England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HER HONOUR JUDGE BAUCHER
IN THE CENTRAL LONDON COUNTY COURT
3 CL 40145

		Royal Courts of Justice Strand, London, WC2A 2LL
		8th July 2015

Lord Justice McCombe:

(A) Introduction

1. This is an appeal by Ms Vida Poshteh from the order of 8 May 2014 of Her Honour Judge Baucher sitting in the County Court at Central London. By her order the judge dismissed Ms Poshteh's appeal under section 204 of the Housing Act 1996 from the decision (on review) of the Respondent, the Royal Borough of Kensington and Chelsea, that its duty (under section 193 of the Act) to secure accommodation was available to her had ceased under subsection (7) of that section, by reason of Ms Poshteh's refusal of a final offer of accommodation under Part 6 of the Act.
2. Permission to appeal from the order was granted by Lord Justice Patten at an oral hearing on 24 November 2014, following a refusal of such permission on 22 August 2014 by Lord Justice Kitchin on consideration of the application on the papers.

(B) Background Facts

3. The following background facts are common ground between the parties.
4. Ms Poshteh was born in Iran in February 1978 (and is now, therefore, 37 years old). At University in Iran she became involved in student politics. She was imprisoned twice: first, in 1999 for 6 months, and secondly, in 2002 for 6 weeks. During her imprisonment she was tortured. She came to this country in 2003 with her husband and claimed asylum. Initially, they lived with relatives at a property in London W10 for a number of years. Their son was born in 2007 (and is now, therefore, 7 or 8 years old). Subsequently, Ms Poshteh and her husband separated, although they remained in contact with one another. Between 2007 and 2009 Ms Poshteh and her husband were accommodated in Enfield by the National Asylum Support Service ("NASS"). In 2009, Ms Poshteh was granted indefinite leave to remain in the UK and the accommodation duties of NASS came to an end, because she could now apply for accommodation to the relevant local authority.
5. She applied to the Respondent on 23 October 2009 for accommodation as a homeless person. On the application form, under a heading "Medical Factors", she entered "Dep", understood to stand for "depression". No other medical matters were there identified.
6. On 26 October 2009 Ms Poshteh was provided with temporary accommodation at a property in London E10 while further inquiries were undertaken. On 13 November 2009 the Respondent acknowledged its duty to secure accommodation for Ms Poshteh under section 193 of the 1996 Act. She was advised that she was eligible to bid for two bedroom properties. In early 2010, she moved to a property in London W2, again as temporary accommodation, in which she still resides. This is supported accommodation for homeless persons.
7. In February 2012 a therapist from the Medical Foundation for the Care of Victims of Torture wrote to the Respondent, supporting Ms Poshteh's request for re-housing in accommodation which ought not to be in a "high rise building" or needing use of a lift because,

"For her physical and mental wellbeing: she has diagnosis of post traumatic stress disorder and suffers from depression, panic and anxiety attacks, insomnia and nightmares due to torture in her homeland… ".

8. On 14 November 2012 the Respondent wrote to Ms Poshteh to inform her that she was being offered permanent accommodation at 52a Norland Road, London W11. The offer was stated to be final offer, pursuant to section 193(7) of the Act, as she had failed to bid successfully for permanent accommodation under the Respondent's allocation scheme. The usual statutory consequences of failure to accept the offer (i.e. that the Respondent's housing duty would end) and the right to ask for review of any decision to discharge the statutory duty were explained in the letter making the offer.
9. Ms Poshteh went to see the property on 16 November 2012 and on 21 November her support worker telephoned the Respondent to inform them that Ms Poshteh would be refusing the offer because she considered it "too small for her furniture". On 29 November 2012, Ms Poshteh wrote personally to the Respondent stating that she found the property unsuitable because:

"…[I] found the property scary given my history of post traumatic stress. The windows in the sitting room were circle shaped and other windows were too small. The windows appeared to me as cell windows. I found them quite frightening and reminded me of when I was in prison in my country.

I suffer from post traumatic stress disorder, depression, panic and anxiety attacks, insomnia and nightmares due to torture that I experienced whilst back home in Iran. I therefore do not find it suitable to live in as my permanent home. I have enclosed medical letter from my GP and Psychologist."

The enclosures with this letter were two in number: first, a letter from the therapist who had written previously on 22 February 2012, and secondly, a letter from her GP (a Dr Sharma). The therapist wrote that owing to Ms Poshteh's mental state and past trauma she would not be able to accept any offer of accommodation in a high rise building where it would be necessary to use a lift. The GP wrote saying that Ms Poshteh suffered from PTSD and said,

"…I would urge you to house her in a place where she would not have to use a lift or live high up in view of her history this would exacerbate her anxiety and panic attacks of being in an enclosed area."

