Supreme and Strasbourg Courts square off on Art. 6 and housing

10 May 2017 by David Hart KC

Poshteh v Royal Borough of Kensington & Chelsea S [2017] UKSC 36, 10 May 2017 – read judgment 

For the last 15 years, whether the right of the homeless to suitable council accommodation is an Art.6(1) ECHR civil right has been argued over in the courts.  And the question arose again in today’s judgment of the Supreme Court.

Ms Poshteh had been imprisoned and tortured in Iran, and asked her local council in London to house her as she was homeless in the UK. She then rejected the offer of a flat because she said its windows reminded her of those in her Iranian prison cell. This rejection was held fatal to her housing claim, as we shall see.

To understand the Art.6 point, we need to have a quick look at the council’s housing duties for the homeless.

The council’s duty to provide accommodation under s.193 Housing Act 1996 ceases when a homeless person refuses an offer of suitable accommodation which the local authority also concludes it is reasonable for that person to have accepted. The council must have regard to the personal characteristics of the applicant, including her needs, hopes and fears, but then has to decide an objective question – is it reasonable for the applicant to refuse the offer?

This question is primarily for the council, both initially and on internal review. The applicant can then appeal to the county court, on a point of law only – though points of law may include any public law error such as failing to have regard to specific matters.

On a first glance (unburdened by the cases), you might think that the right to suitable accommodation was a civil right within Art.6, and thus the appeal system needed to be Art.6-compliant. The right to accommodation is an individual economic right which flowed from specific rules in a statute, and so the officer’s decision, which brought that right to an end, was a determination of civil rights.

But the issue is far from simple, and the courts here have reached a different conclusion.

There had been sceptical remarks in the 2000s from some judges (particularly Lady Hale and Lords Hoffmann and Hope) to the effect that the homelessness legislation was shot through with discretion and rejecting the idea that the system should be “judicialised”: summarised at [21]-[22] of this decision.

A firm decision was first made in Ali v Birmingham City Council [2010] 2 AC 39. The Supreme 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 Art. 6 had no application. A distinction should be drawn between the cases about welfare benefits where the right was defined precisely, and housing issues 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.

But Ms Ali went to Strasbourg – Ali v United Kingdom (2016) 63 EHRR 20. Not only did Art.6 apply, but she said the lack of a full merits review by an independent and impartial tribunal of the decision violated that right. The ECtHR disagreed with the Supreme Court on the first point, the applicability of Art.6, but went on to accept that the procedures under the Act were Art.6 compliant.

The present SC (in a judgment given by Lord Carnwath) conducted a searching analysis of the quality of reasoning at these two stages of the Ali decision. It observed that Ali in the SC had been intended to settle the issue at the domestic level, after a full review of both domestic and Strasbourg authorities. In the light of this, Lord Carnwath said

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.

He observed that

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…[33]

Two obiter statements from Hale LJ in the Court of Appeal in Adan (after a concession by counsel), and Lord Millett in Runa Begum were referred to by Strasbourg.

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. [33]

The ECtHR had relied upon its own 1993 decision in Schuler-Zgraggen v Switzerland as an example of entitlement subject to “discretion”. But, as Lord Collins has previously pointed out in Ali (at para 61), it had in fact been treated by the ECtHR as a claim to an “individual economic right” flowing from “specific rules” laid down in the statute. The Swiss statute in question gave a right to a full invalidity pension where incapacity of at least 66.66% was established – compare and contrast the discretions contained with the Housing Act.

So the Strasbourg reasoning was found wanting.

Any court has take account of the decision of Strasbourg under s.2 HRA, and the SC  would normally follow a “clear and constant line” of chamber decisions.

However, it is 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] that there was “no clearly defined stopping point” to the process of expansion [of the concept of civil right], 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. [36]

So the SC found no sufficient reason in Strasbourg Ali to depart from its own previous decision in Ali, and Art.6(1) did not apply.

The underlying decision

Ms Poshteh said that the council officer had failed properly to address the effect of her views about the cell/window issue upon her own mental health. The SC was unconvinced, even though Elias LJ in the CA had dissented on this point. The medical evidence she relied upon was based upon

a false premise; the assertions she had apparently made to them [the doctors] about the physical features of the property did not match the facts. [41]

The windows in the flat were not, the council had concluded, in fact anything like cell windows and its conclusion did not disclose any error of law.

Standard of review

In the context of this challenge, counsel for Ms Poshteh argued that the court should adopt a more flexible standard of review on a housing appeal, relying on recent authorities, particularly where “fundamental rights” are at stake (eg Pham [2015] 1 WLR 1591 concerning the removal of citizenship: see Hannah Noyce’s post on Pham here).

This did not find favour: [42]. Lord Carnwath was unpersuaded that there was good reason to do this in the housing context. He recalled

Lord Neuberger’s comments on the potentially profound constitutional implications of a decision to replace the traditional Wednesbury tests for administrative decisions in general

see Keyu [2016] AC 1355, para 132).

Conclusion

Whatever you think of the underlying merits of the decision (and the distinction drawn between the benefits cases and the accommodation cases), Strasbourg did not actually acquit itself with glory on this one. It was presented with 3 powerful judgments in Ali SC, and could really only come up with 2 critical paras of reasoning ([58]-[59] set out by Lord Carnwath at [30]), which did not engage with the policy issues relied upon by the previous SC. This SC also attached importance to the fact that this had been an expansionist decision, and had not in any event gone to the Grand Chamber.

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