When deciding whether a homeless applicant could reasonably accept a particular home, how should a reviewing officer weigh the applicant’s fears and the medical evidence? Ms Poshteh’s appeal raised that question and a second one about the right to a fair hearing under article 6 of the European Convention on Human Rights.
Ms Poshteh had been imprisoned and tortured in Iran before coming to the United Kingdom as a refugee. She applied for housing assistance and lived in temporary accommodation while the council sought a permanent home.
In November 2012 the council offered a two-bedroom flat. Ms Poshteh explained that a round living-room window reminded her of her prison cell and that living there would aggravate her post-traumatic stress disorder.
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The housing duty and the review
Under Part VII of the Housing Act 1996, an authority must secure suitable accommodation for an applicant who is homeless, in priority need and not intentionally homeless. Section 193(7) brings that duty to an end if, after being told of the consequences and of the right to a review, the applicant refuses a final offer under Part 6. Section 193(7F) requires the authority to be satisfied both that the accommodation is suitable and that it is reasonable for the applicant to accept it. The dispute concerned reasonableness rather than suitability as such.
Ward LJ had explained in Slater v Lewisham London Borough Council that the decision-maker must take account of all the applicant’s personal characteristics, needs, hopes and fears, and then ask whether a right-thinking authority would conclude that it was reasonable for this applicant to accept the offer. A review is carried out by a senior officer who was not involved in the original decision. An appeal to the county court lies on a point of law only. In Holmes-Moorhouse v Richmond upon Thames London Borough Council, Lord Neuberger said that review letters, written by experienced housing officers rather than lawyers, should be read benevolently and not subjected to technical or nit-picking analysis.
The medical evidence described Ms Poshteh’s symptoms and the kinds of accommodation she should avoid. Her therapist and GP did not initially identify the shape of a window as a trigger. At interview, Ms Poshteh explained the resemblance she saw, acknowledged differences in the windows and said that she could have accepted the flat temporarily. Her objection was to living there permanently.
In a decision letter of 17 October 2013 the reviewing officer accepted that objectively suitable accommodation might still be unreasonable for a particular applicant to accept if it caused symptoms of mental illness. He noted that the medical evidence recorded her concerns but did not itself say that this property was medically unsuitable or that acceptance was unreasonable. The therapist’s description of very small dark rooms without windows at a normal height did not match the flat: the circular window was seven square feet and there was also a large rectangular bay window. He concluded that her assertion that the windows recreated conditions of confinement likely to have a significant impact on her mental health was not objectively reasonable. He also treated the severe local shortage of permanent accommodation as highly relevant.
The Court of Appeal
The county court dismissed her appeal. In the Court of Appeal, McCombe LJ, with whom Moore-Bick LJ agreed, held that the officer had considered the relevant issues and reached a valid decision. Elias LJ dissented. He read the letter as treating panic or anxiety as insignificant unless the stressor was objectively reminiscent of a prison cell. In his view, a likely significant risk to mental health would make refusal reasonable whether or not the reaction was rational, as in El-Dinnaoui v Westminster City Council, where a sixteenth-floor offer to a woman with a medically confirmed fear of heights was held perverse after she collapsed on leaving the inspection. Moore-Bick LJ did not accept that the officer had ignored her reaction: whether the flat was likely to have a significant impact on her mental health was a judgment on the evidence as a whole.
Article 6
Permission was given on two issues. The first was whether Ali v Birmingham City Council, which held that Part VII duties do not create civil rights engaging article 6.1, should be departed from because a Chamber of the European Court of Human Rights had later held in Ali v United Kingdom that article 6.1 applied, while also finding the domestic procedure compliant.
Lord Carnwath, with whom Lord Neuberger, Lord Clarke, Lord Reed and Lord Hughes agreed, reviewed the domestic authorities, including Runa Begum v Tower Hamlets London Borough Council and R (A) v Croydon London Borough Council. In Ali the Supreme Court had distinguished precisely defined benefits from provision that depends on evaluative judgments, including how need should be met and how scarce resources should be used. The housing duty was in the latter category. The Chamber had not examined that reasoning, or the concern about judicialising welfare decisions, in detail. Its reliance on earlier obiter remarks and on Schuler-Zgraggen v Switzerland, a case of a defined financial entitlement once a statutory incapacity threshold was met, did not meet the range of judgments required under the housing legislation. Although a clear and constant line of Chamber decisions would normally be followed, this decision consciously went beyond earlier Strasbourg cases. The Court should await full Grand Chamber consideration before deciding whether, and if so how, to modify Ali.
Whether the officer applied the right test
On the second issue, it was argued that the officer had failed to focus sharply on the effects of disability, including under the public sector equality duty in section 149 of the Equality Act 2010, and had not properly addressed the panic attack or other subjective factors. Lord Carnwath held that the appeal showed the force of the warning in Holmes-Moorhouse. The letter was a conscientious attempt to deal with the issues against a background of severe shortage and overwhelming demand. The officer had identified the central question as whether acceptance was reasonable given her imprisonment, ill-treatment and subsequent diagnosis. He was entitled to give little weight to a panic attack not mentioned at the viewing, in her first letter, or apparently to her medical advisers. Unlike El-Dinnaoui, the reaction was neither immediate and obvious nor consistent with prior medical advice. The issue was how she could reasonably have been expected to cope in the longer term. The medical opinions rested on a description of the flat that did not match its actual windows and layout, a point put to her at interview. Read in context, the reasoning disclosed no error of law.
An argument for a more flexible standard of review where fundamental rights are involved lay outside the permission to appeal. The principles governing county-court appeals under the 1996 Act, established in Runa Begum and later cases including Holmes-Moorhouse, were to be treated as settled. The highly restrictive approach in R v Hillingdon London Borough Council, Ex p Puhlhofer was no longer necessary, but those settled principles were not to be reopened.
Verdict: The Supreme Court unanimously dismissed the appeal and confirmed the reviewing officer’s decision. It found no error of law in his assessment and followed Ali v Birmingham City Council on article 6.
Source: Poshteh v Royal Borough of Kensington and Chelsea [2017] UKSC 36
