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Tribunals, Courts and Enforcement Bill [HL]

moved AmendmentNo. 43: Page 7, line 29, after ““of”” insert ““fact or”” The noble Lord said: I shall speak also to Amendment No. 44. The amendments are intended to raise the issue of whether an appeal should be allowed on a point of fact as well as on a point of law. It is done in the context of the remarks that I made at Second Reading about the case of Tsfayo and the United Kingdom decided in the European Court of Human Rights as recently as 14 November. That case, which will now have been given some consideration by the Minister, who was kind enough to write to me about it, involved an applicant who was required by law to renew her application for housing and council tax benefit on an annual basis. The prospective claim was successful but the back-dated claim was refused on the basis that the applicant had failed to show good cause why she had not claimed the benefits earlier. That refusal was upheld by the authority following a request for reconsideration. The applicant appealed; the appeal was heard in September 1999 by the authority’s housing benefit and council tax benefit review board, which consisted of three councillors and was advised by a barrister from the authority’s legal department. The board rejected the appeal and the applicant was refused leave to apply for judicial review of the decision. In 2001, the review boards were replaced by specialist tribunals. The applicant complained to the European Convention on Human Rights that the review board was not an independent and impartial tribunal, as required by Article 6(1) of the convention, which of course is now incorporated into the Human Rights Act, and sought satisfaction for non-pecuniary loss. The court considered that the proceeding of the review board had not fulfilled the requirements of Article 6(1) of the convention. In contrast to some other decisions that were amenable to judicial review and which required a measure of professional knowledge or experience and the exercise of administrative discretion, the review board’s decision in the instant case had been a simple question of fact: namely, whether there had been good cause for the applicant’s delay in making the claim. No specialist expertise was required to determine that issue. Nor could the factual findings be said to be merely incidental to reaching broader judgments of policy or expediency. The further point was made that the review board did not merely lack independence from the executive, but was directly connected with one of the parties to the dispute. That connection of the councillors to the party resisting entitlement to housing benefit might infect the independence of judgment in relation to the finding of primary fact in a manner that could not be adequately scrutinised or rectified by judicial review. The safeguards built into the review board procedure were not adequate to overcome that fundamental lack of objective impartiality. Although on an application for judicial review the High Court had the power to quash the decision if, inter alia, it considered that there was no evidence to support the review board’s factual findings, or that its findings were plainly untenable or that it 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 on the applicant’s credibility. It was therefore never possible that the central issue would be determined by a tribunal that was independent of one of the parties to the dispute. This is, as I said, a new case, and it is important in determining whether our law in respect of appeals to the upper tribunal should allow a fact to be reviewed. I confess that I have not consulted widely on this subject, but I have consulted some eminent academic lawyers and I am very anxious to hear the Government’s view of the point at issue. It is important to give consideration to that case at this juncture. I beg to move.