Homelessness and Article 6 ECHR

Wednesday 31 May 2017

Poshteh v Kensington and Chelsea RLBC [2017] UKSC 36, 10 May 2017

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Poshteh v Kensington and Chelsea RLBC [2017] UKSC 36, 10 May 2017

P was an Iranian refugee who had been detained and tortured leaving her with post-traumatic stress disorder. She applied to Kensington and Chelsea as homeless and, in due course, was found to be owed the main housing duty. She was subsequently made an offer of accommodation in line with s193(7) Housing Act 1996. She refused the offer on the basis that a round window in the property reminded her of the cell in which she had been tortured and gave her flashbacks.

Kensington and Chelsea carried out a review and found that the property was suitable and (applying the law in force prior to the amendments introduced by the Localism Act 2011) that it would have been reasonable for her to have accepted the offer. As such the main housing duty came to an end.

The decision was upheld on appeal and the Court of Appeal (Elias LJ dissenting) dismissed a second appeal. The reviewing officer had been entitled to find that it would have been reasonable to accept the offer and had paid due regard to the public sector equality duty.

P appealed to the Supreme Court arguing that:

  • The decision of the Supreme Court in Ali v Birmingham City Council [2010] 2 AC 39 should be departed from in the light of the decision of a chamber of the ECtHR in Ali v United Kingdom (2016) 63 EHRR 20, to the effect that the duties under Part VII Housing Act 1996 gave rise to ‘civil rights and obligations’, meaning that Article 6 ECHR was engaged.
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  • The review decision failed to explain the link between the objective reasonableness or otherwise of P’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.

The Supreme Court rejected her appeal. On the first issue, the court declined to follow the decision of the ECtHR, on the footing that the decision of the chamber had 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’. In such circumstances the court took the view that it would be more appropriate to ‘await a full consideration by a Grand Chamber before considering whether (and if so how) to modify our own position’ that Article 6 was not engaged in this context.

On the second issue, the court took the view that, taking into account the ‘sharp focus’ required by s149 Equality Act 2010 in cases of disability, the review decision contained adequate reasons.

Finally, the court declined an invitation to reconsider the standard of review applicable in homelessness cases (following the more flexible, context specific, approach as explained in Pham v Secretary of State for the Home Department [2015] 1 WLR 1591) but accepted that the restrictive approach advocated over 30 years ago in R v Hillingdon London Borough Council, Ex p Puhlhofer [1986] AC 484, was no longer appropriate.

Click here for the judgment.

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