Easter Term [2017] UKSC 36 On appeal from: [2015] EWCA Civ 711

JUDGMENT
Poshteh (Appellant) v Royal Borough of Kensington
and Chelsea (Respondent)
before
Lord Neuberger, President
Lord Clarke
Lord Reed
Lord Carnwath
Lord Hughes
JUDGMENT GIVEN ON
10 May 2017
Heard on 14 February 2017
Appellant Respondent
Martin Westgate QC Christopher Baker
Jamie Burton Annette Cafferkey
(Instructed by Hansen
Palomares
)
(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
)
Page 2
LORD CARNWATH: (with whom Lord Neuberger, Lord Clarke, Lord Reed
and Lord Hughes agree)
Introduction
1. 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.
2. 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).
3. 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.
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The law
4. 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.”
5. 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 rightthinking local housing authority would conclude that it was
reasonable that this applicant should have accepted the offer of
this accommodation.” (para 34)
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6. 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)).
7. 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 facts
8. 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:
Page 5
“…[I] found the property scary given my history of posttraumatic 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.
9. 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 …
Page 6
… 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.”
10. 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 officer from NHHG who
accompanied her to the viewing …”
After discussion of other features of the flat which do not appear to have caused her
serious concern, the note continues:
“Applicant stated at the interview that the property would have
been OK as TA [temporary accommodation] but not as a
permanent offer of accommodation in which she would have to
live for ever. She confirmed again that this was because of the
window which led her to think about her ‘bad past’… She
stated that she could not accept the property because of the
round window in the living room.”
11. The reviewing officer’s decision came in a letter dated 17 October 2013,
running to ten pages. He outlined the history of the case, including the medical
evidence, the solicitors’ representations and the matters raised at the interview of 7
October, and he described the dimensions and physical features of the
accommodation. The critical part begins at para 39 where, having found that the
accommodation was objectively “suitable”, he said:
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“I nevertheless acknowledge that objectively suitable
accommodation may be unsuitable for a particular applicant if
it causes them to suffer from symptoms of mental illness.
Indeed, the main issue in reviewing our homelessness decision
is to consider whether this offer of accommodation was
reasonable for you to have accepted given your history of
imprisonment and ill-treatment in Iran and your subsequent
diagnosis of PTSD and associated problems of severe anxiety
and depression.”
12. He then gave his reasons for answering that question in the affirmative (paras
41-45). He acknowledged that “accommodation which is, for example, cramped or
contains small or barred windows could exacerbate symptoms of PTSD in someone
who has experienced trauma in prison”. However, he thought it “highly relevant”
that the medical evidence, while reporting her own concerns, did not purport to state
that the property was unsuitable on medical grounds or that it was not reasonable for
her to accept it. The clinical therapist had spoken of “very small dark rooms without
windows at a normal height and looking out onto everyday life” as inevitably
reminding her of her detention; but the reviewing officer did not think the property
met this description. He turned to consider whether “the assertions” she had made
to her physicians about the window size and the arrangement in the living room were
consistent with the floor plan and photographs provided by NHHG:
“Far from being small, the circular window is in fact seven
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.”
Moreover, the circular window was not the only window in the living room, natural
light being also provided by “a large rectangular bay window (15 square feet in size)
with views onto the street”. The combination of these two windows “far from
creating the dark and airless conditions normally associated with a prison cell”,
maximised natural light in the living room. He continued:
“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 …”
Page 8
13. Having considered other factors, including the physical health of her and her
child, he referred also to what he described as “a social housing crisis in this borough
and a severe shortage of permanent accommodation locally”, which he regarded as
a “highly relevant factor” in concluding that the offer was suitable and reasonable
for her to have accepted (para 51).
The proceedings
14. As already noted, Ms Poshteh appealed unsuccessfully to the County Court.
In the Court of Appeal there was a difference of view, McCombe LJ, with whom
Moore-Bick LJ agreed, held that the reviewing officer had properly considered the
relevant issues and reached a valid decision. Elias LJ held otherwise, focussing
principally on the reasoning at the “key passage” in para 45 of the letter (set out
above). As he put it:
“50. 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.”
