AS TO THE ADMISSIBILITY OF
Application no. 59580/00
by B.H. against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 25 September 2007 as a Chamber composed of
Mr J. Casadevall, President,
Sir Nicolas Bratza,
Mr G. Bonello,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mr J. Šikuta,
Mrs P. Hirvelä, judges,
Ms L. Mijović, substitute judge,
and Mr T.L. Early, Section Registrar,
Having regard to the above application, introduced on 19 July 2000,
Having regard to the partial inadmissibility decision of 26 March 2002,
Having regard to the Government’s observations of 25 June 2002 and the applicant’s observations of 24 September 2002,
Having regard to the decision of 12 December 2006 under Article 29 § 3 of the Convention to examine the admissibility and merits of the case together,
Having regard to the unsuccessful friendly settlement negotiations conducted pursuant to Article 38 § 1(b) of the Convention,
Having regard to the Government’s request to strike the case out of its list of cases and the text of the unilateral declaration made with a view to resolving the issues raised by the application,
Having regard to the applicant’s comments on the Government’s proposal to strike the case out on the basis of their unilateral declaration,
Having deliberated, decides as follows:
The applicant is a United Kingdom national, who was born in 1966 and lives in Preston. The respondent Government were represented by their Agent, Mr J. Grainger, of the Foreign and Commonwealth Office and the applicant by Ms P. Donohue and Mr P. Draycott of the Fulham Legal Advice Centre, London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows:
On 2 September 1994 the applicant made a claim for housing benefit to South Ribble Borough Council (“the Council”). The applicant asserted in his application that his claim for income support was being processed by the Blackburn office.
The Council’s housing benefit officer made a routine visit to the property which the applicant claimed to be renting for GBP 575 per month. The officer suspected fraud and asked the Council’s fraud investigation officer to investigate. On or about 17 December 1994, the Council allegedly accessed personal data about the applicant from the Police National Computer.
On 19 September 1994, the applicant was interviewed and the officer recommended that housing benefit be refused. On 18 October 1994, the applicant was informed that his application had been refused on the ground that he had made false representations to the Council. The matter was re-considered by the Council on 15 November 1994 and the refusal was confirmed.
In November 1995, the applicant made a complaint to the Local Government Ombudsman about, inter alia, the refusal to award him housing benefit. As part of that complaint, the applicant forwarded to the Ombudsman documents that appeared to indicate that he had been in receipt of income support during 1994/95. The Council had not seen these documents previously and therefore agreed to review his claim, giving him, with it, a right of appeal. On 15 February 1996, the claim was reviewed on the basis that income support had been paid to him during 1994 and 1995 but was nonetheless refused. The applicant appealed to the Housing Benefit Review Board (“the Review Board”).
On 2 May 1996, the Review Board heard the applicant’s request for a review of the decision not to pay him housing benefit. The Review Board refused the applicant’s review on the grounds that the applicant had failed to provide sufficient evidence of his income and had failed to provide sufficient evidence that he had no bank account.
The applicant sought judicial review of this decision. Leave to move for judicial review was initially refused by Mr Justice Laws on 27 January 1997. On 22 April 1997, Mr Justice Sedley ordered that the Council be given four weeks to show why leave to move for judicial review should not be granted. On 4 July 1997, by consent, the decision of the Review Board was quashed and the matter was remitted back to a new Review Board.
On 3 February 1998, a freshly constituted Review Board re-heard the applicant’s claim for Housing Benefit. The Board was made up of four councillors. The applicant appeared in person. Mr G., the Revenues and Benefits Services Manager, presented the case on behalf of the Council. The Board set out its findings of fact and rejected the applicant’s request for Housing Benefit.
The Board’s reasons for this conclusion were that the applicant’s income support claim was invalid because it had been obtained by fraudulent means. The Review Board further noted that the applicant had made false statements to his landlord about his qualifications, agreed to pay rent by standing order and subsequently denied that he had a bank account, was able to make a large cash advance and pay a high rent at the beginning of the tenancy and had a large number of electrical products belonging to him at the property.
The applicant sought judicial review of the Board’s decision on the grounds that the Review Board had made various errors of law. Leave to seek judicial review was granted on one ground only:
“There is a single arguable question of law here: whether it is open to a Housing Benefit Review Board to make a finding that the current award of income support on which a housing benefit claim is based is vitiated by fraud. The applicant might be well advised to travel no further into the merits.”
On 14 December 1998, the High Court concluded that the Board had acted lawfully and therefore rejected the application for judicial review. The applicant appealed to the Court of Appeal. On 24 January 2000, the Court of Appeal dismissed the appeal, concluding that the Review Board had acted lawfully.
The applicant complained under Article 6 § 1 of the Convention about the lack of independence and impartiality of the Review Board and under Article 1 of Protocol No. 1 to the Convention about the refusal to pay him housing benefit.
The applicant complained under Article 6 § 1 of the Convention that he did not receive a fair trial in the determination of his civil rights and obligations by the Review Board and that the review by the High Court did not adequately remedy any deficiencies before the Review Board because of the restricted nature of judicial review. Under Article 1 of Protocol No. 1 he complained about the Review Board’s decision to refuse his claim for housing benefit.
Article 6 § 1 provides, so far as relevant, as follows:
“In the determination of his civil rights and obligations....everyone is entitled to a fair and public hearing....by an independent and impartial tribunal.”
