AS TO THE ADMISSIBILITY OF
Application no. 480/02
by Mohinder Singh DHADLY
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 31 May 2005 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr J. Borrego Borrego,
Mr J. Šikuta, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 12 December 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Mohinder Singh Dhadly, is a United Kingdom national, who was born in 1923 and lives in London. He is represented before the Court by Mr G. Blades, a lawyer practising in Lincoln. The respondent Government are represented by Mr J. Grainger, Foreign and Commonwealth Office.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Under the terms of a tenancy commencing from 25 August 1996, the applicant lived in a house owned by his son. The latter lived in the United States of America, and the property was managed by his mother, the applicant's estranged wife, under a power of attorney granted to her by the son.
In August 1996 the applicant submitted a claim for housing benefit to the local authority, which was refused as follows:
“I regret to inform you that I cannot award Housing Benefit because, in my opinion, you do not have a true liability to pay rent. Regulation 7 [see below] ... covers this matter. The basis on which I have made this decision is as follows:
i. You have been unable to provide a rent book or written statement of your current rent arrears.
ii. There is no indication that your landlord has taken any formal action to recover the property due to non-payment of rent. It is unusual for a landlord to allow rent arrears to accrue for this length of time without taking action.
iii. You appear to have lived 'rent free' in the property between June and August 1996, when your tenancy commenced.
Moreover, even if a liability to pay rent did exist it could be argued that your situation as a tenant has been created primarily in order to obtain Housing Benefit. Regulation 7 (1)(b)... covers this matter.”
The applicant appealed to an adjudicator who refused the appeal, holding, in accordance with section 130 of the Social Security, Contributions and Benefits Act 1992 (“section 130”: see below), that the applicant was not legally required to pay rent. The applicant appealed to the Housing Benefit Review Board (“HBRB”). The HBRB heard evidence from the applicant and his estranged wife and dismissed the appeal on 21 November 1997, holding under Regulation 7 that the applicant's liability to pay rent had been created to take advantage of the housing benefit scheme.
The applicant, acting as a litigant in person, applied for leave to seek judicial review of this decision, and was initially refused. He appealed to the Court of Appeal, which held that it was arguable that the HBRB had failed properly to apply the burden of proof in favour of the applicant. The Court of Appeal therefore granted leave to apply for judicial review.
On 20 October 1999 Mr Justice Richards in the High Court quashed the HBRB's decision and remitted it to the HBRB for re-determination. He held that, although the HBRB had purported to be acting under Regulation 7, the reasons given in support of the decision suggested that the HBRB believed that the applicant was not under a liability to pay rent. Moreover, the reasoning of its decision appeared, wrongly, to place the burden of proof on the applicant. He also commented that the HBRB had not adequately considered certain evidence which supported “... a reasonably cogent case in favour of the existence of a genuine tenancy, ie a true or genuine liability to pay rent”.
On 3 August 2000, after a hearing on 26 July 2000 at which the applicant had refused to present his case, the HBRB again rejected the applicant's claim for housing benefit, finding under section 130 that “there was ample evidence that the purported rental agreement did not establish a genuine liability to pay rent”.
The applicant sought judicial review. He contended that the HBRB was under an obligation to follow the comment in Mr Justice Richard's judgment that he had a “reasonably cogent case”, and thus grant his claim for housing benefit. He was granted leave on 7 June 2001, on the ground that the HBRB's decision did not set out the evidence on which it had based its finding that the applicant was under no legal obligation to pay rent.
On 2 July 2001 HBRBs ceased to exist and were replaced by new statutory Appeal Tribunals, which had no councillor members (see statement of domestic law below).
On 9 August 2001 the local authority applied to the High Court for a stay of the judicial review proceedings. The HBRB had withdrawn its decision of 3 August 2000 and had offered to pay the applicant's reasonable costs and rehear and re-determine his claim for housing benefit. The applicant opposed the stay because he believed that the HBRB should undertake to grant his application for housing benefit.
On 2 October 2001 Mr Justice Stanley Burnton ordered the stay because there was no purpose in continuing the proceedings: the local authority had already offered everything the applicant could have hoped to achieve through judicial review. He explained that, under English law, a court on an application for judicial review of a decision by a body such as the HBRB could only quash the HBRB's decision, if wrong in law, but could not substitute its own decision as to whether housing benefit should be granted. Even if Mr Justice Richard's judgment could be interpreted as finding that the applicant was under a genuine obligation to pay rent, the High Court had no power to make such a finding, but could only remit the case to the HBRB for a fresh determination.
