Ordinarily if a tenant elects to leave a property, they would be considered as being intentionally homeless for the purposes of the Housing Act 1996. However, the recent decision in Iyekekpolor Ugiagbe v Southwark LBC  EWCA Civ 31 has held that vacating a property could not be considered as a deliberate act if the tenant was unaware of the security of tenure and the act itself had been done in good faith.
Ugiagbe (U) had entered into a tenancy agreement with a private landlord for a period of 12 months for herself and her young children to live in a property. With less than two months left before the expiry date, the landlord informed U that the tenancy would not be extended and that she would be required to leave the premises.
Subsequently, U visited a local advice centre and, according to her, she was informed to attend the local homeless persons unit who would provide her with temporary accommodation. U instead decided to continue in the bidding process for permanent local authority accommodation and for the interim, asked the landlord to permit her more time to live in the property. The landlord granted U a few additional months. During this additional period, U was unsuccessful in her attempts to obtain permanent housing and so, in the belief that she had to, left the property despite the landlord not being entitled to possession without a court order.
U was therefore homeless and was eligible for assistance and was in priority need because of her children. Southwark LBC refused to provide more than temporary housing on the basis that he had become homeless intentionally.
At first instance, the court upheld the decision of the local authority, which led U to appeal to the Court of Appeal.
The Court of Appeal's decision
The question for the Court of Appeal to determine was whether U's homelessness was intentional under the Housing Act 1996, given that U stated that she did not know that she was not obliged to leave the property on the landlord's demand. The local authority argued that U's act of quitting the premises was not done in good faith and that the scope of such acts was not limited to dishonesty, but also included wilful ignorance and manipulation. They submitted that these phrases should also cover instances such as in U's situation, where an individual is given advice as to how to gain assistance, the advice is deliberately not taken up and the person therefore remained in ignorance of what she would have been told.
The Court of Appeal held that U had ceased to occupy the accommodation on the landlord's demand, but it was available to her and it would have been reasonable for her to continue living in it; leaving the house was clearly a deliberate act on U's part. The question to be determined was whether this act had been done in good faith and was undertaken by U whilst unaware of relevant facts. It was initially agreed that U's ignorance of the fact that she had security of tenure meant that she was unaware of a relevant fact.
It was also said that the act of her giving up the accommodation was done in good faith. This terminology was aimed at protecting local housing authorities from owing a full duty to house people who ought to be regarded as intentionally homeless. In U's case however, her act of not going to the homeless persons unit could not be regarded as falling within this definition. U had been unintentionally misled into thinking that if she attended the unit, she would be treated as homeless and would be put into temporary accommodation. This was very different to 'turning a blind eye' to the situation. This decision could be said to be foolish or unwise, but would not be sufficient to put her into the category of not being in good faith or of being unreasonable.(Source:Forbes Solicitors)
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.
Nearly Legal - Vulnerability – a fresh start
Case Comment: Hotak & Ors v London Borough of Southwark  UKSC 30
The applicant, a recovering drug addict sought assistance as a homeless person in priority need. He said that he was subject to a risk of relapse.
Held: The council had correctly applied the tests set out in Pereira and Osmani. They had been entitled to consider that he was not vulnerable within the section.
Auld LJ set out the test to be applied by an authority when deciding whether the applicant was vulnerable for the purposes of deciding whether to give priority housing assistance. The courts had recognised the difficult, involved nature of the decision-making process, particularly in the context of decisions on vulnerability and priority need. Auld LJ said: ‘As I have said, the appeal lies only on a point of law, and, within the Wednesbury type formulation given by Lord Bingham, matters of fact, discretion and judgment on such an issue are essentially matters for the local housing authority. Given the nature of the statutory scheme, which requires authorities administering it to determine on a case by case basis quite complex questions involving the weighing of policy issues and identification of priorities concerning the interests of others as well as those of any individual applicant, courts should tread warily before interfering.’ The main focus of attention on a second appeal such as this should be on the decision of the council rather than that of the county court judge on appeal from it.
