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||Neutral Citation Number:  EWCA Civ 368
||Case No: B5/2017/0684
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT HASTINGS
His Honour Judge Bedford
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE LEWISON
MRS JUSTICE ROSE
|| ROTHER DISTRICT COUNCIL
||- and -
Mr David Carter (instructed by Local Authority Legal Services for Wealdon and Rother District Councils) for the Appellant
Ms Leanne Buckley-Thomson (instructed by BHT Eastbourne Advice) for the Respondent
Hearing date: 20 February 2018
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
Mrs Justice Rose:
- Rother District Council ('the Council') appeals to this court from the order made on 23 February 2017 by HHJ Bedford sitting in the County Court at Hastings. The Judge allowed an appeal brought by Mr Freeman-Roach against two decisions taken by the Council under Part VII of the Housing Act 1996 as set out in letters from the Council's Housing Needs Manager Martin Bolton. The first decision quashed by HHJ Bedford was the decision dated 13 December 2016 that Mr Freeman-Roach does not have a priority need for accommodation because he is not a person who is vulnerable as a result of mental illness or physical disability within the meaning of section 189(1)(c) of the Housing Act 1996 ('the review decision'). The second decision successfully challenged by Mr Freeman-Roach was dated 20 December 2016 and refused to provide him with interim accommodation pending his appeal to the County Court against the review decision.
- At the hearing before us, David Carter appeared for the Council and Leanne Buckley-Thomson appeared for Mr Freeman-Roach. At the end of the hearing we announced our decision to allow the appeal against HHJ Bedford's order in respect of both the decisions. These are my reasons for that decision.
- On accepting an applicant's homelessness application, the Council come under a duty to make inquiries to satisfy themselves that the applicant is eligible for assistance and to consider what, if any, duty is owed to him under Part VII of the Housing Act: see section 184(1). In particular the Council must decide whether the applicant has a priority need, as defined by section 189. If the Council decide that an applicant is eligible for assistance, is homeless and not homeless intentionally and that he has a priority need, the Council are under a duty to secure that accommodation is made available for him unless they refer him to another local housing authority: see section 193(1) and (2). If an applicant does not have a priority need, then even if he is eligible for assistance and is homeless and not intentionally homeless, the Council's duty is only to ensure he is provided with advice and assistance in any attempts he makes to find accommodation: see section 192(2). The Council have a discretion in those circumstances to provide him with accommodation under section 192(3). Once the Council have completed their inquiries into his case, the Council are under a duty to notify the applicant of the reasons for their decision as to the duty owed to him and, if the decision on any issue is against his interests, to inform him of the reasons for that decision: see section 184(3).
- Section 202 provides that an applicant has the right to request a review of any decision of the Council as to what duty is owed to him under sections 190 to 193 and, on receiving such a request, the Council must review their decision in accordance with the procedure laid down by section 203. The Council must notify the applicant of the decision and, if the decision confirms the original decision, they must also notify him of the reasons for the decision. Section 204 permits any applicant who is dissatisfied with the outcome of any review under section 202 as to what duty is owed to him to appeal to the County Court on a point of law.
- Mr Freeman-Roach was aged 54 at the date of the review decision. He had been living with his son and daughter-in-law but on the breakdown of his son's marriage he could no longer stay with them. On 9 June 2016 he made an application to the Council for assistance. In his application form, in response to the question about medical conditions, disabilities or other special circumstances, Mr Freeman-Roach wrote that he had strokes in 2006 and 2013 and that he has osteoarthritis in his hands, right knee and both ankles. In response to the question whether he believes that he is vulnerable for any other reason he wrote "communication difficulties due to stroke".
- On 14 June 2016 Mr Freeman-Roach was interviewed by Aaron Bull from the Council. Mr Bull recorded in his notes that Mr Freeman-Roach advised that he had been sleeping in his car for the last five weeks in various locations around the district. Mr Bull's notes say that Mr Freeman-Roach "spoke with a significant speech impediment that he said was the result of two strokes". Mr Bull then records:
"He informed that in 2006 he suffered a stroke which resulted in the loss of his voice for a year and a loss of feeling down his right side. He stated he saw a speech and language therapist and went back to working after a year which he now thinks wasn't sensible. He confirmed that he had a second stroke in 2013 but it was difficult to understand some of his speech and he became confused by some of the details. In addition he stated he suffers with osteoarthritis in his hands and knees and his hands in particular swell up significantly and he is on painkillers. He advised that following his stroke he didn't feel able to live on his own and his son told him he had to come and stay with them."
