6th March 2018

In this case, Rother Council were appealing at the Court of Appeal against a decision made in the County Court in Mr Freeman-Roach's favour, concerning priority need due to vulnerability.

The case confirms that a priority need decision letter is adequately robust if it shows that the decision-maker has carried out the required composite assessment, addressed the correct questions and considered the relevant circumstances.

Rother Council had found Mr Freeman-Roach not to be in priority need (based on an assessment of his vulnerability), and he had requested a S202 review. He had osteoarthritis, anxiety and depression, and following 2 strokes, his mobility and speech were affected. The council concluded that Mr Freeman-Roach's physical health did not cause him "to be more vulnerable than an ordinary person who is homeless".The reviewing officer upheld the non-priority decision. Mr Freeman-Roach appealed this decision in the County Court.

The County Court found that the reviewing officer had erred because he had not shown exactly what the attributes of an 'ordinary person' were, in making the comparison between Mr Freeman-Roach and that ordinary person (to conclude that he was no more vulnerable).

The County Court also found that the council should have accommodated Mr Freeman-Roach pending the appeal (the other council decision that Mr Freeman-Roach challenged). The argument was that they had accommodated him pending the review decision, and his personal circumstances had not significantly changed - so it made the decision not to do so now 'irrational'.

Rother Council duly accommodated Mr Freeman-Roach pending its own appeal of the County Court decision in the Court of Appeal.

At the hearing, the Court of Appeal emphasised that, to bring a successful S204 appeal, the applicant needs to be able to show how the reviewing officer has erred in law, in reaching their review decision. It needs to be a material error of law, and that is quite a high threshold to meet. There is no requirement for the reviewing officer to demonstrate that (s)he had understood the law - it is for the applicant to demonstrate that the reviewer had NOT understood it.  The Court of Appeal made reference to the precedent in Tetteh v Kingston upon Thames RLB, and decided it was still good law - i.e. that the review decision should be read as a whole. The reviewer is required to state the test that he or she has applied, and their overall finding, but it is not necessary specifically to define the term 'vulnerable', or 'significantly' in every case. The degree of detail that the reviewer goes into, to justify their decision, will depend on the circumstances of the case.

So the Court of Appeal decided there was no error in law in the review decision.

With regards to the issue of accommodation pending an appeal (which is dealt with under S204(4)), the Court of Appeal did not accept the argument that Mr Freeman-Roach should have been accommodated pending appeal because he was accommodated pending review. The difference at the later stage was that it had been decided that he was not in priority need (on review). Before the review decision, it could be said that his priority status was awaiting determination. There need not be a 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.

 


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