Tomlinson and others (FC) v Birmingham City Council

Facts

Birmingham City Council accepted that it owed the appellants the main housing duty under section 193 of the Housing Act 1996. It made offers of accommodation which the appellants did not accept, and decided that the duty had been discharged. Some appellants said they had not received letters warning them of the consequences of refusal. Reviewing officers employed by the council, deciding under section 202, resolved the factual disputes against them, and appeals to the county court on a point of law under section 204 failed.

History

Section 204 appeals dismissed in the county court; appeals to the Court of Appeal dismissed.

Issue

Whether a decision that the section 193 duty has ceased determines a civil right within Article 6(1) ECHR; and, if so, whether the combination of a council review and a county court appeal on a point of law satisfies Article 6 where the review turns on findings of primary fact.

Held

Appeals dismissed. The section 193 duty is not a civil right for Article 6 purposes, so Article 6 was not engaged. Had it been engaged, the scheme of review and appeal on a point of law would have satisfied it, following Runa Begum v Tower Hamlets LBC [2003] UKHL 5.

Ratio

• A statutory entitlement to a benefit in kind whose content depends on a series of evaluative judgments by the provider about whether the statutory criteria are met and how the need should be met is not a civil right within Article 6(1); the section 193 housing duty falls into that category.

The judgments

Key reasoning

• Runa Begum had assumed without deciding that Article 6 applied, holding that review plus an appeal on a point of law was enough; the Supreme Court now decided the prior question.
• Strasbourg had extended civil rights to welfare benefits where entitlement is defined by precise criteria, but had not gone so far as to include benefits in kind whose provision depends on the judgment of the authority.
• Because the duty was owed in a form calling for repeated evaluative judgment about suitability and the adequacy of offers, it lacked the character of an individual right of a private law nature.
• Requiring full judicial fact-finding for every homelessness review would impose heavy costs on a scheme of mass administrative decision-making, which reinforced the conclusion that Article 6 should not be stretched to cover it.

Where it fits in the module

Under the impact of the Human Rights Act on administrative process, Ali shows the courts protecting internal review and appeal structures from the demands of Article 6. It should be read with Runa Begum and Tsfayo v United Kingdom, which bracket when a non-independent decision-maker plus limited judicial review is acceptable. The case raises the question whether Convention rights should reshape administrative adjudication or whether domestic administrative law should be left to supply procedural fairness.

Criticisms

• The distinction between precisely defined benefits and evaluative benefits in kind is unstable, since most welfare entitlements involve some judgment in application.
• The reasoning lets the cost and scale of administrative decision-making shape the meaning of a fundamental procedural right.
• The later Strasbourg decision in Ali v United Kingdom suggests the Supreme Court misread the direction of Convention law on civil rights.
• Leaving disputed primary facts to an officer employed by the council itself offers weak protection where the applicant risks losing accommodation altogether.