- On 8 July 2016 the Council received a report from their medical adviser, Dr Yvonne Cooper, relating to Mr Freeman-Roach's vulnerability on medical grounds. She summarised the issues affecting Mr Freeman-Roach. Mr Freeman-Roach suffered a stroke in 2012. His right side was affected and he has some slight speech impairment as a result. Dr Cooper said "However, there is no evidence of any severe impairment in mobility, or that his ability to care for himself on a day-to-day basis [is] significantly reduced. He is prescribed medication to control blood pressure and thin blood". Mr Freeman-Roach suffered from osteoarthritis (inflammation/degeneration of joints) mainly affecting his thumb. Dr Cooper said "There is no evidence to suggest that his pains are affecting his ability to care for himself on a day-to-day basis. There is no evidence of any impaired mobility or the use of any walking aids. There is no evidence that he takes any potent painkilling medication to control the arthritis". Dr Cooper noted that Mr Freeman-Roach was prescribed vitamin B and thiamine but that there was no evidence that he had any medical complications as a result of increased alcohol intake. Dr Cooper's advice was that she did not think that medical issues rendered Mr Freeman-Roach significantly more vulnerable than an ordinary person and she made no housing recommendations on specific medical grounds.
- On 15 July 2016 Mr Bull sent Mr Freeman-Roach a decision on his homelessness application under section 184. The letter stated that after careful consideration, the Council concluded that he was eligible for assistance but that he did not have a priority need. Mr Freeman-Roach had not provided any information to suggest that he suffered with any physical disability that would prevent him from accessing support and services whilst homeless. Mr Bull referred to his inquiries with Mr Freeman-Roach's previous GP, Dr Arokadare. Those inquiries established that Mr Freeman-Roach had suffered a stroke in 2012 resulting in a minor speech impairment and affecting his right side. There was no information to suggest that his mobility was compromised or that he required a carer or input from social services regarding his care needs. Mr Bull referred to osteoarthritis which he said predominantly affected Mr Freeman-Roach's thumb. He noted that there was no evidence that this resulted in reduced mobility or that Mr Freeman-Roach needed any additional support to meet his daily care needs. Mr Bull concluded that Mr Freeman-Roach's speech impairment and damage to his right side following the stroke in 2012 were not considered severe and did not stop Mr Freeman-Roach from undertaking normal everyday tasks. There was no evidence that his cognitive ability was impaired and his osteoarthritis did not impair his mobility or ability to care for himself. Mr Bull therefore concluded that Mr Freeman-Roach's physical health did not cause him "to be more vulnerable than an ordinary person who is homeless".
- Mr Freeman-Roach instructed B.H.T Hastings Advice to assist him in his dealings with the Council. Ms Wilson from B.H.T Hastings Advice wrote to the Council on 22 July 2016 on his behalf asking for a review of Mr Bull's decision under section 202 of the Housing Act. Ms Wilson also asked the Council to extend Mr Freeman-Roach's temporary accommodation pending that review. Ms Wilson described the effects of Mr Freeman-Roach's medical conditions as more serious than Dr Cooper had advised and referred to additional medical problems that Mr Freeman-Roach suffered from such as asthma and high blood pressure.
- Further medical reports were received by the Council including a letter from Mr Freeman-Roach's current GP Dr Rubery who described him as in a desperate situation and as a vulnerable patient by reason of his expressive dysphasia and arthritis. However, Dr Ash Thakore, a medical adviser instructed by the Council, provided advice on 16 August 2016 saying that he did not think that Mr Freeman-Roach's medical issues rendered him significantly more vulnerable than an ordinary person. Subsequently additional reports were provided by Dr Rubery and by Dr Giovanna Hornibrook, a medical adviser to the Council. On 4 November 2016 Mr Bolton wrote to Ms Wilson that he had decided to uphold Mr Bull's decision. On 22 November this letter was withdrawn and treated as a 'minded to' letter, inviting further representations from Mr Freeman-Roach.
- The review decision was issued on 13 December 2016 and I consider its terms in more detail below.
- The Council had provided interim accommodation for Mr Freeman-Roach at 76 St Saviour's Road, St Leonards-on-Sea from June 2016 until 22 August 2016 and then again from the end of September 2016 until the issue of the review decision. In the letter setting out the review decision Mr Bolton said that Mr Freeman-Roach would have to leave his accommodation by 22 December 2016. Mr Freeman-Roach told the Council that he intended to appeal against the review decision and asked the Council to continue to secure interim accommodation for him pending the appeal. On 20 December 2016 Mr Bolton refused to continue to accommodate Mr Freeman-Roach pending the appeal. That is the interim accommodation decision, the second decision quashed by HHJ Bedford.
- On 21 December 2016 Mr Freeman-Roach lodged an appeal in the County Court at Hastings against both the review decision and the interim accommodation decision and applied for injunctive relief. HHJ Bedford considered the matter on the papers that day and, after Ms Ball of B.H.T Hastings Advice had attended at the Court's request, he granted an injunction ordering the Council to provide accommodation to Mr Freeman-Roach until the outcome of the County Court appeal. The hearing of the appeal took place on 26 January 2017 and the Judge handed down his judgment on 23 February 2017. He made an order allowing Mr Freeman-Roach's appeal and awarded costs against the Council. He made no further order. The Council has continued to accommodate Mr Freeman-Roach pending the appeal to this court.