15. He thought this approach was flawed:
“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 ElDinnaoui 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.” (para 51)
Page 9
16. Moore-Bick LJ summarised what he understood to be the critical difference
between the other judgments, and gave his own comment:
“62. The point on which my Lords are divided is whether Mr
Stack wrongly dismissed as objectively unreasonable Ms
Poshteh’s assertion that the round window in the living room
reminded her of her prison cell and as a result ignored her
evidence of experiencing a panic attack when she visited the
property. If that were the case, I should agree with Elias LJ that
he misdirected himself. Ms Poshteh’s reaction to the round
window, as evidenced by her panic attack, was an objective
fact, even if it was irrational, and was a matter to be taken into
account. However, reading para 45 as a whole in the context of
the preceding paragraphs, I am not persuaded that Mr Stack did
ignore Ms Poshteh’s reaction when reaching his conclusion …
What Mr Stack actually said was that he did not accept as
objectively reasonable her assertion that the size or design of
the windows in the living room were reminiscent of a prison
cell or that the windows or layout of the room recreated the
conditions of confinement or incarceration that were likely to
have a significant impact on her mental health. The first of
those observations cannot in my view be criticised, since the
size and design of the windows were not on any objective view
reminiscent of a prison cell. Whether the windows or layout of
the room recreated conditions of confinement or incarceration
that were likely to have a significant impact on Ms Poshteh’s
mental health, on the other hand, was a matter of judgment
which had to be determined by reference not only to the nature
of the inciting stressor or her perception of the property but to
the evidence as a whole …”
17. In the case to which Elias LJ referred (El-Dinnaoui v Westminster City
Council [2013] EWCA Civ 231; [2013] HLR 23), the appellant’s wife had a
medically-confirmed history of anxiety due to fear of heights. They were offered a
flat on the 16th floor. She became distressed on leaving after the inspection and
collapsed at the lift, and an ambulance had to be called. The council’s decision that
this flat was suitable or reasonable for her to occupy was held by the Court of Appeal
to be perverse and so unlawful.
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Issue (1) – application of article 6.1
18. Article 6.1 of the Convention provides:
“In the determination of his civil rights and obligations …
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law …”
In Ali v Birmingham City Council [2010] 2 AC 39 this court decided that the duties
imposed on housing authorities under Part VII of the 1996 Act did not give rise to
“civil” rights or obligations, and that accordingly article 6 had no application. In Ali
v United Kingdom (2015) 63 EHRR 20 the European Court of Human Rights (in a
chamber presided over by the President Judge Raimondi) held that article 6.1 did
apply, but accepted in any event that the procedure applied under the Act conformed
to its requirements. The government did not at that stage ask for the issue to be
referred to the Grand Chamber.
19. This appeal provides the first opportunity for this court to decide whether the
approach of the Strasbourg court should now be followed in this country, and if so
with what practical consequences. The Secretary of State, as intervener, has invited
us to confirm the decision of this court that article 6 has no application. His concern
is as to the effect on decision-making procedures of extending article 6 into both this
and other areas of government activity relating to community care and education.
The domestic authorities
20. In Ali v Birmingham City Council the court’s conclusion that article 6 was
not engaged by section 193 turned principally on the nature of the right so granted.
In the words of the headnote:
“… a distinction could be drawn between the class of social
security and welfare benefits whose substance was defined
precisely, and which could therefore amount to an individual
right of which the applicant could consider herself the holder,
and those benefits which were, in their essence, dependent
upon the exercise of judgment by the relevant authority; that
cases in the latter category, where the award of services or
benefits in kind was dependent upon a series of evaluative
judgments by the provider as to whether the statutory criteria
were satisfied and how the applicant’s need ought to be met,
Page 11
did not amount to a ‘civil right’ within the autonomous
meaning which was given to that expression for the purposes
of article 6 …”
The right to accommodation under section 193 was held to fall within the latter
category, and therefore outside the scope of article 6.
