Hotak & Ors v London Borough of Southwark [2015] UKSC 30

The court was asked as to the duty of local housing authorities towards homeless people who claim to be ‘vulnerable’, and therefore to have ‘a priority need’ for the provision of housing accommodation under Part VII of the Housing Act 1996. Those issues turn on the interpretation of the 1996 Act, but some of them also involve consideration of the Equality Act 2010.
(Source Swarb.co.uk)

See Also
Nearly Legal – Vulnerability – a fresh start
Case Comment: Hotak & Ors v London Borough of Southwark [2015] UKSC 30

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One thought on “Hotak & Ors v London Borough of Southwark [2015] UKSC 30

  1. William Flack Post author

    I believe that the key points in this judgment paragraphs 53 and 54 where Lord Neuberger sets out the test of vulnerability. Although it is still not crystal clear I think that we can take it as being that a person will be vulnerable where they would suffer significantly more harm if homeless than someone who did not suffer from their condition.

    52. Mr Luba contended that anyone who cannot “cope without harm” with homelessness is “vulnerable”. But that formulation merely restates the problem – and does so by reference to non-statutory wording (including the word “cope” which may have similar problems to the expression “fend for himself”). Virtually everyone who is homeless suffers “harm” by undergoing the experience, and therefore one is thrown back on the notion of a homeless person who suffers more harm than many others in the same position.

    53. Accordingly, 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. But that leaves open the question of the comparator group. In Ex p Pereira 31 HLR 317, 330, as explained above, Hobhouse LJ suggested that the comparator was “the ordinary homeless person”, which is, as I have mentioned, an uncharacteristically imprecise expression. It could mean (i) the ordinary person if rendered homeless, or (ii) the ordinary person who is actually homeless (a) viewed nationally, or (b) viewed by reference to the authority’s experience.

    and paragraph 58 where Lord Nueberger states:

    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.

    This ended what had become in many ways an abuse of the old Pereira Test by councils who were using the “ordinary homeless person” as a comparator rather than the “ordinary person”. This had led to decisions where people with depression and other mental health problems were not considered to be vulnerable because depression was widespread amongst homeless persons. The applicant would therefore be no more likely to suffer harm than the average homeless person who was likely to be depressed or unwell already.

    The clarification of the comparator for vulnerability – ie ordinary person and not ordinary homeless person is very helpful of homeless applicants. What is not so helpful is the finding in the case that applicants who might otherwise be vulnerable would not be if support was available to them after they became homeless from other persons such as family members or social services.

    Although Neurberger says at paragraph 61 that the conclusion that a person may not be vulnerable if he would be provided with third party support when homeless should “be applied with considerable circumspection” he goes on at paragraph 64 to state:

    As Lord Wilson pointed out, this conclusion is supported by considering an applicant with a physical or mental condition which, if not treated, would render him vulnerable, but which can be satisfactorily treated by regular medication. If such an applicant, when homeless, would be perfectly capable of visiting a doctor to obtain a prescription and a pharmacist to collect his medication, and then of administering the medication to himself, it would be unrealistic to describe him as “vulnerable”, when compared with an ordinary person when homeless. Mr Brown QC tried valiantly to meet that point, but it does not appear to me that it is answerable. Once one accepts that point, it 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 (eg through its social services department) or from a family member.

    This has opened the door to councils reaching decisions of a kind which I had not seen before Hotak to the effect that a person who might otherwise be vulnerable is not vulnerable because of the availability of services in the area such as shower facilities for homeless persons. A further challenge in the higher courts of this approach to people who might otherwise be vulnerable is likely to be needed soon.

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