Poshteh v Royal Borough of Kensington and Chelsea

A local housing authority deciding whether it was reasonable for a homeless applicant to accept a final offer must consider all her personal circumstances, including mental illness and subjective fears, but reach an objective judgment. A reviewing officer’s reasons are read benevolently, realistically and as a whole. Courts should avoid technical or minute linguistic criticism.

The accommodation duty under Part VII of the Housing Act 1996 remains outside the civil limb of article 6 of the European Convention on Human Rights. A Strasbourg Chamber ruling to the contrary did not justify departing from settled Supreme Court authority where it extended earlier case law without fully addressing domestic reasoning, administrative discretion, public resources and practical consequences.

The appellant, a refugee who suffered post-traumatic stress disorder following imprisonment and torture in Iran, refused a local authority’s final offer of permanent accommodation. She said that a circular window reminded her of her prison cell and that living in the property would damage her mental health. Following a further review, the authority decided that the accommodation was suitable and that it had been reasonable for her to accept it.

The County Court dismissed her appeal. A majority of the Court of Appeal upheld that decision, Elias LJ dissenting: [2015] EWCA Civ 711. The Supreme Court considered whether article 6 applied to the Part VII housing duty following a contrary Strasbourg Chamber judgment, and whether the reviewing officer had applied the correct test to the alleged mental-health risk.

1. Appeal dismissed unanimously. Lord Carnwath delivered the judgment, with which Lord Neuberger, Lord Clarke, Lord Reed and Lord Hughes agreed. The reviewing officer’s decision was confirmed.

2. The Court declined to depart from Ali v Birmingham City Council [2010] 2 AC 39. The accommodation duty under Part VII of the Housing Act 1996 remained outside the civil limb of article 6. Unlike a precisely defined financial entitlement, the duty concerned a benefit in kind whose existence and discharge depended upon evaluative judgments, including judgments about suitability, how need should be met and the allocation of scarce resources.

   Section 2 of the Human Rights Act 1998 required the Court to take account of Ali v United Kingdom (2015) 63 EHRR 20. A domestic court would normally follow a clear and constant line of Strasbourg Chamber authority. The Chamber had, however, consciously extended earlier welfare-benefit cases and had not adequately addressed the Supreme Court’s reasoning, its concerns about judicialising welfare services, or the practical implications for public resources. Its judgment was therefore insufficient reason to displace the unanimous domestic authority before consideration by the Grand Chamber.

3. Under section 193(7F) of the Housing Act 1996, the authority had to consider all the applicant’s personal characteristics, needs, hopes and fears, and then decide objectively whether it was reasonable for that applicant to accept the offer. Review decisions written by experienced housing officers who are not lawyers must be interpreted benevolently, realistically and as a whole, consistently with Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7.

4. The officer had understood the potential significance of the appellant’s mental condition and imprisonment. He was entitled to give limited weight to the later assertion of a panic attack because it had not been reported during the viewing, in her initial letter or apparently to her medical advisers. He could assess the medical evidence against the property’s actual features and focus upon the likely longer-term effect of living there. El-Dinnaoui v Westminster City Council [2013] EWCA Civ 231 was materially different because the reaction there was immediate, obvious and consistent with earlier medical evidence. Read fairly and in context, the officer’s reasons disclosed no error of law.

5. The Court declined to enlarge the appeal to reconsider the general standard of judicial review. Although the highly restrictive approach in R v Hillingdon London Borough Council, Ex p Puhlhofer [1986] AC 484 was no longer necessary or appropriate after creation of the statutory county court appeal, the principles established in Runa Begum v Tower Hamlets London Borough Council [2003] 2 AC 430 and subsequent cases should be treated as settled.

6. The Court also emphasised that authority bundles must remain within reasonable limits. They should contain cases likely to be used in oral argument or authorities that are not readily accessible, with counsel and solicitors taking responsibility for avoiding unnecessary public expense.

• United Kingdom Supreme Court: The appeal was dismissed unanimously and the reviewing officer’s decision was confirmed: [2017] UKSC 36.
• Court of Appeal: By a majority, Moore-Bick and McCombe LJJ upheld the reviewing officer’s decision; Elias LJ dissented: [2015] EWCA Civ 711.
• County Court: HH Judge Baucher dismissed the appellant’s statutory appeal.