Housing Update: Burden of proof in priority need homelessness cases – Rother District Council v Freeman-Roach  EWCA Civ 368 by Jane Talbot
The Court of Appeal has considered who has the burden of proof in an appeal flowing from a challenge to the local authorities decision pursuant to section189(1)(c) Housing Act 1996 concerning who is in “priority need”. This is a brief overview of a long judgment and readers are encouraged to read the full text.
The facts were that the respondent was aged 54 and unintentionally homeless. He applied to the Council for assistance stating that he had suffered 2 strokes which had left him with speech problems and mobility issues and that he had osteoarthritis and depression. He was provided with interim accommodation.
The Council had a duty to secure accommodation for those who are (1) unintentionally homeless and (2) in priority need – s189 Housing Act 1996 (which has not been amended by the Homelessness Reduction Act 2017). The definition of “priority need” is those who are vulnerable as a result of old age, mental illness or physical disability.
The Council’s medical advisor assessed the respondent and decided that he was not significantly more vulnerable than an ordinary person and accordingly he was found not to be in priority need. The respondent applied for a review and his interim accommodation was extended. The decision was upheld on review and his interim accommodation was to be ended a few days later despite his appeal to the County Court being underway. An injunction was obtained so the interim accommodation continued until determination.
At first instance the Court found in favour of the respondent and quashed the decision of the local authority. The Council appealed.
The Court of Appeal considered 3 important points. First, who should the respondent be compared to when assessing vulnerability? Secondly, who had the burden of proof in respect of demonstrating if the correct test was applied and lastly, was the decision to terminate the interim accommodation rational?
In relation to the question of vulnerability, the Court of Appeal held that the correct comparator was an “ordinary person if made homeless” and not “an ordinary actual homeless person”. The test the Council should have asked itself was – was the respondent, 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? This test was established in the well cited case of Hotak v Southwark LBC  UKSC 30.
Turning to the burden of proof, the Court of Appeal held that it was for the applicant (the respondent) to show that the decision letter contained an error or law, not for the reviewing officer to convince the Court that he/she had applied the correct test. In this case, the Court of Appeal held that the decision letter contained no errors of law and correctly stated the Hotak test although he did not explicitly state how each of his reasons tied in with the comparator test. He found that each of the respondent’s conditions was either controlled by medication or did not cause him any particular functional impairment. Whilst the letter could be criticised for not linking each finding to the Hotak test, the Court of Appeal urged that an overly technical analysis should not be undertaken by courts and stated that how much detail should be included depended on the circumstances of the case.
Lastly, the decision of the Judge quashing the decision to remove the interim accommodation could not stand as the fact that the decision had been made that he was not in priority need had been made which was a key change in circumstances. The decision to remove the accommodation was made on the basis that he was not in priority need but that a review had been requested. The Court of Appeal held that this was sufficient to justify the decision.
For the above reasons, the appeal was allowed.
Whilst we are seeing a reform in homelessness law at present, s189 is not altered by the new Act so the important points of this decision remain relevant. This seems to be a confirmation of the law as currently understood and should provide some reassurance for local authorities in terms of the level of detail to be contained in a decision letter.