21. This was the unanimous conclusion of the court following detailed
consideration of the authorities domestic and European. The case was decided
against the background of two domestic cases, in which this or related issues had
been discussed at the highest level, but not decided: Runa Begum v Tower Hamlets
London Borough Council [2003] 2 AC 430 (in which the House had proceeded on
the assumption, without deciding, that article 6 was engaged by section 193); and R
(A) v Croydon London Borough Council [2009] 1 WLR 2557 (relating to a local
authority decision whether or not to provide accommodation for a child in need
under section 20(1) of the Children Act 1989).
22. In the latter case Lady Hale (with whom the other justices agreed), found it
unnecessary to reach any firm conclusions on the application of article 6 (para 34),
but, after a review of the authorities, commented that she would be “most reluctant”
to accept, unless driven by Strasbourg authority to do so, that article 6 requires the
“judicialisation of claims to welfare services of this kind”, where “every decision
about the provision of welfare services has resource implications for the public
authority providing the service” (para 44). Concurring, but without specific
agreement from the rest of the court, Lord Hope felt that it could “now be asserted
with reasonable confidence” that the authority’s duty under section 20(1) did not
give rise to a “civil right” (para 65).
23. In Ali itself, Lord Hope giving the leading speech (agreed by Lady Hale and
Lord Brown) noted Lord Hoffmann’s observation in Runa Begum (paras 42-44) that
it was not in the public interest for funds allocated to social welfare schemes to be
unduly consumed in administration and legal disputes, quoting with approval the
joint dissenting opinion in Feldbrugge v The Netherlands (1986) 8 EHRR 425, 443,
para 15:
“The judicialisation of dispute procedures, as guaranteed by
article 6.1, is eminently appropriate in the realm of relations
between individuals but not necessarily so in the administrative
sphere, where organisational, social and economic
considerations may legitimately warrant dispute procedures of
a less judicial and formal kind.”
Page 12
Lord Hope observed that the article had now been extended to “public law rights,
such as social security or other cash under publicly funded schemes”, but that “no
clearly defined stopping point to this process of expansion” had been identified. He
saw the instant case as “an opportunity to introduce a greater degree of certainty into
this area of public law” (paras 5-6).
24. He noted that in Runa Begum the House had preferred not to decide the
question, one reason being the wish not to inhibit the government from developing
the arguments in the Strasbourg court should it become necessary to do so (para 31);
the balance of advantage now pointed in the direction of taking a decision and so
ending the “unhealthy” uncertainty in the law (para 32). Reviewing the judgments
in Runa Begum itself (paras 38-39), he noted with approval comments by Lord
Bingham that to hold this to be a civil right would go further then Strasbourg had
yet gone; by Lord Hoffmann that “the whole scheme of Part VII was shot through
with discretions …”; by Lord Millett that, given the authority’s discretion as to how
it will discharge its duties and the fact that ultimately this called for an exercise of
judgement, the claim could not be said to be for “an individual, economic right
flowing from specific rules laid down in a statute”. He reviewed the relevant
authorities since Runa Begum, including the Croydon case. Of the Strasbourg
authorities Lord Hope noted in particular Tsfayo v United Kingdom [2007] BLGR
1; 48 EHRR 18, commenting there had been no dispute that the claim to housing
benefit in that case concerned the determination of the applicant’s civil rights:
“This was not surprising, as the case fell within the mainstream
of cases such as Salesi v Italy 26 EHRR 187 and Mennitto v
Italy 34 EHRR 1122 where the issue was one as to the
entitlement to an amount of benefit that was not in the
discretion of the public authority. The case offers important
guidance as to what is needed to satisfy the requirements of
article 6.1. But it takes us no further on the question whether a
statutory duty to provide benefits in kind as part of a scheme of
social welfare falls within the scope of that article.” (para 42)
He referred to “a number of straws in the wind” in other cases pointing the other
way, and supporting a distinction between –
“… the class of social security and welfare benefits that are of
the kind exemplified by Salesi v Italy 26 EHRR 187 whose
substance the domestic law defines precisely and those benefits
which are, in their essence, dependent upon the exercise of
judgment by the relevant authority.” (para 43)
Page 13
He referred for example to Loiseau v France (Application No 46809/99), 18
November 2003 (unreported), para 7 where the court had referred to “a ‘private
right’ which can be said, at least on arguable grounds, to be recognised under
domestic law” and to “an individual right of which the applicant may consider
himself the holder”. He concluded that article 6 was not engaged by decisions taken
by the review officer (para 49).
