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Comment and Analysis Masthead

Proving an error of law

Housing portrait1Elizabeth England discusses a recent Court of Appeal case that reminds us who has the burden of proving an error of law in homelessness appeals under Part VII Housing Act 1996.

Avoiding exegetical sophistication: Rother District Council v Stephen Freeman-Roach [2018] EWCA Civ 368

The Court of Appeal has handed down guidance on the approach that reviewing officers should take to drafting section 202 decision letters, which may also indicate the approach that the court should adopt in determining whether that officer has made a legal error which is vulnerable to legal challenge by way of statutory review.

Mr Freeman-Roach was seeking accommodation pending appeal. He argued that he was vulnerable and that the reviewing officer had applied an incorrect test for vulnerability. The s202 letter set out the correct test and gave nine reasons for not considering the appellant to be vulnerable. The court determined that there was no need for the decision maker to have defined the terms ‘vulnerable’ or ‘significantly’ or an ‘ordinary person’. It is indeed a decision, not a legal test.

The Court has emphasised that once the decision maker has demonstrated that they have set out the correct test, it is for the appellant to demonstrate that the test has not been properly applied. Giving the lead judgment, Rose J said:

“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.”

Lewison LJ commented:

“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.”

Quoting Sir Thomas Bingham MR in Clarke Homes Ltd v Secretary of State for the Environment (1993) 66 P & CR 263; “on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication” the decision maker had not erred.

With regard to the test under s.204A to be applied in circumstances where the court has power to order that a council accommodate the appellant pending an application but only if they would be significantly prejudiced in their ability to bring the appeal if not accommodated:

  1. The fact that someone was accommodated pending review does not make it irrational to refuse accommodation pending appeal. The housing authority have determined that it owes no duty;
  2. Actual evidence is required that an applicant might not otherwise be able to pursue an appeal without accommodation;
  3. The court should have regard to the other resources available to the applicant.

This decision complements that of Holmes-Moorhouse v Richmond LBC [2009] UKHL 7 and no doubt will lead to a new popular phrase in homelessness appeals: “exegetical sophistication” (for those who can get their teeth around it). It is a useful tool in defending decisions in circumstances where the Grounds of Appeal appear to attack the form of the letter over its substance, when read as a whole.

Elizabeth England is a barrister at 42 Bedford Row. She can be contacted on 020 7831 0222 or This email address is being protected from spambots. You need JavaScript enabled to view it..

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