Rother District Council v Freeman-Roach

A housing authority’s decision that an applicant is not vulnerable for homelessness purposes must be read fairly and as a whole. Once the reviewing officer states and applies the correct statutory test, the applicant bears the burden of demonstrating a material error of law. The officer need not define vulnerability or significance, describe the hypothetical ordinary person if made homeless, or relate every factual finding expressly to that comparator.

When deciding whether to provide interim accommodation pending an appeal, the authority must balance the merits, new material, the applicant’s circumstances and the consequences of refusal, together with other relevant considerations. Completion of the statutory review is itself a material change that may justify ending accommodation previously provided pending that review.

The Council determined under Part VII of the Housing Act 1996 that the respondent, who had physical and mental health conditions, was not significantly more vulnerable than an ordinary person if made homeless. It consequently decided that he lacked priority need under section 189(1)(c). The Council also refused to provide interim accommodation pending his County Court appeal.

HHJ Bedford allowed appeals against both decisions. He considered that the review decision did not demonstrate the required comparative analysis and that the interim accommodation decision was irrational. The Council appealed. The central issues were whether the review officer had lawfully applied the vulnerability test and given adequate reasons, and whether the refusal of interim accommodation was lawful.

1. The Council’s appeal was allowed in respect of both decisions. The reviewing officer stated the correct test derived from Hotak: the applicant would be vulnerable if, because of a characteristic within section 189(1)(c) of the Housing Act 1996, he was significantly more vulnerable as a result of homelessness than an ordinary person if made homeless. The reasons showed that the officer considered the applicant’s conditions individually and collectively and found that they made no noticeable difference to his ability to deal with homelessness.

2. A review decision must be read fairly, practically and as a whole. The applicant bears the burden of showing a material error of law; the reviewing officer need not demonstrate positively that the law was correctly understood. The officer is not required to define “vulnerable” or “significantly”, list the attributes of the hypothetical comparator, or tie every reason expressly to that comparator. Tetteh remained good law after Hotak. To the extent that HB v London Borough of Haringey required more, it should not be followed.

3. The references to the applicant’s ability to look after himself and remain free from harm did not show that the officer had substituted an impermissible “fend for himself” test. That conclusion could arise only from the excessively technical and fragmented reading deprecated in Holmes-Moorhouse. The correct comparison was implicit throughout and explicit in the treatment of the risks arising from blood-thinning medication.

4. The interim accommodation decision was also lawful. The Council applied the balancing approach in R v Camden London Borough Council, ex p Mohammed. It considered the appeal’s merits, whether new material could affect the decision, the applicant’s circumstances, the consequences of refusal and demands upon accommodation resources. Completion of the section 202 review was a material change: the applicant had become a person whom the Council had determined lacked priority need. No change in his personal circumstances was additionally required.

5. The County Court had no evidential basis for finding that the applicant would have to sleep in his car or would be substantially prejudiced in pursuing a point-of-law appeal. There was no error of law in either Council decision.

1. Court of Appeal (Civil Division): The Council’s appeal was allowed. The court restored the review decision and the decision refusing interim accommodation: [2018] EWCA Civ 368.

2. County Court at Hastings: HHJ Bedford allowed the applicant’s appeals against both Council decisions by an order dated 23 February 2017. No neutral citation is stated in the judgment.