“(1) Whether Ali v Birmingham City Council[2010] 2 AC 39 should be departed from in the light of Ali v United Kingdom(2015) 63 EHRR 20 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.”
“(7) The local housing authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6. (7F) The local housing authority shall not - (a) make a final offer of accommodation under Part 6 for the purposes of subsection (7); … unless they are satisfied that the accommodation is suitable for the applicant and that it is reasonable for him to accept the offer.”
“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.”
“In my opinion the effect of being housed in accommodation with very small dark rooms without windows at a normal height and looking out onto everyday life would inevitably remind her of both the cell she was confined in for six months, and the interrogation rooms she was tortured in on many occasions … … if she were housed in accommodation which would be frightening and stressful for her she might suffer a serious relapse and not be able to look after her son safely.”
“When I questioned the applicant further about the window she admitted that the round window in the living room of the property was not exactly like the window in the prison cell. In fact, the applicant acknowledged that the window in the prison cell was much smaller and did not let in much light at all. She agreed with my description that it was like a porthole window. The applicant also acknowledged that there was a second large rectangular window located in the living room. However, she advised that it still led her to have a panic attack when she viewed the property. She stated that she could not adequately explain how she felt to the officer from NHHG who accompanied her to the viewing …”
“Applicant stated at the interview that the property would have been OK as TA [temporary accommodation] but not as a permanent offer of accommodation in which she would have to live for ever. She confirmed again that this was because of the window which led her to think about her ‘bad past’… She stated that she could not accept the property because of the round window in the living room.”
“Far from being small, the circular window is in fact seven square feet in size and provides sufficient natural light to meet the relevant edition of the building regulations. When we discussed this at interview you acknowledged that the circular window was in fact much larger than the circular window in your prison cell, and that the only similarity lay in the fact that both were circular.”
“45. Therefore, I cannot accept as objectively reasonable your assertion that the size or design of the window in the living room was reminiscent of a prison cell or that the windows or layout of the living room is such that it recreated the conditions of confinement or incarceration that is likely to have a significant impact on your mental health …”
“50. The premise is that unless the relevant inciting stressor was one which, objectively considered, ‘was reminiscent of a prison cell or … recreated the conditions of confinement or incarceration’, which this property did not, the panic attacks could effectively be ignored or at least treated as sufficiently trivial as not to be likely to affect her mental health.”
“62. The point on which my Lords are divided is whether Mr Stack wrongly dismissed as objectively unreasonable Ms Poshteh’s assertion that the round window in the living room reminded her of her prison cell and as a result ignored her evidence of experiencing a panic attack when she visited the property. If that were the case, I should agree with Elias LJ that he misdirected himself. Ms Poshteh’s reaction to the round window, as evidenced by her panic attack, was an objective fact, even if it was irrational, and was a matter to be taken into account. However, reading para 45 as a whole in the context of the preceding paragraphs, I am not persuaded that Mr Stack did ignore Ms Poshteh’s reaction when reaching his conclusion … What Mr Stack actually said was that he did not accept as objectively reasonable her assertion that the size or design of the windows in the living room were reminiscent of a prison cell or that the windows or layout of the room recreated the conditions of confinement or incarceration that were likely to have a significant impact on her mental health. The first of those observations cannot in my view be criticised, since the size and design of the windows were not on any objective view reminiscent of a prison cell. Whether the windows or layout of the room recreated conditions of confinement or incarceration that were likely to have a significant impact on Ms Poshteh’s mental health, on the other hand, was a matter of judgment which had to be determined by reference not only to the nature of the inciting stressor or her perception of the property but to the evidence as a whole …”
“In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …”
“… a distinction could be drawn between the class of social security and welfare benefits whose substance was defined precisely, and which could therefore amount to an individual right of which the applicant could consider herself the holder, and those benefits which were, in their essence, dependent upon the exercise of judgment by the relevant authority; that cases in the latter category, 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, did not amount to a ‘civil right’ within the autonomous meaning which was given to that expression for the purposes of article 6 …”
“The judicialisation of dispute procedures, as guaranteed by article 6.1, is eminently appropriate in the realm of relations between individuals but not necessarily so in the administrative sphere, where organisational, social and economic considerations may legitimately warrant dispute procedures of a less judicial and formal kind.”
“This was not surprising, as the case fell within the mainstream of cases such as Salesi v Italy 26 EHRR 187 and Mennitto v Italy 34 EHRR 1122 where the issue was one as to the entitlement to an amount of benefit that was not in the discretion of the public authority. The case offers important guidance as to what is needed to satisfy the requirements of article 6.1. But it takes us no further on the question whether a statutory duty to provide benefits in kind as part of a scheme of social welfare falls within the scope of that article.” (para 42) He referred to “a number of straws in the wind” in other cases pointing the other way, and supporting a distinction between - “... the class of social security and welfare benefits that are of the kind exemplified by Salesi v Italy 26 EHRR 187 whose substance the domestic law defines precisely and those benefits which are, in their essence, dependent upon the exercise of judgment by the relevant authority.” (para 43) He referred for example to Loiseau v France (Application No 46809/99),18 November 2003 (unreported), para 7 where the court had referred to “a ‘private right’ which can be said, at least on arguable grounds, to be recognised under domestic law” and to “an individual right of which the applicant may consider himself the holder”
“The court may not create by way of interpretation of article 6.1 a substantive right which has no legal basis in the state concerned. The starting-point must be the provisions of the relevant domestic law and their interpretation by the domestic courts. This court would need strong reasons to differ from the conclusions reached by the superior national courts by finding, contrary to their view, that there was arguably a right recognised by domestic law.”