25. Lord Collins referred also to the decision in Schuler-Zgraggen v Switzerland
(1993) 16 EHRR 405, relating to a contributory invalidity scheme, in which the
Strasbourg court had spoken of the claim as being for “an individual, economic right
flowing from specific rules laid down in a federal statute …” (para 65). He
distinguished the content of the statutory duty under section 193 which “lacks
precision” and gave “no right to any particular accommodation”. Such factors
together with “the essentially public nature of the duty” meant that it did not give
rise to “an individual economic right” (para 73).
26. To similar effect, Lord Kerr acknowledged the difficulty of finding a
principled basis for the distinction between social security payments and social
welfare provision, given that both require “the expenditure of public resources”,
provide “a valuable resource to the recipient”; and “are activated by a need on the
part of the beneficiary”. He concluded however that –
“… the lack of similarity to (or, rather, the distinction that can
be made with) a private insurance scheme, and the dependence
on discretionary judgments not only to establish entitlement but
also to discharge the state’s obligation and the way in which
the obligation can be met, all combine to make this a different
type of case from the Salesi v Italy (1993) 26 EHRR 187 or
Mennitto v Italy (2000) 34 EHRR 1122 models. This is not an
assertable right as that term was used in Stec v United Kingdom
(2005) 41 EHRR SE 295.” (para 75)
27. I should note briefly Nzolameso v Westminster City Council [2015] UKSC
22; [2015] PTSR 549, the most recent Supreme Court decision to which we were
referred on Part VII of the 1996 Act (taken with the Children Act 2004). That was
principally concerned with the circumstances in which the authority could
reasonably make a final offer of accommodation in another area (in that case more
than an hour away from where she and her family had lived for many years). The
council’s decision was set aside on the facts of the case. However, the court
recognised the pressures facing authorities dealing with such cases, and the range of
considerations which needed to be taken into account, including the resources
available to them, the availability of accommodation in their own areas, and the
similar pressures on adjoining authorities.
Page 14
28. Finally, of the domestic authorities, mention should be made of R (King) v
Secretary of State for Justice [2016] AC 384; [2015] UKSC 54, in which it was held
that a disciplinary decision by a prison governor to order segregation did not engage
article 6.1. Lord Reed (in a judgment agreed by the other members of the court)
referred (para 113) to the Grand Chamber judgment in Boulois v Luxembourg (2012)
55 EHRR 32, concerned with release on licence, in which the court had said that for
the civil limb of article 6.1 to be engaged there must be a dispute over a “right”
which “can be said, at least on arguable grounds, to be recognised under domestic
law”, adding (para 91):
“The court may not create by way of interpretation of article
6.1 a substantive right which has no legal basis in the state
concerned. The starting-point must be the provisions of the
relevant domestic law and their interpretation by the domestic
courts. This court would need strong reasons to differ from the
conclusions reached by the superior national courts by finding,
contrary to their view, that there was arguably a right
recognised by domestic law.”
