Gilboy, R (on the application of) v Liverpool City Council & Anor

A local authority’s decision to seek possession of a demoted tenancy is subject to Article 6 on the binding domestic authority, but the statutory scheme is compatible with that article where it provides an internal review and effective judicial review.

The reviewing officer need not be an independent tribunal. The availability and intensity of judicial review can provide an adequate safeguard, including where the officer considers disputed allegations of anti-social behaviour. Article 6 requirements cannot depend on whether the decision-maker resolves disputed facts or relies on undisputed circumstances.

The claimant held a demoted tenancy after the county court made a demotion order based on anti-social behaviour. Liverpool City Council later decided to seek possession following further allegations concerning her son. A more senior council officer reviewed that decision under the Demoted Tenancies (Review of Decisions) (England) Regulations 2004 and confirmed it.

The claimant sought judicial review, arguing that the reviewing officer was not an independent and impartial tribunal under Article 6 of the Convention. She relied on McLellan v Bracknell Forest Borough Council and contended that its reasoning had been overtaken by Tsfayo v UK, particularly because the review involved disputed questions of fact.

1. Article 6 engagement. The judge considered that, if the issue were free from authority, the reviewing officer’s decision would not itself determine the claimant’s civil rights. It merely enabled the council to seek a possession order; the county court made the substantive determination. Procedural safeguards could not convert a non-determinative decision into a determination of rights. However, the Court of Appeal’s decision in McLellan v Bracknell Forest Borough Council concerned materially identical legislation and was followed as a matter of judicial comity.
2. Compatibility of the scheme. In McLellan v Bracknell Forest Borough Council, the Court of Appeal held that the internal review procedure, together with judicial review, satisfied Article 6. That conclusion applied equally to demoted tenancies. The reviewing officer’s position was materially different from the benefits board considered in Tsfayo v UK: the local authority was seeking to protect other residents and its estate, and the decision involved broader evaluative considerations rather than a simple determination of entitlement based entirely on fact.
3. Disputed facts. The fact that the reviewing officer made findings about disputed anti-social behaviour did not distinguish the case from McLellan v Bracknell Forest Borough Council. Article 6 requirements must be ascertainable before proceedings begin and cannot depend on the reasons ultimately given by the reviewing officer. Judicial review remained capable of addressing unfairness and Convention-rights violations.
4. The challenge to the review decision was therefore ill-founded. In any event, even if Article 6 had been infringed, the Regulations did not require the review to be conducted by a council officer, and the statutory conditions for a declaration of incompatibility under section 4(4)(b) of the Human Rights Act 1998 would not have been met.
5. Order: the claim for judicial review was dismissed.