- Permission to appeal was granted by Patten LJ on 31 March 2017 with a direction that the appeal be listed for hearing with any similar appeals as soon as possible after the judgment in Panayiotou v Waltham Forest LBC which was pending before this court at that point and to which I refer further below.
The challenge to the review decision
- Section 189(1)(c) of the Housing Act provides that those who have a priority need for accommodation include a person "who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside".
- There has been plenty of judicial guidance to reviewing officers about how to determine whether an applicant falls within section 189(1)(c) and so has a priority need. The leading authority is now the judgment of the Supreme Court in Hotak v London Borough of Southwark, Kanu v London Borough of Southwark, Johnson v Solihull Metropolitan Borough Council  UKSC 30,  AC 811 ('Hotak'). Lord Neuberger PSC (with whom Lady Hale DPSC and Lord Clarke, Lord Wilson and Lord Hughes JJSC agreed) prefaced his discussion of the issues before the Court with a reference to the statement by Lord Walker of Gestingthorpe in Runa Begum v Tower Hamlets London Borough Council  UKHL 5,  2 AC 430 at . Lord Walker stressed that establishing priority need may call for the exercise, and sometimes for a very difficult exercise, of evaluative judgment on the part of the housing authority.
- One issue before the Supreme Court in Hotak was whether the assessment of whether an applicant is vulnerable for the purposes of section 189(1)(c) involves an exercise in comparability, and, if so, by reference to which group of people is vulnerability to be determined. The Court arrived at the following conclusions which are relevant to the application of section 189(1)(c) in Mr Freeman-Roach's case. Section 189(1)(c) directs an inquiry as to the applicant's vulnerability if he remains or becomes a person without accommodation. The issue of vulnerability is to be assessed not so much by reference to each of the applicant's problems, but by reference to them when taken together – one must look at the applicant's particular characteristics and situation when homeless in the round. The shortage of resources available to the authority is not a relevant consideration when considering vulnerability. It is best to avoid expressions which risk supplanting the statutory test and which may mean different things to different people. In particular, referring to the applicant's ability "to fend for himself" may be misleading in part because an applicant might be vulnerable even if he could be expected to fend for himself.
- Importantly the Supreme Court in Hotak held that vulnerability is a comparative concept and that when considering whether the applicant is vulnerable he should be compared with an ordinary person if made homeless and not with an ordinary actually homeless person. That comparison with an ordinary homeless person had, until Hotak, been the test applied following the Court of Appeal's decision in R v Camden LBC ex p Pereira (1999) 31 HLR 317, 330 ('Pereira') but was not the right test. Combining  and  of Lord Neuberger's judgment in Hotak, the test to be applied under section 189(1)(c) is now therefore that a person is vulnerable if he is, because of his mental illness or physical disability, significantly more vulnerable as a result of being made homeless than an ordinary person if made homeless.
- The application of the test in Hotak was considered by this court in Panayiotou v London Borough of Waltham Forest  EWCA Civ 1624,  HLR 48 ('Panayiotou'), in particular focusing on what the word 'significantly' connotes in Lord Neuberger's exposition of the test. Lewison LJ first considered what it means to say that someone is "vulnerable as a result" of one of the characteristics listed, over and above saying that someone simply has one of those characteristics. At  he cited a passage from the judgment of Lady Hale in Hotak on the question of what vulnerability adds to the group of characteristics listed in section 189(1)(c).
"To answer that, one needs to know what they will be vulnerable to or at risk of harm from. The obvious answer is that they must be at risk of harm from being without accommodation: the object of the section is to identify those groups who have a priority need for accommodation. Is that enough by itself? The problem, of course, is that we are all to some extent at risk of harm from being without accommodation—women perhaps more than men, but it is easy to understand how rapidly even the strongest person is likely to decline if left without anywhere to live. So this is why a comparison must be implied. The person who is old, mentally disordered or disabled, or physically disabled, must as a result be more at risk of harm from being without accommodation than an ordinary person would be. This is what I understand Lord Neuberger of Abbotsbury PSC to mean by "an ordinary person if homeless". I agree."
- Having considered the earlier authorities, Lewison LJ said:
"44. It seems reasonable to conclude, therefore, that the relevant effect of the feature in question is an impairment of a person's ability to find accommodation or, if he cannot find it, to deal with the lack of it. The impairment may be an expectation that a person's physical or mental health would deteriorate; or it may be exposure to some external risk such as the risk of exploitation by others."
- Turning to what the word 'significantly' means here, Lewison LJ acknowledged the danger of layering glosses on the wording of the statute but concluded that it was appropriate for the court to give such guidance as it could, since it was apparent that this aspect of the Hotak test was causing practical difficulty for housing authorities. He concluded:
"64. I do not, therefore consider that Lord Neuberger can have used "significantly" in such a way as to introduce for the first time a quantitative threshold, particularly in the light of his warning about glossing the statute. Rather, in my opinion, he was using the adverb in a qualitative sense. In other words, the question to be asked is whether, when compared to an ordinary person if made homeless, the applicant, in consequence of a characteristic within section 189(1)(c), would suffer or be at risk of suffering harm or detriment which the ordinary person would not suffer or be at risk of suffering such that the harm or detriment would make a noticeable difference to his ability to deal with the consequences of homelessness. To put it another way, what Lord Neuberger must have meant was that an applicant would be vulnerable if he were at risk of more harm in a significant way. Whether the test is met in relation to any given set of facts is a question of evaluative judgment for the reviewer."
