Hotak v Southwark LBC [2013] EWCA Civ 515 concerned a short point on whether an authority was entitled to have regard to the assistance that a homeless person would receive, in the event he became homeless, when determining whether he was vulnerable or not.

The facts of the case were this: Mr Hotak had come to London with his brother. They moved into a flat in Peckham. They were asked to leave the flat and both approached Southwark for assistance (albeit Mr Hotak’s brother at that time was ineligible for assistance and so the application was made in Mr Hotak’s name only).

Southwark accepted that Mr Hotak’s suffered from depression, post-traumatic stress disorder and a learning disability, all of which had resulted in him self-harming while in prison. Southwark also acknowledged that these conditions were “serious” enough to mean that he “might” be vulnerable. Moreover, Southwark also conceded that if he was street homeless, and on his own, then he would be more likely to suffer harm or injury than the ordinary homeless person.

However, Southwark also took into account the support that Mr Hotak received from his brother. This amounted to daily personal support, including prompts to undertake personal hygiene, to change his clothes, to undertake a routine, and to organise health appointments, meals and finances. Southwark were satisfied that Mr Hotak was not vulnerable because if he were to be homeless he would not suffer harm or injury because he would continue to receive this kind of support from his brother.

Mr Hotak appealed against this decision to the county court. He contended that when assessing a person’s vulnerability Southwark were restricted to considering how an applicant would cope if they were homeless on their own without assistance from anyone else or, alternatively, Southwark’s decision that Mr Hotak’s brother could provide such support was not open to it on the evidence. This appeal was unsuccessful in the county court and Mr Hotak appealed to the Court of Appeal on the first ground only.

The appeal was dismissed. The reviewing officer, once he was satisfied that a person suffered from a mental illness, was required to consider whether, by reason of that mental illness, when homeless, the applicant would be less able to fend for himself than the ordinary homeless person, so that he would suffer harm or injury. This was a “composite assessment” which required the reviewing officer to take into account all of the applicant’s personal circumstances. It was not permissible for the reviewing officer to make an assessment of the applicant’s vulnerability in isolation from his personal circumstances, which in this case included the support offered by his brother.

Rather helpfully, however, the Court of Appeal did make clear that an authority cannot simply rely on an existing support network to uphold a finding that a person is not vulnerable. The reviewing officer would have to give proper weight to the support network available:

“[42]… The effect of a support network in the applicant’s existing home is unlikely to be the same as the effect of a similar support network when the applicant is made homeless. Even if the reviewing officer is satisfied that the support network would remain in place it may not, in a situation of homelessness, be sufficient to enable the applicant to fend for himself as would the average homeless person. For example, the old age or mental ill health or physical disability of the applicant may be such that no amount of support will enable the applicant to cope with homelessness as would a robust and healthy homeless person. It seems to me that a fair evaluation of all the evidence is critical to the sustainability of the reviewing officer’s decision.”

Comment

This decision is not all that surprising. The question of whether someone can cope on the streets is a very fact sensitive judgment and plainly the authority making the decision can take everything into account. As the Court of Appeal caution, however, in the vast majority of cases the fact that someone has a support network at home is unlikely to protect them sufficiently while on the streets to ensure that they do not suffer harm or injury. But, as that judgment is for the authority subject to an irrationality challenge, it is going to quite hard to challenge.