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Exegetical Suggestions: An analysis of Rother District Council v Stephen Freeman-Roach

29.03.2018

Do as you would be done by? The Court of Appeal in Rother District Council v Stephen Freeman-Roach [2018] EWCA Civ 368 has handed down guidance as to the approach to be taken to section 202 decision letters, which may also indicate the approach the average Judge wishes superior courts would take to their own decisions. Avoid 'pedantic exegesis' or 'exegetical sophistication', or, in more accessible language, nit-picking!

Exegesis, pedantic or otherwise, may not be a word on everyone's lips. It is traditionally applied to a close analysis of Scripture, later extended to a critical examination of any text (the judgment of the Supreme Court being as close to Holy Writ as the law permits). It comes from the Greek exēgēsis, from exēgeisthai to explain, interpret, from ex- + hēgeisthai to lead. The idea is we "lead out" the underlying meaning in the words by looking carefully at the text.

It is one of those words that mean different things to different people: I carefully examine the text, you carry out pedantic exegesis, he is a nit-picker! What it means in practice is to remember that decision letters are written by lay-people for lay-people and do not be too critical of grammatical errors, typos or downright mistakes.

The emphasis of a homelessness appeal being on errors of law, akin to judicial review, small errors that do not undermine the decision viewed in the round can be overlooked. It is only errors that make a real difference to the decision that the court should be concerned with. Thus, in Holmes-Moorhouse v Richmond LBC [2009] UKHL 7, a misunderstanding of the effect of a Court order did not make any difference to the decision and the outcome could stand despite it. Similarly, using 'he' instead of 'she' may indicate that the housing officer has cut and pasted a decision letter that has been used before – but it would be unnecessarily nit-picking to quash the decision to correct such a minor error.

This is to be set against a background of shifting judicial guidance on the meaning of vulnerability post-Hotak. If the decision letter generally gets the test right, what matters that there is a word out of place here or there (such as "fending for oneself", which appears to have become anathema maratha since a casual comment in Hotak that it should not be used)?

In Freeman-Roach, the Court of Appeal noted that the correct test had been set out at the start of the decision letter and it was therefore implicit that it had been applied throughout the letter.

Importantly, the Court in three separate judgments 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."

The Court should not lightly draw the inference that there had been an error of law.

Mr Freeman-Roach was seeking accommodation pending appeal. He argued that he was vulnerable and that the reviewing officer had misdirected himself on the law as to vulnerability. The Court of Appeal noted that the letter set out the correct test and had given nine reasons for not considering the appellant to be vulnerable. Reading the letter in the round, that sufficed. The reviewing officer was not required to show that he had not committed an error of law such as thinking about the Pereira test. He did not specifically have to tie each reason out of the nine back into the Hotak test. The comparison with an ordinary person was implicit in each of them. There was no need to define 'vulnerable' or 'significantly' or to define an 'ordinary person'.

The Court finally gave useful guidance on the approach to an appeal under section 204A which gives the County Court 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 is not accommodated. First, they point out, the fact that someone was accommodated pending review does not make it irrational to refuse accommodation pending appeal. By that time, the appellant is someone to whom the council has decided that they owe no duty. Second, there was no evidence that the appellant would be unable to pursue the appeal, which is on a point of law, even if street homeless. There were other resources open to him. The Court of Appeal also criticised the Judge for overlooking the Council's own assessment of the effect of the decision on other homeless applicants: the decision letter had clearly set that out and it was important for any Judge to have regard to that.

Lewison LJ reminded us of the words of Sir Thomas Bingham MR in Clarke Homes Ltd v Secretary of State for the Environment (1993) 66 P & CR 263, and found that "on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication" the decision maker had not erred.

"Exegetical sophistication", a ten-syllable phrase that trips nicely off the tongue, is to be deplored. I recommend using it as soon as your opponent starts nit-picking. Brush aside trivial errors and appreciate the decision letter as a global whole. It gives a wonderful sense of freedom. The Court of Appeal will hope that their decisions are given a similar benevolent interpretation by their Supreme Court reviewers.