- There is also plenty of judicial guidance to County Courts when considering appeals under section 204 about the circumstances in which they should interfere with a reviewing officer's evaluation and, just as important, the circumstances in which they should not. That guidance has acknowledged, as Lord Neuberger did in Hotak, the difficulty of the exercise that reviewing officers have to carry out in making their assessment under section 189(1)(c). Judges have consistently emphasised that the County Court must not be too zealous in the examination of a reviewing officer's decision in order to identify errors of law. In Holmes-Moorhouse v Richmond Upon Thames London Borough Council  UKHL 7,  1 WLR 413 ('Holmes-Moorhouse') Lord Neuberger said:
"46. The rights granted by Part VII of the 1996 Act to those claiming to be homeless or threatened with homelessness are based on humanitarian considerations, and this underlines the fact that any challenge to a review decision should be carefully considered by the County Court to whom such challenges are directed. Given that the challenge in the County Court is treated as a first appeal, the responsibility on the Judge considering the challenge is heavy, and, if he or she is satisfied that there is an error in the reasoning which undermines the basis upon which the decision was arrived at, then the decision should obviously be set aside.
47. However, a Judge should not adopt an unfair or unrealistic approach when considering or interpreting such review decisions. Although they may often be checked by people with legal experience or qualifications before they are sent out, review decisions are prepared by housing officers, who occupy a post of considerable responsibility and who have substantial experience in the housing field, but they are not lawyers. It is not therefore appropriate to subject their decisions to the same sort of analysis as may be applied to a contract drafted by solicitors, to an Act of Parliament, or to a court's judgment.
48. Further, at least in my experience, and as this case exemplifies, review decisions generally set out the facts, the contentions, the analyses and the conclusions in some detail. To my mind, given the importance, particularly to the applicant, of the issues considered in review decisions, such fullness is to be strongly encouraged. However, as any lawyer knows, the more fully an opinion is expressed, the greater the opportunity for alleging mistakes of fact, errors of law, or inconsistencies. If the courts are too critical in their analyses of such decisions, it will tend to discourage reviewing officers from expressing themselves so fully.
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 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."
- One manifestation of the need for courts to be realistic and practical when assessing reviewing officers' decisions is the judgment of Gage LJ (with whom Dyson and Auld LJJ agreed) in Tetteh v Kingston Upon Thames Royal London Borough Council  EWCA Civ 1775,  HLR 21 ('Tetteh'). In that case the appellant accepted that the respondent council had set out the correct test in the first paragraph of the decision letter but submitted that the test had not been properly applied. At that time the test was the Pereira test, using the comparator of the ordinary homeless person. One ground relied on by the appellant was that the reviewing officer had not demonstrated against whom the attributes of the appellant were being balanced; the appellant argued that the officer should have spelt out the identity and attributes of the ordinary homeless person with whom the applicant was being compared. Gage LJ rejected these criticisms. He said that having set out the correct test, it was implicit in all that followed that the reviewing officer had well in mind what considerations he needed to have in mind when applying that test. He went on:
"21. Next, I do not accept that [the reviewing officer] had to spell out precisely what attributes of the normal homeless person he had in mind when comparing that person with the appellant. The concept of the normal homeless person is hypothetical. A busy local housing authority will have a vast experience of the range of homeless persons. I see no reason for the respondent to go further than stating… that he found the appellant was not less able to cope than an ordinary homeless person. …"
- Gage LJ held further that the passage in the reviewing officer's letter under the heading "Findings" had to be read together and 'not dissected into small pieces'. Although the council's reasons were set out shortly, he held that there was no error of law.
- In the review decision in the present case, Mr Bolton described Mr Freeman-Roach's personal circumstances and the medical evidence the Council had received, recording that Dr Rubery, Mr Freeman-Roach's GP, considered him to be a vulnerable patient but that other doctors had advised the Council that he was not medically vulnerable. His decision was expressed as follows:
I have decided to uphold Mr Bull's decision that the Council owes Mr Freeman-Roach a duty to provide him with advice and assistance because he is eligible for assistance and homeless but does not have a priority need.
I have asked myself whether Mr Freeman-Roach has a priority need because he is vulnerable as a result of mental illness or physical disability. For these purposes, a person is vulnerable if he is significantly more vulnerable than an ordinary person who is in need of accommodation as a result of being rendered homeless.
I find that Mr Freeman-Roach:
(a) suffers from a mental illness because he suffers from anxiety and depression; and
(b) has a physical disability because he suffers from expressive dysphasia, numbness to his right hand, high blood pressure, osteoarthritis/joint pain and asthma.