Article 1 of Protocol No. 1 states:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
A. The Government’s declaration
By a letter dated 13 July 2007 the Government requested the Court to decide that it was no longer justified to continue the examination of the application and to strike the case out under Article 37 of the Convention on the basis of the following text:
“The Government of the United Kingdom acknowledge that the applicant’s rights under Article 6 § 1 of the Convention to a fair hearing before an independent and impartial tribunal in respect of his claim for housing benefit were breached, in that the Housing Benefits Review Board which dealt with his claim lacked structural independence. The Government accept, in the light of the Court’s judgment in Tsfayo v. the United Kingdom (application no. 60860/00, judgment of 14 November 2006) that the proceedings as a whole relating to this application did not comply with Article 6 § 1. The Government do not consider that the applicant’s claim for housing benefit was sufficiently certain as to amount to a possession for the purpose of Article 1 of Protocol 1, and therefore consider that this part of the application is inadmissible.
The Government also stress that, since 2 July 2001, Housing Benefit Review Boards have been replaced by Independent Appeal Tribunals set up under the Child Support, Pensions and Social Security Act 2000. Appeal Tribunals consider appeals on fact and law against decisions relating to housing benefit in a manner similar to other social security benefits. There is a right of appeal from decisions of a tribunal on points of law to the Social Security Commissioners, and from the Commissioners to the Court of Appeal and the House of Lords.
In these circumstances, and having regard to the particular facts of the case, the Government declare that they hereby offer to pay ex gratia to the applicant the amount of EUR 2,000 in respect of pecuniary and non-pecuniary loss, and GBP 5,000 in respect of the applicant’s legal expenses, these amounts to be paid in pounds sterling (converted at the rate applicable on the date of settlement) to a bank account named by the applicant within three months from the date of the striking out decision of the Court pursuant to Article 37 of the Convention. This sum is intended to cover all and any pecuniary and non-pecuniary damage arising from the breach”.
The applicant resisted the Government’s application to have the case struck out. He accepted the Government’s proposal as regards damages for the breach of Article 6 § 1, but reasoned that the costs award should be increased to GBP 10,500, as this represented half of the costs incurred this far in connection with these proceedings, both domestically and before the Strasbourg institutions.
He vigorously contested that the declaration was sufficient to justify the striking out of the claim under Article 1 of Protocol No. 1 and submitted that it would be open to the Court to strike out the part of the application concerned with Article 6 § 1 while continuing with its examination of the complaint under Article 1 of Protocol No. 1. Given that under domestic law Schedules 4 and 5 of the Housing Benefit (General) Regulations 1987 envisaged that an award of income support acted as an automatic “passport” to housing benefit, the applicant had a “legitimate expectation” that he would be granted the benefit. The fact that the finding of fraud was made by a “partial” Housing Benefit Review Board raised a significant point of principle under Article 1 of Protocol No. 1. Moreover, the applicant had incurred the financial obligation of a twelve-month lease in the expectation that he would be granted housing benefit. For these reasons, he requested the Court to reject the Government’s application in so far as it related to the complaint under Article 1 of Protocol No. 1.
The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It recalls that, according Article 38 § 2 of the Convention and Rule 62 § 2 of the Rules of Court, friendly settlement negotiations are confidential and no written or oral communication, offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the above declaration was made by the Government outside the framework of the friendly settlement negotiations.
The Court also recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases, even if the applicant objects to this procedure, where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1(c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application.”
Article 37 § 1 in fine includes the proviso that:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and Protocols thereto so requires.”
In the present case, the Court notes that the Government, in their above declaration, accepted that the Review Board procedure which determined the applicant’s claim for housing benefit was incompatible with Article 6 § 1, for reasons that the Court examined at length in the above-mentioned Tsfayo judgment. Having regard to this admission, the fact that the Government have already taken general measures to remedy the situation, together with the amount of compensation proposed (which is consistent with that awarded in Tsfayo), the Court considers that it is no longer justified to continue the examination of the complaint under Article 6 § 1 (see, for the relevant principles, Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI). Furthermore, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application in so far as it relates to the complaint under Article 6 § 1 of the Convention.
Given that the Government have stated in their declaration that the complaint under Article 1 of Protocol No. 1 should be declared inadmissible, and that the applicant opposed such a finding, the Court will give separate consideration to that matter.
B. The complaint under Article 1 of Protocol No. 1
As regards the applicant’s complaint under Article 1 of Protocol No. 1, the Court recalls its established case-law that a “claim” can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 only if it is sufficiently established to be enforceable (see Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B, § 59). In the present case, the applicant’s claim for housing benefit was refused by two differently-constituted Review Boards on grounds of fraud. The High Court and Court of Appeal found that the Board was entitled to reach this conclusion. The fact that the Review Board Procedure was inconsistent with Article 6 § 1 does not entail that its decision to refuse the applicant’s claim to housing benefit was not well-founded or that a differently constituted tribunal would have found for the applicant (see, mutatis mutandis, Kingsley v. the United Kingdom [GC], no. 35605/97, § 42, ECHR 2002-IV). In the circumstances of the instant case, at no stage of the domestic proceedings was there any judicial decision such as to establish the applicant’s claim to housing benefit as a “possession” within the meaning of Article 1 of Protocol No. 1 (see, mutatis mutandis, Oao Plodovaya Kompaniya v. Russia, no. 1641/02, judgment of 7 June 2007).
The complaint is therefore incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Article 29 § 3 of the Convention
In the light of the above conclusions, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.
For these reasons, the Court unanimously,
Decides to strike out of its list of cases the part of the application concerning the complaint under Article 6 § 1 of the Convention;
Declares the remainder of the application inadmissible.
T.L. Early Josep Casadevall
B.H. v. THE UNITED KINGDOM DECISION
B.H. v. THE UNITED KINGDOM DECISION