Hotak and Others – v – London Borough of Southwark and Others [2015] UKSC 30, 13 May 2015
Housing Act 1996 Section 189 (1) identifies those who have “priority need for accommodation” as being:-
(a) A pregnant woman or a person with whom she resides or might reasonably be expected to reside;
(b) A person with whom dependent children reside or might reasonably be expected to reside;
(c) A person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;
(d) A person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster
This Supreme Court judgment deals with how one assesses the question of “vulnerability” at Section 189 (1) (c) above.
The previous leading case on the subject was R – v – Camden London Borough Council ex parte Pereira (1999) 31 HLR 317, where Hobhouse LJ (at page 30) stated that the local authority must ask themselves whether the applicant “when homeless [will be] less able to fend for himself than an ordinary homeless person so that injury or detriment to him will result when a less vulnerable man would be able to cope without harmful effects”. This had become known as the Pereira test.
Lord Neuberger (with whom Lord Clarke, Lord Wilson and Lord Hughes agreed) stated as follows:-
37. First, the vulnerability with which section 189 (1) (c) is concerned is an applicant’s vulnerability if he is homeless…..
38. Secondly, when assessing whether or not an applicant is vulnerable, an authority must… “pay close attention to the particular circumstances of the” applicant…
39. Thirdly…as all counsel in these appeals rightly agreed, an authority’s duty under Part VII of the 1996 Act is not to be inferenced or affected by the resources available to the authority…
40. Fourthly, certain expressions seem to have entered the vocabulary of those involved in homelessness issues, which can lead to difficulties when they are applied to strict legal problems. In particular, for instance, “street homelessness” and “fend for oneself” are expressions which one finds, in one or more of the review letters in the present appeals. Such expressions may be useful in discussions, but they can be dangerous if employed in a document which is intended to have legal effect. There are obvious dangers of using such expressions…
43. Fifthly…the use of statistics to determine whether someone is vulnerable is a very dangerous exercise whatever the correct test of vulnerability under section 189 (1) (c) may be…
44. Sixthly… to characterise those who fall within paragraphs (a), (b) and (d) of section 189 (1) as “vulnerable” is a mistake…
45. Seventhly…It is clear from the wording of section 189 (1) (c) that (i) an applicant can be vulnerable even if he resides or can be expected to reside with a third party, and (ii) once an authority has decided that an applicant is vulnerable, then the duty to house him extends to such a third party. It is nothing to the point that the third party is not vulnerable…
53. …I consider that the approach consistently adopted by the court of appeal that “vulnerable” in section 189 (1) (c) connotes “significantly more vulnerable than ordinarily vulnerable” as a result of being rendered homeless, is correct…
56. It does not seem probable that Parliament intended vulnerability to be judged by reference to what a housing officer thought to be the situation of an ordinary actual homeless person. Such an assessment would be more like to lead to arbitrary and unpredictable outcomes than if one takes the ordinary person if rendered homeless, and considers how the applicant would fare as against him…
58. Accordingly, I consider that, in order to decide whether an applicant falls within section 189 (1) (c), an authority or reviewing officer should compare him with an ordinary person, but an ordinary person if made homeless, not an ordinary actual homeless person.
59. In fact as Lady Hale has pointed out, comparing an applicant with other “homeless people” is not the precisely accurate comparison. Section 189 is concerned with those who have “need for accommodation”. Accordingly, strict accuracy suggests that when assessing his vulnerability for the purposes of section 189 (1) (c), an applicant should be compared with an ordinary person who is in need of accommodation. I am unpersuaded that that could ever lead to a different result from a comparison with an ordinary person who is homeless, but, given that I have been anxious to emphasise the primacy of the statutory words, it would be wrong not to acknowledge this point…
64. …[I]t is very hard to see any logical reason for ignoring any support or assistance which an applicant would receive when homeless. For similar reasons, it is also very hard to see any principled basis for disregarding support or assistance simply because it would come from the authority (e.g. through its social services department) or from a family member.
65. Unlike Lady Hale, I do not consider that it matters, at least in principle, whether the support is provided pursuant to a legal obligation…Having said that, I agree with Lady Hale that housing authorities can only take third party support into account where they are satisfied that, as a matter of fact, the third party will provide such support on a consistent and predictable basis…
70. …I accept that it is not unreasonable to expect members of the same family to support each other if they are living together, but, (i) whether a particular applicant will in fact receive support and if so what support, must be a case-specific question, to which the answer must be based on evidence (which can of course include appropriate inferences), (ii) in a particular case, the level of support may have to be so high to obviate vulnerability that it goes beyond what can be expected on any view, and (iii) as already explained, the fact that there may be very substantial support does not of itself necessarily mean that the applicant will not be vulnerable…
78. …It is… appropriate to emphasise that [the public sector equality duty under Equality Act 2010 Section 149] in the context of an exercise such as a section 202 review, does require the reviewing officer to focus very sharply on (i) whether the applicant is under a disability (or has another relevant protected characteristic), (ii) the extent of such disability, (iii) the likely effect of the disability, when taken together with any other features, on the applicant if and when homeless, and (iv) whether the applicant is as a result “vulnerable”.
Effectively this new test from the Supreme Court will improve the situation for applicants in terms of widening the possibility of a finding of “vulnerability”. The decision on the question of third party support is unfortunate since it has the consequence that, for example, a family member who does not give support may benefit from the provision of accommodation whereas a family member who does give full support may not benefit.
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