Civil Rights and Obligations

May 10th, 2017

In Poshteh v Kensington and Chelsea RLBC (2017) UKSC 36 the appellant arrived in the UK in 2003 as a refugee from Iran, where she had been subject to imprisonment and torture. She gained indefinite leave to remain in 2009, the year in which she applied to the respondent council for accommodation as a homeless person. In November 2012 the respondent offered the appellant accommodation in Norland Road, London in a first floor, two-bedroom flat. The appellant’s concerns about the physical features of the property (including the small size of the windows) were first raised in correspondence of 29 November 2012, including a letter from the appellant’s therapist and her GP, and in a solicitors’ letter of 30 August 2013. The appellant ultimately refused this “final offer” of permanent accommodation at the property on the basis that it had features which reminded her of her prison in Iran and which would exacerbate her post-traumatic stress disorder, anxiety attacks and other conditions.

The issue in the case turned not on the “suitability” of the accommodation, but whether it was reasonable for the appellant to accept it. Following a review these grounds were held to be insufficient to justify her refusal. The council’s decision was

upheld on appeal by the County Court and by the Court of Appeal. On 10 May 2017 the Supreme Court unanimously dismissed the appeal and confirmed the decision of the review-officer. Lord Carnwath gave the judgment, with which the other Justices agreed.

Two issues arise on the appeal: (1) whether the Supreme Court should depart from its own decision in Ali v Birmingham City Council [2010] 2 AC 39 in light of the European Court of Human Rights’ (ECtHR) judgment in Ali v United Kingdom (2016) 63 EHRR 20, and if so to what extent; and (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.

In Ali v Birmingham City Council the Supreme Court decided that the duties imposed on housing authorities under Part VII of the Housing Act 1996 did not give rise to “civil” rights or obligations and so Article 6 of the European Convention on Human Rights did not apply to it. In Ali v United Kingdom the ECtHR held that Article 6.1 did apply, but accepted that in any event the procedure applied under the Housing Act conformed to its requirements.

The review of the domestic authorities shows a continuing debate on this issue, against the backdrop of uncertain Strasbourg jurisprudence. The unanimous judgment of the Supreme Court in Ali v Birmingham City Council was intended to settle the issue at domestic level after a full review of the Strasbourg authorities. The Chamber in Ali v United Kingdom acknowledged the weight to be given to the interpretation of the relevant provisions by the domestic courts and it is thus surprising that it failed to address in any detail either the Supreme Court’s reasoning or its concerns over “judicialisation” of the welfare services.

The Court’s duty under the Human Rights Act 1998 is “to have regard” to the decision of the Strasbourg Court. There appears to be no relevant Grand Chamber decision on the issue, but the Supreme Court would normally follow a “clear and constant line” of Chamber decisions. In Ali v United Kingdom it is apparent from the Chamber’s reasoning that it was consciously going beyond the scope of previous cases and its answer to Lord Hope’s concern that there was “no clearly defined stopping point” to the process of expansion 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. This is a case in which the Supreme Court should not regard the Chamber’s decision as a sufficient reason to depart from its own fully considered and unanimous conclusion in Ali v Birmingham

City Council. It is appropriate to await a full consideration by the Grand Chamber before considering whether (and if so how) to modify the domestic position.

As to the reviewing officer’s approach, the decision-letter viewed as a whole reads as a conscientious attempt by a hard-pressed housing officer to cover every conceivable

issue raised in the case: he clearly understood the importance of considering the appellant’s mental state against the background of her imprisonment in Iran. There was no difficulty in understanding the officer’s reasoning overall, nor did it disclose

any error of law.

 

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