Subjective suitability

Poshteh v Royal Borough of Kensington And Chelsea [2015] EWCA Civ 711

At issue in this second appeal from a s.204 appeal was whether it was reasonable for Ms Poshteh to have refused an offer of accommodation. Both parties agreed that the property was objectively suitable. The question then was the second part of the two stage test in Housing Act 1996 section 193(7F):

(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.”

Ms Poshteh had been accepted as owed the full homeless duty by RBKC. An offer of a two bed flat, on the first floor of a block, was made.

The offer was refused – Ms Poshteh wrote to RKBC

“…[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.”

On review, RBKC upheld suitability, but an appeal was compromised on the basis a fresh review.

Ms Poshteh’s solicitors wrote that

“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.”

A letter from her GP stated:

“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.”

And a clinical therapist 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. Similarly she cannot use a lift so she could not accept a high-rise flat.”

(There seems to have been some confusion over the flat being a high-rise and accessed by lift. It wasn’t either.)

Ms Poshteh later clarified that it was specifically the round window that reminded her of her cell. In the same interview, she also accepted that the property might have done as temporary accommodation, but it was living permanently with such a reminder that she could not face. She confirmed her panic attack on viewing the property.

RBKC obtained views from Now Medical and a Doctor Wilson wrote (without meeting Ms Poshteh)

“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.”

RBKC’s review upheld suitability, stating:

“42. I have considered that in your case it is highly relevant that the medical evidence from your treating physicians other than reporting your own concerns about the property, does not purport to state that the window sizes or arrangement was unsuitable on medical grounds or that it was not reasonable for you to accept the property on this basis. The point that your GP and Clinical Therapist at the Medical Foundation make is that certain types of accommodation would be unsuitable because it would inevitably remind you of prison. In this regard your Clinical Therapist at the Medical Foundation refers to “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”. I do not consider the property to meet this description.
43. I have considered whether the assertions you have made about the window size and arrangement in the living room to your treating physicians is consistent with the floor plan (which includes measurements of the windows in each room) and photographs of the interior of the property provided by Notting Hill Housing Group. Far from being small, the circular window is in fact 7 square feet in size and provides sufficient natural light to meet the relevant edition of the building regulations. When we discussed this at interview you acknowledged that the circular window was in fact much larger than the circular window in your prison cell, and that the only similarity lay in the fact that both were circular.
44. Moreover, I have considered that the circular window is not the only window in the living room. Natural light in the living room is also provided by a large rectangular bay window (15 square feet in size) with views onto the street; and that the combination of these two windows in a room which provides sufficient living space for a household of your size under HHSRS, far from creating the dark and airless conditions normally associated with a prison cell, maximise natural light in the living room.
45. Therefore, I cannot accept as objectively reasonable your assertion that the size or design of the window in the living room was reminiscent of a prison cell or that the windows or layout of the living room is such that it recreated the conditions of confinement or incarceration that is likely to have a significant impact on your mental health. Moreover, whilst acknowledging that the layout and design of the property, which it must be stressed was purpose built in the mid-1980s as residential accommodation by a public sector landlord, was unreasonable for you to have accepted on this basis.”

Ms Posteh appealed, arguing

  1. The Respondent failed to make adequate inquires in that it failed to inquire of the Appellant’s treating medical practitioners whether the round window in the living room was capable of constituting an inciting stressor which would cause a re-emergence or exacerbation of her PTSD.
  2. The Respondent had regard to, or placed too much weight upon, an irrelevant consideration, namely the review officer’s opinion that the Appellant’s statement that the round window would remind her of her experiences in Iran was not ‘objectively reasonable.’

The s.204 appeal was unsuccessful. The appeal to the Court of Appeal was on the following grounds:

Ground 1
The officer did not say that he disbelieved Ms Poshteh when she said that the round window reminded her of her prison cell. It was, therefore, an irrelevant consideration for him to find that it was not objectively reasonable for Ms Poshteh to find the design of the windows (and the round window in particular) in the living room was reminiscent of such a cell.

Ground 2
The officer erred in his interpretation that Ms Poshteh’s GP’s comments about the effect on Ms Poshteh of window size and design. The officer seemed to think that the objection was to windows that were round and small, and not simply round or small. If he had been in doubt on this point he should have asked the GP a specific question on the subject and this is particularly so having regard to the need to comply with the public sector equality duty to which the Respondent was subject.

The Court of Appeal was split. The majority (McCombe LJ and Moore-Bick J) found as follows:

Ground 1

The officer expressly took into account Ms Poshteh’s concern about the round window, as expressed shortly after her visit to the property in November 2012 and in her interview. He quotes it in his decision. It is to be recalled that, in the interview, Ms Poshteh said she accepted that the property would have been suitable as temporary accommodation. In so doing, she must have been aware that, as in her own case, temporary accommodation may be all that is on offer for a significant period of time. In her case, she had been in temporary accommodation since 2009.

The doctors reported the type of property that was likely to affect her mental health. This property was clearly not of that type. Her reports (variously) of finding the property “frightening” or “scary” and of the “panic attack” on her visit was a factor to be considered as was her statement that she saw it as suitable for temporary accommodation. However, in my judgment, the officer was entitled to find that there was no medical evidence that a property of this type would have the consequence that Ms Poshteh’s mental health would be so affected by it as to make it reasonable for her to refuse to accept it in all the circumstances of the case. Nowhere in the material was there even a statement from the clinicians that Ms Poshteh’s experience of the round window on her visit had been reported to them and that they concluded that this showed that the effect on her mental health of accepting the property would be significantly adverse. That was not the case presented.

