Lack of county court fact-finding jurisdiction in discharging of homeless accommodation duty cases not a breach of ECHR: Supreme Court

A decision that a local housing authority takes under the Housing Act 1996 that it has discharged its duty to an applicant is not a determination of the applicant's rights under the European Convention on Human Rights, the Supreme Court has ruled.

In Tomlinson and others (FC) v Birmingham City Council [2010] UKSC 8, the court said the decision therefore lies outside the protection of article 6(1) of the ECHR – the right to a fair trial in the determination of civil rights and obligations.

The 1996 Act puts a duty on local housing authorities to ensure that suitable accommodation is available for homeless people who meet certain criteria. An authority may cease to be subject to that duty where an applicant refuses an offer of accommodation, but only if the authority notifies him, in writing, that it regards itself as having discharged its duty.

A dissatisfied applicant can appeal to the county court, but only on a point of law arising from the decision – the county court is not able to decide factual disputes as to whether or not events have happened.

In Tomlinson, a number of applicants disputed Birmingham's claim that it had successfully discharged its duty. They argued that although written notification of the kind the law requires may have been sent to them by the authority, they never received it. This was a question of fact that the county court had no power to determine.

The applicants argued that this lack of a fact-finding jurisdiction was a breach of Article 6(1).

The Supreme Court was therefore required to determine:

• whether an appeal to the county court involved the determination of a civil right for the purposes of Article 6(1), and
• if so, whether Article 6(1) required that a court hearing such an appeal must itself be able to determine issues of fact such as those raised in the case.

Lord Hope (with whom Lady Hale and Lord Brown agreed) said: “Cases where the award of services or benefits in kind is not an individual right of which the applicant can consider himself the holder, but is dependent on a series of evaluative judgements as to whether the statutory criteria are satisfied and how the need for it ought to be met, do not engage Article 6(1).”

Lord Collins argued that the mere fact that evaluative judgements are required will not take the case out of Article 6(1). The judge instead concluded that the main reason why the decision fell outside the scope of the Article was that the statutory duty lacked precision.

He said: “There is no right to any particular accommodation. The duty is to secure that accommodation is available. In my judgment, these factors together with the essentially public nature of the duty mean that the duty does not give rise to an individual economic right.”

The second issue therefore did not need to be determined. However, the Supreme Court said that although the question whether or not the letters were received was factual, it was just one of a number of interlinked questions that had to be addressed to determine whether the housing authority's duty had been discharged. No case of the European Court of Human Rights was to the effect that an appeal from such a determination on a point of law would constitute a breach of Article 6(1).