Considering these findings both individually and as a whole, I have decided that Mr Freeman-Roach is not significantly more vulnerable that the ordinary person when homeless for the following reasons.
1) His mental health condition is being treated with standard anti-depressant medication at a moderate dose. Although he had had some suicidal thoughts, there is nothing to indicate that there are any concerns that he is planning to commit suicide. There is no evidence of a severe or underlying psychotic illness. He has not been referred to a psychiatrist or a community mental health team which signifies that the appropriate professionals do no regard his condition as putting him at any significant risk.
2) His expressive dysphasia is not so serious as to prevent him from accessing or obtaining support and help. He has been able to apply for homelessness assistance and welfare benefits. When first interviewed in relation to his homelessness application, Mr Bull noted that he had a significant speech impediment and that it was difficult to understand some of his speech but I have since interviewed him and found no great difficulty in communicating with him. There is no medical evidence that he suffers from any other cognitive problems.
3) Mr Freeman-Roach's high blood pressure is not unstable and is controlled by medication.
4) Neither his stroke not his osteoarthritis has caused any significant impairment in his mobility.
5) He has not had a stroke since 2012 and is taking appropriate anti-stroke medication. Although this causes his blood to thin, it does not put him at a significantly greater risk of bleeding profusely if cut than a person who is not on such medication.
6) His osteoarthritis and joint pain does not impede significantly or consistently his mobility or basic daily activities.
7) The only evidence of Mr Freeman-Roach suffering from asthma is that when he was discharged from Lewisham Hospital on 1st May 2014, he was prescribed an inhaler. I find that his asthma is not serious because there is no other evidence of it (before or since) and Dr Rubery has not seen fit to mention it in her reports.
8) In so far as he requires medication, he is capable of visiting his GP, collecting his medication from a pharmacist and administering it himself. I accept that – when living with his son – he benefitted from his support in reminding him to take medication, to have a shower and to perform other day to day functions but this help ceased in May 2016 and there is nothing to suggest that Mr Freeman-Roach has been unable to carry out these activities since then.
9) In the final analysis none of his conditions prevent him from looking after himself and keeping himself free from harm on a day-to-day basis."
- The appeal by the Council to this court is a second appeal so that our focus is on the correctness of the Council's review decision and not on the correctness of HHJ Bedford's decision to quash: see Bubb v Wandsworth London Borough Council  EWCA Civ 1285,  HLR, 13. However, since to a large extent the criticisms of the review decision which the Council must overcome to succeed in this appeal are those set out in HHJ Bedford's judgment, it is necessary to consider the Judge's reasons for quashing the review decision.
- In his judgment, HHJ Bedford reminded himself that the appeal before him was 'very much akin to a judicial review' and set out the relevant authorities both on the judicial review test and on the interpretation of section 189(1)(c). He addressed Mr Freeman-Roach's first ground of appeal which was that the Council had provided inadequate reasons and/or had erred in law in failing sufficiently to demonstrate the comparator used in concluding that Mr Freeman-Roach was not significantly more vulnerable than the ordinary person if made homeless. The Judge referred to an unreported decision of HHJ Lamb QC in HB v London Borough of Haringey (17 September 2015 noted in Housing recent developments in the December 2015 edition of Legal Action). HHJ Lamb had quashed a review decision because it had failed to set out various matters including a definition of 'vulnerability' or whether the officer had considered HB to be invulnerable or without vulnerability. HHJ Bedford held that the review decision does not demonstrate that Mr Bolton considered Mr Freeman-Roach's characteristics and situation when homeless in the round. The decision did consider his characteristics and the effect of those characteristics on him but did not "consider those characteristics in the context of being homeless" and did not therefore consider "what homelessness would mean for this man". He held that he was satisfied that Mr Bolton had erred in law in not carrying out the very exercise which the Council accepted should have been carried out.
- The Judge went on to reject Mr Freeman-Roach's second argument that Mr Bolton had also erred by failing to identify the attributes of the comparator. He held that  of the judgment of Gage LJ in Tetteh was still good law after Hotak. But he upheld Mr Freeman-Roach's alternative ground of appeal that asserted that there was no evidence in the decision letter of there being any 'dual analysis', by which it appears the Judge meant a comparison of the degree of vulnerability as between Mr Freeman-Roach and the comparator. The lack of such analysis amounted, he held, to an error of law.
- HHJ Bedford then considered whether Mr Bolton had applied the correct comparator. He said that the only evidence of a comparator being used was the recitation of the Hotak test. He said:
"Whilst I have accepted … that the current state of the law does not require the officer to deal in detail in the letter with the application of the comparator to the Appellant's circumstances, the danger in adopting such an approach is that the reader is left in difficulty in establishing that the correct comparator has been applied. One is left with the reference to the test and that can only be helpful and informative of the reasoning behind the decision (thus enabling a view that the approach has not been such as to involve error on law) if it can be seen to have been considered and applied to the context of the case including other content of the letter. If one cannot establish that the correct comparator has been used in coming to a view as to vulnerability then the decision making process is flawed in that it fails to evidence a correct approach."
