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More vulnerability

By Dave

Rother DC v Freeman-Loach [2018] EWCA Civ 368 is the latest installment on the interpretation of vulnerability for the purposes of homelessness law, with a sting in the tail about s 204A appeals.  Mr Freeman-Loach suffered from ostoarthritis, anxiety and depression, and, following a couple of strokes (the last in 2013), a speech impediment and his right side was affected.  There were some other medical issues but Drs Hornibrook and Thakore on review advised that this did not reach the Hotak threshold, and the review decision went against Mr Freeman-Loach.  The HHJ had found for Mr Freeman-Loach and so this was the council’s appeal, and (I don’t think this is particularly surprising) they won before the Court of Appeal.

There are two key points discussed In Rose J’s judgment: whether the reviewer needs to discuss the characteristics of the comparator, and the construction of review decisions (again).  These were rolled together in the decision, but the key point made by all three members of the Court (Lewison and Longmore LJJ) is that it is for applicants to make the case that the reviewer has made a material error of law and that is a high threshold.  As Longmore LJ put it in a short concurring judgment, at [56], “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”.

As regards the first, although the review officer had stated the correct test at the outset, the questions was whether it was then necessary to repeat the test during the rest of the decision to demonstrate compliance with the correct test.  In other words, the question was whether the judgment of Gage LJ in Tetteh v Kingston Upon Thames Royal London Borough Council [2004] EWCA Civ 1775 survived Hotak; ie that it remained correct in asserting that a review decision had to be read as a whole and that there was no reason for the reviewer to go further than stating the test and the overall finding.  There had been a suggestion in the County Court (HB v Haringey LBC – noted by NL in the second case here) that it was necessary to define vulnerable, but Rose J took the opposite view, at [35]:

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 [45] 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.

That last point may leave the question open, but Rother’s review decision was comprehensive in considering Mr Freeman-Loach’s physical and mental health issues.  And, further, as Lewisham LJ put it (at [52]) in the context of a further exposition on the adequacy of reasons:

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.

I suspect I might see at least part of that paragraph cited back to me in council skeleton arguments.  Pity my poor students who have to write examination essays on the meaning of vulnerability.

That disposed of the argument on the main points of the appeal.  On s. 204A, in a surprising decision, the HHJ had decided this point in favour of Mr Freeman-Loach at the hearing of the substantive appeal, despite a full Mohammed letter by Rother.  He did so apparently because the council had not addressed the difference between the position before and after the review decision (the council having provided him with accommodation pending review under s 188(3)).  Rose J was surely correct to say that the key change in circumstances was that the review decision had found that Mr Freeman-Loach was not in priority need.  the HHJ also found that, as Mr Freeman-Loach had to live in his car, he would find it difficult to pursue his appeal.  However, the council had dealt with that point in the Mohammed letter and, as Rose J put it at [43]:

… [T]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 was no basis for quashing the council’s s 204A decision and I must say that, given the jurisprudence in this field, the HHJ was “brave” in finding against the council.

On the central issue of the meaning of vulnerability, I don’t think that this decision could have been unexpected.  I appreciate that the Central London CC had suggested (and applied – see Butt) the contrary view, but that wasn’t going to survive in the CA.  Other than a few soundbites, then, not much to see here.

#stillonstrike #nocapitulation



1 Comment

  1. Peter Williams

    Lewison LJ (not Lewisham), in case you want to update the website version


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