No other requirements were identified. The property in issue is not in a high rise building and use of a lift is not required.

10. Ms Poshteh's letter of 29 November was treated as a request for a review and the reviewing office requested copies of Ms Poshteh's medical notes, specialist reports and related materials for the previous six years. When received these materials were referred to the Respondent's own medical experts, a Dr Wilson (a psychiatrist) and a Dr Keen (a GP). Dr Wilson, in his report of 31 January 2013, stated as follows:

" Exposure to memories of the inciting stressor can cause re-emergence of symptoms of PTSD. However, in the applicant's case, these concerns have to be balanced against the availability of local accommodation and the relative harm or benefits that this accommodation may cause. In my view, concerns about the shape of the windows in the property being reminiscent of cell windows, is not of sufficient concern for the property to be considered unsuitable. There would be clear benefits of the applicant having stable accommodation which has been offered by the local authority. This accommodation may not be ideal or entirely to the applicant's satisfaction but there is nothing to suggest that this accommodation would be harmful or have a significant impact upon her mental health.

In summary, the offer of accommodation is suitable on medical grounds."

11. In its review decision of 10 February 2013 the Respondent upheld the decision to discharge the statutory housing duty. Ms Poshteh appealed. The appeal was compromised by the Respondent agreeing to carry out a further review. In support of her opposition to the Respondent's decision, Ms Poshteh made representations through solicitors. The solicitors' letter of 30 August 2013 included the following:

" As soon as our client entered the property she got flash backs to her times of imprisonment and torture. The property has small oddly shaped and placed windows that reminded her of her cell and the interrogation rooms as she could not look out of them properly to see the outside world. It was also very dark and small. The stairs and the corridors around the flat were particularly dark and this again reminded her of the prison and the small dark corridors. Just viewing the flat frightened her and sent her in to a panic attack and therefore the property is not suitable as she could not live there if it made her feel like that just from seeing it for a few minutes."

It was asserted that the flat was in a high rise block with a lift which Ms Posthteh could not use owing to her PTSD. The solicitors also provided further letters from a consultant clinical psychologist (who reported on the records complied by a colleague who had seen Ms Poshteh in 2011), another from the GP and a third from the therapist who had written previously. The GP wrote:

"She has seen a psychologist in the past in 2011. I believe the house she was offered was rejected by her because the windows were very small and round and she felt like she was back in a prison and this made her scared because it reminded her of the torture she was subjected to. I feel this type of property is very unsuitable for my patient as it already has and would continually trigger memories of her time in prison and the torture she suffered and this would not be good for mental state. This is backed up by when she seeing the psychologist she did not want to explore what had happened back in prison as she felt it may set her back and affect her ability to look after her son.

I feel she should be offered the chance to view further properties that are not cramped or have small windows."

12. The clinical therapist's further letter included this:

"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. Similarly she cannot use a lift so she could not accept a high-rise flat."

13. The reviewing officer had previously enquired as to the nature of the property. He found that it was a first floor flat, accessed by one flight of stairs in a purpose built block constructed in about 1985. The living room had two windows, one round window 3 feet in diameter and a further rectangular window 3 feet x 5 feet. Views to the outside world were available. He also obtained photographs of the property. Copies of these photographs are in our appeal bundles.
14. On 7 October 2013 Ms Poshteh attended an interview with the reviewing officer. The officer's note of the interview is available. According to that note it seems that Ms Poshteh said that her main reason for refusing the property was the round window in the living room which she said was "exactly similar" to the round windows of her cell in Iran. She also said that she did not like the layout of the room. The note continues in these terms:

"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 that she also had concerns about the suitability of both bedrooms. She stated that the boiler was located in a cupboard in the bedroom she would have occupied if she had accepted the property. She felt that a boiler should not be located in a bedroom. Applicant confirmed that she did not have any problems with the size or shape of the rectangular window in this bedroom and acknowledged that it let in sufficient light into the room."

It is then recorded that Ms Poshteh said that the second bedroom was too small for her son, but that there was no problem with the window in that room and that she was happy with the kitchen. There were no other reasons for her refusal of the property. It seems that she also said,

"…the property would have been OK as TA [viz. 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."

(C) The Reviewing Officer's Decision and the County Court Decision on Appeal

15. In his decision of 17 October 2013 the reviewing officer decided to uphold the decision to end the housing duty to Ms Poshteh. He identified the material that he had considered including the various medical documents. The history of the case was outlined, as were the principal features of the medical evidence which I have endeavoured to summarise above. The officer also referred to the principal thrust of Ms Poshteh's solicitors' representations made in their letter of 30 August 2013. He summarised the matters raised at the interview of 7 October. He set out the basic dimensions and physical features of the accommodation. He concluded (as is not and was not in dispute here or below) that the property was suitable, from an objective point of view, with regard to size and condition.
16. At paragraph 39 of the decision the officer wrote:

"I nevertheless acknowledge that objectively suitable accommodation may be unsuitable for a particular applicant if it causes them to suffer from symptoms of mental illness. Indeed, the main issue in reviewing our homelessness decision is to consider whether this offer of accommodation was reasonable for you to have accepted given your history of imprisonment and ill-treatment in Iran and your subsequent diagnosis of PSTD and associated problems of severe anxiety and depression."