The applicant appealed to the Court of Appeal. His appeal was refused on 21 November 2001, on the ground, inter alia, that:
“... [the applicant] misreads Mr Justice Richard's judgment and indeed, as I think, partly misunderstands the nature of judicial review proceedings. Judicial review proceedings - at least these judicial review proceedings - are concerned with the decision-making process and not with the actual decision made. In the circumstances of housing benefit, Parliament has set up a structure for determining whether it should be paid and to whom, and that structure does not involve decisions by the court. The court is concerned to review the process and the reasoning, but not to make the decision ... .”
On 15 December 2001 the Court of Appeal refused the applicant leave to appeal to the House of Lords.
The local authority then referred the applicant's claim to the new statutory Appeal Tribunal (see paragraphs 4 and 5 of the statement of Domestic Law, below), without, however, first informing the applicant or seeking his consent. The case was listed for hearing on 9 August 2002, but in a letter dated 21 July 2002 the applicant withdrew the appeal.
B. Relevant domestic law and practice
1. Housing benefit
Housing benefit is payable to people on low incomes by the local authority. By section 130 of the Social Security, Contributions and Benefit Act 1992,
“(1) A person is entitled to housing benefit if:
(a) he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home ...”
Regulation 7 of the Housing Benefit (General) Regulations 1987 provides:
“(1) The following persons shall be treated as if they were not liable to make payments in respect of a dwelling:
(a) a person who resides with the person to whom he is liable to make payments in respect of the dwelling ... ;
(b) a person whose liability to make payments in respect of the dwelling appears to the appropriate authority to have been created to take advantage of the housing benefit scheme except someone who was, for any period within the eight weeks prior to the creation of the agreement giving rise to the liability to make such payments, otherwise liable to make payments of rent in respect of the same dwelling.”
2. The Housing Benefit Review Board
At the relevant time, a claim to housing benefit was first considered by officials employed by the local authority and working in the housing department. If the benefit was refused the claimant was entitled to a review of the decision, first by the local authority itself, then by a HBRB, which comprised up to five elected councillors from the local authority.
After the coming into force of the Human Rights Act 2001, the compatibility of HBRBs with Article 6 of the Convention became open to challenge in the domestic courts. In Bewry (R. on the application of) v. Norwich City Council  EWHC Admin 657, the Secretary of State conceded that the HBRB lacked the appearance of an independent and impartial tribunal. The determination of the central issues of fact in the case depended on an assessment by the Review Board as to whether the claimant was telling the truth. The High Court found that judicial review proceedings were insufficient to remedy the problem, since the High Court could not “cure the often imperceptible effects of the influence of the connection between the fact finding body and a party to the dispute since it [had] no jurisdiction to reach its own conclusion on the primary facts; still less any power to weigh the evidence”.
On 2 July 2001 HBRBs ceased to exist. They were replaced by a new system in which determinations of the kind previously made by HBRBs are now made by a new statutory Appeal Tribunal. Members of such Appeal Tribunals do not include councillors.
3. Transitional arrangements
Under the transitional provisions contained in Regulation 4(3) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) (Transitional and Savings) Regulations 2001, any decision which would fall to be made by a HBRB but for the coming into force of the new system should be made by an Appeal Tribunal. In the Bewry case, which involved a decision by the HBRB before the new system became operative, the relief granted was the quashing of the HBRB's decision and an order remitting the case to an Appeal Tribunal under the transitional regulations.
The applicant complains under Articles 6 § 1 and 14 of the Convention about the lack of independence and impartiality of the HBRB and the failure of the proceedings before the High Court to remedy the situation.
The applicant complains primarily of a breach of Article 6 § 1, which provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
The Government submitted that the application should be declared inadmissible for non-exhaustion of domestic remedies, contrary to Article 35 § 1 of the Convention, which states:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
They pointed out that following the conclusion of the judicial review proceedings in November 2001, when the HBRB's decision had been quashed and the case remitted for new decision, the applicant had the opportunity to have his claim decided by a new, fully independent, Appeal Tribunal, as occurred in the Bewry case (see the provisional provisions under the 2001 Regulations, set out in the Domestic Law section above).
The applicant submitted that it was perverse and unlawful of the local authority to have remitted the case to the Appeal Tribunal, since on 2 October 2001 the judge had ordered the case to be reheard by the HBRB itself.
The Court notes that HBRBs were replaced by Appeal Tribunals on 2 July 2001, and that the relevant legislation put in place transitional arrangements to permit any decision which would fall to be made by a HBRB but for the coming into force of the new system to be made by an Appeal Tribunal. Although, under this transitional provision, the applicant's claim was listed for hearing before an Appeal Tribunal on 9 August 2002, the applicant chose to withdrew his appeal. It follows that the present application is inadmissible for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Elens-Passos Josep Casadevall
Deputy Registrar President
DHADLY v. THE UNITED KINGDOM DECISION
DHADLY v. THE UNITED KINGDOM DECISION