Hotak (Appellant) v London Borough of Southwark (Respondent)
Kanu (Appellant) v London Borough of Southwark (Respondent)
Johnson (Appellant) v Solihull Metropolitan Borough Council (Respondent)
Crisis & Shelter, EHRC, SS for CLG interveners
[2015] UKSC 30

The thing about the Supreme Court is that all those years of accrued, encrusted High Court and Court of Appeal case law just don’t matter. If the Supreme Court thinks otherwise, they are so much chaff. And so, to some extent, it proved to be in these joined appeals, where the issue was the meaning of vulnerability in s.189(1)(c) Housing Act 1996.

There were three key issues raised on the appeals.

i) The issue of the comparator, if any, in the assessment of vulnerability (the “Pereira test” issue). This arose from Johnson v Solihull in the Court of Appeal (Our report here).

ii) The issue of whether and how far third party support should be considered when assessing vulnerability. This arose from Hotak v Southwark in the Court of Appeal (Our report here)

iii) Whether the Public Sector Equality Duty in Equality Act 2010 has an effect on determination of priority need by a disabled applicant (or one with another protected characteristic). This was a point of appeal from Kanu v Southwark (our report).

But along the way there is much else of interest. The hearing, not least through the Crisis/Shelter joint intervention*, covered a number of issues on decision making on vulnerability. (The hearing can be watched here). Lord Neuberger’s main judgment deals with some of these issues before turning to the main points, and we shall do likewise. There are 8 points.

1  Vulnerability is concerned with an applicant’s vulnerability if he is not provided with accommodation, rather than ‘care and attention for the gravely disabled’. It is do to with the ‘provision of bricks and mortar’.

2  Whether an applicant is vulnerable must involve looking at his particular characteristics and situation when homeless in the round, taking each of his problems together. Adopting a phrase of Arden LJ’s from Johnson, Lord Neuberger says, at 38, that the authority must “pay close attention to the particular circumstances of the” applicant. That

3  Arden LJ’s statement that an authority must or can “take into account its own burden of homeless persons and finite resources” when assessing vulnerability (at 6 of Johnson), was not right.  Lack of resources or available accommodation on the Council’s part, “cannot in any way affect whether an applicant is in priority need”. The respondent councils had conceded this issue at the hearing.

4  Certain expressions “seem to have entered the vocabulary of those involved in homeless issues, which can lead to difficulties when they are applied to strictly legal problems”. In particular ‘street homelessness’ and ‘fend for oneself’. Such expressions “can be dangerous if employed in a documents which is intended to have legal effect […] They may start to supplant the statutory test”.

On ‘fend for oneself’, while this might have been useful in the context of R v Waveney DC ex p Bowers [1983] QB 238, 244H, “it is not the statutory test, and at least to some people a person may be vulnerable even though he can fend for himself”. Further the expression could mislead, when, as in two of the present appeal, the answer to whether someone supported by a family member could ‘fend for himself’, the answer most people would give is no.

On ‘street homeless’, this is not to be found in the 1996 Act (though it is in s.71 Housing (Wales) Act 2014 – largely by importing the court’s account of the Pereira test!). It appears to have entered case law in Osmani. However, ‘homelessness’ is an adjective which can cover a number of different situations “and the very fact that the statute does not distinguish  between them calls into question the legitimacy of doing so when considering the nature or extent of an authority’s duty to an applicant”.

5 The use of statistics to determine whether someone is vulnerable is a very dangerous exercise. As per Underhill LJ’s uneasiness at 58 of Ajilore v Hackney LBC [2014] EWCA Cic 1273 (our report)

But even if it is right, as seems plausible enough even in the absence of statistics, that the incidence of suicide is higher among homeless people than in the remainder of the population, I am not sure how that is relevant to the question which the reviewing officer had to decide. It might show only that a disproportionate number of people with the kind of history or personality that renders them specially liable to attempt suicide tend to be made homeless. The fact that there might be disproportionately many such people in the homeless population would not in itself mean that they were any the less vulnerable within the meaning of section 189 (1) (c) – any more than it would if there were a disproportionately large number of homeless people suffering from severe mental illness. The question of who constitutes the “ordinary homeless person” for the purpose of the so-called Pereira test cannot be answered purely statistically.

6  ‘Vulnerable’ in s.189(1)(c) should not be taken as meaning that those falling in (a), (b) and (d) are also vulnerable. They are in priority need through the specific statutory provisions.

