Poshteh v Kensington and Chelsea Royal London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Carnwath,Lord Neuberger,Lord Clarke,Lord Reed,Lord Hughes |
| Judgment Date | 10 May 2017 |
| Neutral Citation | [2017] UKSC 36 |
| Date | 10 May 2017 |
| Court | Supreme Court |
[2017] UKSC 36
Lord Neuberger, President
Lord Clarke
Lord Reed
Lord Carnwath
Lord Hughes
Appellant
Martin Westgate QC
Jamie Burton
(Instructed by Hansen Palomares)
Respondent
Christopher Baker
Annette Cafferkey
(Instructed by Royal Borough of Kensington and Chelsea)
Intervener (The Secretary of State for Communities and Local Government)
Clive Sheldon QC
Tom Cross
(Instructed by The Government Legal Department)
Heard on 14 February 2017
( with whom Lord Neuberger, Lord Clarke, Lord Reed and Lord Hughes agree)
The appellant Ms Vida Poshteh arrived in this country in 2003 as a refugee from Iran, where she had been subject to imprisonment and torture. She gained indefinite leave to remain in 2009. She lives with her son born in 2007. In October 2009 she applied to the respondent council for accommodation as a homeless person. Since then she has been housed in temporary accommodation provided by the council, which has been continued pending this appeal.
The appeal arises from her refusal in November 2012 of a "final offer" of permanent accommodation at 52a Norland Road, London W11. Her grounds in short were that it had features which reminded her of her prison in Iran, and which would exacerbate the post-traumatic stress disorder, anxiety attacks and other conditions from which she suffered. Following a review, these grounds were held insufficient to justify her refusal. The council's decision was upheld on appeal by the County Court (HH Judge Baucher), and by the Court of Appeal (Moore-Bick and McCombe LJJ, Elias LJ dissenting).
Permission to appeal to this court was granted on two issues:
"(1) Whether Ali v Birmingham City Council [2010] 2 AC 39 should be departed from in the light of Ali v United Kingdom (2015) 63 EHRR 20 and if so to what extent;
(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."
The first issue raises an issue of general importance relating to the application in this context of article 6 of the European Convention on Human Rights. The second is directed to the reasoning of the reviewing officer in the particular case.
It is unnecessary to rehearse the relevant provisions of the Housing Act 1996 Part VII in any detail. As is well known, the local housing authority is under a duty to secure provision of "suitable" accommodation for a person who is homeless and in priority need, and has not become homeless intentionally. The critical provisions in this case are section 193(7) and (7F) which deal with circumstances in which the duty ceases:
"(7) The local housing authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6.
(7F) The local housing authority shall not —
(a) make a final offer of accommodation under Part 6 for the purposes of subsection (7);
… unless they are satisfied that the accommodation is suitable for the applicant and that it is reasonable for him to accept the offer."
In the present case the issue turned not on the "suitability" of the accommodation, but on whether it was reasonable for the appellant to accept it. The decision-maker's task was described by Ward LJ in Slater v Lewisham London Borough Council [2006] EWCA Civ 394 (in terms which have not been criticised):
"In judging whether it was unreasonable to refuse such an offer, the decision-maker must have regard to all the personal characteristics of the applicant, her needs, her hopes and her fears and then taking account of those individual aspects, the subjective factors, ask whether it is reasonable, an objective test, for the applicant to accept. The test is whether a right-thinking local housing authority would conclude that it was reasonable that this applicant should have accepted the offer of this accommodation." (para 34)
The applicant may request a review of an adverse decision, by a senior officer who was not involved in the original decision (section 202). If the decision is confirmed, reasons must be given (section 203(4)). An appeal lies to the county court on a point of law only (section 204(1)).
The proper approach of the court when reviewing such a decision was explained by Lord Neuberger in Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7; [2009] 1 WLR 413, paras 46ff. As he said:
"47. … review decisions are prepared by housing officers, who occupy a post of considerable responsibility and who have substantial experience in the housing field, but they are not lawyers. It is not therefore appropriate to subject their decisions to the same sort of analysis as may be applied to a contract drafted by solicitors, to an Act of Parliament, or to a court's judgment.
…
50. Accordingly, a benevolent approach should be adopted to the interpretation of review decisions. The court should not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision. That is not to say that the court should approve incomprehensible or misguided reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions."
The background facts are set out in the leading judgment of McCombe LJ in the Court of Appeal. For present purposes it is sufficient to refer to the sequence of events following the offer of the accommodation in Norland Road on 14 November 2012. It was a first floor, two-bedroom flat in a purpose-built block dating from about 1985, owned by the Notting Hill Housing Group ("NHHG"). The living-room had two windows, one round window three feet in diameter, and the other rectangular three feet by five feet. Ms Poshteh went to see the flat on 16 November 2012, accompanied by a representative from NHHG. Her concerns about the physical features, not mentioned during the visit, were first raised in her letter of 29 November 2012, in which she said:
"…[I] found the property scary given my history of post-traumatic stress. The windows in the sitting room were circle shaped and other windows were too small. The windows appeared to me as cell windows. I found them quite frightening and reminded me of when I was in prison in my country.
I suffer from post-traumatic stress disorder, depression, panic and anxiety attacks, insomnia and nightmares due to torture that I experienced whilst back home in Iran. I therefore do not find it suitable to live in as my permanent home …"
She enclosed letters from a therapist, and her GP (a Dr Sharma), which referred to her mental state and past trauma, and the need to avoid accommodation in a high rise building requiring a lift, but said nothing about the shape of the window. Her letter was treated by the council as a request for a review, which, following reference to the council's own medical advisers, led to confirmation of the decision. However, following her appeal to the county court, the council agreed to carry out a further review.
A solicitors' letter written on her behalf on 30 August 2013 expanded on her experience when viewing the property. This repeated her concerns, but for the first time stated that viewing the flat had "sent her into a panic attack". The letter asserted (incorrectly) that the flat was in a high rise block with a lift. The solicitors also provided further letters relating to her medical condition, including a further letter from Dr Sharma, who understood the flat had been rejected —
"because the windows were very small and round and she felt like she was back in a prison and this made her scared because it reminded her of the torture she was subjected to."
She thought that "this type of property" would be very unsuitable for her as it would "continually trigger memories of her time in prison and the torture she suffered and this would not be good for mental state". A clinical therapist (Ms Baroni) wrote:
"In my opinion the effect of being housed in accommodation with very small dark rooms without windows at a normal height and looking out onto everyday life would inevitably remind her of both the cell she was confined in for six months, and the interrogation rooms she was tortured in on many occasions …
… if she were housed in accommodation which would be frightening and stressful for her she might suffer a serious relapse and not be able to look after her son safely."
On 7 October 2013 Ms Poshteh attended an interview with the reviewing officer. According to his note of the interview, her main reason for refusing the property was the round window in the living room which she said was "exactly similar" to the round windows of her cell in Iran. The note continues:
"When I questioned the applicant further about the window she admitted that the round window in the living room of the property was not exactly like the window in the prison cell. In fact, the applicant acknowledged that the window in the prison cell was much smaller and did not let in much light at all. She agreed with my description that it was like a porthole window. The applicant also acknowledged that there was a second large rectangular window located in the living room. However, she advised that it still led her to have a panic attack when she viewed the property. She stated that she could not adequately explain how she felt to the...
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