Ali v Birmingham City Council

Under Part VII of the Housing Act 1996, a statutory review by a housing authority followed by a county-court appeal limited to points of law can satisfy Article 6.1 even where the reviewing officer decides a simple issue of primary fact, such as receipt of a statutory notice. The adequacy of the composite procedure must be assessed in the context of the statutory scheme as a whole. A full merits appeal or rehearing of witnesses is not automatically required. Distinguishing between factual findings based on expertise or policy and purely primary facts would create uncertainty and administrative complexity. Tsfayo does not require a different result where the statutory schemes and safeguards materially differ.

Three homeless applicants appealed decisions made by Birmingham City Council under Part VII of the Housing Act 1996. Ali and Ibrahim challenged County Court decisions refusing to re-determine whether they had received statutory offer letters. Tomlinson challenged a finding that she was intentionally homeless, but her appeal became academic after accommodation was provided.

The County Court judges treated the appeals as confined to points of law under section 204 and applied Runa Begum [2003] UKHL 5. The appellants argued that Article 6.1 and Tsfayo [2006] ECHR 60860/00 required a full factual appeal where the issue was simple primary fact. The central issue was whether the statutory scheme required more than conventional judicial review in such cases.

Lord Justice Thomas gave the judgment, with Lord Justice Rimer and Lord Justice Hughes agreeing.

1. The court assumed, without deciding, that the Part VII decisions determined civil rights for the purposes of Article 6.1.
2. Section 204 provided an appeal on a point of law, in substance equivalent to the High Court’s judicial-review jurisdiction. The adequacy of that procedure had to be assessed by examining the administrative review and court supervision together, in the context of the statutory housing scheme.
3. Runa Begum [2003] UKHL 5 was controlling. Its ratio was that a suitability decision did not require more than conventional review under section 204. That principle applied equally where the reviewing officer determined a simple issue of primary fact, including receipt of a statutory letter, or where the finding was determinative. The court was not required to rehear witnesses or substitute its own findings merely because the fact did not involve specialist expertise.
4. A distinction between factual findings involving policy or expertise and simple primary facts would be uncertain and difficult to administer. It would create substantial procedural and financial consequences for the housing and court systems. The existing scheme, properly operated through a fair, reasoned and non-irrational review, provided sufficient protection.
5. Tsfayo [2006] ECHR 60860/00 did not require a different conclusion. That decision concerned a materially different housing-benefit scheme, a review body directly connected with one party, and the absence of any possibility of rehearing the central credibility issue. The Strasbourg Court had relied on, rather than questioned, Runa Begum.
6. The Court of Appeal would in any event have left any reconsideration of the distinction to the House of Lords. Ali’s and Ibrahim’s appeals were dismissed. Tomlinson’s academic appeal was not heard, and leave to appeal was refused.

• Court of Appeal (Civil Division): [2008] EWCA Civ 1228 . Dismissed the appeals of Ali and Ibrahim, declined to hear Tomlinson’s academic appeal, and refused leave to appeal.
• Birmingham County Court: HH Judge MacDuff QC and HH Judge McKenna upheld the reviewing officers’ decisions concerning Ali and Ibrahim. Recorder Lochrane dismissed Tomlinson’s appeal, applying the limited statutory appeal jurisdiction.