Later in the judgment Lord Reed noted that the article had also been applied to cases
concerning rights in public law “regarded as closely resembling rights in private
law, such as rights to state benefits”. He commented that in Ali v Birmingham City
Council –
“… the critical feature of cases in the latter category was
identified as being that the benefits in question were the subject
of precise definition and could therefore amount to an
individual right of which the applicant could consider herself
the holder. Those were distinguished from benefits which were,
in their essence, dependent on the exercise of judgment by the
relevant authority. That is consistent with the approach adopted
by the Grand Chamber in Boulois.” (para 121)
Ali v United Kingdom
29. I turn to the judgment of the Strasbourg court. As part of the history of the
case (paras 20-24) it referred to extracts from Lord Hope’s judgment in Ali v
Birmingham City Council (paras 20-24), but without further discussion of the court’s
reasoning. Under a section headed “Judicial consideration of Part VII of the Housing
Act 1996” it referred to only two cases: Adan v Newham London Borough Council
[2002] 1 WLR 2120 CA, and Runa Begum in this court. Of the former, the judgment
noted that the Court of Appeal had set aside the order of the County Court on
Page 15
jurisdictional grounds, but had gone on “in an extended obiter dictum” to consider
the effect of article 6:
“In this regard, Hale LJ opined that the right to accommodation
under section 193 ‘is more akin to a claim for social security
benefits than it is a claim for social or other services, where the
authorities have a greater degree of discretion and resource
considerations may also be relevant’.” (para 32)
Of Runa Begum, the judgment referred to the court’s conclusion that the review
mechanism under Part VII complied with article 6, assuming it applied. On the issue
whether article 6 did apply, the only citation was of the comments of Lord Millett
(paras 91 and 93), in which he had noted the features which took the case “beyond
the existing case law”, and which made it “inappropriate for determination by the
ordinary judicial process”; but had found it “more difficult, at least in principle, to
justify withdrawing it from the protection of article 6.1”. The court summarised the
submissions of the parties, including the submission on the part of the UK
government that the applicant had only “a general right to be housed”, not to any
specific property; this was contrasted with the provision of a financial benefit
“where both the entitlement and the amount were determined by a clear set of
conditions” (para 49).
30. Under the heading “The Court’s assessment” the judgment began by setting
out “general principles” including the need to start from the interpretation of the
relevant provisions by the domestic courts (para 54). On the application of those
principles to the facts of the case, it is appropriate to set out the substance of the
reasoning in full:
“56. In the case of [Runa] Begum the House of Lords
accepted that section 193(2) of the 1996 Act imposed a duty on
the Council to secure that accommodation was available for
occupation by Ms Begum. Thus, a duty was owed which was
enforceable by Ms Begum and which related to a matter of
acute concern for her. In the present case the Council
acknowledged in its letter of 7 November 2006 to the applicant
that it owed her the ‘main housing duty’ to provide
accommodation to her and her family … The Government also
accept that she had a general right to be housed … although the
applicant could not point to any property to which she had any
right.
Page 16
57. The Court is satisfied that in the present case the
applicant had a legally enforceable right by virtue of section
193 of Part VII of the 1996 Act to be provided with
accommodation, albeit that this was a right that could cease to
exist in certain conditions … Moreover, the court proceedings
in question clearly concerned a ‘dispute’ over the continuing
existence, if not the content, of that right; the dispute was
genuine and serious; and the result of the proceedings was
directly decisive for the right in question. It therefore falls to
the Court to decide whether or not the right in question was a
‘civil right’ for the purposes of article 6 para 1 of the
Convention.
58. It is now well-established that disputes over entitlement
to social security or welfare benefits generally fall within the
scope of article 6 para 1 of the Convention [the footnote cites
eg Tsfayo v United Kingdom 48 EHRR 18 para 40, Feldbrugge
v Netherlands 8 EHRR 425, Deumeland v Germany (1986) 8
EHRR 448 and Schuler-Zgraggen v Switzerland 16 EHRR
405]. The Court has even recognised a right to a noncontributory welfare benefit as a civil right [citing eg Salesi v
Italy (1993) 26 EHRR 187, para 19, and Tsfayo v United
Kingdom, para 40]. However, the present case differs from
previous cases concerning welfare assistance, as the assistance
to be provided under section 193 of the 1996 Act not only was
conditional but could not be precisely defined [comparing eg
Tsfayo, in which the dispute concerned a fixed financial
amount of housing benefit]. It concerns, as the Government
noted, a ‘benefit in kind’ and the Court must therefore consider
whether a statutory entitlement to such a benefit may be a ‘civil
right’ for the purposes of article 6 para 1 …
59. It is true that accommodation is a ‘benefit in kind’ and
that both the applicant’s entitlement to it and the subsequent
implementation in practice of that entitlement by the Council
were subject to an exercise of discretion. Nonetheless, the
Court is not persuaded that all or any of these factors
necessarily militate against recognition of such an entitlement
as a ‘civil right’. For example, in Schuler-Zgraggen v
Switzerland 16 EHRR 405, in which the applicant’s entitlement
to an invalidity pension depended upon a finding that she was
at least 66.66% incapacitated, the Court accepted that article 6
para 1 applied. In any case, the ‘discretion’ in the present case
had clearly defined limits: once the initial qualifying conditions
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under section 193(1) had been met, pursuant to section 206(1)
the Council was required to secure that accommodation was
provided by one of three means, namely by providing
accommodation itself; by ensuring that the applicant was
provided with accommodation by a third party; or by giving the
applicant such advice and assistance to ensure that suitable
accommodation was available from a third party. In this regard,
the Court agrees with Hale LJ in Adan v Newham London
Borough Council, in which she opined that the right to
accommodation under section 193 ‘is more akin to a claim for
social security benefits than it is a claim for social or other
services, where the authorities have a greater degree of
discretion and resource considerations may also be relevant’.