- The Judge held that the only hint as to the comparator actually applied is in the 8th and 9th reasons in the review decision. These, he considered, strayed away from the correct comparator because the reference to whether Mr Freeman-Roach can look after himself and keep himself free from harm comes close to the question whether he can fend for himself and that is not the correct test. He was therefore satisfied that this was an error of law. He rejected the third ground put forward by Mr Freeman-Roach that Mr Bolton's assessment of the medical evidence had been irrational.
The review decision: discussion
- When an applicant appeals a review decision to the County Court, the relevant council is not required to establish that the review officer applied the correct test; rather it is for the applicant to show that the decision letter contains an error of law. In my judgment there is no error of law apparent in Mr Bolton's decision. If one reads the review decision as a whole there is no basis for concluding that Mr Bolton applied the wrong comparator. Mr Bolton correctly states the Hotak test when he says that a person is vulnerable if he is significantly more vulnerable than an ordinary person who is in need of accommodation as a result of being rendered homeless. He refers to the correct test again when he states that the nine reasons then set out are his reasons for finding that Mr Freeman-Roach is not significantly more vulnerable than the ordinary person when homeless. Ms Buckley-Thomson argued that it was not enough for Mr Bolton to state baldly that he has applied the correct test. He must, she said, show in the remainder of the review decision that he has indeed applied that test and has not - perhaps because old Pereira habits die hard - reverted to the wrong comparator or asked an impermissible question such as whether Mr Freeman-Roach can "fend for himself".
- There is nothing in Mr Bolton's letter to suggest that the nine reasons given were in fact reasons for arriving some different conclusion from the conclusion he stated, let alone that he had not considered the case in the round. I do not see that Mr Bolton needed expressly to tie in each of the nine reasons to the comparator in order to avoid the suspicion that he may have paid lip-service to the correct Hotak test whilst in fact applying some other, incorrect, test. It was precisely because of the desire to encourage review officers to set out their reasons and analysis as fully as possible that Lord Neuberger in Holmes-Moorhouse firmly discouraged courts from taking a nit-picking approach to those expanded reasons or subjecting them to an overly technical analysis. A fair reading of those reasons is that 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. There is no suggestion that Mr Bolton applied a test which involved construing the word 'significantly' in a quantitative way contrary to what this court decided in Panayiotou or that Panayiotou casts doubt on the lawfulness of the decision in any other way. Indeed, it is clear to me that what Mr Bolton decided was that none of Mr Freeman-Roach's problems would make a noticeable difference to his ability to deal with the consequences of homelessness. If one were searching for evidence of Mr Bolton carrying out a 'dual analysis' of Mr Freeman-Roach's vulnerability when homeless compared with an ordinary person made homeless, this is explicit in his fifth reason. Mr Bolton considers whether Mr Freeman-Roach's blood thinning, anti-stroke medication makes him vulnerable because it puts him at significantly greater risk of bleeding profusely if cut than a person not on such medication and concludes it does not.
- I do not regard the reference to Mr Freeman-Roach's ability to look after himself and keep himself free from harm as suggesting that Mr Bolton was straying into applying the wrong test. Such a conclusion could only arise from the kind of searching for inconsistencies that Lord Neuberger deprecated, given the clear expression of the correct test at the start of the review decision. Similarly, since Mr Bolton expressly said that he had considered Mr Freeman-Roach's medical conditions both "individually and as a whole", it is wrong to criticise his elaboration of the effect of each of those various conditions as somehow showing that he has not considered Mr Freeman-Roach's circumstances in the round.
- In her skeleton argument for the hearing, Ms Buckley-Thomson set out seven ways in which she said Mr Bolton's reasoning was inadequate. She argued that her contention that a review decision must be sufficiently detailed to enable the applicant, and the court, to assess whether the correct test has been applied is not inconsistent with Tetteh. Alternatively, if Tetteh is authority for the proposition that a review decision is adequate if it states without more that the applicant is not significantly more vulnerable than an ordinary person if made homeless, then that cannot now be right. She submitted that the test that a reviewing officer has to carry out after Hotak and Panayiotou is more nuanced and complex than was the case when Tetteh was decided and hence more is now required of reviewing officers when giving their reasons.
- I consider that Tetteh remains good law post Hotak so that the 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. In so far as the decision of HHJ Lamb QC in HB v Haringey decides differently, then it should not be followed and was disapproved in Panayiotou (see  of that judgment). How much detail needs to be given of the reasons for the council's decision in a particular case depends on the circumstances of that case. Here I am fully satisfied that the reasons expressed in the review decision were sufficient for Mr Freeman-Roach to understand why the Council had decided that he was not in priority need and to be assured that Mr Bolton had applied the correct test in coming to that decision. There was no basis for quashing the review decision.
