The case concerned the proper approach to s.189(1)(c) of the Housing Act 1996, which affords ‘priority need’ status to a person who is ‘vulnerable’ as a result of old age, disability, or ‘other special reason’. The assessment of priority need is a crucial step in determining whether a homeless person is entitled to accommodation. The key question was what is meant by vulnerable.
Previously, the leading case was Pereira, where Hobhouse LJ described the test as:
‘… whether [the applicant] is, when homeless, 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.’
Since Pereira, local authorities (LAs) have tended to treat this phrase as an authoritative definition, and it was repeated in the Secretary of State’s 2002 Code of Guidance.
There was also an argument about the relevance of the so-called ‘public sector equality duty’ contained in s.149 of the Equality Act 2010, which places public authorities under an obligation to ‘remove or minimise disadvantages suffered by’ and ‘take steps to meet the needs of’ persons who share a ‘relevant protected characteristic’, such as a disability.
There were three appellants:
Johnson claimed to suffer from depression, although Solihull MBC disputed this. Denying his application, Solihull said he ‘would not be less able to fend for himself than an ordinary homeless person’.
Hotak had significant learning difficulties and was reliant on his brother for routine tasks such as washing, dressing and cooking. Southwark LBC decided he was not vulnerable because, if homeless, his brother would provide him with the necessary support.
Kanu suffered from hepatitis B, psychosis and suicidal ideation. Southwark LBC decided that he would not ‘be at risk of injury or detriment greater than another ordinary street homeless person’.
There were three principal issues:
- Does the vulnerability assessment require a comparison and, if so, who is the appropriate comparator?
- Is it permissible to take into account the support which would be provided by a family member of an applicant if he were homeless?
- What effect does the public sector equality duty have on the determination of priority need?
Lord Neuberger gave the speech for the majority; Baroness Hale delivered a partially dissenting judgment.
Vulnerable Compared to Whom?
Counsel for Johnson had argued that there was no need for a comparator, but this argument was given short shrift. Everyone who is homeless could be described as ‘vulnerable’: s.189(1)(c) therefore has ‘a necessary implication of relativity’, referring to homeless people who are more vulnerable than others would be in the same position.
Nevertheless, there is an ambiguity in the Pereira formulation. On one hand, it could be interpreted as comparing the applicant with an ordinary person, who happened for whatever reason to become homeless. On the other, the comparator could be a typical member of the class of homeless people (an ordinary ‘homeless person’). The LAs in all three cases took the latter approach; in the Johnson case, Solihull even went so far as to cite statistics showing the high rate of mental health problems among homeless people, concluding that this ‘clearly shows that the fact that [Mr Johnson is] suffering from depression does not necessarily mean that [he is] vulnerable’.
The Court was clear that the LAs had taken the wrong approach. The proper comparator is not an ordinary ‘homeless person’, but an ordinary person if made homeless. Leaving the standard dependent on the characteristics of those who happen to be homeless would lead to ‘arbitrary and unpredictable outcomes’.
The Relevance of Support from Family Members
Counsel for Hotak had argued that Southwark should not have taken into account the support that he was receiving from his brother. The majority disagreed. The assessment of vulnerability is ‘contextual and practical’, and so should take into consideration all relevant facts, including the support that would be available to the applicant if he were homeless.
Lord Neuberger did recognise that this was capable of leading to a ‘distasteful’ outcome. Since the duty to house is owed to the applicant’s entire household, there may be cases where a family member who refused to look after an applicant would herself be housed as a member of the applicant’s household, while a similarly situated family member who was willing to assist the applicant would find herself without accommodation. However, to interpret the statute differently to avoid this possibility ‘would involve the tail wagging the dog’; the potential counterintuitive result does not justify a ‘judicially created legislative exception’.
Baroness Hale disagreed. Although she accepted that it is proper to take into account statutory services which will be available to the applicant, she felt that family support was different. She was particularly troubled by the idea that refusing support might result in an offer of accommodation: ‘Why on earth would Parliament want to give such a heartless person priority and priority over the person who was fulfilling his familial duties?’
The Public Sector Equality Duty
Lord Neuberger did not believe that there had been a violation of the public sector equality duty, though he took the opportunity to lay down guidance on the relevance of the duty for homelessness applications. The duty requires officers to ‘focus very sharply’ on the extent and likely effect of any disability from which a homeless applicant may suffer. While an officer need not make express reference to the duty, ‘there will undoubtedly be cases where [an otherwise lawful] review… will be held unlawful because it does not comply with the equality duty’.
Resolutions of the Appeals
Johnson: Solihull had reasonably concluded that Johnson did not actually suffer from depression, so that their referral to the wrong comparator in their decision letter was irrelevant to the outcome. Appeal dismissed.
Hotak: Counsel had agreed that the appeal turned entirely on the question of whether Southwark had been entitled to take into account his brother’s support when making their decision. However, Southwark had used the wrong comparator, and Hotak appeared to have a strong case for priority need. Southwark were invited to make further submissions as to why its decision should not be quashed.
Kanu: It was ‘quite conceivable that the review would have gone the other way if the right comparator had been used’. Appeal allowed.
This decision is to be welcomed. No longer will LAs be able to say (to quote Baroness Hale) “you are not vulnerable, because you are no more vulnerable than the usual run of street homeless people in our locality”. A high correlation between rough sleeping and mental health and substance dependency problems should never have been a reason to deny that people with such conditions are vulnerable.
Even if we were to take the ordinary ‘homeless person’ as a comparator, there can be no justification for the comparison – drawn by both LAs – to the ordinary ‘street homeless person’. Not all homeless people are rough sleepers, and so this comparator restricts priority need to those who are more vulnerable than a particularly vulnerable subset of already vulnerable persons. The fact that this comparison was made in all three cases is indicative of the extent that LAs will go to minimise the number of homelessness applications that they accept. I suspect that, following Hotak, a number of homelessness decisions up and down the country will have suddenly found themselves vulnerable.
On the issue of third party support, Lord Neuberger’s interpretation seems correct. The purpose of the vulnerability criterion is to pick out, from amongst all applicants who are old, disabled etc., those who are in particular need. The question is a counter-factual one: ‘what would happen to this applicant were he to become homeless?’ In making that assessment LAs should be allowed to take into account any relevant facts. While Baroness Hale’s proposed distinction between support from statutory agencies and support from family members might make for sound policy, I cannot see how it can be read into the statute. It is also worth pointing out that the ‘contextual and practical’ approach cuts both ways: just as LAs are entitled to consider support that is likely to be provided by family members, so they must consider any practical difficulties that an applicant might have in accessing statutory support. They cannot simply assume that he will receive the support that he is entitled to.
Finally, and despite my general agreement with the decision, I find the comments on the effect of the public sector equality duty puzzling. Lord Neuberger tells us that LAs must examine very carefully the nature and likely effect of any disability that an applicant might have. While this is true, is it not precisely what s.189(1)(c) already requires? I cannot see how an adequate inquiry could be conducted without such careful scrutiny, and thus do not understand what the Equality Act adds.
Alex Latham is Lecturer at Welfare Law at the University of Sussex and Academic Lead of the Sussex Pro Bono Housing Project