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.