Supreme Court backs decision of reviewing officer over accommodation offer

The Supreme Court has upheld a reviewing officer’s decision that it was reasonable for a refugee to accept an offer of accommodation which she claimed reminded her of prison in Iran.

In Poshteh v Royal Borough of Kensington and Chelsea [2017] UKSC 36 the appellant, Vida Poshteh, had arrived in the UK in 2003 as a refugee from Iran, where she had been subject to imprisonment and torture.

She gained indefinite leave to remain in 2009, the year in which she applied to the Royal Borough (RBKC) for accommodation as a homeless person.  

Part VII of the Housing Act 1996 includes the statutory provisions under which local housing authorities are required to secure provision of “suitable” accommodation for a person who is homeless and in priority need, and has not become homeless intentionally.

Sub-sections 193(7) and (7F) contains the critical provisions in the Poshteh case, dealing with the circumstances in which that duty ceases, namely when the applicant refuses a “final offer” of accommodation.

A housing authority shall not make a “final offer” of accommodation “unless they are satisfied that the accommodation is suitable for the applicant and that it is reasonable for him to accept the offer”.

In November 2012 RBKC offered Ms Poshteh accommodation in Norland Road, London in a first floor, two-bedroom flat.

However, she expressed concerns about the physical features of the property (including the small size of the windows). These were first raised in correspondence of 29 November 2012, including a letter from the appellant’s therapist and her GP, and in a solicitors’ letter of 30 August 2013.

Ms Poshteh ultimately refused this “final offer” of permanent accommodation at the property on the basis that it had features which reminded her of her prison in Iran and which would exacerbate her post-traumatic stress disorder, anxiety attacks and other conditions.

The issue before the Supreme Court turned not on the “suitability” of the accommodation, but whether it was reasonable for Ms Poshteh to accept it.

A reviewing officer concluded that the grounds she gave were insufficient to justify her refusal. The council’s decision was upheld on appeal by the county court and by the Court of Appeal.

A five-justice panel of the Supreme Court – comprising Lord Neuberger (President), Lord Clarke, Lord Reed, Lord Carnwath and Lord Hughes – has now unanimously dismissed the appeal and confirmed the decision of the reviewing officer. Lord Carnwath gave the judgment, with which the other justices agreed.

Lord Carnwath said two issues arose on this appeal:

1. whether the Supreme Court should depart from the its own decision in Ali v Birmingham City Council [2010] 2 AC 39 in light of the European Court of Human Rights’ (ECtHR) judgment in Ali v United Kingdom (2016) 63 EHRR 20, and if so to what extent; and
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 offered, whether or not her reaction to it was irrational, and if so, whether he did in fact apply the right test.

In Ali v Birmingham City Council the Supreme Court decided that the duties imposed on housing authorities under Part VII of the Housing Act 1996 did not give rise to “civil” rights or obligations and so Article 6 of the European Convention on Human Rights did not apply to it.

In Ali v United Kingdom the ECtHR held that Article 6.1 did apply, but accepted that in any event the procedure applied under the Housing Act conformed to its requirements.

Lord Carnwath said a review of the domestic authorities showed a continuing debate on this issue, against the backdrop of uncertain Strasbourg jurisprudence. The unanimous judgment of the Supreme Court in Ali v Birmingham City Council had been intended to settle the issue at domestic level after a full review of the Strasbourg authorities.

The judge said the Chamber in Ali v United Kingdom had acknowledged the weight to be given to the interpretation of the relevant provisions by the domestic courts.

“It is disappointing therefore that it failed to address in any detail either the reasoning of the Supreme Court, or indeed its concerns over ‘judicialisation’ of the welfare services, and the implications for local authority resources,” Lord Carnwath said.

The Chamber instead focused “on two admittedly obiter” remarks by Hale LJ (as she then was) in the Court of Appeal in Adan and Lord Millett in Runa Begum.

The Chamber’s treatment of these two statements was open to the criticism that they were taken out of context, and without regard to their limited significance in the domestic case law, Lord Carnwath said.

The judge said the Chamber’s reliance on the decision in Schuler-Zgraggen v Switzerland as an example of entitlement subject to “discretion” was also questionable: the statute in question gave a right to a full invalidity pension where incapacity of at least 66.66% was established.

“It is hard to see any fair comparison with the range of factors, including allocation of scarce resources, to which authorities are entitled to have regard in fulfilling their obligations under the housing legislation,” Lord Carnwath said.

