Poshteh v Royal Borough of Kensington And Chelsea

When a homeless applicant refuses objectively suitable accommodation, the authority must consider all the applicant’s personal characteristics, needs, hopes and fears, then ask objectively whether it was reasonable for that applicant to accept the offer. A genuine belief or fear is relevant but is not conclusive. The authority may assess its likely effect on mental health against the evidence as a whole, including medical evidence, the applicant’s changing explanations and the accommodation’s actual features. The court reviews legality rather than remaking the decision. A reviewing officer must also comply conscientiously with the public sector equality duty, including obtaining information reasonably necessary to understand the likely effect of a disability. An appeal succeeds only where a material legal error undermines the decision.

Vida Poshteh appealed under section 204 of the Housing Act 1996 against a County Court decision dismissing her challenge to the Royal Borough of Kensington and Chelsea’s review decision. The authority had ended its duty under section 193(7) after she refused a final Part 6 offer, having concluded under section 193(7F) that the accommodation was suitable and that it was reasonable for her to accept it.

Ms Poshteh had post-traumatic stress disorder, depression and anxiety following imprisonment and torture in Iran. She said that a circular window in the offered flat recalled her prison cell and had caused a panic attack. The issues were whether the reviewing officer had failed to make adequate medical inquiries and whether he had relied on the irrelevant or erroneous view that her reaction was not objectively reasonable.

Appeal dismissed by a majority. McCombe LJ delivered the principal judgment, with Moore-Bick LJ agreeing. Elias LJ dissented and would have quashed the review decision and remitted the matter for fresh consideration.

1. Under sections 193(7) and 193(7F) of the Housing Act 1996, the relevant questions were whether the accommodation was suitable and whether it was reasonable for the applicant to accept the offer. Objective suitability was not disputed, so the appeal concerned the second question.
2. The test in Slater v Lewisham LBC [2006] EWCA Civ 394 and Ahmed v Leicester City Council [2007] EWCA Civ 843 requires the decision-maker to consider the applicant’s subjective factors, including personal characteristics, needs, hopes and fears, and then apply an objective standard. A genuine belief or fear is relevant, but it does not conclusively establish that refusal was reasonable.
3. The reviewing officer was entitled to consider the medical evidence, the applicant’s history, the development of her objections, what she said in interview, and the actual features of the flat. He could conclude that the circular window did not create conditions sufficiently likely to damage her mental health to render refusal reasonable. The court’s function was to review legality, not to remake the decision.
4. The reasoning was to be read realistically and practically under Holmes-Moorhouse v Richmond-upon-Thames LBC [2009] UKHL 7. An error warrants quashing only if, on a fair analysis, it undermines the basis of the decision.
5. The reviewing officer had conscientiously recognised the applicant’s disability, considered the public sector equality duty under section 149 of the Equality Act 2010, and obtained what he considered necessary medical information. The majority therefore rejected both grounds of appeal.

Elias LJ considered that the officer had materially misdirected himself by treating the rationality or objective similarity of the trigger as decisive. In his view, an irrational panic response could still create a material risk to mental health, although the evidence did not compel refusal; he would have remitted the decision for fresh consideration.

• Court of Appeal (Civil Division) [2015] EWCA Civ 711: appeal dismissed by a majority. McCombe LJ gave the principal judgment and Moore-Bick LJ agreed; Elias LJ dissented.
• Central London County Court: Her Honour Judge Baucher dismissed the section 204 appeal from the authority’s review decision.
• Royal Borough of Kensington and Chelsea review: the authority upheld its decision to end the section 193 housing duty after refusal of the final offer.