Poshteh v Royal Borough of Kensington and Chelsea

The Supreme Court dismissed the appeal. It held that the Chamber decision in Ali v United Kingdom (2015) did not provide a sufficient basis to depart from this court's earlier decision in Ali v Birmingham City Council [2010] 2 AC 39, and that any extension of article 6 to Part VII homelessness decisions should await fuller consideration by a Grand Chamber. The court also held that the reviewing officer had applied the correct legal test under the Housing Act 1996 Part VII: whether, having regard to the applicants personal characteristics and the evidence as a whole, it was objectively reasonable for her to accept the final offer. The reviewing officer had properly considered the medical evidence, the features of the property, the applicants conduct at interview and the acute local housing shortage, and had not made an error of law in upholding the offer as reasonable.

Background and relief sought:

• The appellant, a refugee with indefinite leave and medically certified post-traumatic stress disorder and related conditions, refused a final offer of permanent accommodation made under Part VII of the Housing Act 1996. The local authority confirmed that refusal and gave notice that its duty would cease. The appellant sought review of that decision and, ultimately, judicial review/appeal, contending that the accommodation would exacerbate her mental illness and that the reviewing officer applied the wrong test. The appeal to the Supreme Court raised two issues: (1) whether the Strasbourg Chamber decision in Ali v United Kingdom required this court to depart from its earlier decision in Ali v Birmingham City Council on the applicability of article 6(1) ECHR to Part VII decisions; and (2) whether the reviewing officer should have asked whether there was a real risk of damage to the appellant's mental health from moving into the accommodation irrespective of whether her reaction was rational, and whether he applied the correct test in this case.

Procedural history: The councils decision was upheld on review and by the County Court (HH Judge Baucher). The Court of Appeal ([2015] EWCA Civ 711) was divided: McCombe and Moore-Bick LJJ upheld the reviewing officers decision; Elias LJ dissented. Permission to appeal to the Supreme Court was granted on the two issues above.

Issues for decision:

1. Whether to follow the Strasbourg Chamber judgment in Ali v United Kingdom and treat Part VII homelessness decisions as engaging article 6(1) ECHR.
2. Whether the reviewing officer applied the correct legal test to the appellants refusal, and in particular whether he should have treated the appellants panic attack on viewing as a decisive subjective fact even if irrational.

Courts reasoning:

• On article 6, the court considered domestic authority beginning with Runa Begum and this court's unanimous decision in Ali v Birmingham City Council. The Supreme Court concluded that the Chamber judgment in Ali v United Kingdom did not adequately address the detailed domestic reasoning and practical implications of accepting article 6 in this regulatory welfare context. The court declined to depart from Ali v Birmingham City Council and preferred to await full Grand Chamber consideration before modifying its position.
• On the reviewing officers decision, the court emphasised the proper, benevolent approach to interpreting housing review decisions (following Holmes-Moorhouse). The reviewing officer had identified the right issue, considered the medical evidence and the factual features of the property (including that the circular window was large and that there was a substantial rectangular bay window), and examined inconsistencies between the appellants assertions to medical advisers and the objective facts. The officer was entitled to give limited weight to a panic attack first mentioned late in the process, and to focus on whether it was reasonable to expect the appellant to live in the property in the longer term. The court rejected the submission that the officer had applied an incorrect legal test or misdirected himself and found no error of law.
• The appellants reliance on the public sector equality duty under section 149 Equality Act 2010 did not change the outcome; the officers thorough consideration of the disability-related evidence was sufficient.

Result: The Supreme Court dismissed the appeal and confirmed the reviewing officers decision.

Appeal dismissed. The court held (i) that it was not appropriate, on the basis of the Chamber judgment in Ali v United Kingdom, to depart from this court's decision in Ali v Birmingham City Council that article 6(1) does not apply to Part VII homelessness decisions; and (ii) that the reviewing officer had applied the correct legal test to whether it was reasonable for the appellant to accept the final offer, had considered the medical evidence and the objective features of the property, and had not erred in concluding the offer was reasonable.

The council's decision was upheld on review and by the County Court (HH Judge Baucher). On appeal the Court of Appeal ([2015] EWCA Civ 711) allowed the appeal by majority (McCombe and Moore-Bick LJJ) and dismissed the challenge; Elias LJ dissented. Permission to appeal to the Supreme Court was granted on two points and the Supreme Court dismissed the appeal ([2017] UKSC 36).