“In this regard, Hale LJ opined that the right to accommodation under section 193 ‘is more akin to a claim for social security benefits than it is a claim for social or other services, where the authorities have a greater degree of discretion and resource considerations may also be relevant’.” (para 32) Of Runa Begum, the judgment referred to the court’s conclusion that the review mechanism under Part VII complied with article 6, assuming it applied. On the issue whether article 6 did apply, the only citation was of the comments of Lord Millett (paras 91 and 93), in which he had noted the features which took the case “beyond the existing case law”, and which made it “inappropriate for determination by the ordinary judicial process”; but had found it “more difficult, at least in principle, to justify withdrawing it from the protection of article 6.1”
“56. In the case of [Runa] Begum the House of Lords accepted that section 193(2) of the 1996 Act imposed a duty on the Council to secure that accommodation was available for occupation by Ms Begum. Thus, a duty was owed which was enforceable by Ms Begum and which related to a matter of acute concern for her. In the present case the Council acknowledged in its letter of7 November 2006 to the applicant that it owed her the ‘main housing duty’ to provide accommodation to her and her family … The Government also accept that she had a general right to be housed … although the applicant could not point to any property to which she had any right. 57. The Court is satisfied that in the present case the applicant had a legally enforceable right by virtue of section 193 of Part VII of the 1996 Act to be provided with accommodation, albeit that this was a right that could cease to exist in certain conditions … Moreover, the court proceedings in question clearly concerned a ‘dispute’ over the continuing existence, if not the content, of that right; the dispute was genuine and serious; and the result of the proceedings was directly decisive for the right in question. It therefore falls to the Court to decide whether or not the right in question was a ‘civil right’ for the purposes of article 6 para 1 of the Convention. 58. It is now well-established that disputes over entitlement to social security or welfare benefits generally fall within the scope of article 6 para 1 of the Convention [the footnote cites eg Tsfayo v United Kingdom 48 EHRR 18 para 40, Feldbrugge v Netherlands 8 EHRR 425, Deumeland v Germany(1986) 8 EHRR 448 and Schuler-Zgraggen v Switzerland 16 EHRR 405]. The Court has even recognised a right to a noncontributory welfare benefit as a civil right [citing eg Salesi v Italy(1993) 26 EHRR 187 , para 19, and Tsfayo v United Kingdom, para 40]. However, the present case differs from previous cases concerning welfare assistance, as the assistance to be provided under section 193 of the 1996 Act not only was conditional but could not be precisely defined [comparing eg Tsfayo, in which the dispute concerned a fixed financial amount of housing benefit]. It concerns, as the Government noted, a ‘benefit in kind’ and the Court must therefore consider whether a statutory entitlement to such a benefit may be a ‘civil right’ for the purposes of article 6 para 1 … 59. It is true that accommodation is a ‘benefit in kind’ and that both the applicant’s entitlement to it and the subsequent implementation in practice of that entitlement by the Council were subject to an exercise of discretion. Nonetheless, the Court is not persuaded that all or any of these factors necessarily militate against recognition of such an entitlement as a ‘civil right’. For example, in Schuler-Zgraggen v Switzerland 16 EHRR 405, in which the applicant’s entitlement to an invalidity pension depended upon a finding that she was at least 66.66% incapacitated, the Court accepted that article 6 para 1 applied. In any case, the ‘discretion’ in the present case had clearly defined limits: once the initial qualifying conditions under section 193(1) had been met, pursuant to section 206(1) the Council was required to secure that accommodation was provided by one of three means, namely by providing accommodation itself; by ensuring that the applicant was provided with accommodation by a third party; or by giving the applicant such advice and assistance to ensure that suitable accommodation was available from a third party. In this regard, the Court agrees with Hale LJ in Adan v Newham London Borough Council, in which she opined that the right to accommodation under section 193 ‘is more akin to a claim for social security benefits than it is a claim for social or other services, where the authorities have a greater degree of discretion and resource considerations may also be relevant’. 60. In light of the above, as far as the applicability of article 6 para 1 is concerned, the Court sees no convincing reason to distinguish between the applicant’s right to be provided with accommodation, as acknowledged by the Council in its letter of7 November 2006 , and the right to housing benefit asserted by the applicant in Tsfayo. Article 6 para 1 therefore applies and, as such, the applicant had a right to a fair hearing before an independent and impartial tribunal.”
“The Court has on numerous occasions criticised the overproliferation of authorities. It should be understood that not every authority that is mentioned in the parties’ printed cases need be included in the volumes of authorities. They should include only those cases that are likely to be referred to during the oral argument or which are less accessible because they have not been reported in the Law Reports.”