The judge said the Supreme Court’s duty under the Human Rights Act 1998 was “to have regard” to the decision of the Strasbourg court.

“There appears to be no relevant Grand Chamber decision on the issue, but we would normally follow a ‘clear and constant line’ of chamber decisions,” he noted.

Lord Carnwath said that in Ali v United Kingdom it was apparent from the Chamber’s reasoning that it was consciously going beyond the scope of previous cases and its answer to Lord Hope’s concern that there was “no clearly defined stopping point” to the process of expansion seems to have been that none was needed.

“That is a possible view, but one which should not readily be adopted without full consideration of its practical implications for the working of the domestic regime,” the judge said.

This was a case in which the Supreme Court should not regard the Chamber’s decision as a sufficient reason to depart from its own fully considered and unanimous conclusion in Ali v Birmingham City Council.

“It is appropriate that we should await a full consideration by a Grand Chamber before considering whether (and if so how) to modify our own position,” Lord Carnwath said.

Turning to the reviewing officer’s approach, the Supreme Court judge said the appeal on this issue “well illustrates the relevance of Lord Neuberger’s warning in Holmes-Moorhouse against over-zealous linguistic analysis”.

This was not to diminish the importance of the responsibility given to housing authorities and their officers by the 1996 Act, reinforced in the case of disability by the Equality Act 2010.

“The length and detail of the decision-letter show that the writer was fully aware of this responsibility,” Lord Carnwath said.

“Viewed as a whole, it reads as a conscientious attempt by a hard-pressed housing officer to cover every conceivable issue raised in the case. He was doing so, as he said, against the background of serious shortage of housing and overwhelming demand from other applicants, many no doubt equally deserving. He clearly understood the potential importance of considering her mental state against the background of her imprisonment in Iran. His description of the central issue….has not been criticised.”

It was true that the officer did not in terms address Ms Poshteh’s claim to have suffered a panic attack, the judge said. However, it was hard to criticise him for giving little weight to an incident which she had not mentioned at the time, either to the NHHG officer who accompanied her or in her initial letter, nor apparently to either of her medical advisers.

The issue for him was not her immediate reaction on one short visit, but how she would reasonably have been expected to cope with living there in the longer term.

“On that he was entitled to give weight to the medical evidence submitted by her, and consider how far it supported her case,” Lord Carnwath said.

The judge continued: “Taken in isolation the first sentence of para 45 could have been better expressed. But read in the context of the preceding paragraphs the tenor is reasonably clear. The medical evidence was based on a false premise; the assertions she had apparently made to them about the physical features of the property did not match the facts. This was a point he had fairly put to her at the interview, and she was unable to provide a convincing answer.

“It might well have been unreasonable to offer her (in the clinical therapist’s words) ‘accommodation with very small dark rooms without windows at a normal height and looking out onto everyday life’. But that was not a reasonable description of this particular property, nor a sufficient ground for her not accepting it.”

Seen in that light, Lord Carnwath said, there was no difficulty in understanding the reviewing officer’s reasoning overall, nor did it disclose any error of law.

Responding to the ruling, Ms Poshteh said: “I have waited many years for an end to my case. I don’t understand the decision and I am scared for my future. If I don’t have help from the council with finding a home, I will struggle to look after my son. I am too upset to think clearly and to say any more today.”

Her legal team – Martin Westgate QC and Jamie Burton of Doughty Street Chambers – said she was “devastated” by the decision.

They noted that in the course of his judgment Lord Carnwath had agreed with the appellant that “recourse to the highly restrictive approach adopted 30 years ago in the Puhlhofer case (R v Hillingdon London Borough Council, Ex p Puhlhofer [1986] AC 484) is no longer necessary or appropriate.”

Doughty Street also noted that as regards the applicability of Article 6 of the ECHR, the Supreme Court had concluded that a decision of a chamber of the ECtHR was not a sufficient reason to depart from its unanimous conclusion in Ali v. Birmingham City Council.

Ms Poshteh was therefore considering applying for her case to be decided by a Grand Chamber of the ECtHR, the set said.

11KBW, whose Clive Sheldon QC and Tom Cross appeared for the successful Intervener, the Secretary of State for Communities and Local Government, said: "Although the Supreme Court has, on occasion, declined to follow decisions of the Strasbourg institutions, this is....a rare and arguably unique example of it doing so. There is no analogous example of the Supreme Court declining to follow a Strasbourg decision on the basis that its reasoning is unsatisfactory."

[This article was in large part based on the Supreme Court’s press summary]