17. The officer said he gave precedence to the views of Ms Poshteh's treating clinicians, as opposed to the views of Dr Wilson and Dr Keen, but stated that he concurred in the latter two doctors' view that the property was suitable on specific psychiatric and medical grounds. In reaching that conclusion, the officer said that:

"41. In reaching this conclusion I have firstly considered the assertion that the property was unsuitable because the circular window in the living room reminded you of the windows in your prison in Iran. I had had full regard to the fact that exposure to memories of the inciting stressor can cause a re-emergence of symptoms of PTSD. In this regard I acknowledge that accommodation which is, for example, cramped or contains small or barred windows could exacerbate symptoms of PTSD in someone who has experienced trauma in prison."

The crux of the decision then appears in paragraphs 42 to 45 of the decision as follows:

"42. I have considered that in your case it is highly relevant that the medical evidence from your treating physicians other than reporting your own concerns about the property, does not purport to state that the window sizes or arrangement was unsuitable on medical grounds or that it was not reasonable for you to accept the property on this basis. The point that your GP and Clinical Therapist at the Medical Foundation make is that certain types of accommodation would be unsuitable because it would inevitably remind you of prison. In this regard your Clinical Therapist at the Medical Foundation refers to "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". I do not consider the property to meet this description.

43. I have considered whether the assertions you have made about the window size and arrangement in the living room to your treating physicians is consistent with the floor plan (which includes measurements of the windows in each room) and photographs of the interior of the property provided by Notting Hill Housing Group. Far from being small, the circular window is in fact 7 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.

44. Moreover, I have considered that the circular window is not the only window in the living room. Natural light in the living room is also provided by a large rectangular bay window (15 square feet in size) with views onto the street; and that the combination of these two windows in a room which provides sufficient living space for a household of your size under HHSRS, far from creating the dark and airless conditions normally associated with a prison cell, maximise natural light in the living room.

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. Moreover, whilst acknowledging that the layout and design of the property, which it must be stressed was purpose built in the mid-1980s as residential accommodation by a public sector landlord, was unreasonable for you to have accepted on this basis."

18. Ms Poshteh appealed to the County Court against the decision so made on three initial grounds of which only two remained live at the hearing of the appeal. These two grounds were:

"1. The Respondent failed to make adequate inquires in that it failed to inquire of the Appellant's treating medical practitioners whether the round window in the living room was capable of constituting an inciting stressor which would cause a re-emergence or exacerbation of her PTSD.

2. The Respondent had regard to, or placed too much weight upon, an irrelevant consideration, namely the review officer's opinion that the Appellant's statement that the round window would remind her of her experiences in Iran was not 'objectively reasonable.'"

19. The learned judge rejected each of those grounds of appeal. The judgment was clearly a very careful one. However, since the task of this court is not usually to decide whether the county court's decision was right, but rather to decide whether the decision against which the appeal to that court had been brought was or was not susceptible to challenge (Danesh v Kensington & Chelsea BC [2006] EWCA Civ 1404), the parties (in my judgment, correctly) have focussed their attention once more upon the reviewing officer's decision of 17 October 2013. I will do the same.

(D) The Grounds of Appeal and my Conclusions

20. Two grounds of appeal are advanced. While they are set out in a number of paragraphs, they can be summarised as follows:

Ground 1

The officer did not say that he disbelieved Ms Poshteh when she said that the round window reminded her of her prison cell. It was, therefore, an irrelevant consideration for him to find that it was not objectively reasonable for Ms Poshteh to find the design of the windows (and the round window in particular) in the living room was reminiscent of such a cell: see paragraphs 20, 21 and following of the (Replacement) Skeleton Argument dated 22 December 2014 .

Ground 2

The officer erred in his interpretation that Ms Poshteh's GP's comments about the effect on Ms Poshteh of window size and design. The officer seemed to think that the objection was to windows that were round and small, and not simply round or small. If he had been in doubt on this point he should have asked the GP a specific question on the subject and this is particularly so having regard to the need to comply with the public sector equality duty to which the Respondent was subject. (See paragraphs 27 and following of the same skeleton argument.)

