The Supreme Court handed down judgment in the case of Tomlinson and Others v Birmingham City Council [2010] UKSC 8 on 17th February 2010. In an appeal against a decision of the Court of Appeal the question for the court was whether the duty to provide social housing under section 193 of the Housing Act 1996 gives rise to a civil right for the purposes of engaging article 6(1) of schedule 1 of the Human Rights Act 1998.

By sections 193(1) and (2) of the Housing Act 1996 (‘the Act’), the local authority is under a duty to accommodate the applicant where they are satisfied that the applicant is homeless, eligible for assistance, has a priority need and where the authority is satisfied that the applicant is not intentionally homeless. The authority will cease to be under that duty, where the applicant, having been informed of the consequences of refusal, refuses an offer of accommodation which the authority is satisfied is suitable for him and the authority notifies him that they regard themselves to have been discharged of the duty under that section.

Under section 202(1)(b) of the Act the applicant is entitled to a review of any decision of the local authority by a reviewing officer who was not involved in the original decision. By section 204(1), if dissatisfied with the review, the applicant is then entitled to appeal to the county court for judicial review, but they may only do so on a point of law arising from the decision. The question for the court was whether on appeal from the reviewing officer, the court is required to exercise their full fact-finding jurisdiction in order to comply with article 6(1).

Dismissing the appeal, the court held that the present case was outside the scope of article 6(1). Although following the case of Schuler-Zgraggen v Switzerland (1993) 16 EHRR 405, State intervention was not sufficient to establish that article 6(1) was inapplicable, cases where the award of services or benefits in kind are dependent on a series of evaluative judgments by local authorities do not give rise to an individual economic right so do not engage article 6(1).

Although the case of Salesi v Italy 26 EHRR 187 had extended the scope of article 6 to include welfare payments, the later case of Mennitto v Italy 34 EHRR 1122 emphasised that the outcome of the proceedings must be directly decisive of the right in order to engage article 6(1). The cases of Salessi and Mennitto, as relied on by the appellants were distinguishable as the amount to which the applicant was entitled was not in the discretion of the public authority; where as the present case required a considerable amount of administrative discretion.

The court, in reaching its decision was careful to adhere to Lord Bingham’s warning to the national courts in R(Ullah) v Special Adjudicator [2004] UKHL 26 not interpret the Convention in a way that provides for rights more generous that those which have been established by Strasbourg jurisprudence.

On the issue of whether the review would have been sufficient to comply with article 6(1) had it been engaged, the court, applying the ratio in Runa Begum v Tower Hamlets LBC [2003] 2 AC 430 , concluded that the absence of a full-fact finding jurisdiction in the appellate court would not deprive it of what is needed to satisfy the article.