Poshteh v Royal Borough of Kensington and Chelsea [2017] UKSC 36

An Iranian refugee with PTSD refused a council flat, claiming a round window reminded her of her prison cell. The Supreme Court upheld the council's decision and declined to depart from Ali v Birmingham, holding article 6 did not apply to homelessness duties.

Facts

Ms Vida Poshteh, an Iranian refugee who had been imprisoned and tortured in Iran, suffered from post-traumatic stress disorder, anxiety and depression. She arrived in the UK in 2003, gained indefinite leave to remain in 2009 and applied to the Royal Borough of Kensington and Chelsea for accommodation as a homeless person. In November 2012 she was offered a final permanent offer of a first-floor, two-bedroom flat at 52a Norland Road. The living room had a circular window (approximately 3 feet diameter) and a larger rectangular window. After viewing the property, she refused it, asserting that the round window reminded her of her prison cell and would exacerbate her PTSD. She produced medical evidence from her GP and a clinical therapist supporting her concerns.

The council’s reviewing officer interviewed her on 7 October 2013. She acknowledged that the prison cell window had in fact been much smaller and that the flat’s circular window was not ‘exactly like’ it. The reviewing officer’s decision letter of 17 October 2013 concluded that the accommodation was suitable and that it had been reasonable for her to accept it. The County Court and the Court of Appeal (Elias LJ dissenting) upheld that decision.

Issues

Permission to appeal was granted on two issues:

1. Whether Ali v Birmingham City Council [2010] 2 AC 39 should be departed from in light of Ali v United Kingdom (2016) 63 EHRR 20, which held that article 6 ECHR did apply to homelessness duties under Part VII of the Housing Act 1996;
2. Whether the reviewing officer should have asked himself whether there was a real risk that the appellant’s mental health would be damaged by moving into the accommodation, whether or not her reaction was irrational, and whether he applied the right test.

Arguments

Appellant

Mr Westgate QC argued that the reviewing officer failed to address adequately the subjective factors of the appellant’s claim, particularly her reported panic attack on viewing the flat, which was an objective fact even if irrational. He relied on the public sector equality duty under section 149 of the Equality Act 2010 and contended the decision letter failed to link the objective unreasonableness of her reaction to the rejection of her mental health claim. He also invited the court to adopt a more flexible standard of review where fundamental rights were at stake.

Respondent and Intervener

The council defended the reviewing officer’s reasoning. The Secretary of State, intervening, urged the court to confirm that article 6 did not apply, expressing concern about the implications of extending article 6 into community care, welfare and education decision-making.

Judgment

Issue 1 – Article 6 ECHR

Lord Carnwath (with whom the other Justices agreed) declined to depart from the unanimous decision in Ali v Birmingham. He observed that the Strasbourg Chamber in Ali v UK had failed to engage with the Supreme Court’s reasoning or its concerns about the ‘judicialisation’ of welfare services and the implications for local authority resources. The Chamber had relied on obiter remarks of Hale LJ in Adan v Newham and Lord Millett in Runa Begum, taken out of context, and had misused Schuler-Zgraggen v Switzerland as an example of discretion when in fact that case concerned an individual economic right flowing from specific statutory rules.

Although the duty under section 2 of the Human Rights Act 1998 was to ‘take account of’ Strasbourg decisions, and a ‘clear and constant line’ of chamber decisions would normally be followed (per Manchester City Council v Pinnock), the Chamber had consciously gone beyond previous authority. Lord Carnwath concluded it was appropriate to await a Grand Chamber decision before modifying the domestic position.

Issue 2 – The reviewing officer’s reasoning

Applying Lord Neuberger’s guidance in Holmes-Moorhouse v Richmond upon Thames LBC against ‘over-zealous linguistic analysis’ of review decisions taken by non-lawyer housing officers, Lord Carnwath held the decision letter was a conscientious attempt to address every issue. The reviewing officer was entitled to give little weight to the alleged panic attack, which had not been mentioned at the time of the viewing, in her initial letter, or to her medical advisers. The case was distinguishable from El-Dinnaoui v Westminster CC, where the distressing reaction was immediate, obvious and supported by previous medical advice.

The medical evidence was based on a false premise – that the property had ‘very small dark rooms without windows at a normal height’ – which did not match the actual features of the flat. The reviewing officer’s reasoning at paragraph 45 of the decision letter, when read in context, disclosed no error of law.

Lord Carnwath also declined to revisit the standard of review applicable to county court appeals under section 204 of the 1996 Act, holding that the principles established in Runa Begum and Holmes-Moorhouse should be taken as settled.

Proliferation of authorities

Lord Carnwath criticised the volume of authorities placed before the court (over 90 cases in eight bundles totalling around 2,700 pages, with a further 1,000 pages from the intervener) and reiterated UKSC Practice Direction 6 paragraph 6.5.5, emphasising that counsel and solicitors must exercise restraint in compiling bundles.

Implications

The decision confirms that, as a matter of domestic law, the duties imposed on local housing authorities under Part VII of the Housing Act 1996 do not give rise to ‘civil rights’ for the purposes of article 6 ECHR, notwithstanding the Strasbourg Chamber’s contrary view in Ali v UK. This preserves the existing approach to homelessness decision-making, where review is conducted by a senior officer with appeal to the County Court on a point of law only.

The judgment illustrates the willingness of the Supreme Court to decline to follow a Strasbourg chamber decision where it considers the Chamber has failed to engage with domestic reasoning or has departed from previous authority without adequate justification. Lord Carnwath signalled that a Grand Chamber decision would be required before the domestic position should be reconsidered.

On the second issue, the decision reaffirms the benevolent approach to interpreting review decisions established in Holmes-Moorhouse. Housing officers’ decisions should not be subjected to forensic linguistic dissection. The case confirms that subjective factors must be considered in assessing reasonableness of refusal, but that the weight given to such factors, including alleged psychological reactions, is for the reviewing officer, who is entitled to test asserted facts against contemporaneous evidence and medical material.

The decision is significant for local housing authorities operating under acute resource pressures and for homeless applicants and their advisers. It maintains the existing balance between procedural fairness and administrative efficiency in the discharge of statutory homelessness duties. The strong rebuke regarding bundles of authorities is a procedural reminder of broader application across appellate practice.

Verdict: Appeal dismissed. The Supreme Court declined to depart from Ali v Birmingham City Council, holding that article 6 ECHR did not apply to duties under Part VII of the Housing Act 1996, and confirmed the reviewing officer’s decision that it was reasonable for the appellant to accept the offer of accommodation.

Source: Poshteh v Royal Borough of Kensington and Chelsea [2017] UKSC 36