7  The reviews in Hotak and Kanu revealed a belief by some reviewing officers which is plainly wrong. Ms Emmanuel (Southwark’s review officer in Kanu) stated that an authority was not ‘required to make provisions for households who are comprised of or include adults in reasonable physical health’. It is clear from s.189(1)(c) that an applicant can be vulnerable even if he resides with a third party and that a duty to house the applicant may extend to that third party. The health of the third part may be of relevance in considering support that they may give the applicant (on which more below), but that is the extent of it.

8  There was a disagreement as to whether s.189(1)(c) “gives rise to a two-stage test – (i) whether the applicant is “vulnerable”, and (ii) whether it is as a result of “old age, mental illness or handicap or physical disability or other special reason” – or whether there is a single, composite test”. In practice this is rather arid and given that there are usually a number of reasons combined, and the existence of ‘other special reason’, a composite test seems more likely.

After that prelude, striking though some of these preliminary points are, we come to the main issues.

i) The comparator and Pereira test.

Lord Neuberger notes the definitions of vulnerability given by Waller LJ in Ex p Bowers [1983] QB 238

“vulnerable in the context of this legislation means less able to fend for oneself so that injury or detriment will result when a less vulnerable man will be able to cope without harmful effects”

And then that of Hobhouse LJ in Pereira, that the authority should ask itself if the applicant:

“when homeless [will be] 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” (emphasis added). To the same effect, he said this a little later: “It must appear that his inability to fend for himself whilst homeless will result in injury or detriment to him which would not be suffered by an ordinary homeless person who was able to cope.”

Waller LJ’s formulation is described as logically circular, so highly questionable. Hobhouse LJ in Pereira is also circular but perhaps more helpful.  However it should be treated with caution:

First, it has been treated in some decisions of courts and reviewing officers almost as a statutory definition, when it was simply intended to be guidance to Camden housing authority as to how to approach Mr Pereira’s application, which was being remitted for reconsideration. Thus, no doubt because there was no question of Mr Pereira being supported by a family member, Hobhouse LJ used the expression “fend for himself”, which I have discussed above. The second reason for treating Hobhouse LJ’s guidance with caution is that the term “ordinary homeless person” can plainly be interpreted in more than one way, as Mr McGuire QC rightly submitted.

We’ll return to those various interpretations shortly. First, Lord Neuberger deals with the argument advanced by Mr Johnson and Crisis & Shelter that no comparator was needed to decide vulnerability. This was not accepted.

“vulnerable”, like virtually all adjectives, carries with it a necessary implication of relativity. In the very type of case under consideration, it can fairly be said that anyone who is homeless is vulnerable, as Lord Glennie pointed out in Morgan v Stirling Council [2006] CSOH 154, [2006] HLR 95, para 4. Accordingly, as he went on to suggest, it follows that section 189(1)(c) must contemplate homeless people who would be more vulnerable than many others in the same position (especially given the words “or other special reason” which show that vulnerability arising from many causes is covered).

That means that the position taken by the Court of Appeal that vulnerable in s.189(1)(c) “connotes “significantly more vulnerable than ordinarily vulnerable” as a result of being rendered homeless” is correct. But that leaves the issue of the correct comparator.

Hobhouse LJ’s suggestion of ‘the ordinary homeless person’ could have three interpretations:

(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. (para 53)

Previous Court of Appeal decisions appear to have taken it that ““the ordinary homeless person” was a notional homeless person based on the particular authority’s experience”, so (ii) (a) or (b). This is not the right approach, whatever the Respondent councils argued..

56. It does not seem probable that Parliament intended vulnerability to be judged by reference to what a housing officer thought to be the situation of an ordinary actual homeless person. Such an assessment would be more likely to lead to arbitrary and unpredictable outcomes than if one takes the ordinary person if rendered homeless, and considers how the applicant would fare as against him. Equally importantly, if the comparison is with the ordinary actual homeless person, then – especially if possibility (ii)(b) were correct – as Sedley J pointed out in R v Hammersmith & Fulham London Borough Council, Ex p Fleck (1997) 30 HLR 679, 681, there would be a real risk that “a sick and vulnerable individual (and I do not use the word ‘vulnerable’ in its statutory sense) is going to be put out on the streets”, which he described as a “reproach to a society that considers itself to be civilised”.

