Tomlinson and others (FC) v Birmingham City Council

A statutory entitlement to services or benefits in kind does not determine a “civil right” under article 6(1) where entitlement and performance depend upon a series of evaluative administrative judgments. The homelessness duty under section 193 of the Housing Act 1996 falls within that category. It lacks precise content, involves no right to particular accommodation and requires judgment about both eligibility and how need should be met.

Alternatively, if article 6(1) applied, an appeal confined to a point of law would provide sufficient judicial control. A simple factual dispute cannot be isolated from the wider statutory decision when it is merely incidental to an integrated assessment involving professional judgment.

The appellants applied to Birmingham City Council for homelessness assistance under Part VII of the Housing Act 1996. The council decided that its duty to secure accommodation had ended because each appellant had refused suitable accommodation after receiving the warning required by section 193(5). The appellants disputed receipt of the relevant warning letters.

The reviewing officers resolved that factual dispute against the appellants. Their county court appeals under section 204(1), which permits an appeal only on a point of law, were unsuccessful. The Court of Appeal dismissed their further appeals in [2008] EWCA Civ 1228, proceeding on the assumption that article 6(1) applied.

The Supreme Court considered whether the council’s decisions determined “civil rights”, whether article 6(1) required full fact-finding jurisdiction, and whether section 204(1) could be read as conferring that jurisdiction.

1. Appeals dismissed. Lord Hope, with whom Lady Hale and Lord Brown agreed, held that the decisions under section 193(5) of the Housing Act 1996 did not determine civil rights for the purposes of article 6(1). Lord Collins and Lord Kerr agreed with that disposition and conclusion.

2. The Strasbourg authorities had extended article 6(1) to individual economic rights, including social-security payments governed by specific rules. They did not establish that the article covered benefits in kind whose availability and delivery depended upon administrative evaluation. A national court should keep pace with Strasbourg jurisprudence without extending Convention rights beyond it.

3. The Part VII duty lacked the characteristics of an assertable individual economic right. It conferred no right to particular accommodation. The authority had to make evaluative judgments about homelessness, eligibility, priority need, intentional homelessness, suitability and the manner in which accommodation should be secured. Lord Collins placed particular emphasis upon the essentially public nature and imprecise content of the duty. Lord Kerr agreed that the dependence upon discretionary judgments distinguished the scheme from statutory monetary benefits.

4. Lord Hope therefore held that services or benefits in kind do not engage article 6(1) where the applicant cannot regard himself as the holder of an individual right and both entitlement and performance depend upon a series of evaluative judgments. The section 193 duty was of that kind.

5. Alternatively, Lord Hope concluded that section 204(1) supplied sufficient review even if article 6(1) applied. The disputed receipt of each letter was a simple factual issue, but it was only a staging post in the integrated determination whether the statutory duty had ended. Suitability and other questions required professional knowledge and judgment. Separating the formal factual issue from the remainder would frustrate the statutory scheme’s speed, economy and administrative coherence. The ratio in Runa Begum was therefore applicable.

6. Lord Kerr expressed unease about judicial review as a means of resolving sharply contested questions of credibility. Nevertheless, he accepted that Runa Begum and the nature of the Part VII scheme concluded the sufficiency-of-review issue. The question whether section 204 could be read as conferring full fact-finding jurisdiction was accordingly superseded, and no declaration of incompatibility was required.

1. United Kingdom Supreme Court: Dismissed the appeals. It held that article 6(1) was not engaged and, alternatively, that the statutory review and appeal scheme was sufficient.

2. Court of Appeal: In [2008] EWCA Civ 1228, dismissed the appeals of Ms Ali and Ms Ibrahim. It assumed that article 6(1) applied and held that no proper distinction could be drawn from Runa Begum. It declined to hear Ms Tomlinson’s academic appeal.

3. Birmingham County Court: Dismissed the appellants’ challenges under section 204 of the Housing Act 1996. The county court treated the disputed factual matters as questions for the reviewing officers rather than matters for fresh determination on oral evidence.