The Supreme Court, in dismissing the appellant’s appeal against a finding that the local authority’s housing duty to her had been discharged, held that the reviewing officer had been entitled to find that there was no medical evidence that a property of its type would have the consequence that the appellant’s mental health would be so affected by it as to make it reasonable for her to refuse to accept it in all the circumstances of the case. The court also confirmed the finding in the case of Ali v Birmingham City Council[(2010] 2 All ER 175) that art 6 of the European Convention on Human Rights had no application in the context of the Housing Act 1996.

Poshteh v Royal Borough of Kensington and Chelsea [2017] UKSC 36

Housing – Homeless person – Duty of housing authority to provide accommodation – Appellant rejecting offer of permanent accommodation made by respondent local authority – Appellant contending features of accommodation causing flash backs to period of imprisonment and torture in Iran – Reviewing officer  rejecting appellants contention – County court and Court of Appeal  dismissing appellant’s appeal – Whether right to fair trial  having place  in context of housing allocation – Whether decision of housing officer being lawful – Housing Act 1996 – European Convention on Human Rights, art 6.

In 2003, the appellant arrived in the United Kingdom as a refugee from Iran, where she had been subject to imprisonment and torture. In 2007, her son was born in the UK. In 2009, she gained indefinite leave to remain. She applied to the respondent local authority (the authority) for accommodation as a homeless person under Pt VII of the Housing Act 1996 (the 1996 Act) and was housed in temporary accommodation provided by the authority. In 2011, she refused a final offer of permanent accommodation on the basis that the accommodation had features which reminded her of her prison in Iran, and which would exacerbate the post-traumatic stress disorder, anxiety attacks and other conditions from which she suffered. Following a review by the reviewing officer, those grounds were found insufficient to justify her refusal (see [11]-[13] of the judgment for the decision letter). That decision was upheld by the County Court and by a majority in the Court of Appeal, Civil Division. The appellant appealed. In the case of Ali v Birmingham City Council ([2010] 2 All ER 175) (Ali 1) the court decided that article 6 of the European Convention of Human Rights (art 6) had no application under Pt VII of the 1996 Act, as the 1996 Act did not give rise to ‘civil’ rights and obligations. The majority found that they would be reluctant to find that art 6 required the ‘judicialisation of claims to welfare services of this kind’, where ‘every decision about the provision of welfare services has resource implications for the public authority providing the service’. In Ali v United Kingdom ([2015] All ER (D) 173 (Oct)) (Ali 2), a Chamber of the European Court of Human Rights held that art 6 did apply in that context. The Secretary of State, as intervener, invited the court to confirm the decision of the UK court that art 6 had no application.

The issues were: (i) whether Ali 1 should be departed from in the light of Ali 2; and (ii) whether the reviewing officer’s approach was unlawful. Consideration was given to section 2 the Human Rights Act 1998.

The appeal would be dismissed.

(1) The unanimous judgment in Ali 1 had been intended to settle the art 6 issue in the context of provision of housing at domestic level, after a full review of all the relevant Strasbourg authorities. That was the background against which it was necessary to consider the reasoning in Ali 2. Ali 2 had failed to address the reasoning of the court in Ali 1 over the concerns of judicialisation of the welfare services and the implications for local authority resources. The court’s duty under section 2 of the 1998 Act was to ‘take account of’ the decision of the court. There was no relevant Grand Chamber decision on the issue, but it was normal to follow a ‘clear and constant line’ of chamber decisions. The scope and limits of the concept of a ‘civil right’, as applied to entitlements in the field of public welfare, raised important issues as to the interpretation of art 6, on which the views of the Chamber were unlikely to be the last word. Ali 2 was a case in which, without disrespect to the Chamber, the UK should not regard its decision as a sufficient reason to depart from the fully considered and unanimous conclusion of the court in Ali 1 (see [32], [33], [36], [37] of the judgment).

It was appropriate to await full consideration by a Grand Chamber before considering whether (and if so how) to modify the position in the UK (see [37] of the judgment).

Runa Begum v Tower Hamlets London Borough Council [2003] All ER (D) 191 (Feb) considered; Slater v Lewisham London Borough Council [2006] All ER (D) 192 (Apr) considered; Holmes-Moorhouse v Richmond-upon-Thames London Borough Council [2009] All ER (D) 36 (Feb) considered; Ali v Birmingham City Council [2010] 2 All ER 175 considered; Ali v United Kingdom (App. No. 40378/10) [2015] All ER (D) 173 (Oct) considered; R (on the application of A) v Croydon London Borough Council; R (on the application of M) v Lambeth London Borough Council [2010] 1 All ER 469 considered; Nzolameso v Westminster City Council [2015] All ER (D) 35 (Apr) considered.

(2) While not diminishing the importance of the responsibility given to housing authorities and their officers by the 1996 Act, reinforced in the case of disability by the Equality Act 2010, an over-zealous linguistic analysis had to be avoided. The length and detail of the decision-letter showed that the reviewing officer had been fully aware of the responsibility. Viewed as a whole, it read as a conscientious attempt by a hard-pressed housing officer to cover every conceivable issue raised in the case. He had done so, as he said, against the background of serious shortage of housing and overwhelming demand from other applicants, many no doubt equally deserving. He had clearly understood the potential importance of considering her mental state against the background of her imprisonment in Iran. Although taken in isolation some sentences could have been better expressed however, read in context the tenor was reasonably clear. There was no difficulty in understanding his reasoning overall and it had not disclosed an error of law. Accordingly, the appeal on that issue would be dismissed (see [39], [41], [43] of the judgment).

Puhlhofer v Hillingdon London Borough Council [1986] 1 All ER 467 not followed; El-Dinnaoui v Westminster City Council [2013] All ER (D) 204 (Mar) distinguished; Holmes-Moorhouse v Richmond-upon-Thames London Borough Council [2009] 3 All ER 277 applied; Runa Begum v Tower Hamlets London Borough Council [2003] All ER (D) 191 (Feb) applied. Decision of Court of Appeal, Civil Division [2015] All ER (D) 95 (Jul) affirmed.

Martin Westgate QC and Jamie Burton (instructed by Hansen Palomares) for the appellant.

Christopher Baker and Annette Cafferkey (instructed by Legal Services, Royal Borough of Kensington and Chelsea) for the respondent.

Clive Sheldon QC and Tom Cross (instructed by the Government Legal Department) for the Intervener.

Tara Psaila - Barrister.