21. It is as well to remind oneself at the outset of the statutory test that had to be applied in this case. It is not necessary to rehearse the full provisions giving rise to the statutory housing duty and setting the mechanics of review and county court appeal. These are well known. It suffices for present purposes to recall the specific provisions in play here. They are section 193(7) and (7F) of the 1996 Act. They provide as follows:

"(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."

So the question for the reviewing officer was (1) whether the offered accommodation was suitable and (2) whether it was reasonable for Ms Poshteh to accept the offer. As I have said, there was and is no dispute as to (1); it is agreed that the accommodation was objectively suitable. However, (2) is in dispute; the Respondent contends that it was reasonable for Ms Poshteh to accept the offer; she contends to the contrary.

22. The approach to question (2) has been considered twice, in relatively recent times, in this court in Slater v Lewisham LBC [2006] EWCA Civ 394 ("Slater") and in Ahmed v Leicester City Council [2007] EWCA Civ 843 ("Ahmed"). The test was pithily expressed by Ward LJ in Slater as follows:

"In judging whether it was unreasonable to refuse such an offer, the decision-maker must have regard to all the personal characteristics of the applicant, her needs, her hopes and her fears and then taking account of those individual aspects, the subjective factors, ask whether it is reasonable, an objective test, for the applicant to accept. The test is whether a right-thinking local housing authority would conclude that it was reasonable that this applicant should have accepted the offer of this accommodation."

23. This short test means that the decision maker must have regard to the "subjective factors" affecting the relevant person's attitude to the offer of accommodation and must then take those matters into account, along with all other relevant factors, in deciding whether objectively it was reasonable for that person to accept the offer.
24. Applying such a test, as the reviewing officer recognised, objectively suitable accommodation may be unsuitable for a particular applicant for accommodation. However, subjective factors, including a genuine belief held by the relevant person, are not conclusive of the matter. As Pill LJ said in Ahmed:

"A belief may be genuinely held without being a reasonable belief within the meaning of the subsection. The genuineness of a belief in the existence of a state of affairs is not conclusive. If the evidence available to the local authority entitles a right-thinking local authority to consider that the belief which led to the decision not to accept was not objectively a reasonable one, it is entitled to be satisfied that it was reasonable for the appellant to accept the offer. On September 16, 2005 the appellant may have genuinely feared for her safety and that of her family if she accepted the offer. For present purposes I accept that her fear was genuine. The evidence summarised in the decision letter demonstrated, at least to the extent of permitting a right-thinking authority to reach the decision this one did, that the fear was not a reasonable one and that it would have been reasonable to accept the offer."

In that case, the decision maker and the court had to consider a belief genuinely held by the subject person that she and her family would be subject to racial harassment and/or violence if she were to accept the property offered.

25. It is clear from paragraph 39 of the decision in the present case that the reviewing officer understood that objectively suitable accommodation may be unsuitable for an applicant if it causes him or her to suffer from mental illness. He then went on to consider all the available evidence on that basis.
26. The officer gave precedent weight to Ms Poshteh's clinicians over the views of his own medical experts. However, he examined carefully what those clinicians were saying and acknowledged Ms Poshteh's statement in interview that her main reason for refusing the accommodation was the circular window in the living room which reminded her of the circular windows in the Iranian prison. He also noted that she accepted that the circular window in this flat was much larger than the circular windows in the prison cells. Further, he took into account the light afforded to the living room by the large rectangular window in the room which was 15 square feet in size.
27. It is asserted for Ms Poshteh that, implicitly not having rejected her account of experiencing a panic attack on visiting the premises on 16 November 2012, it was irrational for the reviewing officer to conclude that she would not suffer an exacerbation of her mental illness if required to live there. Mr Burton argues that once the existence of a relevant "inciting stressor" is accepted as having manifested itself on this occasion, it was not necessary for the officer to look at the other particular stressors identified in the medical reports, which he accepts may not apply in this case. He submits that the existence of the stressor is, in such circumstances, a fact and the adverse consequences for Ms Poshteh's mental health follow inexorably, even if the particular stressor was not one identified by the reporting doctors in describing the type of accommodation that might give rise to the problem.
28. For my part, I do not accept these submissions. In particular, I do not accept that the reviewing officer reached a decision that was not reasonably open to him in the light of the evidence as a whole. This court does not remake the reviewing officer's decision; it reviews whether he made decision in accordance with the law. The officer was entitled to take into account all the evidence relating to Ms Poshteh's medical history, not just her account of her experience on this one visit. The question was, given all that the officer knew about Ms Poshteh, was it reasonable for her to accept this offer of accommodation.
29. The important factor was whether the effect upon her mental health was likely to be such as to make it unreasonable for her to accept it. In making this assessment, the officer was entitled to consider (as he did) the terms in which the various medical advice, presented by Ms Poshteh herself, had been expressed. He was also entitled to take into account the history and development of Ms Poshteh's own objections to this property and what she herself told him in her interview with him. All these matters were ones which the officer was entitled to give weight when reaching his decision. In my judgment, the officer was entitled to conclude, on all the evidence (including the medical materials) that the subjective reminder of the Iranian prison cell caused by this window on her visit was not likely to have a sufficiently adverse effect on her mental health such as to render reasonable her rejection of this offer of accommodation within the meaning of the statute.
30. The officer expressly took into account Ms Poshteh's concern about the round window, as expressed shortly after her visit to the property in November 2012 and in her interview. He quotes it in his decision. It is to be recalled that, in the interview, Ms Poshteh said she accepted that the property would have been suitable as temporary accommodation. In so doing, she must have been aware that, as in her own case, temporary accommodation may be all that is on offer for a significant period of time. In her case, she had been in temporary accommodation since 2009.
31. The doctors reported the type of property that was likely to affect her mental health. This property was clearly not of that type. Her reports (variously) of finding the property "frightening" or "scary" and of the "panic attack" on her visit was a factor to be considered as was her statement that she saw it as suitable for temporary accommodation. However, in my judgment, the officer was entitled to find that there was no medical evidence that a property of this type would have the consequence that Ms Poshteh's mental health would be so affected by it as to make it reasonable for her to refuse to accept it in all the circumstances of the case. Nowhere in the material was there even a statement from the clinicians that Ms Poshteh's experience of the round window on her visit had been reported to them and that they concluded that this showed that the effect on her mental health of accepting the property would be significantly adverse. That was not the case presented.
32. In reaching this conclusion I bear in mind the speech of Lord Neuberger of Abbotsbury in Holmes-Moorhouse v Richmond-upon-Thames LBC [2009] UKHL 7 as to the approach to be taken by courts to considering or interpreting review decisions in cases such as this. In particular paragraphs 49 to 51 of that speech are material where one finds this:

