Vida Poshteh v Royal Borough of Kensington and Chelsea

JurisdictionEngland & Wales
JudgeLord Justice McCombe,Lord Justice Elias,Lord Justice Moore-Bick
Judgment Date08 July 2015
Neutral Citation[2015] EWCA Civ 711
CourtCourt of Appeal (Civil Division)
Date08 July 2015
Docket NumberCase No: B5/2014/1697

[2015] EWCA Civ 711

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HER HONOUR JUDGE BAUCHER

IN THE CENTRAL LONDON COUNTY COURT

3 CL 40145

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Moore-Bick

Lord Justice Elias

and

Lord Justice McCombe

Case No: B5/2014/1697

Between:
Vida Poshteh
Appellant
and
Royal Borough of Kensington and Chelsea
Respondent

Jamie Burton (instructed by Hansen Palomares) for the Appellant

Annette Cafferkey and Rebecca Chan (instructed by Legal Services, RB Kensington & Chelsea) for the Respondent

Hearing date: 10 June 2015

Lord Justice McCombe

(A) Introduction

1

This is an appeal by Ms Vida Poshteh from the order of 8 May 2014 of Her Honour Judge Baucher sitting in the County Court at Central London. By her order the judge dismissed Ms Poshteh's appeal under section 204 of the Housing Act 1996 from the decision (on review) of the Respondent, the Royal Borough of Kensington and Chelsea, that its duty (under section 193 of the Act) to secure accommodation was available to her had ceased under subsection (7) of that section, by reason of Ms Poshteh's refusal of a final offer of accommodation under Part 6 of the Act.

2

Permission to appeal from the order was granted by Lord Justice Patten at an oral hearing on 24 November 2014, following a refusal of such permission on 22 August 2014 by Lord Justice Kitchin on consideration of the application on the papers.

(B) Background Facts

3

The following background facts are common ground between the parties.

4

Ms Poshteh was born in Iran in February 1978 (and is now, therefore, 37 years old). At University in Iran she became involved in student politics. She was imprisoned twice: first, in 1999 for 6 months, and secondly, in 2002 for 6 weeks. During her imprisonment she was tortured. She came to this country in 2003 with her husband and claimed asylum. Initially, they lived with relatives at a property in London W10 for a number of years. Their son was born in 2007 (and is now, therefore, 7 or 8 years old). Subsequently, Ms Poshteh and her husband separated, although they remained in contact with one another. Between 2007 and 2009 Ms Poshteh and her husband were accommodated in Enfield by the National Asylum Support Service ("NASS"). In 2009, Ms Poshteh was granted indefinite leave to remain in the UK and the accommodation duties of NASS came to an end, because she could now apply for accommodation to the relevant local authority.

5

She applied to the Respondent on 23 October 2009 for accommodation as a homeless person. On the application form, under a heading "Medical Factors", she entered "Dep", understood to stand for "depression". No other medical matters were there identified.

6

On 26 October 2009 Ms Poshteh was provided with temporary accommodation at a property in London E10 while further inquiries were undertaken. On 13 November 2009 the Respondent acknowledged its duty to secure accommodation for Ms Poshteh under section 193 of the 1996 Act. She was advised that she was eligible to bid for two bedroom properties. In early 2010, she moved to a property in London W2, again as temporary accommodation, in which she still resides. This is supported accommodation for homeless persons.

7

In February 2012 a therapist from the Medical Foundation for the Care of Victims of Torture wrote to the Respondent, supporting Ms Poshteh's request for re-housing in accommodation which ought not to be in a "high rise building" or needing use of a lift because,

"For her physical and mental wellbeing: she has diagnosis of post traumatic stress disorder and suffers from depression, panic and anxiety attacks, insomnia and nightmares due to torture in her homeland… ".

