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Entitlement to accommodation not a civil right under ECHR law

17 February 2010

Two homeless women who turned down offers of accommodation by their local council have lost their claim that housing law appeal procedures deprived them of their right to a fair trial.

Birmingham City Council argued that the women had provided no acceptable reason for their refusals and that it no longer owed them a duty under the Housing Act.

The council’s decisions were later confirmed in writing by reviewing officers but the applicants claimed they never received confirmation. This, they said, prevented them from appealing.

They pointed out, in particular, that the county court, when hearing housing appeals, lacked fact-finding jurisdiction, and that this breached article 6 ECHR.

Ruling in Tomlinson v Birmingham City Council [2010] UKSC 8, the Supreme Court found that the case did not involve the determination of a civil right protected under article 6.

In the lead judgment, Lord Hope said that accommodation rights under the 1996 Housing Act were not “an individual right of which the applicant can consider himself the holder”.

It was “dependent upon a series of evaluative judgments by the provider as to whether the statutory criteria are satisfied and how the need for it ought to be met”, he continued, which did not engage article 6.

These criteria, he concluded, “do not give rise to ‘civil rights’ within the autonomous meaning that is given to that expression for the purposes of that article”.

Although this outcome dealt with the issue of the county court’s lack of fact-finding jurisdiction, Lord Hope sought to address it nevertheless.

“Whether or not the letters were received was just one among a number of questions that had to be addressed to determine whether the respondents’ duty under section 193 had been discharged,” he said.

“To separate out questions as to whether the formalities laid down by the subsection were complied with from those as to whether the accommodation was suitable would complicate a scheme which, in the interests of speed and economy, was designed to be simple to administer.”

Citing the Strasbourg court’s jurisprudence, he said the requirement in article 6 for an independent and impartial tribunal “cannot be applied mechanically” and that a “more elastic” approach should be take to this requirement.

The housing administration scheme under the 1996 Act intended to avoid “over-judicialisation” and, on this basis, he concluded, the absence of full fact-finding powers in the county court would not be a breach of article 6.

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