"49. In my view, it is therefore very important that, while circuit judges should be vigilant in ensuring that no applicant is wrongly deprived of benefits under Part VII of the 1996 Act because of any error on the part of the reviewing officer, it is equally important that an error which does not, on a fair analysis, undermine the basis of the decision, is not accepted as a reason for overturning the decision

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.

51. Further, as the present case shows, a decision can often survive despite the existence of an error in the reasoning advanced to support it. For example, sometimes the error is irrelevant to the outcome; sometimes it is too trivial (objectively, or in the eyes of the decision-maker) to affect the outcome; sometimes it is obvious from the rest of the reasoning, read as a whole, that the decision would have been the same notwithstanding the error; sometimes there is more than one reason for the conclusion, and the error only undermines one of the reasons; sometimes, the decision is the only one which could rationally have been reached. In all such cases, the error should not (save, perhaps, in wholly exceptional circumstances) justify the decision being quashed."

33. Accordingly, I would reject the first ground of appeal.
34. Turning to ground 2, for my part, I do not consider the terms of the GP's letter of 17 July 2013 to be unclear. The objection expressed to the doctor by the patient was to small round windows. As a result the doctor considered that she should be offered accommodation that was not cramped and did not have "small windows". The reviewing officer was again entitled in this respect to take into account the amplification provided by Ms Poshteh herself in interview when she said that this round window was larger than the windows of her cells and further that such a window would not have been unacceptable in temporary accommodation.
35. The officer had very full medical information from a number of quarters and was entitled to assess it in the round, in accordance with the approach required by Lord Neuberger's speech in Holmes-Moorhouse (supra).
36. Moreover, it is clear from the fifth paragraph of the decision letter that the reviewing officer was also fully aware of the relevant requirements of the Equality Act 2010.
37. Mr Burton submits that it is not enough for the Respondent in this case to point to a paucity of evidence as to the effects of a particular disability. The test is whether there is real possibility that the disability in question would have an adverse effect. Mr Burton argues that it was incumbent upon this officer to find out more about what the effect on Ms Poshteh of an inciting stressor would be. He referred briefly in his argument in reply to the decision of the Supreme Court in Hotak v London Borough of Southwark [2015] UKSC 30.
38. In that case, the Supreme Court held in paragraph [76], with reference to Pieretti v Enfield London BC [2010] EWCA Civ 1104, that the public sector equality duty applies to a housing authority when performing its functions under Part VII of the 1996 Act. While not specifically cited to us, I have reminded myself of the content of the equality duty as found in section 149 of the Equality Act 2010. For convenience, I set out that section in an appendix to this judgment. The reviewing officer clearly had this also in mind. On the second page of his letter he said this:

"In carrying out the review I have also had due regard to Section 149 of the Equality Act 2010. I have considered whether it is necessary to take steps to take account of any protected characteristic which may be relevant to the exercise of my functions, including in particular any disability from which you may suffer, including whether further enquires are necessary. However, having obtained copies of your medical records from the general practice at which you are registered, I am satisfied that I have considered all the relevant information and made all necessary enquiries in relation to your medical problems. I am also satisfied that there is sufficient information to make a decision on the matters relevant to our homelessness decision."