The test as to a ‘vulnerable person’ under the Housing Act 1996, s 189(1)(c) was a single one of a homeless person's less than normal ability to fend for himself such that he would suffer more harm than would an ordinary homeless person. For the purpose of applying the vulnerability test, a local housing authority should assess it on the assumption that an applicant had become or would become homeless, not on his ability to fend for himself while he was still housed. The appellant (O) appealed against a decision that it was not Wednesbury unreasonable or otherwise unlawful for the respondent local housing authority to decide that it had no interim duty to accommodate O as a homeless person under the Housing Act 1996, s 188(1) because he was not in apparent priority need for accommodation as a vulnerable person as defined in s 189(1)(c). O had arrived in the United Kingdom as an asylum seeker from Kosovo. He suffered post-traumatic stress disorder and depression as a result of being imprisoned and persecuted in Kosovo. After O received a notice to quit his privately-rented accommodation, he sought to be housed as a vulnerable homeless person. He obtained medical reports as to his vulnerable psychiatric state. The local authority, while accepting the diagnosis of his mental condition, determined that O was not a vulnerable person as defined in the Act as his condition did not impede his ability to fend for himself if homeless. The local authority therefore refused his application for assistance. The judge treated O's appeal against the decision as an application for judicial review and decided that the reviewing officer had used the correct test of vulnerability from R v LB of Camden, ex p Richard Pereira and that it had been open to the reviewing officer to reach the decision she had. O submitted that the reviewing officer had failed to address the Pereira question of whether O, as a result of his depressive condition, would be less able to fend for himself if he were to become homeless. He further argued that the judge had wrongly held that the reviewing officer had properly applied the Pereira test and that it was Wednesburyreasonable. HELD: Appeal dismissed. A local housing authority had to apply s 189(1)(c) in its broad and immediate statutory context and not the Pereira test as if it was a statutory formulation. The Pereiratest was a judicial guide to interpretation and application of the provision. The broad statutory context involved a matter of ‘priority’ as between homeless persons, and a scheme of social welfare conferring benefits at public expense on grounds of public policy on those whom it identified as entitled to such priority. The test was a single one of a homeless person's less than normal ability to fend for himself such that he would suffer more harm than would an ordinary homeless person. For the purpose of applying the vulnerability test, a local housing authority should assess it on the assumption that an applicant had become or would become street homeless, not on his ability to fend for himself while he was still housed. The decision letter met all the requirements of the Pereira test when subjected to a judicial review challenge under s 204 of the Act. The reviewing officer had sought and obtained evidence for the risk assessment as to O's future vulnerability as was required of her by s 189(1)(c) as interpreted by Pereira. Vulnerability was not necessarily a medical question. O's condition did not prevent him from fending for himself in his daily activities. The reviewing officer had addressed the correct question of assessing the future risk to those capabilities if and when he were to become homeless. The reviewing officer's decision was one which was reasonably open to her and, as such, was not perverse.
(Source Solicitor's Journal)
The claimant sought emergency rehousing saying that he was a vulnerable person within section 189. The court at first instance had overturned the rejection of his claim by the authority.
Held: The test set out in the statute was to be followed strictly. It asked whether, if he was left homeless he would be less able to fend for himself, so as to suffer some particluar harm. The words of the Homelessness Code were for guidance only and could not override the words of the Act. The Act did not ask whether harm was likely, but whether it would occur. The Act was not to be read down, and the appeal failed. The Secretray of State might wish to reconsider the words used in the Code of Guidance.
Kennedy LJ said: ‘The status of the code is clear from Section 182(1) of the Act. In exercising their functions local housing authorities must ‘have regard to’ the code, but if the code differs from the statute, as interpreted by this court, it is the statute which prevails.’
In Crossley v Westminster CC  EWCA Civ 140, the applicant asserted that he was in priority need as he was vulnerable for ‘some other special reason’ (s 189(1)(c) of the Housing Act 1996). Despite evidence that the applicant was addicted to hard drugs, had made attempts to stop his drug use and that accommodation would further support and facilitate his recovery, the authority held that he was not vulnerable, as he could continue to receive support even if he were homeless. The county court judge took the view that the authority had reached a conclusion that was unreasonable and perverse. On appeal by the authority, the Court of Appeal held that the decision letter failed to sufficiently deal with the reasons for vulnerability raised by the applicant. The applicant had presented with stark facts pointing towards vulnerability for statutorily recognised reasons and the authority had failed in its obligation to acknowledge, take into account and evaluate those facts alongside the other evidence available. The court went on to comment (obiter) that although self-induced drug-addiction would not constitute “some other special reason”, where a person was attempting to deal with their addiction, the possibility of relapse was a potential “special reason” within the meaning of the legislation. Authorities were also cautioned, that where there might be different causes for alleged vulnerability, they should consider vulnerability as a whole and avoid dividing up different issues affecting an applicant between the different potential causes.
(Source Solicitor's Journal)