60. In light of the above, as far as the applicability of article
6 para 1 is concerned, the Court sees no convincing reason to
distinguish between the applicant’s right to be provided with
accommodation, as acknowledged by the Council in its letter
of 7 November 2006, and the right to housing benefit asserted
by the applicant in Tsfayo. Article 6 para 1 therefore applies
and, as such, the applicant had a right to a fair hearing before
an independent and impartial tribunal.”
31. Having decided that article 6 did apply, the court agreed with the domestic
courts that the procedure under Part VII was compliant, notwithstanding that the
County Court did not have “jurisdiction to conduct a full rehearing of the facts”
(para 83), but “taking as a whole the legislative welfare scheme by virtue of which
the applicant, as a homeless person, derived her ‘civil right’ to be provided with
accommodation” (para 87).
Discussion of issue (1)
32. The review of the domestic authorities noted above, from Runa Begum
onwards, shows a continuing debate on this issue, against the background of the
uncertain Strasbourg jurisprudence. The unanimous judgment of this court in Ali v
Birmingham City Council was intended to settle the issue at domestic level, after a
full review of all the relevant Strasbourg authorities. Against this background it is
necessary to consider whether the reasoning in the recent Chamber decision makes
it necessary or appropriate for us to depart from that decision.
33. 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
Page 18
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.
34. In Adan the application of article 6 had been conceded by counsel. It is not
clear that the passage quoted from the judgment of Hale LJ (para 55) was doing
more than recording the basis of the concession. It is true that the passage was
mentioned with approval by Lord Hoffmann in Runa Begum (paras 66-69).
However, her own considered view on the issue is apparent from both her own
judgment in the Croydon case, and her agreement with the leading judgment in Ali
(in which Adan did not merit a mention). Nor is it clear from the decision that the
Chamber fully appreciated the width of the discretion given to the authority,
including questions of resource allocation (emphasised by Lady Hale herself in other
cases). Lord Millett’s comments needed to be read with the following sentence of
his speech, which expressed his view that “most European states possess limited
judicial control of administrative decisions” so that, if article 6 did not apply, such
decisions might be outside judicial control altogether (para 93). It would have been
interesting to know to what extent that perception of the inadequacies of other
administrative law systems was shared by the members of the Chamber, with the
benefit of their more direct knowledge. In any event, Lord Millett’s views on this
point were not shared by the rest of the House, and were overtaken by the considered
and unanimous view of this court in Ali itself.
35. Questionable also, with respect, is the Chamber’s reliance on the decision in
Schuler-Zgraggen v Switzerland as an example of entitlement subject to
“discretion”. As Lord Collins pointed out in Ali (at para 61), it was treated by the
1993 court as a claim to an “individual economic right” flowing from “specific
rules” laid down in the statute. The case report shows that the statute in question
gave a right to a full invalidity pension where incapacity of at least 66.66% was
established (para 35). Once that level of incapacity was established, the financial
entitlement followed as a matter of right, not discretion. It is hard to see any fair
comparison with the range of factors, including allocation of scare resources, to
which authorities are entitled to have regard in fulfilling their obligations under the
housing legislation. In fairness to the Chamber, it may be that this was not spelt out
in the government’s submissions, as fully as it has been in recent domestic cases
(see eg para 27 above).