The challenge to the interim accommodation decision
- Following the review decision, Mr Freeman-Roach asked the Council to exercise their discretion under section 204(4) to provide him with interim accommodation pending his appeal to the county court. The parties were agreed that in considering this request, the Council should have regard to the principles set out in R v Camden London Borough Council ex p Mohammed (1998) 30 HLR 315 (QBD). In that case Latham J considered the exercise of the Council's discretion to provide accommodation pending the section 202 review. He said:
"The need that I identify as the underlying requirement of the exercise of this discretion is to keep, on the one hand, well in mind the objective of fairness between those who are homeless in the circumstances where the local housing authority has in its first decision decided that there is no duty to the particular Applicant, and on the other hand, to give proper consideration to the possibility that the Applicant may be right, and that to deprive him or her of accommodation could result in the denial of entitlement.
In carrying out the balancing exercise, it is clear that there are certain matters which will always require consideration. First, the merits of the case itself and the extent to which it can be properly said that the decision was one which was either apparently contrary to the merits of the case or was one which required a very fine balance of judgment which might go either way.
Second, it requires consideration of whether there is any new material, information or argument put before the local housing authority which could have a real effect upon the decision under review.
Finally it requires consideration of the personal circumstances of the Applicant and the consequences to him or her of an adverse decision on the exercise of discretion. It may well be that in some other cases other considerations may prove to be relevant."
- An applicant has a right under section 204A(2) to appeal to the County Court against a decision to refuse interim accommodation. Section 204A(4) provides that when considering whether to confirm or quash the decision, the court shall apply the principles applicable by the High Court on an application for judicial review.
- In the interim accommodation decision set out in the 20 December 2016 letter, Mr Bolton explained the Council's approach to Mr Freeman-Roach's request for interim accommodation in the following terms.
"In making my decision, I have balanced the objective of maintaining fairness between homeless persons in circumstances where the Council has decided that it does not owe Mr Freeman-Roach an accommodation duty and proper consideration of the possibility that he might be right and that to deprive him of accommodation could result in the denial of such an entitlement. In carrying out this exercise, I have considered:
(a) the merits of Mr Freeman-Roach's case and the extent to which it can properly be said that the decision was contrary to the apparent merits or was one which involved a very fine balance of judgment;
(b) whether there is new material, information or argument which could have a real effect on the decision under appeal;
(c) Mr Freeman-Roach's personal circumstances and the consequences to him of an adverse decision on the exercise of my discretion; and
(d) any other relevant circumstances."
- Mr Bolton then referred to the observations of Tuckey LJ and Lord Woolf MR in R v Brighton and Hove Council ex p Nacion (1999) 31 HLR 1095 that judicial review challenges to decisions on whether to provide interim accommodation should be "strongly discouraged" given the very broad discretion that councils have when taking these decisions. Mr Bolton then considered the merits of Mr Freeman-Roach's appeal to the County Court against the review decision. He found that none of the draft grounds of appeal was compelling and that the merits of the proposed appeal were poor. He then turned to Mr Freeman-Roach's personal circumstances:
"Mr Freeman-Roach's personal circumstances
I am well aware of Mr Freeman-Roach's personal circumstances which are set out in some detail in the review decision.
It is my view that Mr Freeman-Roach is capable of finding his own accommodation. He has been able to seek legal advice and there are shelters such as Snowflake in Hastings set up at this time of year to ensure no one needs to be street homeless. He also has relatives in the Rother area who may be able to put him up in the intervening period.
In summary, I am satisfied that there are no extenuating or serious social or medical problems that warrant providing him with accommodation.
I have also taken into account the demands of other homeless applicants requiring accommodation on the Council's resources. At present, it is providing accommodation for 26 households and the period after Christmas is historically our busiest period for the use of hotels and bed and breakfast accommodation. Such is the demand for temporary accommodation that the Council is having to place persons in the Medway area. Interim accommodation should only be provided where there is good reason for doing so.
In the circumstances, Mr Freeman-Roach's is not a "very exceptional case" and the balancing operation clearly points against the Council exercising its discretion to accommodate him pending appeal.
Finally, I am satisfied that the refusal of accommodation would not substantially prejudice Mr Freeman-Roach's ability to pursue his appeal against the review decision given that his appeal is on a point of law and requires no significant input from him."
- HHJ Bedford allowed Mr Freeman-Roach's appeal against the interim accommodation decision in his order of 23 February 2017. The quashing of that decision had no practical effect since the decision related only to the provision of accommodation during period between the review decision and the conclusion of the County Court proceedings by that order. Mr Carter accepted therefore that the Council's appeal against the Judge's order also had no practical effect. But he invited us to consider it, since he submitted that the Judge had erred in quashing the decision and that it was important for the Council, and for other councils, that the error was corrected for the future.
- I agree that the reasons HHJ Bedford gave for quashing the interim accommodation decision cannot stand. First, the Judge held that the Council's decision to withdraw interim accommodation after the review decision was irrational because Mr Freeman-Roach's personal circumstances were the same at that point as they had been before the review decision and the Council had provided him with interim accommodation pending the section 202 review. The decision, he found, was therefore Wednesbury unreasonable because the Council had not indicated what was different now or explained how the decision could be justified, given that they had granted Mr Freeman-Roach interim accommodation pending the section 202 review.
