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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 t... |
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. Ratio |
The second is directed to the reasoning of the reviewing officer in the particular case. Ratio |
The law STA |
It is unnecessary to rehearse the relevant provisions of the Housing Act 1996 Part VII in any detail. Ratio |
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. Ratio |
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... |
(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. STA |
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. Ratio |
The decision-makers 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... |
The test is whether a right- thinking local housing authority would conclude that it was reasonable that this applicant should have accepted the offer of this accommodation. PRE |
(para 34) PRE |
The applicant may request a review of an adverse decision, by a senior officer who was not involved in the original decision (section 202). Ratio |
If the decision is confirmed, reasons must be given (section 203(4)). Ratio |
An appeal lies to the county court on a point of law only (section 204(1)). Ratio |
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. PRE |
As he said: 47. PRE |
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. PRE |
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 courts judgment. Ratio |
50. Ratio |
Accordingly, a benevolent approach should be adopted to the interpretation of review decisions. Ratio |
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. Ratio |
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. Ratio |
The facts FAC |
The background facts are set out in the leading judgment of McCombe LJ in the Court of Appeal. FAC |
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. FAC |
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). FAC |
The living-room had two windows, one round window three feet in diameter, and the other rectangular three feet by five feet. FAC |
Ms Poshteh went to see the flat on 16 November 2012, accompanied by a representative from NHHG. FAC |
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: [I] found the property scary given my history of post- traumatic stress. FAC |
The windows in the sitting room were circle shaped and other windows were too small. FAC |
The windows appeared to me as cell windows. FAC |
I found them quite frightening and reminded me of when I was in prison in my country. FAC |
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. FAC |
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. FAC |
Her letter was treated by the council as a request for a review, which, following reference to the councils own medical advisers, led to confirmation of the decision. FAC |
However, following her appeal to the county court, the council agreed to carry out a further review. FAC |
A solicitors letter written on her behalf on 30 August 2013 expanded on her experience when viewing the property. FAC |
This repeated her concerns, but for the first time stated that viewing the flat had sent her into a panic attack. FAC |
The letter asserted (incorrectly) that the flat was in a high rise block with a lift. FAC |
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 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. FAC |
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... |
On 7 October 2013 Ms Poshteh attended an interview with the reviewing officer. FAC |
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. FAC |
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. FAC |
In fact, the applicant acknowledged that the window in the prison cell was much smaller and did not let in much light at all. FAC |
She agreed with my description that it was like a porthole window. FAC |
The applicant also acknowledged that there was a second large rectangular window located in the living room. FAC |
However, she advised that it still led her to have a panic attack when she viewed the property. FAC |
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 T... |
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. FAC |
The reviewing officers decision came in a letter dated 17 October 2013, running to ten pages. FAC |
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. FAC |
The critical part begins at para 39 where, having found that the accommodation was objectively suitable, he said: 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. FAC |
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. FAC |
He then gave his reasons for answering that question in the affirmative (paras 41-45). FAC |
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. FAC |
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. FAC |
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. FAC |
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 li... |
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. FAC |
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. FAC |
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. FAC |
He continued: 45. FAC |
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 imp... |
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 reas... |
The proceedings FAC |
As already noted, Ms Poshteh appealed unsuccessfully to the County Court. RLC |
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. RLC |
Elias LJ held otherwise, focussing principally on the reasoning at the key passage in para 45 of the letter (set out above). RLC |
As he put it: 50. RLC |
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... |
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. RLC |
It would still be reasonable for the appellant to refuse the property, as in the El- Dinnaoui case. RLC |
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 appellants mental health. RLC |
If so, the analysis is still in my opinion flawed because there was no proper evidence to justify that inference. RLC |
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. RLC |
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. RLC |
(para 51) RLC |
Moore-Bick LJ summarised what he understood to be the critical difference between the other judgments, and gave his own comment: 62. Ratio |
The point on which my Lords are divided is whether Mr Stack wrongly dismissed as objectively unreasonable Ms Poshtehs 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. Ratio |
If that were the case, I should agree with Elias LJ that he misdirected himself. Ratio |
Ms Poshtehs 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. Ratio |
However, reading para 45 as a whole in the context of the preceding paragraphs, I am not persuaded that Mr Stack did ignore Ms Poshtehs 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 livin... |
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. Ratio |
Whether the windows or layout of the room recreated conditions of confinement or incarceration that were likely to have a significant impact on Ms Poshtehs 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... |
In the case to which Elias LJ referred (El-Dinnaoui v Westminster City Council [2013] EWCA Civ 231; [2013] HLR 23), the appellants wife had a medically-confirmed history of anxiety due to fear of heights. Ratio |
They were offered a flat on the 16th floor. Ratio |
She became distressed on leaving after the inspection and collapsed at the lift, and an ambulance had to be called. Ratio |
The councils 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. Ratio |
Issue (1) application of article 6.1 Ratio |
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 STA |
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. PRE |
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. PRE |
The government did not at that stage ask for the issue to be referred to the Grand Chamber. PRE |
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. Ratio |
The Secretary of State, as intervener, has invited us to confirm the decision of this court that article 6 has no application. Ratio |
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. Ratio |
The domestic authorities Ratio |
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