Local authority considering application for funding for residential care — Panel including county councillors — Eventual decision made by director of social services — Whether proceedings in breach of Article 6 of European Convention on Human Rights — National Assistance Act 1948 — Appeal allowed
In 1997, B transferred his property to his son by deed of gift. He continued to reside in the property until ill health forced him to move into residential care in 1999. His son applied for funding to cover the cost of the residential care. The application was considered by a panel convened by the local council. The panel consisted of an independent chairperson and two county councillors. It reported to the director of social services, who refused the application on the ground that B had deliberately deprived himself of an asset that could have funded the residential care placement. B’s son applied for judicial review of the decision. The decision was quashed on the basis that the test in Yule v South Lanarkshire Council (No 2) 2000 SLT 1249, relating to the application of regulation 25(1) of the National Assistance (Assessment of Resources) Regulations 1992, had been applied incorrectly, if at all.
The appellant Secretary of State for Health was an interested party in the court below and appealed that part of the judgment relating to the claimant’s rights under Article 6 of the European Convention on Human Rights (entitlement to a fair and public hearing). The court was asked to address the issue of what was required in order to comply with Article 6(1): (i) was it sufficient to appoint a complaints panel comprised entirely of independent members but none the less reporting to a decision maker employed by the local authority, bearing in mind the availability of judicial review of that eventual decision? or (ii) was it necessary that not only the advisory panel but also the decision maker be independent and impartial?
Held: The appeal was allowed.
1. Where a case concerned a statutory scheme established for the provision of public bounty, the relevant Act should be allowed to operate according to its provisions. It was a common feature of such cases that a public body official had to make subjective decisions as to the best allocation of scarce public resources. The evaluation of such matters was closer to that of an administrator than to that of a judge. All such administrative decisions had to be subject to some form of judicial review, and the public law regime, as laid down by parliament, had to be respected. Accordingly, successful challenges, on the ground that judicial review constituted an insufficient remedy, should be rare. If the objective integrity of the first-instance process went unquestioned, the added safeguard of judicial review would satisfy the Article 6 standard unless some other special feature of the case indicated to the contrary.
2. Article 6(1) clearly applied to the instant case, since it was concerned with the question as to which premises the individual occupied as his home, and upon what terms. Although the panel’s recommendation lacked the independence and impartiality required under Article 6, this did not automatically render the decision in breach of Article 6. There was no evidence to suggest that the council members were biased. The decision maker did not have to be independent of the publicly accountable body of which he was a part in order to comply with Article 6, and, in this case, although the decision maker was not independent, no allegations of bias were made against him. The decision process in which he was involved, under Part III of the National Assistance Act 1948, included discretionary elements, and the scheme was characterised by the exercise of value judgments. The quality of the first decision maker’s expertise and the availability of judicial review were therefore sufficient to comply with Article 6; R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2001] 2 PLR 76, R (on the application of McLellan) v Bracknell Forest Borough Council [2001] EWCA Civ 1510; [2002] QB 1129 and Tower Hamlets London Borough Council v Begum (Runa) [2002] EWCA Civ 239; [2002] 1 WLR 2491 considered.
Nigel Giffin and Jason Copple (instructed by the solicitor to the Department of Health) appeared for the appellant; Richard Drabble QC and David Wolfe (instructed by the Public Law Project) appeared for the respondent; Dorset County Council did not appear and were not represented.
Vivienne Lane, barrister