Ground 1 rejected

On ground 2 – the review decision letter made it clear that the officer was aware of the requirements of the Equality Act 2010. The decision letter stated:

“In carrying out the review I have also had due regard to Section 149 of the Equality Act 2010. I have considered whether it is necessary to take steps to take account of any protected characteristic which may be relevant to the exercise of my functions, including in particular any disability from which you may suffer, including whether further enquires [sic] are necessary. However, having obtained copies of your medical records from the general practice at which you are registered, I am satisfied that I have considered all the relevant information and made all necessary enquiries in relation to your medical problems. I am also satisfied that there is sufficient information to make a decision on the matters relevant to our homelessness decision.”

While the Supreme Court in Hotak v Southwark had emphasised that the PSED applied to Part VII duties, the Court of Appeal found that the extent of that duty was as per R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) at 77-79, on the degree of scrutiny by the Court:

The concept of ‘due regard’ requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors.

(The judgment of McCombe LJ does not specifically deal with Lord Neuberger’s comments at 78 and 79 of Hotak, but clearly accepts that due regard had been had.)

In my judgment, the reviewing officer clearly recognised Ms Poshteh’s disability. He conscientiously recognised the public sector equality duty in that respect and was at pains to acquire all information that appeared to him to be necessary for that purpose. In particular, he considered the important question of the likely effect of Ms Poshteh’s particular disability on whether it was reasonable for her to accept this offer of accommodation that had been made. In my judgment, given what Ms Poshteh had said in her initial letter to the respondent in November 2012 and what she had said in interview, it could hardly have been expected that she had not reported all this to her medical practitioners before they submitted the evidence in the terms that they did. That evidence was then provided (through her solicitors) for the purpose of the review and the officer made his decision on the basis of it.

Ground 2 therefore also rejected.

The appeal failed, on this 2:1 majority view. However, Elias LJ dissented.

Noting that the review officer did not dispute Ms Poshteh’s account of the panic attack on viewing the flat, and that the ‘stressor’ in that visit was the round window, and that while her doctors’ reports took her account of a small and cell like space, this did not exclude the possibility of the property as it actually was causing her reaction, Elias LJ considers that Ms Poshteh’s subjective response had not been adequately considered.

Taking into consideration El-Dinnaoui v Westminster Council [2013] H.L.R. 23 [our report] that a fear might be irrational was not to the point, the question was the actuality of the fear.

The reviewing officer had concluded that ‘objectively considered’ the round window in the property could not be reminiscent of a prison cell.

The premise is that unless the relevant inciting stressor was one which, objectively considered, “was reminiscent of a prison cell or…recreated the conditions of confinement or incarceration”, which this property did not, the panic attacks could effectively be ignored or at least treated as sufficiently trivial as not to be likely to affect her mental health.

I am not entirely clear how the reviewing officer reached that conclusion. I suspect that he was purporting to follow the authorities such as Slater v Lewisham LBC [2006] EWCA Civ 394 and Ahmed v Leicester City Council [2007] EWCA Civ 843 which stipulate that an objective test has to be applied to the question whether it is reasonable to refuse an offer. If so, I consider that he erred in law in the way he applied that test. If as a matter of fact the appellant would be likely to suffer panic or anxiety of such a nature and degree as to create a significant risk of damaging her mental health, it matters not whether it is an explicable or rational reaction. It would still be reasonable for the appellant to refuse the property, as in the El-Dinnaoui case. Alternatively, the officer might possibly have reasoned that absent an objectively explicable inciting stressor, any panic or anxiety induced by the premises would be minimal and unlikely to have an effect on the appellant’s mental health. If so, the analysis is still in my opinion flawed because there was no proper evidence to justify that inference. It is true that the medical evidence was to the effect that small and dark premises, obviously reminiscent of a prison cell, may well trigger the attacks, but that did not discount the possibility that the attacks may occur in other circumstances. In my judgment there was no basis for inferring simply from the nature of the inciting stressor that the attacks could not be significant enough to damage her mental health.

Elias LJ would therefore have allowed the appeal.

Comment
While this is perhaps a borderline case, my sense is that Elias LJ has the right of it. The question of whether it is reasonable for this applicant to have refused the offered property is not a question of whether their fears or anxieties might be objectively reasonable, it is a question of whether those fears are a) factual and b) related to the offered property. It is notable that McCombe LJ and Moore-Bick J do not make any address to El-Dinnaoui, (or any detailed address in the case of Moore-Bick LJ – who just refers to ‘the evidence as a whole’). While this is not to say that any announced fear, anxiety etc. by the applicant has to be taken at face value by a review officer, that fear, anxiety, etc, must be considered and assessed, rather than simply dismissed on the basis that ‘objectively’ the property could not really trigger such a response.

I’ve quoted McCombe LJ’s lead judgment at length, because I actually found it difficult to condense into a precis’d argument. My suspicion is that it was Ms Poshteh’s statement that the property might have been acceptable as temporary accommodation that was decisive.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Homeless, Housing law - All and tagged .

3 Comments

  1. Pingback: 03 | August | 2015 | Current Awareness

  2. I have suffered from PTSD from the age of 15 after two fires one at my home and the second on my second day in my first job in 1965, I have ocd gad my council put me in a home with a flame fire heating system, i tried to refuse the home in 2005 on these grounds but they denied knowledge of my alleged disability also the level of anti social behavior the house is near a pub has led to a deterioration in my mental health. The council refused to install gas central heating in 2007 as a result of costs, refused to rehouse me family in 2007/8 and I have been forced to remain in the property. The council have tried to make me leave the home to live alone in a single persons property. This is typical of the treatment of a person with an invisible disability I feel I have been tortured for 12 years. I have a clear diagnosis and long term mental health record dating back to the fires. I feel this is a testament to how the mentally ill or as in my case injured are treated in 2017 in the UK.

    • Unfortunately, the duty to make reasonable adjustments for a disability does not extend to making physical alterations to the property.

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