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Fazia Ali v UK

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Legal aid residency test

What were the issues before the court in this matter?

There were two issues for the court to determine:

  1.  Did the determination of the rights and/or entitlements of the applicant in respect of the main housing duty owed to her by the local authority involve the determination of a civil right within the meaning of Article 6?
  2. If so, did the determination of the applicant’s civil rights satisfy the requirement of Article 6?

How did the ECtHR approach the Art 6 issues?

The applicant had argued that the determination of her entitlement to accommodation under Part VII of the Housing Act was a determination of a civil right for the purposes of the ECHR.  She argued that once the qualifying conditions were met the council’s duty to secure accommodation was mandatory and not discretionary and that she had a legally enforceable entitlement to be provided with public housing which derived from a specific statutory scheme.  She also argued that as a homeless person in priority need the right to accommodation was critically important and there was a discretion to how and what accommodation was provided which did not affect the substance of the right but rather related to the performance of the right.

The government argued that it was not a civil right for the purposes of Art 6 because the court had limited the interpretation of civil rights to rights which were related to economic rights enforceable through the courts.   They argued that any right under S193 of the Act was subject to judgmental decisions by the council as to whether the duty arose and that the subject matter of the right was also subject to a range of judgmental issues.

The court held that Art 6 applies and an applicant has a right to a fair hearing before an independent and impartial tribunal.  The court held that once the initial qualifying conditions under S193(1) had been met the council was required to secure accommodation provided.  Once the court had determined that Art 6 did apply they were required to consider whether the determination of the applicants rights complied with Art 6.

The applicant argued that the lack of a full merits review by an independent and impartial tribunal violated her rights under Art 6 and that the court does not possess full jurisdiction for the purposes of Art 6 and could not cure the lack of independence and impartiality of a review officer.

The government argued that there were sufficient procedural safeguards contained in the statute which provided for an internal review which by a senior officer and then could be appealed on a point of law.

The court held that although there is no reason to doubt the officer’s impartiality they did not consider that she can be regarded as an independent tribunal within the meaning of Art 6.  The court considered it was necessary to examine the whole of the legislative scheme in question, including the safeguards offered to individual claimants in order to determine whether the procedure provided for resolution of disputes over the civil rights and obligations thereby created is compliant with Art 6.  In considering the safeguards which were in place in the UK legislative scheme including that 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; the applicant was entitled to make representations, which the officer was obliged to consider; the applicant was entitled to be represented; the officer was required to give reasons for any decision adverse to the applicant; and the applicant had to be informed of her right of appeal to the County Court, the court held that the UK legislative scheme was compliant with Art 6.  It held that although the county court did not have jurisdiction to conduct a full rehearing of facts, the appeal did permit it to carry out a certain review of the facts and procedure by which factual findings of the review officer were arrived at.

What are the practical implications of this decision?

It has been determined by the ECHR that the right to accommodation is a civil right and therefore Art 6 applies.  The applicant has a right to a fair hearing before an independent impartial tribunal, and that is provided for by the current system.  Practically speaking there will be no change to the homeless procedure.  However, we find it is frequently the case that the current procedure isn’t followed by the Local Authority.  It is clear that this would now be a breach of Art 6.

How does this further our understanding of local authorities’ duty to persons in priority need who are not homeless intentionally?

If the local authority make a finding that someone is homeless, eligible for assistance, in priority need and not intentionally homeless then there is a duty for them to secure accommodation for the applicant.  The applicant’s right to accommodation in those circumstances is a civil right and Art 6 applies. This means that the applicant has a right to a fair hearing before an independent impartial tribunal.  The reviewing officer can not be considered to be an independent and impartial tribunal so there needs to be sufficient safeguards in place to ensure that the applicant’s rights under Art 6 are not violated.  The local authority must ensure that the reviewing officer must be a senior officer and must not have been involved in the original decision. The application must have the right to make representations or be represented and the officer is obliged to consider those representations. The officer must give full reasons for a negative decision and the applicant must be informed of their right to review.  If this procedure is not followed it is arguable that the applicant’s article 6 rights have been violated.