At a south coast hotel the following conversation was overheard:

‘Mr. Fawlty, big man at reception with query on Article 6!’

‘Why bother me, you blunderhead from Barcelona? Where's my wife? Sybil! Sybil!’

‘Mrs. Fawlty speaking on phone, Mr. Fawlty. . .’

‘Typical! She's never one to miss her daily discussion on Wittgenstein with her cronies from the hairdressers!

Right! Right! I suppose I'd better handle it! Article 6, indeed! Who do they think I am? We're trying to run a hotel here, not a blinking legal advice agency!’

‘Hello, Fawlty, Lord Barnstraff. I wonder if you could settle a little bet for me.’

‘Certainly.Yes. Anything, your Honour! Can I get your shoes shined. . .’

‘No, it was just that my friend here was saying they can't touch you for fouling up on Article 6, providing there's a right of review, to, er, right any wrongs. . .as you might say!’

‘Indeed, your Worship, I mean your Lordship. . .’

‘Whereas I was saying. . .’

However, just at that moment, an explosion in the kitchen with abundant plumes of smoke brought a summary halt to proceedings. But the good lord did raise an interesting point. And one the courts on both sides of the water have grappled with several times over recent years. The issue came up again on 14 November 2006 in the European Court of Human Rights (ECHR).

Tsfayo v United Kingdom [2006] ECHR 60860/00.

The case was brought on 25 July 2000 by Ms Tiga Tsfayo, an Ethiopian national asylum seeker. It concerned the proceedings of a former Housing Benefit Review Board (HBRB) of Hammersmith and Fulham Council. Aficionados will know that since 2 July 2001, HBRBs have been replaced by tribunals instituted under the Child Support, Pensions and Social Security Act 2000. However, during the HBRB era, the applicant was concerned with a decision of the Council's HBRB on 10 September 1999 not to pay backdated benefit because she had failed to show 'good cause' why she had not claimed the benefits earlier. The applicant sought judicial review of this decision which was dismissed by the High Court on 31 January 2000 (amongst other things) because the HBRB's decision was neither unreasonable nor irrational and also because (pre Human Rights Act 1998) the European Convention on Human Rights (the Convention) had not yet been incorporated into English law.

The ECHR noted that whilst payments of housing benefit by the local authority are subsidised by central government normally to the extent of 95%, where such benefit is paid in the light of a decision that the claimant had good cause for a late claim, the subsidy is only 50%. The HBRB in question was composed of five elected councillors from the same local authority which would have been required to pay a percentage of the housing benefit if awarded. Whilst the Government conceded that the Board lacked 'structural independence' nevertheless it contended that the High Court on judicial review had sufficient jurisdiction to ensure that the proceedings as a whole complied with Article 6(1). Unfortunately the ECHR disagreed.

Article 6(1) (so far as relevant) provides as follows:

'In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. . .'

The key issue was, whether, the review process afforded by the High Court was sufficient to remedy the primary breach of Article 6 in the light of the fact that the HBRB included up to five elected councillors of the same council that would be paying the benefit.

Full jurisdiction

The ECHR noted the concept of 'full jurisdiction' as seen in the decision of the European Court of Human Rights in Albert and Le Compte v Belgium (1983) 5 EHRR 533 (where doctors who had been suspended from practice by a disciplinary tribunal complained of violations of Article 6(1) of the Convention). According to this principle, even where an adjudicatory body determining disputes over 'civil rights and obligations' does not comply with Article 6(1) in some respect, there will be no violation of the Convention if the proceedings before the body are 'subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1)'.

The concept was applied in Bryan v United Kingdom [1995] ECHR 19178/91 where the Court held that in order to determine whether the Article 6 compliant second-tier tribunal had 'full jurisdiction' or provided 'sufficiency of review' to remedy a lack of independence at first instance it was necessary to have regard to factors such as the subject matter of the decision appealed against, the manner in which that decision was arrived at and the content of the dispute, including the desired and actual grounds of appeal.

Bryan was a decision of a planning inspector challenged in the High Court. It was the exercise of the inspector's policy judgments involving development in a green belt and conservation area that was the subject of the challenge rather than findings of primary fact. The High Court would consequently have been able to review any alleged shortcoming in relation to following a quasi-judicial procedure and the duty to exercise independent judgment and also had the power to satisfy itself that the inspector's findings of fact or the inferences based on them were neither perverse nor irrational.

Another case where the 'sufficiency of review' principle worked to save the decision was Runa Begum v Tower Hamlets London Borough Council [2003] 1 All ER 731. This concerned a review of a homelessness decision by a reviewing officer who was employed by the same local authority but who had not been involved in the original decision and who was senior to the original decision maker. Lord Bingham had made it clear that a court on judicial review may quash an authority's decision if it is held to be vitiated by legal misdirection or procedural impropriety, unfairness, bias, irrationality or bad faith but also:

'. . .if there is no evidence to support factual findings made or they are plainly untenable or if the decision maker is shown to have misunderstood or been ignorant of an established and relevant fact'.

