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Property: Article 6 in Homelessness Decisions and the Suitability of a Property with a Bull’s Eye Window

In Poshteh v RB Kensington and Chelsea, the Supreme Court disagrees with Strasbourg jurisprudence and dismisses an appeal against a suitability review.

Ms Poshteh, a refugee from Iran where she had been imprisoned and tortured, was made a final offer of accommodation by Kensington and Chelsea under s. 193 Housing Act 1996 (‘the Act’).  She argued that the offer of permanent accommodation was not suitable because the design and size of the living room windows reminded her of her prison in Iran, which would exacerbate her mental health conditions.

The appeal considered whether (i) the duties imposed on housing authorities under Part VII of the Act gave rise to ‘civil’ rights or obligations under 6(1) ECHR, the determination of which rights required a fair and public hearing within a reasonable time by an independent and impartial tribunal; and (ii) the extent to which, when assessing the issue of suitability, the reviewing officer needed to concentrate on the effects of Ms Poshteh’s disability in light of the local authority’s public sector equality duty under s. 149 Equality Act 2010.

In Ali v Birmingham CC [2010] HLR 22 the Supreme Court had held that Article 6 did not apply. Subsequently, in Ali v United Kingdom (2015) 63 EHRR 20, the European Court of Human Rights reached the opposite conclusion.  The Court was asked to consider whether the Strasbourg case should be followed in the UK.  In a robust judgment, expressing its disappointment with the Strasbourg decision, the Court held that it was not required to modify its position and depart from its fully reasoned decision in Ali, highlighting that the scope of a ‘civil’ right applied to public welfare entitlements were limited. 

Turning to the second issue, the Court’s judgment – somewhat surprisingly - does not refer to the recent decision in Hackney LBC v Haque [2017] HLR 14, CA, which provides guidance in applying the public sector equality duty in suitability cases.  The Court held that the reviewing officer’s assessment could not be faulted as he had been fully aware of the need to consider Ms Poshteh’s mental state, and the public sector equality duty had been complied with. 

Barbara Zeitler / 1st Jun 2017


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