No violation of article 6 after council refuses homeless woman housing, rules Strasbourg

A woman who challenged a local council’s decision that she was no longer entitled to housing after she rejected its second offer of a house has lost her case at the European Court of Human Rights after the court held unanimously there was no violation of article 6 § 1 of the European Convention on Human Rights.

The case concerned Fazia Ali, a British national who was born in 1980 and lives in Birmingham.

She challenged the legislative scheme in the UK under which local authorities have duty to provide housing to the homeless.

The court found, in particular, that Ms Ali’s right to accommodation was a “civil right” for the purpose of Article 6 § 1, the right to a fair trial, and as such, she was entitled to a fair hearing before an “independent and impartial” tribunal.

In this case, the appeal to the court open to Ms Ali did indeed provide her with adequate protection in the determination of her civil right.

Ms Ali applied for housing assistance to Birmingham City Council in October 2006. She is a homeless person, and as the mother of two young children, in priority need of accommodation within the meaning of Part VII of the Housing Act 1996.

In March 2007, after Ms Ali’s rejection of a second offer of accommodation, the local council notified her that – because of her refusal – it had discharged its duty to her under the Housing Act and that she was no longer entitled to accommodation.

She requested that the council review its decision, alleging that she had not received a formal letter in writing with regard to the second offer of accommodation.

As a result a Homelessness Review Officer employed by the local council conducted an enquiry. In May 2007 the officer upheld the decision that Ms Ali’s refusal of the offer of accommodation had discharged the council’s main housing duty to her.

The officer concluded in particular that there was no reason to believe Ms Ali had not received the second offer of housing by letter and that, in any case, even if she hadn’t received the letter, she had been well aware of the offer of accommodation, had viewed the property, and had turned it down.

On an appeal to the county court Ms Ali sought to challenge the Officer’s finding that she had received the second offer of housing in writing. However, the judge declined to deal with the question because it considered it to be a “purely factual issue” and appeal lay only on “a point of law”.

That decision was upheld by the Court of Appeal and the Supreme Court. The Supreme Court notably held that Ms Ali’s right to accommodation was not a “civil right” for the purpose of article 6 § 1 of the Convention.

The court held that Ms Ali’s right to accommodation owed to her by Birmingham City Council was a civil right within the meaning of article 6 § 1 and, as such, she had been entitled to a fair hearing before an independent and impartial tribunal.

As it was accepted that the officer had not been independent, the court considered whether the county court had sufficient jurisdiction to review her decision.

It found that although the county court did not have the jurisdiction to conduct a full review of the facts, the appeal available to Ms Ali did permit it to carry out a certain review of both the facts and the procedure by which the factual findings of the officer were arrived at.

The court considered that with regard to the “determination” of rights and obligations deriving from a social welfare scheme, when due enquiry into the facts has already been conducted at the administrative adjudicatory stage, article 6 § 1 of the Convention could not be read as requiring that the judicial review before a court should encompass a reopening with a rehearing of witnesses.

The appeal open to Ms Ali had therefore given her adequate protection as regards the judicial determination of her civil right.

In finding that there had been no breach of the Convention, the court examined the whole of the legislative scheme in question and pointed to a number of significant procedural safeguards in relation to the enquiry before the Homelessness Review Officer: namely, the officer was required to be senior in rank to the original decision-maker; the officer could not have been involved in the original decision; Ms Ali was entitled to make representations which the officer was obliged to consider; the officer was required to give reasons for any adverse decision; and Ms Ali had to be informed of her right to apply to the county court.

There had therefore been no violation of article 6 § 1 of the Convention.

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