The proper comparator is “with an ordinary person if made homeless, not with an ordinary actual homeless person” (para 57).

it also follows from Hobhouse LJ’s reference (in a passage at p 330 which I have not so far quoted) to “an individual” who “suffer[s] from some mental or physical handicap which … makes him unable to cope with homelessness” as someone who would fall within section 189(1)(c). There was no suggestion that, if such a person could be said to be ordinary in the context of the actual homeless, he would fall outside the section.

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.

At para 59, Lord Neuberger acknowledges that the strict statutory version, as Lady Hale points out, should be “with an ordinary person who is in need of accommodation”, but he does not think this could lead to a different result.

ii) Third party support and vulnerability

The appellants’ and intervenors’ arguments that third party support, or at least non-statutory third party support, should not be considered for the purposes of assessing vulnerability were not successful.

Virtually everyone is better off housed than homeless, but it is those people who will be more vulnerable in practice if they are homeless who could be expected to receive priority treatment. It would seem contrary to common sense if one were to ignore any aspect of the actual or anticipated factual situation when assessing vulnerability. It is also relevant to note that paras (a), (b) and (d) of section 189(1) are all concerned with practical situations. (para 63)

And

64. 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.

On this latter point, Lady Hale dissents, noted below.

This does give rise to an unfortunate paradox. Mr Hotak’s selfless brother, for example, who was prepared to support him through their joint homelessness, would actually have been better off by not supporting him. Mr Hotak would probably then have been straightforwardly vulnerable, and his brother would have been housed with him through the operation of s.189(1)(c) as a person with whom the applicant resides.

While acknowledging the force of this point, Lord Neuberger explains it as a side effect of the Act’s focus on the applicant.

The primary focus of section 189(1)(c) is on the putative vulnerable applicant, and the inclusion of a third party in the provision of accommodation is either to avoid breaking up the household or family unit or to benefit the vulnerable person, and not to benefit the third party. If one is looking at the applicant, the only relevant factual question when it comes to the issue of support is what support he would receive; the fact that the answer to this question may produce counter-intuitive results in relation to a third party with whom he lives is therefore not as surprising as it seems at first blush. The purpose of Part VII of the 1996 Act is not to reward the virtuous, but to deal with a practical problem

However, while third party support might fall to be considered in assessing vulnerability, it has to be clear that such support would be provided by the third party “on a consistent and predictable basis”.

Lady Hale dissents here. She argues that only support provided by third parties under s statutory obligation should be considered.

95. […] Most people who live together help one another to some extent, and especially if the person who needs help is old, mentally disordered or disabled, or physically disabled. It would be a sad world indeed if they did not. I do not believe that this provision was catering only for that sad world. It is premised on there being at least one member of the household who is vulnerable and one or more others who are not. Both the vulnerable and the non-vulnerable qualify as being in priority need. The non-vulnerable can apply on behalf of them both. It is difficult to think that Parliament contemplated that the non-vulnerable could only apply on behalf of them both if he was not looking after the vulnerable one. Why on earth would Parliament want to give such a heartless person priority and priority over the person who was fulfilling his familial duties?

Lord Neuberger’s majority judgment finds otherwise. But this is not to say that the mere presence of third party support is sufficient to avoid vulnerability. The Hotak review letter erred in simply asserting that because his brother would look after him, Mr Hotak was not vulnerable. Similarly, the statement in the Hotak review letter that ““it is reasonable to expect a fit and healthy adult to attempt to house and support his brother while they are homeless together” was dangerous, to the extent that it suggested an irrefutable or even strong presumption that people will do what it is reasonable to expect them to do.

I accept that it is not unreasonable to expect members of the same family to support each other if they are living together, but (i) whether a particular applicant will in fact receive support and if so what support, must be a case-specific question, to which the answer must be based on evidence (which can of course include appropriate inferences), (ii) in a particular case, the level of support may have to be so high to obviate vulnerability that it goes beyond what can be expected on any view, and (iii) as already explained, the fact that there may very substantial support does not of itself necessarily mean that the applicant will not be vulnerable. Thus, in some cases, the support may be every bit as good as the applicant would receive if he were housed, but it would still not prevent him from being vulnerable. Accordingly, the reviewing officer must always consider very carefully whether the applicant would be vulnerable, after taking into account any support which would be available.

iii) Equality Act 2010

This can be dealt with fairly shortly. While the Equality Act and the public sector equality duty certainly applies, it is complementary to the Housing Act 1996 provisions, not additional. So

78. […] More specifically, 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”. There is a risk that such words can lead to no more than formulaic and high-minded mantras in judgments and in other documents such as section 202 reviews. It is therefore appropriate to emphasise that the equality duty, in the context of an exercise such as a section 202 review, does require 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”.

