Clive Sheldon QC and Tom Cross in landmark Supreme Court human rights case


In brief:

  • Supreme Court decides not to follow a decision of the European Court of Human Rights because its reasons are unsatisfactory
  • This is a rare and arguably unique example of the Supreme Court not following the Strasbourg Court
  • As a result of the judgment, the right to a fair trial under Article 6 of the European Convention on Human Rights does not apply to many decisions about entitlement to welfare benefits in the fields of housing, community care and education

In Poshteh v Royal Borough of Kensington and Chelsea [2017] UKSC 36, the Supreme Court has decided not to follow a clear conclusion of a Chamber of the European Court of Human Rights on a particular issue, on the basis that the Chamber’s reasoning was unsatisfactory.

In 2010, in a case called Ali v Birmingham City Council, the Supreme Court had decided that section 193 of the Homelessness Act 1996, which provides for a right in English law to local authority accommodation, did not give rise to a “civil right” within the meaning of Article 6 of the European Convention on Human Rights (the right to a fair trial). Its decision meant that the procedural safeguards guaranteed by Article 6 did not apply both to local authority housing decisions under that section, and to many other entitlements to welfare assistance in English law, for example in the fields of community care or education. But in 2016, in Ali v UK, a Chamber of the Strasbourg Court concluded that section 193 did give rise to a “civil right”.

In a judgment handed-down by the Supreme Court this morning, it has held that the Chamber’s decision should not be followed even though its conclusion was clear. This was because, as explained in the leading judgment of Lord Carnwath, its reasoning was unsatisfactory. Indeed it was, his Lordship said, “disappointing” that the European Court had failed to address in any detail the reasoning of the Supreme Court in Ali v Birmingham City Council, or indeed the Supreme Court’s concerns over “judicialisation” of welfare services and the implications for local authority resources which would arise if Article 6 applied (para 33). He concluded, at para 37, that “It is appropriate that we should await a full consideration by a Grand Chamber before considering whether (and if so how) to modify our own position”.

Whilst the Chamber’s decision in Ali v UK had gone further than previous Strasbourg case law in recognising entitlement to a “benefit in kind” as giving rise to a “civil right”, its conclusion was consistent with its incremental approach to recognising “civil rights”. Although the Supreme Court has, on occasion, declined to follow decisions of the Strasbourg institutions, this is therefore a rare and arguably unique example of it doing so. There is no analogous example of the Supreme Court declining to follow a Strasbourg decision on the basis that its reasoning is unsatisfactory.

Clive Sheldon QC and Tom Cross appeared for the successful Intervener, the Secretary of State for Communities and Local Government You can read the judgment here and the Court’s press summary here.