39. I have also reminded myself of what the duty involves, which my Lord, Elias LJ and I (with Kitchin LJ) considered in Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, to which the Supreme Court referred in paragraph [73] of Hotak (supra). In particular, in this context, the Supreme Court also called to mind what my Lord, Elias LJ, said, with regard to a public authority's need to make necessary inquiries, in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) at paragraphs 77-78 and 89, as quoted in my own judgment in Bracking (supra) at paragraph [26(8)] as follows:

"[77] Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para [34]) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision.

[78] The concept of 'due regard' requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If Ms Mountfield's submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making.

[89] It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consultation with appropriate groups is required. Ms Mountfield referred to the following passage from the judgment of Aikens LJ in Brown (para [85]):

'…the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons' disabilities in the context of the particular function under consideration.'

[90] I respectfully agree…….."

40. At paragraph [78] of Hotak Lord Neuberger (with whom all the other Justices in the majority agreed) said this:

"It is therefore appropriate to emphasise that the equality duty, in the context of an exercise such as a section 202 review, does require the reviewing officer to focus very sharply on (i) whether the applicant is under a disability (or has another relevant protected characteristic), (ii) the extent of such desirability, (iii) the likely effect of the disability, when taken together with any other features on the applicant if and when homeless, and (iv) whether the applicant is as a result 'vulnerable.'"

41. In my judgment, the reviewing officer clearly recognised Ms Poshteh's disability. He conscientiously recognised the public sector equality duty in that respect and was at pains to acquire all information that appeared to him to be necessary for that purpose. In particular, he considered the important question of the likely effect of Ms Poshteh's particular disability on whether it was reasonable for her to accept this offer of accommodation that had been made. In my judgment, given what Ms Poshteh had said in her initial letter to the respondent in November 2012 and what she had said in interview, it could hardly have been expected that she had not reported all this to her medical practitioners before they submitted the evidence in the terms that they did. That evidence was then provided (through her solicitors) for the purpose of the review and the officer made his decision on the basis of it.
42. I would, therefore, also reject the second ground of appeal.

(E) Conclusion

43. For these reasons, I would dismiss the appeal.

Lord Justice Elias:

44. I gratefully adopt the factual background summarised by McCombe LJ. However, I respectfully disagree with the conclusions of McCombe and Moore Bick LJJ that the appeal should be dismissed and will briefly set out my reasons.
45. I would emphasise the following features of the case. First, and critically, the reviewing officer did not dispute the appellant's contention in interview that she had suffered a panic attack when she first visited the premises. This is not referred to in the reasons, but it is common ground that if he was intending to disbelieve her, he would have had to put that to her in interview and say so in his decision: R v Hackney LBC ex parte Decordova (1995) 27 HLR 108. Second, she had also said in that interview that the inciting stressor causing this reaction was the round window, whilst accepting that the circular window where she had been incarcerated had been much smaller and did not let in much light. Third, she had, however, given the impression to her doctors and solicitor that the sitting room of the premises was small and cell-like, without windows at normal height. This was plainly inaccurate, as her counsel properly conceded. Fourth, whilst the medical evidence was that it would be potentially detrimental to her mental health to be in a cell-like environment that is not what the Council was offering. Her doctors had proposed that she should be offered premises which were not cramped and were without small windows and that is precisely what she was offered. I would accept that it is a reasonable inference that the doctors would not have expected these premises to act as an inciting stressor, but at the same time nothing in their reports excludes that possibility.
46. The case for the appellant is very simple. The reviewing officer must have accepted her account that she suffered a panic attack when she visited the premises as a result of flashbacks of her time in prison, and he did not dispute her claim that the inciting stressor was the round window. It is meaningless to ask whether it was reasonable for her to react in that way to the round window; the consequence of suffering from post traumatic stress disorder with a tendency to panic and anxiety attacks is that the patient is prone to irrational reactions of this kind as a result of something triggering bad memories. Given that this was a genuine reaction, it would potentially damage her mental health to move into the premises. It cannot be reasonable to expect her to risk prejudicing her health in that way. The only proper and rational conclusion open to the reviewing officer was that even though the premises were suitable in other respects, it was not reasonable to expect her to live there.
47. If the risks to her mental health would indeed be materially exacerbated by moving into the premises, there can surely be no answer to this submission. In this context I would refer to the judgment of Sir Alan Ward giving the judgment of the Court of Appeal (Hughes LJ, Richards J and Sir Alan Ward) in El-Dinnaoui v Westminster Council [2013] H.L.R. 23. An applicant for housing refused the offer of a flat on the sixteenth floor of a block of flats. His wife suffered from a fear of heights and dizziness; she had collapsed when visiting the flat and was taken to hospital. Thereafter her doctor reported that she had been "shaky, panicky and fearful." The reviewing officer observed that there was a distinction between someone who was afraid of heights and someone who had an irrational fear which would make the premises impractical. The reviewing officer considered that the case fell into the former category and that with time the wife would have settled into the property. Accordingly, the officer concluded that the property was suitable and that it was reasonable to expect the applicant to take it. The Court of Appeal disagreed, holding that in the circumstances this was an irrational conclusion which contradicted the only medical evidence. The court clearly acted on the assumption, in my view correctly, that the fact that her fear of heights was irrational was not to the point: the fear was no less a fact which justified her husband refusing the property.
48. The issue, therefore, is whether the reviewing officer, properly directing himself, could say on the evidence that there was no real risk to the appellant's mental health. The reviewing officer himself recognised that this was indeed the critical question. He put the matter in the following way;

