[2017] UKSC 36, 10 May 2017
Lord Neuberger, President, Lord Clarke, Lord Reed, Lord Carnwath, Lord Hughes
The Supreme Court has declined to depart from its previous judgment in Ali v Birmingham CC that the right to homelessness accommodation under s193 Housing Act 1996 was not a civil right under art 6, despite a decision of the ECtHR to the contrary in Ali v UK; it has affirmed the dicta of Lord Neuberger in Holmes-Moorhouse v Richmond upon Thames LBC that a “benevolent approach” is to be taken to homelessness review decisions under s202; and said (obiter) that the principles governing the right of appeal to the county court under s204 had been authoritatively established by the House of Lords in Runa Begum v Tower Hamlets LBC and other cases including Holmes-Moorhouse, and should be taken as settled.
Christopher Baker and Annette Cafferkey of Arden Chambers appeared for Kensington and Chelsea RLBC.
Christopher Baker, led by Andrew Arden QC, had also appeared for the local authority in Ali v Birmingham CC; and Andrew Arden QC had appeared for the local authority in Holmes-Moorhouse v Richmond upon Thames LBC.
Background
The appellant, Ms Poshteh, came to the UK as a refugee from Iran, where she had been subject to imprisonment and torture, and later gained indefinite leave to remain. In October 2009 she applied to the authority for accommodation as a homeless person and they accepted a duty towards her under s193 Housing Act 1996. Since then she had been housed in temporary accommodation provided by the authority, continued pending the present appeal under s204.
The appeal arose because, in November 2012, the appellant had refused a “final offer” of permanent accommodation, in summary because she said it had features which reminded her of her prison in Iran, 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 authority’s decision was upheld on appeal by the county court and by the Court of Appeal (Moore-Bick and McCombe LJJ, Elias LJ dissenting), [2015] EWCA Civ 711; [2015] HLR 36. During the litigation, attention had been focussed particularly on the appellant’s contention that she had experienced a “panic attack” when she had viewed the property and the lack of explicit reference to this in the decision letter.
By reason of s193(7F), there were two pre-requisites to the making of such a final offer, ie the authority had to be satisfied both that the accommodation was suitable for the applicant and that it was reasonable for her to accept the offer. Amendment made by s148(9)(d) Localism Act 2011 has removed from s193(7F) the latter requirement. That amendment did not, however, affect the appellant, her application having been made before the commencement date of the amendment on 9 November 2012.
Subsequent to the appellant having applied to the Supreme Court for permission to appeal, but before it had reached a decision on her application, a chamber of the ECtHR in Strasbourg considered whether there had been a violation of art 6 (right to a fair trial) in relation to the lack of a fact-finding jurisdiction of the county court on an appeal under s204. That issue arose from the judgment of the Supreme Court in Ali v Birmingham CC [2010] UKSC 8; [2010] 2 AC 39, in which the right to accommodation under s193 was held not to be a civil right within art 6(1). In Fazia Ali v UK (app no 40378/10, 20 October 2015) (2016) 63 EHRR 20, however, the Chamber held that the right under s193 had been a civil right, but that there had been no violation because the county court’s jurisdiction was sufficient to comply with the requirements of art 6(1).
The Supreme Court granted the appellant permission to appeal on two issues, the Secretary of State intervening in relation to the first:
(1) whether Ali v Birmingham CC should be departed from in the light of Ali v UK 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.
In the Supreme Court, the appellant supported the Chamber decision in Ali v UK and the dissenting judgment of Elias LJ. She relied additionally on the general public sector equality duty under s149 Equality Act 2010 as underlying the sharp focus which was alleged should have been given by the officer to the effects of her disability, subjecting the decision letter to exhaustive critical analysis; and contended that in homelessness cases supervision by the courts should be undertaken with greater intensity than for conventional judicial review.
In Holmes-Moorhouse v Richmond upon Thames LBC [2009] UKHL 7; [2009] 1 WLR 413, however, Lord Neuberger had said, obiter:
“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.”
Decision
The Court held (unanimously):
(1) The scope and limits of the concept of a “civil right”, as applied to entitlements in the field of public welfare, raised important issues as to the interpretation of article 6, on which the views of the ECtHR Chamber in Ali v UK were unlikely to be the last word. For a number of reasons, this was a case in which, without disrespect to the Chamber, the Supreme Court should not regard the Chamber’s decision as a sufficient reason to depart from the fully considered and unanimous conclusion of the Supreme Court in Ali v Birmingham CC. It was appropriate that the Supreme Court should await a full consideration by a Grand Chamber before considering whether (and if so how) to modify its own position.
· It was disappointing that the Chamber 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. 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 v Newham LBC [2002] 1 WLR 2120, CA at [32], and Lord Millett in Runa Begum v Tower Hamlets LBC [2003] 2 AC 430, HL at [91] and [93]. However, its treatment of these two statements was open to the criticism that they were taken out of context, and without regard to their limited significance in the domestic case law.
· It was not 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).
· The Chamber’s reliance on the decision in Schuler-Zgraggen v Switzerland 16 EHRR 405 as an example of entitlement subject to “discretion” was questionable because it was hard to see any fair comparison between the statutory right in that case to a full invalidity pension where incapacity of at least 66.66% was established and the range of factors, including allocation of scare resources, to which authorities were entitled to have regard in fulfilling their obligations under the housing legislation.
· It was apparent from the Chamber’s reasoning that it was consciously going beyond the scope of previous cases. In answer to Lord Hope’s concern in Ali v Birmingham CC that there was “no clearly defined stopping point” to the process of expansion, the Chamber’s answer seemed to have been that none was needed. That was 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.
(2) On the second issue, the appeal well-illustrated the relevance of Lord Neuberger’s warning in Holmes-Moorhouse against over-zealous linguistic analysis. This was 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 showed that the writer was fully aware of this responsibility. Viewed as a whole, it read 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 the appellant’s mental state against the background of her imprisonment in Iran and his description of the central issue had not been criticised.
· It was true that he did not in terms address her claim to have suffered a “panic attack” when viewing the property. But it was hard to criticise him for giving little weight to an incident which she had not mentioned at the time. 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.
· Taken in isolation, one sentence of the key paragraph could have been better expressed. But read in the context of the preceding paragraphs the tenor was reasonably clear. The medical evidence had been based on a false premise; the assertions she had apparently made to the medical advisers about the physical features of the property did not match the facts. That 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 psychologist’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 was no difficulty in understanding his reasoning overall. Nor did it disclose any error of law.
(3) (obiter) Following the creation of a statutory right of appeal to the county court, recourse to the highly restrictive approach adopted 30 years ago in R v Hillingdon LBC, Ex p Puhlhofer [1986] AC 484, HL, was no longer necessary or appropriate. The principles governing the right of appeal to the county court under the 1996 Act, however, had been authoritatively established by the House of Lords in Runa Begum and other cases following it including Holmes-Moorhouse, and should be taken as settled.