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Tsfayo v United Kingdom

DATE: 14 Nov 2006

In a judgment with wide implications for administrative decision making, the European Court of Human Rights (4th Section) has ruled that the old system of appeals to Housing Benefit Review Boards, manned by elected members of the paying authority, breached Article 6 of the Convention. The issue they had to decide was a simple issue of fact; and the connection with the paying authority "might infect the independence of judgment in relation to the finding of primary fact in a manner which could not be adequately scrutinised or rectified by judicial review". The judgement may significantly affect the scope of the ruling of the House of Lords in Runa Begum.

The Court, having considered cases such as Bryan, Alconbury and Begum held that:

“45. The Court considers that the decision-making process in the present case was significantly different. In Bryan, Runa Begum and the other cases cited in paragraph 43 above, the issues to be determined required a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims. In contrast, in the instant case, the HBRB was deciding a simple question of fact, namely whether there was "good cause" for the applicant's delay in making a claim. On this question, the applicant had given evidence to the HBRB that the first that she knew that anything was amiss with her claim for housing benefit was the receipt of a notice from her landlord - the housing association - seeking to repossess her flat because her rent was in arrears. The HBRB found her explanation to be unconvincing and rejected her claim for back-payment of benefit essentially on the basis of their assessment of her credibility. No specialist expertise was required to determine this issue, which is, under the new system, determined by a non-specialist tribunal (see paragraph 21 above). Nor, unlike the cases referred to, can the factual findings in the present case be said to be merely incidental to the reaching of broader judgments of policy or expediency which it was for the democratically accountable authority to take.

46. Secondly, in contrast to the previous domestic and Strasbourg cases referred to above, the HBRB was not merely lacking in independence from the executive, but was directly connected to one of the parties to the dispute, since it included five councillors from the local authority which would be required to pay the benefit if awarded. As Mr Justice Moses observed in Bewry (paragraph 32 above), this connection of the councillors to the party resisting entitlement to housing benefit might infect the independence of judgment in relation to the finding of primary fact in a manner which could not be adequately scrutinised or rectified by judicial review. The safeguards built into the HBRB procedure (paragraphs 22-23 above) were not adequate to overcome this fundamental lack of objective impartiality.

47. The applicant had her claim refused because the HBRB did not find her a credible witness. Whilst the High Court had the power to quash the decision if it considered, inter alia, that no there was no evidence to support the HBRB's factual findings, or that its findings were plainly untenable, or that the HBRB had misunderstood or been ignorant of an established and relevant fact (see paragraphs 24-25 above), it did not have jurisdiction to rehear the evidence or substitute its own views as to the applicant's credibility. Thus, in this case, there was never the possibility that the central issue would be determined by a tribunal that was independent of one of the parties to the dispute.”

Richard Drabble QC appeared for Ms Tiga Tsfayo.