42 Bedford Row invites you to their 2019 Annual Employment Lecture on Thursday 3rd October 2019 at 18.00pm: Followed by a drinks reception where you will get the opportunity to meet the speakers and members from our employment team. 42 Bedford Row are delighted to announce that Professor Jeremias Adams-Prassl will deliver our 2019 Annual Lecture. Read more >
Christi Scarborough discusses the recent Supreme Court case of Poshteh v. RBKC, addressing the overlap between the Part VII procedure and Article 6 ECHR as well as the discretion given to reviewing officers.
On 10 May 2017, the Supreme Court gave its decision in Poshteh v Royal Borough of Kensington and Chelsea  UKSC 36. Lord Carnwath gave the unanimous decision of the court.
Ms Poshteh had appealed under s.204 Housing Act 1996 against Kensington and Chelsea’s decision that it had discharged its homelessness duty to her under Part VII of that Act. Having arrived in the UK as a refugee following a period of imprisonment and torture in Iran, Ms Poshteh suffered from PTSD. On viewing a flat offered by the authority she had experienced a panic attack because a round window in the flat had reminded her of her time in incarceration. The window was similar to the windows that had been present in the prison where she was held. She refused the accommodation. The authority decided that they had discharged the duty they owed her, a decision that was upheld on review.
The Court of Appeal ruled by a two-to-one majority that the reviewing officer had correctly applied the test in Holmes-Moorhouse v Richmond-upon-Thames LBC  UKHL 7. A reviewing officer was not a qualified lawyer and it was unhelpful to adopt an overly forensic approach to a reasoned decision that took the relevant factors into consideration. The court would be slow to interfere with the decision maker’s weighting of those factors.
It was suggested that the ECtHR decision in Ali v United Kingdom (2016) 63 EHRR 20 meant that the decision of the Supreme Court in Ali v Birmingham City Council  2 AC 39 was no longer good law, and that an entitlement to homelessness assistance was now a civil right giving rise to a requirement of procedural fairness under Article 6 ECHR.
Ali v Birmingham CC had decided that homelessness decisions did not give rise to an individual right on the basis that the local authority also had a wide discretion as to how it complied with its duty. This distinguished a right to accommodation from a welfare benefit, which gave rise to a specific well-defined entitlement. The ECtHR had rejected this analysis in Ali v UK.
The Supreme Court is required to “take account of” judgments of the ECtHR. The decision in Ali v UK was made by the lower chamber, which appeared to have gone beyond the scope of previous cases. Lord Carnwath criticised the lower chamber for relying upon non-binding remarks of Hale LJ (as she then was) in Adan v Newham London Borough Council  1 WLR 2120 that a housing right was more akin to a welfare benefit than a claim for discretionary or other social services. The comment was taken out of context, and was contradicted by her position in Ali v. Birmingham CC itself.
The EctHR had failed to give sufficient attention to the settled position of the UK courts. Those courts had ruled on public policy grounds that judicial interference with discretionary decisions of public bodies unduly fettered resource allocation decisions. The Supreme Court therefore preferred to wait for a considered position of the Grand Chamber that dealt fully with the reasoning of the domestic courts in Ali.
The second ground of appeal was based upon the suggestion that the reviewing officer should not have taken into account the determination that Ms Poshteh’s fear was not objectively reasonable. This argument relied upon the decision in El-Dinnaoui v Westminster City Council  EWCA Civ 231, where Westminster were considered to have acted perversely in regarding the claimant as having unreasonably refused an offer of accommodation in a 16th floor flat. In that case the applicant, who had a severe phobia of heights, had suffered a panic attack on viewing so severe that an ambulance attended.
The court considered that this ground of appeal was precisely the sort of overly forensic analysis of the reviewing officer’s decision that had been deprecated in Holmes-Moorhouse. While it was clear that the public sector equality duty under s149 Equality Act 2010 required the local authority to take relevant protected characteristics such as disability into account, the facts of this case suggested that the reviewing officer had carefully considered his decision with full awareness of the importance of that duty.
Ms Poshteh had not raised her panic attack with the authority at the time of her viewing, nor had she mentioned it to her doctor when asking for medical evidence in her appeal, and in the circumstances it was reasonable that the reviewing officer had given little weight to it. The reviewing officer had properly put the fact that the accommodation was not very similar to the prison to Ms Poshteh at her interview, and she had given no convincing answer. It might have been unreasonable to place her in a property with small dark windows not at a normal height given the concerns reported by her therapist, but the property was objectively not like this. Taken as a whole, the decision weighed all of the relevant facts.
The duty of a reviewing officer is to be thorough, and to weigh all the relevant factors (including disability) in coming to a decision. If this is done the court will be slow to interfere with the balancing exercise, and will not expect full forensic rigour from the reviewing officer.
DISCLAIMER: this note is a discussion of the law. It is not legal advice, should not be treated as such and should not be relied upon.