- That, in my judgment, ignores the key change in circumstances which is that Mr Freeman-Roach was, after 16 December 2016, a person who the Council had decided did not have a priority need rather than a person whose status under section 189(1)(c) was under review. That is a sufficient difference to justify the Council arriving at a different conclusion in the exercise of their discretion whether to provide accommodation. There is no need to point to some difference in Mr Freeman-Roach's personal circumstances before and after the section 202 decision in order to justify the withdrawal of interim accommodation once the section 202 review has been completed.
- The second reason relied on by the Judge was that he was satisfied that Mr Freeman-Roach would be forced to live in his car pending the appeal and would find it difficult to engage in the appeal process, to the extent of being substantially prejudiced in pursuing his appeal against the review decision. However, the Judge did not explain the basis on which he rejected Mr Bolton's conclusions that there were shelters that Mr Freeman-Roach could use to avoid being street homeless or that he could stay with relatives in the intervening period. There appears to have been no evidence that Mr Freeman-Roach would have to sleep in his car. Further, the Judge paid no attention to the point Mr Bolton made about the demands of other homeless applicants, nor did he explain how Mr Freeman-Roach would be prejudiced in pursuing his appeal given that, as Mr Bolton noted, the appeal is on a point of law.
- There is no error of law in the interim accommodation decision. The Council applied the correct test and took into account all relevant factors, as explained in the letter. There was no basis for quashing this decision.
- These are the reasons that led me to join in the decision to allow the Council's appeal in respect of the review decision and the interim accommodation decision. Since Mr Freeman-Roach has been legally aided the Court will make the usual orders for assessment of each party's costs.
Lord Justice Lewison:
- I agree with the judgment of Rose J, which mirrors my reasons for joining in the decision to allow the appeal. I add a few words on the question of reasoning.
- If a reviewing officer decides to confirm the original decision on any issue against the interests of the applicant, section 203(4) of the Housing Act 1996 requires him to "notify him of the reasons for the decision."
- One of the important questions raised on this appeal is how to approach the reasons given by a reviewing officer: a topic on which I wish to add something to Rose J's comprehensive judgment. In this context the case most usually cited is the decision of the House of Lords in Holmes-Moorhouse v Richmond Upon Thames LBC  UKHL 7,  1 WLR 413, the relevant parts of which Rose J has quoted.
- The "benevolent approach" which Lord Neuberger commended in Holmes-Moorhouse at  has its analogues in other areas of the law concerned with the adequacy of reasoning. The best developed of these areas is probably that of town and country planning. In South Somerset District Council v Secretary of State for the Environment  1 PLR 80, 83 Hoffmann LJ said:
"The inspector is not writing an examination paper… One must look at what the inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood a relevant policy." (Emphasis added)
- To much the same effect, in Clarke Homes Ltd v Secretary of State for the Environment (1993) 66 P & CR 263 Sir Thomas Bingham MR said:
"I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication."
- These and many other cases were reviewed by Lord Brown in South Bucks DC v Porter (No 2)  UKHL 33,  1 WLR 1953. He confirmed at  that the burden is on the challenger to show that the decision maker made an error of law. His well-known summary of principle is at . For the purposes of this case it will suffice if I only quote part of it:
"Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. … Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced."
- Accordingly, in the present context it is not for the reviewing officer to demonstrate positively that he has correctly understood the law. It is for the applicant to show that he has not. The reviewing officer is not writing an examination paper in housing law. Nor is he required to expound on the finer points of a decision of the Supreme Court. In Hotak itself there was no criticism of the review decision in Mr Johnson's case where the reviewing officer had used the adverb "significantly" without further elaboration.
- In our case the reviewing officer applied the formula approved by the Supreme Court in Hotak, in precisely the words that Lord Neuberger used. He was not required to supply his own gloss on that formula. How that test applies to any given set of facts is a matter of evaluative judgment for the reviewing officer: Panayiotou v Waltham Forest BC  EWCA Civ 1624,  HLR 48 at . At its highest the applicant's case is that he might have made an underlying error of law. But as Lord Brown emphasised, such an inference will not be lightly drawn, and on the facts of this case is highly speculative. In my judgment if the applicant raised any doubt at all (and I do not think that he did) it was no more than a forensic doubt.
Lord Justice Longmore:
- I agree with both judgments.
- It is apparent from reading HHJ Bedford's judgment that he has, at times, apparently failed to appreciate that it is for the applicant to demonstrate that the reviewing officer has made a material error of law, not for the Council to demonstrate that he has not made an error of law. For example in reading his decision on the first ground of appeal, the alleged failure to define vulnerability, the judge says: -
"In my judgment the decision letter does not demonstrate Mr Bolton considering the applicant's particular characteristics and situation when homeless in the round - "
- I agree with my Lady that the letter does in fact demonstrate that he did but, more fundamentally, it is not for the decision letter to "demonstrate" anything; it is for the applicant to demonstrate an error of law, not the other way round."
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