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

A demoted-tenancy review conducted by a senior officer of the landlord authority is not incompatible with article 6 merely because the officer may make findings of fact. The statutory scheme is materially indistinguishable from the introductory-tenancy scheme upheld in McLellan. Article 6 compliance falls to be assessed by reference to the decision-making process as a whole, including judicial review.

Fact-finding in such a review is incidental to broader administrative judgments about the tenancy and competing housing interests. The relevant regulations contemplate review within the landlord’s organisation. The possibility of delegating the function elsewhere does not determine the scheme’s compatibility with article 6.

The appellant had held a secure tenancy. Following anti-social behaviour by her son, the County Court made a demotion order. The Council later served a notice seeking possession and, after an internal oral review, upheld its decision to terminate the demoted tenancy.

Her claim for judicial review was dismissed by Stanley Burnton J in the Administrative Court on 15 October 2007. She appealed, contending that the review procedure under sections 143E and 143F of the Housing Act 1996 and the 2004 Regulations was incompatible with article 6 because factual disputes were decided by a Council officer rather than an independent tribunal. Although she had obtained alternative accommodation, the court determined the academic appeal because the issue was of general significance.

1. Appeal dismissed. Waller LJ, with whom Buxton LJ and Smith LJ agreed, held that the demoted-tenancy scheme was not materially distinguishable from the introductory-tenancy scheme considered in McLellan v Bracknell Forest Borough Council [2001] EWCA Civ 1510. It followed that the scheme did not violate article 6.

2. The court proceeded on the basis adopted in McLellan that article 6 was engaged. Its requirements were nevertheless satisfied when the process was considered as a whole, including the availability of judicial review. The fact that the County Court must ordinarily make a possession order after a compliant review did not alter that conclusion.

3. A review officer’s resolution of factual matters did not make judicial review inadequate. A demoted tenant had already had a court hearing before losing secure status. The review involved broader administrative judgments about the tenant’s conduct and the interests of other occupiers. Any factual findings were staging posts towards those judgments, rather than a free-standing judicial determination of civil rights.

4. The court rejected the suggested answer that the Council could secure compatibility by delegating the review to an external decision-maker. Section 143F and regulation 2(2) contemplated a review by a more senior officer within the landlord’s organisation. That arrangement was constitutionally appropriate to the administration of the scheme.

5. The court also considered article 8 authorities as supporting context. They did not undermine McLellan. Unlike the situations in Connors and McCann, the statutory scheme afforded notice, a review procedure and judicial review, and had not bypassed the protections established by Parliament.

• Court of Appeal (Civil Division): Appeal dismissed. The court held that the demoted-tenancy review scheme was compatible with article 6.
• High Court, Administrative Court: Stanley Burnton J dismissed the claimant’s judicial-review claim on 15 October 2007.