member States of the Council of Europe; and held that such an approach could
reasonably be expected "in specialised areas of the law" such as the one at issue.

104. Given the context in which these words were used, the Strasbourg court can
hardly have meant areas of specialised law such as patent or trade mark law. It must
have meant areas which called for some special knowledge or experience on the
part of the decision-maker. In Edwards v Bairstow, which was a tax case, Lord
Radcliffe explained that the reservation of the fact-finding process to the exclusive
jurisdiction of the special commissioners was not based on the specialised nature of
tax law but was necessary in the interests of the efficient administration of justice.

105. In the present case the subject-matter of the decision was the distribution of
welfare benefits in kind, and critically depended upon local conditions and the
quality and extent of available housing stock. The content of the dispute related to
the reasonableness of the claimant's behaviour in refusing an offer made to her
which, if refused by her, would have to be offered to others on the homeless
register. Any factual issue arising in the course of the dispute, even if critical to the
outcome, would be incidental to the final decision. In my opinion the subject-matter
of the decision and the content of the dispute demanded that the decision be made
by an administrative officer with experience of local housing conditions, subject to
a proper degree of judicial control; and that a right of appeal to the court on law
only was sufficient for this purpose.

106. Although the question involves the claimant's individual Convention rights
and falls to be decided on a case by case basis, I think that it is the system which is
the essential subject of the inquiry. The question in every case is whether the
claimant's Convention rights have been satisfied by giving him or her access to the
system of decision-making which Parliament has established. They were not
satisfied in Kingsley v United Kingdom (2001) 33 EHRR 288; (2002) 35 EHRR
177, because the court could not direct a rehearing before another tribunal where
the only body which Parliament had authorised to make the decision had shown
bias. But there is no reason to suppose that the Strasbourg court would have reached
the same conclusion had the nature of the claimant's complaint been different.

107. In the present case, for the reasons I have given, as well as those of your
Lordships, with which I agree, I consider that the county court had sufficient
jurisdiction to deal with Runa Begum's case to comply with article 6(1). I would
dismiss the appeal.

LORD WALKER OF GESTINGTHORPE

My Lords,

108. I have had the advantage of reading in draft the speech of my noble and
learned friend Lord Hoffmann. I agree with it and for the reasons which he gives I
would dismiss this appeal. I add a few remarks of my own on the "civil rights" issue
because of its interest and importance.

109. Lord Hoffmann has in his speech in R (Alconbury Developments Ltd) v

Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR
1389 , 1414-1416, paras 78-88, clearly summarised the development of the
autonomous meaning of "civil rights and obligations" and the consequential
problems which have arisen in relation to judicial review of administrative
decision-making. As he has observed, the original intention of the draftsmen of the
Convention to restrict "civil rights and obligations" to those under private law is
now of no more than historical interest. But the inroads made into the intended
exclusion of a citizen's rights and obligations under public law have not been
entirely consistent. In particular, the European Court of Human Rights has recently,
in Ferrazzini v Italy (2001) 34 EHRR 1068, reaffirmed the exclusion of tax
proceedings from the ambit of article 6(1). But it did so only by a majority of 11 to
6, and the dissenting opinion of Judge Lorenzen (joined by five other judges) merits
attention.

110. Mr Ferrazzini wished to run a business providing farm holidays in Italy, and
for that purpose he transferred assets to a company which he controlled. This gave
rise to liability to several different Italian taxes and there were disputes both about
valuations and about the availability of a reduced rate for agricultural property.
Various assessments were made in 1987. Three sets of proceedings ensued before
district and regional tax courts. One set of proceedings concluded in 1998 and the
other two were still pending in 2000. Mr Ferrazzini complained that he had not had
a hearing within a reasonable time.

111. The majority of the court took the view that article 6(1) was not engaged (p
1075, para 29):

"The court considers that tax matters still form part of the hard core of
public-authority prerogatives, with the public nature of the relationship
between the taxpayer and the tax authority remaining predominant. . . It
considers that tax disputes fall outside the scope of civil rights and
obligations, despite the pecuniary effects which they necessarily produce for
the taxpayer".

