Case Comment: Poshteh v Royal Borough of Kensington and Chelsea [2017] UKSC 36
15 Wednesday Aug 2018
MARTIN WESTGATE QC & JAMIE BURTON, DOUGHTY STREET Case Comments
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Ms Poshteh loses her appeal but “highly restrictive approach adopted in Puhlhofer … no longer necessary or appropriate.”
Lords Neuberger, Lord Clarke, Lord Reed, Lord Carnwath and Lord Hughes
In Poshteh v Royal Borough of Kensington and Chelsea [2017] UKSC 36 the appellant, Ms Poshteh, lost her appeal to the Supreme Court. Lord Carnwath, giving the only judgment of the Court, decided to uphold the reviewing officer’s decision that the property Ms Poshteh was offered was suitable for her and that it was reasonable for her to accept it.
Understandably, Ms Poshteh is devastated by the decision of the Supreme Court. It is common ground that she suffers from post-traumatic stress disorder, depression and anxiety as a result of the torture she suffered whilst a political prisoner in Iran. The reviewing officer also accepted that as a result of her PTSD the appellant suffered an involuntary reaction when she visited the property in the form of a panic attack and that this was why she subsequently refused it. Nevertheless, he concluded that the property was suitable for Ms Poshteh because it was not “objectively … reminiscent” of a prison cell, despite a prominent round window in the living room (see the photo below). The medical evidence submitted by Ms Poshteh as to the psychiatric effects of being reminded of her experiences in Iran fell to be discounted for the same reason. The Supreme Court has confirmed that these reasons were adequate and the decision therefore lawful.
Ms Poshteh has said this about the decision:
“I have waited many years for an end to my case. I don’t understand the decision and I am scared for my future. If I don’t have help from the council with finding a home, I will struggle to look after my son. I am too upset to think clearly and to say any more today.”
In the course of his judgment Lord Carnwath agreed with the appellant that “recourse to the highly restrictive approach adopted 30 years ago in the Puhlhofer case (R v Hillingdon London Borough Council, Ex p Puhlhofer [1986] AC 484) is no longer necessary or appropriate.”
The Court also decided to affirm the ratio of its decision in Ali v Birmingham City Council [2010] 2 AC 39, namely that a decision made pursuant to the homelessness provisions contained in the Housing Act 1996, Part VII is not a determination of a “civil right” for the purposes of ECHR, art 6, despite the European Court of Human Right having reached the contrary view in Ali v United Kingdom [2016] 63 EHRR 20.
As regards the applicability of art 6, the Supreme Court concluded that a decision of a chamber of the ECtHR was not a sufficient reason to depart from its unanimous conclusion in Ali v Birmingham City Council. The appellant is therefore considering applying for her case to be decided by a Grand Chamber of the ECtHR.
This article was originally posted here.
1 comment
Joyce nicoll said:
18/07/2019 at 06:17
This case disturbs me. As someone with a background in psychology & psychotherapy there is a grave lack of either understanding of ptsd or a grave failure to give the perception of reality experienced under it equal weight in law & incorrectly infers opportunism to inconsistencues rather than apllying the relevant context by which to understand them. Of gravest concern is the removal if the uksc as the last bastion to protect against harm by the state. All a state needs to do is to declare the relevant bodies have discretionary powers then starve them of resources & let them do the state’s dirty work for them. Public confidence in all 3 pillars of the state risk being eroded. The final icing on the cake is when the judge complains of wasting resources only to provoke the apellant unto a grandjury appeal on what looks like a vanity project re issue (i) and in the context of brexit. It seems inappropriate to do this to a vulnerable person & whose case could have been granted. Moreover the lj provided grounds for such referal in his admittance that the volumes had not been considered. More details of my concerns are provided below. Sent by phone.
1) re para 42: in my opinion it is unreasonable to insist on Wednesbury when said officer is untrained in ptsd whilst the symptoms displayed include lack of rational decisionmaking (as evidenced by prioritising rejection of flat whilst aware of lack of other flats plus pressure on resources and own urgent need) ; include also lack of rational perception (shape of one window dominated her recount of size of window & availability of light). Wednesbury is being unfairly applied. What is reasonable for one party cannot be experienced as reasonable for the other due to her health status.
2. Her perception is involuntary. She is also not wilfully misleading her medical reportees.
3. The officer acted beyond his ken re mental health and failed to provide medical evidence to dispute that which was led. The court did likewise & misdirected itself by applying a legal test to what should have been a mental health test re the risk created by placing her into that property. The court & the officer accepted the medical evidence offered and the only doubt the court raised related to the late reporting of the effect the visit had..so doubting her credibility. It failed to ask how commmon or reasonable such late reporting might be in a person with ptsd like hers & so lacked the facts uppn which to make such a judgement of her & so assumed negativity of its own accord. In fact , the fact of her refusing the flat despite such need and scarcity of offer is consistent with her having strong ground to refuse plus late reporting of impact and seeking to avoid its recurrence are both recognised symptoms of ptsd.
4. It completely misdirected itself by applying a test of ” sameness” as its test of “trigger risk” rather than ascertaining what is known to actually trigger in her case ie “the pertinent trigger” test.
5. Re para 42…the court is bound to act compliantly with the TEU, from whence the fundamental rights apply. It is given under the 1972 Act..from which judiciability of the citizens rights recognised under the teu stems. …this shall be lost with brexit as the 1972 act gets scrapped..effecting a retrograde step by the uk gov. In breach of our obligations under articles 2 & 4 of the icescr. In short our reputation of respecting the rule of law is at risk.
6. Poshteck falls under the vulnerable adults legislation which creates an enhanced duty of care which the uksc ruling risks undermining. It is unlawful to wilingly harm such an adult…public body is no exception.
7. Uksc risks undermining the very safegard function we in th uk rely on. Precisely because we have no stated citizen rights other than under the eu, we rely on the courts to ensure oir public bodies always act in a manner that respects our universal human rights ( iccpr& icescr). If that is removed party politics & a race to the bottom is assured. Only by having the courts uphold standards shall governments be under obligations to better fund public bodies to do their duty. Otherwise we fall back into servitude where the only rights people in the uk have are those granted by the state.
8. This judgement risks being a tool of uk government compliance rather than the rule of law. It also risks giving applied itself to try and create a jurisprudence bridge into hard brexit. Yet now more than ever the recognition of universal individual human rights is needed. Failing which we face a lawless regime & the stability of the Uk & more is at risk.