Rother District Council v Freeman-Roach, Court of Appeal - Civil Division, March 06, 2018, [2018] EWCA Civ 368

Resolution Date:March 06, 2018
Issuing Organization:Civil Division
Actores:Rother District Council v Freeman-Roach
 
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Neutral Citation Number: [2018] 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

C00HS535

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 06/03/2018

Before:

LORD JUSTICE LONGMORE

LORD JUSTICE LEWISON

and

MRS JUSTICE ROSE

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Between:

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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

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Mrs Justice Rose:

  1. 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.

  2. 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.

  3. 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).

  4. 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.

  5. 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''.

  6. 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.''

  7. 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.

  8. 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''.

  9. 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.

  10. 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...

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