The Supreme Court has handed down judgment in three appeals concerning the meaning of “vulnerable” within section 189(1)(c) of the Housing Act 1996. The three appeals raise a number of issues concerning the duty of local housing authorities towards homeless persons who claim to be “vulnerable”, and therefore to have “priority need” for the provision of housing accommodation under Part VII of the Housing Act 1996. In summary, the Supreme Court has revised the test for determining whether a person has priority need for accommodation under section 189(1)(c) and has clarified both i) the relevant comparator and ii) the relevance of third party support in determining vulnerability.
The three main issues considered in the judgment are:
- Does the assessment of whether an applicant is vulnerable for the purposes of section 189(1)(c) of the 1996 Act involve an exercise in comparability, and, if so, by reference to which group of people is vulnerability to be determined?
- When assessing vulnerability, is it permissible to take into account the support and assistance which would be provided by a member of his family or household to an applicant if he were homeless?
- What effect, if any, does the public sector equality duty under section 149 of the 2010 Act have on the determination of priority need under section 189 of the 1996 Act in the case of an applicant with a disability or any other protected characteristic?
In relation to i), the Court held 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. As Lady Hale clarified, “the comparison is with ordinary people, not ordinary homeless people, still less ordinary street homeless people. And it is ordinary people generally, not ordinary people in this locality.”
In relation to ii), the majority of the Court (Lady Hale dissenting) held that an applicant’s vulnerability under section 189(1)(c) has to be assessed by reference to his situation if and when homeless: it is a contextual and practical assessment of his physical and mental ability if he is rendered homeless. Therefore when deciding if a person is “vulnerable” it is permissible to take into account such services and support that would be available to the applicant if he were homeless, including support provided by family members or members of the household. However, the Court held that the fact that there may be very substantial support does not of itself necessarily mean that the applicant will not be vulnerable and a reviewing officer must always consider very carefully whether the applicant would be vulnerable, after taking into account any support which would be available.
In relation to iii), the Court held that where the issue is whether an applicant is or would be vulnerable under section 189(1)(c) if homeless, an authority’s equality duty is complementary to its duty under the 1996 Act. Each stage of the decision-making exercise as to whether an applicant with an actual or possible disability or other “relevant protected characteristic” falls within section 189(1)(c), must be made with the equality duty well in mind, and “must be exercised in substance, with rigour, and with an open mind”. In the context of an exercise such as a section 202 review, the equality duty requires 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”. However the Court went on to confirm that the equality duty did not result in any different conclusion in respect of issue ii) above.
The judgment can be read here and the press summary can be read here.
Heather Emmerson was instructed by the Appellant in Hotak v London Borough of Southwark. Deok Joo Rhee and Joseph Barrett appeared on behalf of the Secretary of State who intervened in all three appeals.
