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

(For our report of the Court of Appeal decision, see here).

For the facts of the case, see the earlier post. In short, Ms Posheth had refused an offer of accommodation in discharge of duty because a round window in the property had reminded her of when she was imprisoned in Iran (though she did say it would have been suitable as temporary accommodation). She had had a panic attack on viewing the property. RBKC found the property was suitable and reasonable to accept on review, upheld on appeal and in the court of appeal.

The issues before the Supreme Court were:

(1)  Whether Ali v Birmingham City Council [2010] 2 AC 39 should be departed from in the light of Ali v United Kingdom (2016) 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.

Ali v Birmingham CC (our report here) had held that a s.204 appeal was not a determination of a civil right, such that article 6(1) ECHR. In Ali v UK (our report here) the ECtHR had found that it could be a civil right, even where there was an exercise of evaluative judgment. But (broadly) the review and appeal process was Art 6 compliant in any event.

On the Art 6 issue, the Supreme Court noted pointedly that while:

The Chamber acknowledged (in line with the Grand Chamber decision in Boulois) 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 (see para 23 above). Instead the Chamber concentrated its attention on two admittedly obiter statements, respectively by Hale LJ (as she then was) in the Court of Appeal in Adan, and Lord Millett in Runa Begum. However, its treatment of these two statements is open to the criticism that they were taken out of context, and without regard to their limited significance in the domestic case law.

As the Chamber was clearly going beyond its own previous decisions, and was not a Grand Chamber decision, it did not amount to a “clear and constant line” of decisions (Pinnock). The Supreme Court therefore did not feel itself required to do anything more than “take account” of the decision in Ali v UK (36-37).

In answer to Lord Hope’s concern that there was “no clearly defined stopping point” to the process of expansion, its answer 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 scope and limits of the concept of a “civil right”, as applied to entitlements in the field of public welfare, raise important issues as to the interpretation of article 6, on which the views of the Chamber are unlikely to be the last word. In my view, this is a case in which, without disrespect to the Chamber, we should not regard its decision as a sufficient reason to depart from the fully considered and unanimous conclusion of the court in Ali. 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.

On the correct test and reasons given on the decision on whether it was reasonable for Ms P to refuse the accommodation, Ms P argued

that letter fails to explain the link between the objective reasonableness or otherwise of Ms Poshteh’s assertion that the round window reminded her of a prison cell, and the rejection of her claim that it would have a significant impact on her mental health. Nor did the letter-writer address adequately the “subjective factors” underlying her claim. In particular he should have addressed explicitly the panic attack suffered by her when she visited the property. This was a subjective fact, even if (as she was said to have admitted at the interview) the round window was not exactly like the one in her prison cell.

However the Supreme Court were not impressed. There was, inevitably, reliance on Lord Neuberger’s ‘warning in Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7; [2009] 1 WLR 413, paras 46 & 50 that:

“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.”

(Lord Neuberger was one of the panel in this case).

At 39 – 41:

39. In my view, the appeal on this issue well illustrates the relevance of Lord Neuberger’s warning in Holmes-Moorhouse (para 7 above) against over-zealous linguistic analysis. This is 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. 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 (para 39) has not been criticised.

40. It is true that he did not in terms address her claim to have suffered a “panic attack”. But it is 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 or in her initial letter, nor apparently to either of her medical advisers. In this respect it was a very different case from El-Dinnaoui, to which Elias LJ referred (para 17 above), where the effect was immediate and obvious, and consistent with previous medical advice. Nor, on the other side, did he hold against her her admission at interview that, whatever her reaction during the visit, the flat would have been acceptable on a temporary basis. In any event, 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 to consider how far it supported her case.

41. 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 there is no difficulty in understanding his reasoning overall. Nor does it disclose any error of law.

And with that, the appeal was dismissed. However there was a coda, or two.

Martin Westgate QC, for Ms P, had valiantly attempted to raise the argument concerning the standard of review by the courts on a s.204 appeal, arguing that it should extend beyond judicial review principles to encompass, where relevant, considerations of fact. This was rebuffed.

I would agree with Mr Westgate that, since the creation of a statutory right of appeal to the county court, 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. However, the principles governing the right of appeal to the county court under the 1996 Act have been authoritatively established by the House of Lords in Runa Begum’s case and others following it (including Holmes-Moorhouse), and should be taken as settled.

And then the parties were firmly ticked off for the size of the bundles and the ‘proliferation of authorities’. Which is the perennial ‘damned if you do, damned if you don’t’ for the lawyers…

Comment

The decision on the review decision is perhaps not a surprise, all in all. However, it is disappointing to see the ‘standard of review’ issue so summarily dealt with. It might not have been a ground of appeal, but is arguably a component of the Article 6 point.

On the Article 6 point, it is tempting, rightly or wrongly, to see a certain political context to the Supreme Court stating a refusal to follow an ECtHR decision, on the basis that it did not pay enough regard to either the Supreme Court’s own decisions or the specifics of national welfare schemes. However, for the moment – until there is a line of ECtHR case law, or a Grand Chamber decision – that is it.