However, it was also 'plain that. . .the judge may not make fresh findings of fact and must accept apparently tenable conclusions on credibility made on behalf of the authority'.

In the circumstances, the House of Lords unanimously held that the existence of judicial review was sufficient in this context for the purposes of Article 6(1). Lord Bingham considered the following three matters to be 'particularly pertinent':

  1. The legislation in question was part of a far-reaching statutory scheme regulating the important social field of housing, where scarce resources had to be divided among many individuals in need;
  2. Although the Council had to decide a number of factual issues, these decisions were only staging posts on the way to the much broader judgments concerning local conditions and the availability of alternative accommodation, which the housing officer had the specialist knowledge and experience to make;
  3. The review procedure incorporated a number of safeguards to ensure that the reviewer came to the case with an open mind and took into account the applicant's representations.

But whilst (as Lord Hoffmann indicated in the Alconbury case (R. v Secretary of State for the Environment, ex parte Holding and Barnes, Alconbury Developments Ltd and Legal and General Assurance Society Ltd [2001] UKHL 23) the principles of judicial review give effect to the rule of law and ensure that 'administrative decisions will be taken rationally, in accordance with a fair procedure and within the powers conferred by Parliament. . .', this won't always be enough to afford 'sufficiency of review'. For instance in R (Bewry) v Norwich City Council, Moses J in the Administrative Court on 31 July 2001 considered whether judicial review was sufficient to remedy the fact that the HBRB lacked the appearance of an independent and impartial tribunal. He said that there was one 'insuperable difficulty':

'Unlike an inspector [in a planning case], whose position was described by Lord Hoffman. . . [in Alconbury]. . . as independent, the same cannot be said of a councillor who is directly connected to one of the parties to the dispute, namely the Council. The dispute was between the claimant and the Council. The case against payment of benefit was presented by employee of the Council and relied upon the statement of an official of the Council (the Fraud Verification Officer in the Council's Revenue office).'

And whilst the reasoning of the HBRB 'carefully set out' enables the court to ensure that there had been no material error of fact, the control was in fact limited. For one thing, the Court cannot substitute its own views as to the weight of the evidence. And there is a real distinction between a planning inspector and the connection of the councillors to the party resisting entitlement to housing benefit. For the lack of independence '. . . may infect the independence of judgment in relation to the finding of primary fact in a manner which cannot be adequately scrutinised or rectified by this court.' And:

'One of the essential problems which flows from the connection between a tribunal determining facts and a party to the dispute is that the extent to which a judgment of fact may be infected cannot easily be, if at all, discerned. The influence of the connection may not be apparent from the terms of the decision which sets out the primary facts and the inferences drawn from those facts.'


'. . . it is no answer to a charge of bias to look at the terms of a decision and to say that no actual bias is demonstrated or that the reasoning is clear, cogent and supported by the evidence. This court cannot cure the often imperceptible effects of the influence of the connection between the fact finding body and a party to the dispute since it has no jurisdiction to reach its own conclusion on the primary facts; still less any power to weigh the evidence.'

The Decision in Tsfayo

The ECHR considered that the decision-making process in the instant case was significantly different from the cases (such as Alconbury noted in the judgment) where the 'full jurisdiction' principle was applicable. For in this stream of cases the issues to be determined 'required a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims'. However, in the instant case, the HBRB was deciding a simple question of fact i.e. whether there was 'good cause' for the applicant's delay in making a claim. No specialist expertise was required to determine this issue. Nor, unlike the cases where 'full jurisdiction' applied, could the factual findings 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.

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. This might (per Bewry) '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 HBRB quashed the applicant's claim because it did not find her to be a credible witness. However:

'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 . . . it did not have jurisdiction to rehear the evidence or substitute its own views as to the applicant's credibility.'

Consequently 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. In the circumstances there had been a violation of Article 6(1).


So, depending upon the circumstances, the availability of judicial review may not be sufficient to cure a systemically unfair local authority process for determining issues concerning individual rights. Although, following the Human Rights Act 1998, the judicial review process will inevitably be much more 'contextually sensitive' than previously (see Lord Walker in R. (Prolife Alliance) v British Broadcasting Corporation [2003] UKHL 23) and in the light of the proportionality principle 'may require attention to be directed to the relative weight accorded to interests and considerations' (see Lord Steyn in R. (Daly) v Secretary of State for the Home Department [2001] 2 A.C. 532), nevertheless, the reach of judicial review may not be sufficient, for instance where justice would require a rehearing of the evidence or the court to substitute its own views as to a claimant's credibility.

Essentially this follows the classic distinction between the role of the executive decision maker (who has been entrusted by statute or other measure in the light of particular assumed experience or expertise to make the decision in question) and the role of the court as guardian of the law. Judicial review (although since the 1998 Act its tentacles are now much more far reaching) essentially regulates legal compliance and the courts are sensitive about trespassing into the domain of the substantive decision maker. It is therefore when the reviewing court or tribunal is unable to cure a systemic unfairness in the primary process that a decision might find itself packing its bags for Strasbourg. And that can be an expensive excursion.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.