36. Our duty under the Human Rights Act 1998 section 2 is “take account of” the
decision of the court. There appears to be no relevant Grand Chamber decision on
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the issue, but we would normally follow a “clear and constant line” of chamber
decisions (see Manchester City Council v Pinnock [2011] 2 AC 104, para 48). This
might perhaps be said of some of the previous decisions referred to in the judgment,
including most recently Tsfayo v United Kingdom (2006) in which the application
of article 6 was conceded by the government. However, it is apparent from the
Chamber’s reasoning (see para 58 cited above) that it was consciously going beyond
the scope of previous cases. 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.
37. 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.
Issue (2) – the correct test and reasons
38. I turn to the second issue which was the subject of decision in the courts
below. In this court Mr Westgate QC for Ms Poshteh supports the judgment of Elias
LJ. In addition he relies on the “public sector equality duty” under section 149 of
the Equality Act 2010 as underlying the “sharp focus” which should have been given
by the officer to the effects of the applicant’s disability. For this purpose, he has
subjected the decision letter to exhaustive critical analysis. In summary he says 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.
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
Page 20
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.
42. Finally I should notice Mr Westgate’s invitation to the court to address
questions related to the standard of review by the court. He developed an elaborate
argument by reference to recent authorities supporting a more flexible approach in
different contexts, particularly where “fundamental rights” are a stake (eg Pham v
Secretary of State for the Home Department [2015] 1 WLR 1591). This issue was
not one on which permission to appeal was given, nor has Mr Westgate offered any
convincing reason for extending its scope. I bear in mind also Lord Neuberger’s
comments on the potentially profound constitutional implications of a decision to
replace the traditional Wednesbury tests for administrative decisions in general (R
(Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2016] AC 1355,
Page 21
para 132). 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.
43. I would accordingly dismiss the appeal on the second issue.
Proliferation of authorities
44. Before leaving the case, I feel bound to say something about the volume of
authorities presented in the court bundles. UKSC Practice Direction 6 deals with the
form and content of such volumes (paras 6.5.2ff). The appellants are responsible for
production of authorities in paper form in sufficient numbers for the court, subject
in due course to the court’s decisions on costs. Paragraph 6.5.5 states:
“The Court has on numerous occasions criticised the overproliferation of authorities. It should be understood that not
every authority that is mentioned in the parties’ printed cases
need be included in the volumes of authorities. They should
include only those cases that are likely to be referred to during
the oral argument or which are less accessible because they
have not been reported in the Law Reports.”
45. In this case the court was presented with eight bundles, including more than
90 cases, reproduced in full, together with 20 other items of statutory material,
guidance and textbook extracts (extending in total to some 2,700 pages). The
intervention of the Secretary of State was accompanied by two additional bundles,
extending to more than 1,000 pages, and including 13 further authorities. The most
relevant cases were helpfully, and correctly (PD6 para 6.5.2), brought together in
the appellant’s volumes 1 and 2. Of the remainder the vast majority were not referred
to in oral argument, and were unlikely on any view to be more than peripheral to the
determination of the issues on which permission had been given.
46. I take as an example volume 4 headed “Precedent – whether to depart from
previous/follow Europe (or not)”. This volume included no less than seven House
of Lords or Supreme Court authorities, totalling almost 350 pages. The volume was
not opened during the hearing. The propositions which the cases were apparently
Page 22
intended to support were familiar, uncontentious, and adequately summarised with
appropriate citations, in the printed cases. Similarly, the subjects covered by volume
6 (“absence of proper reasons” and “standard of scrutiny”) can be taken as
sufficiently familiar to the court not to require extensive citation; still less the
inclusion in the bundle of the whole of the Wednesbury case [1948] 1 KB 223 (12
pages), Edwards v Bairstow [1956] AC 14 (26 pages) and Kennedy v Charity
Commission [2015] AC 455 (107 pages).
47. It is essential that those involved in the preparation of these bundles, whether
as counsel or solicitors, take full responsibility for keeping their contents within
reasonable bounds and exercise restraint. The warning against proliferation of
authorities is intended for the protection not just of the court, but more for the parties
on whom the costs will ultimately fall. In many cases (as I assume in this case) they
will be borne in one way or another from public sources.
Conclusion
48. For these reasons I would dismiss the appeal, and confirm the decision of the
reviewing officer.