It is not the case that the Equality Duty ‘adds nothing’ as argued by the councils. While a conscientious officer carrying out his duties will very often comply with the equality duty despite being ignorant that the duty was engaged, it will also be cases “where a review, which was otherwise lawful, will be held unlawful because it does not comply with the equality duty”.

Lord Neuberger reflects on his often quoted view on review decisions in Holmes-Moorhouse [2009] 1 WLR 413, and says (at 79):

I said that a “benevolent” and “not too technical” approach to section 202 review letters was appropriate, that one should not “search for inconsistencies”, and that immaterial errors should not have an invalidating effect. I strongly maintain those views, but they now have to be read in the light of the contents of para 78 above in a case where the equality duty is engaged.

The Equality Act added nothing to the third party support argument as it would be lawful as a proportionate means of achieving a legitimate aim.

Decisions on the appeals

Mr Johnson lost. The decision letter actually found he did not suffer from depression and was either not misusing drugs or that his drug problems would have no significant effect on his situation if homeless. The section of the review on comparison with the actually homeless and use of statistics were therefore actually irrelevant, even though wrong.

Mr Kanu won. The review letter in his case had significant flaws.

The review letter is a full and considered document, but it suffers from the errors of (i) assessing Mr Kanu’s vulnerability by reference to “another ordinary street homeless person”, and (ii) assuming that an authority is entitled to treat members of a household as not vulnerable if one of them is mentally and physically healthy – see paras 31(ii) and (iii) above. […] in this case, the important factor to my mind is that Mr Kanu had and has what appears to be a pretty strong case for claiming to be vulnerable. It is therefore quite conceivable that the review would have gone the other way if the right comparator had been used.

However Mr Kanu’s appeal on the Equality Act duty would not have succeeded as the ‘prolix’ decision letter  did approach his disability “in a sufficiently full and considered way to satisfy the equality duty”.

Mr Hotak lost, as his appeal was only on the issue of whether third party support could be considered. However, given the finding in Kanu and the similar issues in the Hotak review letter, Southwark were urged to reconsider their decision. In handing down the Judgment, Lord Neuberger suggested further submissions may be made by Mr Hotak. I would presume on exactly this point.

Comments

This will take some time to consider and work through.

The change to the Pereira test is very significant and potentially far reaching. Certainly, council’s decisions on vulnerability will have to be detailed, considered and taking all of the applicant’s particular circumstances into account in a composite way.

The old shibboleths of ‘well, the homeless are depressed/take drugs/are at more risk of sexual or physical abuse/self harm/have suicidal ideations’ are out of the window. The use of statistics about the actually homeless is likewise of no relevance to a decision on vulnerability. The Johnson/Ajilore route for councils of finding the already vulnerable amongst the actually homeless as the comparator for the applicant’s vulnerability is at an end.

The simple question is ‘Is the applicant more vulnerable than an ordinary person if made homeless?’

No doubt elements of this definition will be headed to the Court of Appeal before too long.

On third party support, while there is a clear logic and indeed some precedent to Lady Hale’s dissenting view, the judgment makes clear that the simple assumption that an able bodied third party in a household able to offer support to the applicant will overcome the applicant’s vulnerability is not adequate.

What must be considered, in detail, is the likely consistency and duration of the support on the one hand, and the adequacy of the support to overcome the vulnerability on the other. Any decision that does not address these issues will fall short, and will also likely fall short on the public sector equality duty also, give the complementary relation to Part VII duties.

The findings on the Equality Act are not a surprise to anyone who followed the hearings, but the findings at paras 78 and 79 are a useful indicator that the PSED must be in the decision maker’s mind and there must be a proper focus on the applicant’s disability (or other protected characteristic).

There will no doubt be much more on these decisions to follow. It is, I think, the most significant homelessness decision in many years and one which may have an impact on treatment of the group hitherto most hard hit by homelessness decisions, the single homeless.

*Full disclaimer, I acted as legal adviser to Crisis on the joint intervention with Shelter. My views on the arguments in the intervention may be shaped accordingly. Though we did win.