Poshteh v Royal Borough of Kensington And Chelsea

The Court of Appeal considered whether the reviewing officer lawfully concluded that a final offer of accommodation under Part 6 of the Housing Act 1996 was one which it was reasonable for the appellant to accept and therefore that the local authority's duty under section 193(7) had ceased. The statutory test required the officer to assess suitability and then whether it was reasonable for the applicant to accept the offer, taking account of subjective factors including disability and PTSD.

The majority held that the officer had properly considered the medical evidence, the applicant's account (including that she experienced a panic attack on viewing) and the housing features, had had due regard to the public sector equality duty (Equality Act 2010, s149) and was entitled on the evidence to find that the property would not have a sufficiently adverse effect on her mental health to make refusal reasonable. A dissenting judge would have held that the officer misdirected himself by treating as irrelevant the applicant's unchallenged account of a panic attack caused by the circular window and would have quashed and remitted for fresh consideration.

Background and parties: The appellant, a woman diagnosed with post-traumatic stress disorder arising from imprisonment and torture in Iran, had been in temporary accommodation since 2009. In November 2012 the respondent local authority made a final offer of permanent accommodation under Part 6 of the Housing Act 1996. The authority treated the offer as final under s193(7) and informed her of the consequences of refusal and of the right to a review under s204. The appellant refused the property, citing that a circular window in the living room caused flashbacks and a panic attack; clinicians provided reports stating she should not be housed in cramped high rise accommodation with small or barred windows.

Procedural history: The reviewing officer upheld the decision to discharge the housing duty on review (17 October 2013). The appellant appealed to the County Court; HHJ Baucher dismissed that appeal on 8 May 2014. Permission to appeal to the Court of Appeal was eventually granted by Patten LJ on 24 November 2014.

Nature of claim and issues: This was an appeal against a review decision under s204 of the Housing Act 1996. The key issues were (i) whether the reviewing officer erred in law by treating as an irrelevant consideration his finding that the appellant's assertion that the circular window was reminiscent of her cell was not "objectively reasonable" and (ii) whether he failed to make adequate enquiries of treating clinicians in breach of the public sector equality duty.

Court's reasoning and conclusion: The majority (McCombe LJ and Moore-Bick LJ) held that the statutory test requires the decision-maker to take into account subjective factors but then to ask whether it was objectively reasonable for the applicant to accept the offer (following Slater and Ahmed). The reviewing officer had examined the full medical material, gave weight to treating clinicians but also reasonably relied on his assessment of the property (dimensions, photographs, presence of a large rectangular window, one flight of stairs) and the appellant's own interview statements (including that the circular window was larger than the prison window and that she would accept the property as temporary accommodation). He had expressly recorded consideration of the Equality Act 2010 s149 and stated that he had made necessary enquiries and obtained medical records. On that evidence it was open to him to conclude that there was no medical opinion that acceptance would significantly damage the appellant's mental health. Therefore the appeal was dismissed by majority. Elias LJ (dissenting) considered that the reviewing officer had misdirected himself by, in effect, treating the appellant's unchallenged account of a panic attack as irrelevant and by inferring without adequate evidence that the inciting stressor could not cause significant harm; he would have quashed and remitted for fresh review.

Appeal dismissed (majority). The majority concluded the reviewing officer lawfully assessed both suitability under s193 and reasonableness to accept the final offer, having regard to subjective factors and medical evidence and having complied with the public sector equality duty; his view that the property would not have a sufficiently adverse effect on the appellant's mental health was a conclusion open to him on the material. A dissenting judge would have quashed and remitted, finding a material misdirection in discounting the appellant's unchallenged account of a panic attack caused by the circular window.

Appeal from the order of Her Honour Judge Baucher in the Central London County Court (order dated 8 May 2014) dismissing the appellant's s204 appeal. Permission to appeal to the Court of Appeal was initially refused on the papers by Kitchin LJ on 22 August 2014 and thereafter granted orally by Patten LJ on 24 November 2014. The Court of Appeal handed down judgment on 8 July 2015 ([2015] EWCA Civ 711).