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Do the homelessness provisions in the Housing Act 1996 create a ‘civil right’?

Poshteh v Royal Borough of Kensington and Chelsea [2017] has re-visited the issue of whether the homelessness provisions in the Housing Act 1996 create a ‘civil right’ which engages article 6 of the European Convention on Human Rights.

Case background

Ms Poshteh applied to the Royal Borough of Kensington for accommodation as a homeless person. In November 2012, she refused a ‘final offer’ of permanent accommodation on the grounds that it reminded her of her prison in Iran and that it would exacerbate her PTSD. Following a review, her grounds for this refusal were held to be insufficient to justify her refusal.

The Supreme Court considered her appeal in the light of Ali v United Kingdom (2015) 63 EHRR 20, which differed from the Supreme Court decision in Ali v Birmingham City Council [2010] 2 AC 39. The Court examined whether the reviewing officer should have asked himself if there were 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.

Part VII of the Housing Act 1996

Under Part VII of the Housing Act 1996, a local housing authority is under a duty to secure provision of ‘suitable’ accommodation for a person who is homeless and in priority need, and has not become homeless intentionally. The issue was whether it was ‘reasonable’ for the appellant to accept the offer.

 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 article 6 of the European Convention on Human Rights (‘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’) had no application. In Ali v United Kingdom (2015) 63 EHRR 20 the European Court of Human Rights held that article 6 did apply, but accepted that the procedure applied under the Act conformed to its requirements.

Court decisions

The Supreme Court considered that the European Court of Human Rights had not correctly cited domestic law. In the Supreme Court decision in Ali, it was held that the application of Article 6 depended on the class of social security and welfare benefits being considered.

Social security and welfare benefits should fall under Article 6 when their substance is defined precisely - amounting to an individual right of which the applicant could consider herself the holder. Conversely, benefits which are, in their essence, dependent upon the exercise of judgment by the relevant authority (such as the exercise of a duty under Part VII of the 1996 Act), should not be placed in the category of a ‘civil right’.

The Supreme Court in Poshteh, therefore, did not regard the ECtHR decision as providing a sufficient reason to depart from the fully considered and unanimous conclusion of the court in Ali.

As for the second issue, the Supreme Court warned against over-zealous linguistic analysis. Viewed as a whole, the decision letter showed that the author was aware of the responsibilities of the LA under the 1996 Act, reinforced in the case of disability by the Equality Act 2010. The decision maker clearly understood the potential importance of considering her mental state against the background of her imprisonment in Iran. This ground of appeal was also dismissed.

David Sawtell / 23rd May 2017


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