The dissenting opinion challenged that view. The whole opinion merits attention,
but its general theme appears from pp 1078-1079, para O-II4:
 "It is hard to accept that the travaux préparatoires dating more than 50 years
back and partly based on preconditions that have not been fulfilled or are no
longer relevant should remain a permanent obstacle to a reasonable
development of the case law concerning the scope of Article 6—in
particular to areas where there is an obvious need to extend the protection
granted by that Article to individuals. The present case law clearly
demonstrates in fact that the Convention institutions have not felt bound to
maintain a restrictive attitude, but have extended the applicability of Article
6(1) to a considerable number of relationships between individuals and
governments which originally must have been held to be excluded".

112. Further development in the case-law may therefore be expected. The

existing Strasbourg jurisprudence most directly in point is the line of cases starting
with Feldbrugge v The Netherlands (1986) 8 EHRR 425 and leading to Salesi v
Italy (1993) 26 EHRR 187 and Mennitto v Italy (2000) 34 EHRR 1122. These
indicate that article 6(1) is likely to be engaged when the applicant has public law
rights which are of a personal and economic nature and do not involve any large
measure of official discretion (see Masson v The Netherlands (1995) 22 EHRR 491,
511, para 51.

113. In the present case the applicant's rights (arising from her unintentional
homelessness and her priority need) were personal and economic (at least in the
sense of meeting her need for the necessities of life). Superficially they did not
involve any large measure of discretion: once it was established that she satisfied
the statutory conditions, the local housing authority owed her the full statutory duty
under section 193(2) of the Housing Act 1996 ("the Act") and she had a correlative
right to the performance of that duty. On that basis it was argued that the applicant
had not only a right under national law, but also a civil right in the autonomous
Convention sense, a right (as it was put in Feldbrugge, p 434, para 37 "flowing
from specific rules laid down by the legislation in force").

114. However it is necessary to take a closer look, both at the process by which a
homeless person becomes entitled to the performance of the full housing duty, and
to the content of that duty. It is apparent that the process involves some important
elements of official discretion, and also issues which (although not properly
described as involving the exercise of discretion) do call for the exercise of
evaluative judgment. The following points seem to me particularly significant,
though the list is by no means exhaustive.

(1) Establishing priority need may call for the exercise, and sometimes for a
very difficult exercise, of evaluative judgment. There was no problem in the
applicant's case because of her family circumstances, but the identification of a
"vulnerable" person may present real problems (see section 189(1)(c) of the Act
and R v Camden London Borough Council, Ex p Pereira (1998) 31 HLR 317).

(2) A local housing authority may at its discretion perform its full housing duty in
any of the three ways specified in section 206 of the Act, which include (section
206(1)(c)) giving such advice and assistance as will secure that suitable
accommodation is available to the applicant from some other person. Moreover
under section 206(2) the authority has quite a wide discretion as to making charges
to a successful applicant.

(3) The period for which the accommodation is to be secured is a minimum period
of two years; after that the authority has a discretion (see section 193(3) and (4) and
section 194 of the Act, embodying changes made after the decision of your
Lordships' House in R v Brent London Borough Council, Ex p Awua [1996] AC
55).

(4) The local housing authority's duty comes to an end if an applicant refuses an
offer of accommodation which the authority are satisfied is suitable (see section
193(5) and (7) of the Act). Here again there are potentially difficult exercises of
judgment to be made.

115. These points, taken together, amount to a considerable qualification of the

notion that a successful applicant is enjoying a quantifiable right derived from
specific statutory rules. If the local housing authority's duty does create a civil right
within the autonomous Convention meaning, it must in my view lie close to the
boundary of that aggregation of rights. I do not think it is necessary, in order to
dispose of this appeal to express a definite view. On this point I am in full
agreement with the observations in paragraphs 69 and 70 of Lord Hoffmann's
speech. I would dismiss this appeal.