"I nevertheless acknowledge that objectively suitable accommodation may be unsuitable for a particular applicant if it causes them to suffer from symptoms of mental illness. Indeed, the main issue in reviewing our homelessness decision is to consider whether this offer of accommodation was reasonable for you to have accepted given your history of imprisonment and ill-treatment in Iran and your subsequent diagnosis of PTSD and associated problems of severe anxiety and depression."

49. He was satisfied that it was reasonable to expect her to accept the offer. His reasoning is summarised in paragraphs 41-45 of his decision, set out in the judgment of McCombe LJ at para.17. The key passage is the following (para. 45):

"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.
51. I am not entirely clear how the reviewing officer reached that conclusion. I suspect that he was purporting to follow the authorities such as Slater v Lewisham LBC [2006] EWCA Civ 394 and Ahmed v Leicester City Council [2007] EWCA Civ 843 which stipulate that an objective test has to be applied to the question whether it is reasonable to refuse an offer. If so, I consider that he erred in law in the way he applied that test. If as a matter of fact the appellant would be likely to suffer panic or anxiety of such a nature and degree as to create a significant risk of damaging her mental health, it matters not whether it is an explicable or rational reaction. It would still be reasonable for the appellant to refuse the property, as in the El-Dinnaoui case. Alternatively, the officer might possibly have reasoned that absent an objectively explicable inciting stressor, any panic or anxiety induced by the premises would be minimal and unlikely to have an effect on the appellant's mental health. If so, the analysis is still in my opinion flawed because there was no proper evidence to justify that inference. It is true that the medical evidence was to the effect that small and dark premises, obviously reminiscent of a prison cell, may well trigger the attacks, but that did not discount the possibility that the attacks may occur in other circumstances. In my judgment there was no basis for inferring simply from the nature of the inciting stressor that the attacks could not be significant enough to damage her mental health.
52. Either way, therefore, in my view the reasoning was erroneous. Given that it lies at the core of the reviewing officer's analysis, the decision cannot stand. It does not justify the conclusion that it was reasonable to expect the appellant to accept the offer.
53. However, I do not accept that the only rational conclusion in this case was that it was unreasonable to expect her to take the property. I agree with my Lords that looking at the whole of the evidence, it was certainly open to the reviewing officer to conclude that it would be reasonable to expect the appellant to accept the premises. The reviewing officer could properly have concluded that any panic attack was not particularly grave and would be unlikely to affect the appellant's mental health. That was the view of Dr Wilson, a psychiatrist, albeit that the reviewing officer did not place too much emphasis on his evidence because he had not examined the appellant. It is also supported by the fact that the appellant did not initially object to the premises on this ground but because there was insufficient room for all her furniture. This might at least suggest that the anxiety or stress was not perceived by her at the time to be particularly worthy of comment. Again, the fact that she was willing to live in the property temporarily is consistent with that conclusion. So even accepting that the circular window acted as an inciting stressor and caused some kind of panic attack, the evidence did not compel the conclusion that it was of such a nature as adversely to affect her mental health and make it unreasonable to require her to live there. However, even allowing for the need to approach review decisions in a realistic and non-technical manner, I do not believe that the reviewing officer can fairly be said to have reached his conclusion by assessing the evidence in this way.
54. I have considered whether this is one of those cases referred to by Lord Neuberger in Homes-Moorhouse v Richmond –upon-Thames Borough Council [2009] UKHL 7 para.51 where it is obvious that the decision would have been the same notwithstanding the error in approach. I do not think that I can fairly make that assumption in this case.
55. Accordingly, I would uphold the appeal on the grounds of a material misdirection by the reviewing officer. I would quash the decision of the officer and send the case back for an entirely fresh consideration by another officer.

