ECHR judgment in Tsfayo v United Kingdom

14/11/2006

This case considered the extent to which judicial review can correct the lack of independence and impartiality of an initial administrative decision maker in the area of social welfare law. This judgment is likely to have wide implications for administrative decision making. Paul Draycott of Garden Court North Chambers, represented Tiga Tsfayo from the outset of this case in 1999.

Tsfayo v. United Kingdom (no. 60860/00) [2006] All ER (D) 177 (Nov); The Times 23/11/06.

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April 2009 Update: Tsfayo has been reported in the European Human Rights Reports; its citation is Tsfayo v United Kingdom [2009] 48 EHRR 18.

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The First Chamber (fourth section) of the European Court of Human Rights have today handed down their judgment in Tsfayo v. United Kingdom (no. 60860/00).

Background

The applicant, Tiga Tsfayo, is an Ethiopian national who was born in Ethiopia in 1975 and lives in London having been granted indefinite leave to remain. In September 1999 the Hammersmith and Fulham Council Housing Benefit and Council Tax Benefit Review Board (the HBRB) rejected the applicant?s appeal against London Borough of Hammersmith and Fulham?s refusal to pay backdated council tax and housing benefits, as they rejected her evidence that she had not received the relevant correspondence concerning the renewal of her claims. She subsequently sought judicial review of the HBRB?s decision but her application was refused permission by the High Court.

Since the coming into force of the Human Rights Act 2000, the UK courts have considered in decisions such as Runa Begum -v- Tower Hamlets London Borough Council [2003] 1 All ER 731 HL and R (Beeson) -v- Secretary of State for Health [2002] EWCA Civ 1812 CA, the extent to which judicial review can remedy the lack of independence in a first instance administrative decision maker. The applicant complained that the HBRB was not an independent and impartial tribunal, as required by Article 6 § 1 (right to a fair hearing) and that these deficiencies were not corrected by her ability to apply for judicial review of their decision.

This case was heard in an oral hearing before the Fourth Section of the European Court of Human Rights on 22nd November 2005.

Decision

The Court unanimously held that there had been a violation of Article 6 § 1 of the Convention; and held that that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage and EUR 5,800 (five thousand, eight hundred euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable.

The ECHR costs order is to be the subject of a review/revision application by the Applicant under Rules 80 and 81under the ECHR?s Rules of Court (November 2003).

Commentary

In the course of their judgment, the ECHR emphatically endorse the Administrative Court's decisions in R(Bewry) -v- Norwich City Council [2001] EWHC Admin 657 and R(Bono and another) -v- Harlow District Council [2002] 1 WLR 275 (Admin).

As a result of the ECHR?s decision, it is strongly arguable that if an individual's claim in an area of social welfare law is dismissed solely on the grounds of credibility by an decision maker who is not independent and impartial, by definition, judicial review cannot cure the first instance deficiencies and a violation of Article 6 has taken place.

The ECHR state :

?47. ? Whilst the High Court had the power to quash the decision it is considered, inter alia, that ? 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. Thus, in this case, 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.

48. It follows that there has been a violation of Article 6(1)?

> click here to read judgment

Paul Draycott of Garden Court North Chambers appeared as junior counsel for Tiga Tsfayo, instructed by Fulham Legal Advice Centre.

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