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Go Compare: A New Approach to Priority Need on Grounds of Vulnerability

The Supreme Court gives a landmark judgment in the three appeals of Hotak v Southwark LBC; Kanu v Southwark LBC & Johnson v Solihull MBC [2015] UKSC 30, explaining the correct approach to be taken when  assessing whether a homeless applicant is vulnerable and therefore in priority need.
Summary
  • The three conjoined appeals of Hotak v Southwark LBC; Kanu v Southwark LBC & Johnson v Solihull MBC [2015] UKSC 30 are the first time that the Supreme Court has considered the test to be applied when considering whether a homeless person is in priority need by reason of vulnerability.
  • In assessing whether a person is vulnerable and therefore in priority need for the purpose of section 189(1)(c) of the Housing Act 1996 the local housing authority should compare the applicant with "an ordinary homeless person if made homeless, not an ordinary actual homeless person."
  • A local housing authority can take into account third party support available to the applicant providing it is available on a consistent and predictable basis.
  • The public sector equality duty in section 149 of the Equality Act 2010 is complementary to a local authority's duty under the Housing Act 1996. The duty must be exercised "in substance, with rigour, and with an open mind."
The 3 Appeals
  • Mr Hotak is an Afghan national with leave to remain. He suffers with significant learning difficulties, has a history of self-harming, symptoms of depression and suffers with post traumatic stress disorder. Mr Hotak is reliant on his brother for everyday routine activities such as washing and dressing. 
  • The local authority concluded that Mr Hotak's brother was capable of continuing to provide support to him even if they were street homeless and therefore found Mr Hotak not to be vulnerable.
  • The Supreme Court dismissed the appeal of Mr Hotak but will allow a further point to be argued by Mr Hotak which may result in the decision letter still being quashed.
  • Mr Kanu suffers with back pain, hepatitis B, hypertension and haemorrhoids as well as psychotic symptoms and suicidal ideation.
  • The local authority concluded that Mr Kanu's wife and son could continue to provide him with support if they were all street homeless and therefore he was not in priority need.
  • The Supreme Court allowed Mr Kanu's appeal - the wrong comparator had been used and there was a "pretty strong case" for saying he was vulnerable.
  • Mr Johnson had become addicted to heroin whilst being in prison, has lower back trouble, cannot climb stairs and suffers with sleeping problems, depression, paranoia and asthma.
  • The local authority concluded that Mr Johnson was not vulnerable.
  • The Supreme Court dismissed Mr Johnson's appeal. Although the wrong comparator and statistics had been used the decision was not vitiated by these factors in this particular case.


Some Preliminary Issues
  • Before turning to the three main issues in the case, Lord Neuberger (giving the lead judgment with whom the majority agreed) addressed some preliminary issues on which the following conclusions were expressed.
  • Section 189(1)(c) of the Housing Act 1996 is conerned with an applicant's vulnerability if he is homeless.
  • In assessing vulnerability a local authority must pay close attention to the particular circumstances of the applicant.
  • The finite resources of a local authority are not relevant to the issue of vulnerability.
  • The use of concepts such as "fend for oneself" and "street homelessness" lead to obvious dangers.
  • The use of statistics in assessing vulnerability is "very dangerous".
  • It is probably more appropriate on grounds of practicality to see section 189(1)(c) as providing a one-stage test, rather than a two-stage test.

The 3 Main Issues
    • The three main issues identified in the appeals were as follows: (1) Does the assessment of vulnerability under section 189(1)(c) involve the use of a comparator and if so what is the correct comparator? (2) In assessing vulnerability is it permissible to take into account support and assistance provided by a member of the applicant's family or household? (3) What effect, if any, does the public sector equality duty have on the determination of priority need under section 189 of the Housing Act 1996?
    • As to the first issue, the court considered that virtually everyone who is homeless will suffer some harm in undergoing that experience and that vulnerability in section 189(1)(c) of the Housing Act 1996 therefore connotes significantly more vulnerable than ordinarily vulnerable, thereby requiring a comparator.
    • The Supreme Court considered as potential comparators: (1) The ordinary person if made homeless; (2) The ordinary person who is actually homeless, viewed nationally; and (3) The ordinary person who is actually homeless, viewed by reference to the authority's experience. The Supreme Court concluded that the first was the correct comparator to use.
    • On the second issue, the Supreme Court held that a local authority can have regard to support and assistance provided by a third party (usually a family member) when assessing vulnerability. However, the authority must be satisfied that the support is available on a consistent and predictable basis and the fact of even very substantial support does not of itself necessarily mean that an applicant is not vulnerable.
    • Finally, the Supreme Court concluded that the Equality duty "can fairly be described as complementary to" the duty under the Housing Act 1996. The public sector equality duty requires a reviewing officer to focus "very sharply" on whether there is a disability, the extent of the disability, the likely effect of the disability and whether the applicant is vulnerable as a result of the disability.
    Russell James
    Russelljames@devonchambers.co.uk
    Russell specialises in Housing and Homelessness Law, Property Litigation and Civil and Commercial Litigation. 
    Our Housing Team:
    Russell James | Garth Richardson |  Edward Bailey | Scott Horner
    Jennifer Tear
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