Vulnerability (again) and accommodation pending appeal

Thursday 5 April 2018

Rother District Council v Freeman-Roach [2018] EWCA Civ 368, 6 March 2018

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Rother District Council v Freeman-Roach [2018] EWCA Civ 368, 6 March 2018

The Respondent, Mr Freeman-Roach, applied to the Appellant, Rother District Council, from homelessness assistance in June 2016. He informed the council that he had had strokes in 2006 and 2013, which had left him with difficulties in communicating, and that he had osteoarthritis in his hands, right knee and ankles. The council sought medical advice, which expressed the view that Mr Freeman-Roach’s right side had been affected by the stroke and that he had a slight speech impediment. However, his mobility was not severely impaired, nor was his ability to care for himself significantly reduced. Relying on this advice, the council decided that Mr Freeman-Roach did not have a priority need.

Mr Freeman-Roach sought a review. Further medical evidence and advice was obtained by both parties during the course of the review. The reviewing officer proceeded to uphold the original decision and refused to provide Mr Freeman-Roach with accommodation pending any appeal. Having outlined the test for vulnerability set down in Hotak, he went through Mr Freeman-Roach’s various health conditions and concluded that none of them prevented Mr Freeman-Roach from ‘looking after himself and keeping himself free from harm on a day-to-day basis’.

Mr Freeman-Roach appealed against both of these decisions under s204 and s204A Housing Act 1996, respectively. HHJ Bedford granted an interim injunction requiring the council to accommodate Mr Freeman-Roach and, subsequently, allowed both appeals.

In respect of the s204 appeal, the judge found that the reviewing officer had failed to consider Mr Freeman-Roach’s characteristics and situation when homeless in the round, and did not consider his characteristics in the context of being homeless. The judge rejected a further ground that the reviewing officer had erred in failing to expressly identify the characteristics of the ‘ordinary person’ in his analysis, but accepted that there had been no ‘dual analysis’ comparing Mr Freeman-Roach’s vulnerability with that or the ‘ordinary person’. The reviewing officer also appeared to have applied the wrong comparator.

In respect of the s204A appeal, the judge held that the council’s decision was irrational. Mr Freeman-Roach had been accommodated pending review and the council had given no indication as to what, if anything, had changed to justify them taking a different stance during his appeal.

The Court of Appeal allowed the council’s appeal against both of these decisions. An applicant seeking to appeal against a review decision must show that the decision letter contains an error of law: it is not incumbent on the local housing authority to establish that there is no error. A reviewing officer is not ‘writing an examination paper in housing law’ and, as such, a benevolent approach should be taken by the courts his or her decision, avoiding excessive legalism. Reading the review decision as a whole, there was no basis for concluding that the reviewing officer had applied the wrong comparator. The reviewing officer had stated the correct legal test and then given his reasons as to why the test was not satisfied. There was no need for him to expressly tie-in each of his reasons to the comparator, in order to avoid any suspicion that he had applied the wrong test. A review decision ‘cannot be faulted because it failed to define 'vulnerable' or 'significantly' or failed to list the attributes of the ordinary person if made homeless.’

As to the s204A appeal, the judge had overlooked the key change in circumstances which justified the council in deciding not to continue to accommodate Mr Freeman-Roach: namely that the review decision had determined that he was not vulnerable. There reviewing officer had applied the correct test and had taken into account all relevant factors.

The judgment is available here: Rother District Council v Freeman-Roach [2018] EWCA Civ 368


Incongruously, the main points in this appeal are not what makes it interesting. Much of what was decided is not really that novel. We know that review decisions need to be read benevolently. We know that an applicant on appeal will have to establish that the local housing authority has made an error of law, and the burden is not on the local housing authority to prove otherwise. And we know – or at least had a pretty good idea – that a negative review decision will be a sufficient change in circumstances to justify a local housing authority in refusing to accommodate pending appeal when they had previously accommodated pending review.

The interesting aspect of the judgment – I think – is the discussion of the comparator: the ordinary person. Hotak told us who the ordinary person is not. Namely, it’s not someone who is already homeless. It’s not someone whose characteristics are based on the reviewing officers own local experience. And it’s not someone whose characteristics can be established by looking at statistics. But Hotak did not tell us very much about who the ordinary person actually is.

There is a school of thought (which I subscribe to) that the ordinary person is someone who is ‘robust and healthy’. This is in line with the submissions of the late Brian McGuire QC in Hotak (which you can find outlined in the AC report), made on behalf of Shelter and Crisis (the interveners), which found favour with the Supreme Court. It also finds some support in the Supreme Court’s endorsement of comments to that effect made by Pitchford LJ in the Court of Appeal’s decision in that case (albeit his comments are endorsed in a part of the judgment dealing with a separate issue so it’s not entirely clear how much weight can be attached to this). More generally, this approach accords with the overall tenor of the judgment in Hotak, which was rejecting the notion that the comparator was a person plucked from the population of those who are street homeless as that would risk the ‘sick and vulnerable’ being ‘put out on the streets’. The implication being that the street homeless cohort is an inherently vulnerable population which would skew the outcome of the test. Likewise, the contention that the ordinary person might be viewed with reference to the reviewing officer’s own experience was rejected by the Supreme Court because this would lead to arbitrary and unpredictable outcomes. All of this suggests that a consistent, objective standard needs to be applied and militates against the possibility that the ordinary person suffers from some unspecified health problems or frailties. Therefore, he or she (and let’s not get started on the gender of the ordinary person…) must be ordinarily robust and healthy.

But, like all legal concepts, the point is open to argument and it’s an argument which tends to come to the fore in those decisions where the applicant suffers from potentially borderline health conditions such as depression and anxiety or the like, and the stance taken in the review decision is that this is not something which sets the applicant apart from the ordinary person. This has given rise to at least one successful appeal in the county court - HB v Haringey London Borough Council, Mayors and City County Court, Legal Action, January 2016, p46 – where the failure to expressly identify the characteristics of the ordinary person has been found to taint the review decision.

The Court of Appeal in this case has expressly rejected this approach (and disapproved the decision in HB): applying Tetteh v Kingston Upon Thames Royal London Borough Council [2004] EWCA Civ 1775, [2005] HLR 21, there is no need to spell out the characteristics of the ordinary person. However, in doing so, the court – by my reading – seems to have endorsed the objective ‘robust and healthy’ approach. I think we can draw this from [32] of the judgment where Rose J says:

Mr Bolton concluded that, although he accepted that Mr Freeman-Roach suffers from mental illness and physical disability, his several conditions were either controlled by medication or did not cause him any particular functional impairment. The comparison with the ordinary person who does not suffer from those disabilities is implicit when Mr Bolton describes the effect of each medical issue on Mr Freeman-Roach's ability to function. [Emphasis added].

I think we can take this as an endorsement that the ordinary person is someone who does not suffer from any particular disability or (to avoid getting bogged down in the language of the Equality Act 2010) health condition. I think that this, on balance, this is a helpful clarification.

The judgment is available here: Rother District Council v Freeman-Roach [2018] EWCA Civ 368

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