Lord Justice Moore-Bick:
 


56. The circumstances giving rise to this appeal have been fully described by McCombe L.J., whose account I gratefully adopt.
57. The review officer in this case was Mr. Dominic Stack. The kernel of his reasoning is to be found in paragraphs 39 to 45 of his decision letter. He accepted that Ms. Poshteh had been imprisoned and ill-treated in Iran and had been diagnosed as suffering from PTSD, severe anxiety and depression as a result (paragraph 39). He also accepted that exposure to an inciting stressor can cause a re-emergence of symptoms of PTSD and that accommodation with cramped conditions or small, barred windows could exacerbate symptoms of PTSD in someone who had experienced trauma in prison (paragraph 41).
58. In paragraph 42, however, he observed that the doctors treating Ms. Poshteh did not say that the accommodation she had been offered was unsuitable; they simply described the kind of accommodation that might have adversely affected her health, such as accommodation with very small, dark rooms, without windows at normal height enabling her to look out at everyday life. As he pointed out, the accommodation that Ms. Poshteh had been offered did not match that description. That led to his conclusion in paragraph 45 that the accommodation was not likely to recreate the conditions of incarceration or to have a significant effect on her mental health.
59. Mr. Stack's decision would have been unchallengeable were it not for the fact that in the course of her interview with the housing officer Ms. Poshteh had said that the round window reminded her of the window in her prison cell and that she had had a panic attack when she visited the flat. Despite that, however, she expressed the view that it would be suitable as temporary accommodation. Mr. Stack had a copy of the note of the interview and had clearly taken it into account, because in paragraph 41 he referred to Ms. Poshteh's assertion that the circular window in the living room reminded her of the windows in her prison cell. He did not specifically mention the panic attack.
60. Mr. Burton submitted that, since he had not given any indication to the contrary, Mr. Stack must be taken to have accepted the truth of Ms. Poshteh's account. Certainly there is no indication that he did not and had he been minded not to do so, he would have had to make that clear and give her an opportunity to deal with his concerns. That being so, he had to proceed on the basis that the window did remind her of her prison cell and that it did cause her to have a panic attack, which is an involuntary response to an inciting stressor. It follows, he submitted, that whatever the doctors said about the kind of accommodation which was likely to damage Miss Poshteh's health, there was unchallenged evidence that the particular accommodation in question was likely to have that effect. Mr. Stack had made the mistake of assuming that only accommodation of the kind described by the doctors would be likely to do that, but they were not purporting to give an exhaustive account of the kind of rooms or windows that could precipitate an adverse reaction, nor could they do so.
61. It is common ground between my Lords, McCombe L.J. and Elias L.J., that the question for decision in this case is whether in the light of the evidence as a whole it was open to Mr. Stack, properly directing himself, to conclude that it was reasonable for Ms. Poshteh to accept the accommodation offered to her. It is also common ground that part of the evidence he had to take into account was the fact that she had suffered a panic attack when she visited the flat, but her evidence that it reminded her of her prison cell and caused her to have a panic attack was heavily qualified by the fact that she said nothing about the severity of the attack and does not appear to have reported it to her doctor, by the fact that she accepted that the window was not exactly like the one in her cell and by the fact that she would apparently have been willing to accept the flat as temporary accommodation. It also had to be set in the context of the doctors' description of the kind of conditions that would be likely to damage her mental health, which bore no relation to the accommodation which she had been offered.
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 L.J. 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 paragraph 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. As Lord Neuberger of Abbotsbury reaffirmed in Holmes-Moorhouse v Richmond-upon-Thames LBC [2009] UKHL 7, [2009] 1 WLR 413 in the passage to which McCombe L.J. has referred, when considering a review decision of this kind the court should be realistic and practical in its approach to interpretation. 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.
63. In the end the question for Mr. Stack was whether the accommodation in question was sufficiently likely to cause harm to Ms. Poshteh's mental health that it was reasonable for her to refuse it. He concluded that it was not. Taking into account the whole of the evidence, I am satisfied that it was open to him to reach that conclusion.
64. There is nothing I wish to add in relation to the second ground of appeal. I therefore agree that the appeal should be dismissed.

Appendix A

Section 149 of the Equality Act 2010

149 Public sector equality duty

(1) A public authority must, in the exercise of its functions, have due regard to the need to –

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it;

(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).

(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to-

(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.

(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to-

(a) tackle prejudice, and

(b) promote understanding

(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.

(7) The relevant protected characteristics are-

age;

disability;

gender reassignment;

pregnancy and maternity;

race;

religion or belief;

sex;

sexual orientation.