8

On 14 November 2012 the Respondent wrote to Ms Poshteh to inform her that she was being offered permanent accommodation at 52a Norland Road, London W11. The offer was stated to be final offer, pursuant to section 193(7) of the Act, as she had failed to bid successfully for permanent accommodation under the Respondent's allocation scheme. The usual statutory consequences of failure to accept the offer (i.e. that the Respondent's housing duty would end) and the right to ask for review of any decision to discharge the statutory duty were explained in the letter making the offer.

9

Ms Poshteh went to see the property on 16 November 2012 and on 21 November her support worker telephoned the Respondent to inform them that Ms Poshteh would be refusing the offer because she considered it "too small for her furniture". On 29 November 2012, Ms Poshteh wrote personally to the Respondent stating that she found the property unsuitable because:

"…[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. I have enclosed medical letter from my GP and Psychologist."

The enclosures with this letter were two in number: first, a letter from the therapist who had written previously on 22 February 2012, and secondly, a letter from her GP (a Dr Sharma). The therapist wrote that owing to Ms Poshteh's mental state and past trauma she would not be able to accept any offer of accommodation in a high rise building where it would be necessary to use a lift. The GP wrote saying that Ms Poshteh suffered from PTSD and said,

"…I would urge you to house her in a place where she would not have to use a lift or live high up in view of her history this would exacerbate her anxiety and panic attacks of being in an enclosed area."

No other requirements were identified. The property in issue is not in a high rise building and use of a lift is not required.

10

Ms Poshteh's letter of 29 November was treated as a request for a review and the reviewing office requested copies of Ms Poshteh's medical notes, specialist reports and related materials for the previous six years. When received these materials were referred to the Respondent's own medical experts, a Dr Wilson (a psychiatrist) and a Dr Keen (a GP). Dr Wilson, in his report of 31 January 2013, stated as follows:

" Exposure to memories of the inciting stressor can cause re-emergence of symptoms of PTSD. However, in the applicant's case, these concerns have to be balanced against the availability of local accommodation and the relative harm or benefits that this accommodation may cause. In my view, concerns about the shape of the windows in the property being reminiscent of cell windows, is not of sufficient concern for the property to be considered unsuitable. There would be clear benefits of the applicant having stable accommodation which has been offered by the local authority. This accommodation may not be ideal or entirely to the applicant's satisfaction but there is nothing to suggest that this accommodation would be harmful or have a significant impact upon her mental health.

In summary, the offer of accommodation is suitable on medical grounds."

11

In its review decision of 10 February 2013 the Respondent upheld the decision to discharge the statutory housing duty. Ms Poshteh appealed. The appeal was compromised by the Respondent agreeing to carry out a further review. In support of her opposition to the Respondent's decision, Ms Poshteh made representations through solicitors. The solicitors' letter of 30 August 2013 included the following:

" As soon as our client entered the property she got flash backs to her times of imprisonment and torture. The property has small oddly shaped and placed windows that reminded her of her cell and the interrogation rooms as she could not look out of them properly to see the outside world. It was also very dark and small. The stairs and the corridors around the flat were particularly dark and this again reminded her of the prison and the small dark corridors. Just viewing the flat frightened her and sent her in to a panic attack and therefore the property is not suitable as she could not live there if it made her feel like that just from seeing it for a few minutes."

It was asserted that the flat was in a high rise block with a lift which Ms Posthteh could not use owing to her PTSD. The solicitors also provided further letters from a consultant clinical psychologist (who reported on the records complied by a colleague who had seen Ms Poshteh in 2011), another from the GP and a third from the therapist who had written previously. The GP wrote:

"She has seen a psychologist in the past in 2011. I believe the house she was offered was rejected by her 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. I feel this type of property is very unsuitable for my patient as it already has and would continually trigger memories of her time in prison and the torture she suffered and this would not be good for mental state. This is backed up by when she seeing the psychologist she did not want to explore what had happened back in prison as she felt it may set her back and affect her ability to look after her son.

I feel she should be offered the chance to view further properties that are not cramped or have small windows."

12

The clinical therapist's further letter included this:

"In my opinion the...

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