Vulnerability after Hotak/Johnson/Kanu

I strongly suspect that at some point in the next year we will get at least one Court of Appeal case on the meaning of ‘vulnerability’ in homeless priority decisions after the Supreme Court decision in Hotak v Southwark LBC [2015] UKSC 30  (our note). In the meantime, thanks to the July/August Legal Action Housing: Recent Developments for the note on this s.204 county court appeal

Mohammed v Southwark LBC. County Court at Central London, 18 December 2015

Mr M had applied to Southwark as homeless. He provided a GP’s letter stating that he suffered from depression, was prescribed anti-depressants and was awaiting therapy. Soon after, Mr M’s brother was murdered and he was badly affected by this.

Southwark applied the Pereira test (this was pre-Hotak) and found Mr M was not vulnerable. A s.202 review was requested, and with it, a letter from an NHS psychological therapist. This letter set out assessment results, putting Mr M in the moderate to severe range for depression and anxiety, set out the effects of Mr M’s brother’s death and stated that homelessness would “have a significant impact on his well-being and ability to cope, and likely increase his symptoms of low mood and anxiety and it would also significantly impact on his ability to engage with counselling sessions…”.

During the review, the judgment in Hotak was given. Southwark acknowledged that the original s.184 decision was deficient in the light of Hotak, but they were minded to uphold the finding of no priority need. Further representations were made by Mr M’s solicitors stressing that Mr M would be significantly more vulnerable if homeless than an ordinary person.

Southwark’s review decision upheld the finding of no priority need. Southwark had not made enquiries of the NHS therapist, nor had Southwark obtained its own medical advice.

Mr M appealed.

Recorder Hochauser QC held:

The term ‘significantly’ in Lord Neuberger’s judgment in Hotak should be construed by analogy with ‘substantial’ in Equality Act 2010, as meaning ‘more than minor or trivial’.

Clinical depression was a ‘mental illness’ for the purposes of Housing Act 1996 s.189(1) and Equality Act 2010 s.149(1).

If an applicant was likely to suffer more harm by the exacerbation of that mental illness by reason of becoming homeless than an ordinary person would, then they should be regarded as vulnerable for the purpose of s.189(1)(c) Housing Act 1996.

A fair reading of the medical evidence in this case was that Mr M’s mental illness/disability would worsen in consequence of becoming homeless. He was therefore significantly more vulnerable than ordinarily vulnerable.

Before departing from the prognosis put forward by a medical professional, any reasonable council, complying with the Public Sector Equality Duty, would have made enquiries of the therapist, or obtained its own medical advice. The council had therefore not approached the matter with the ‘rigour’ required – para 78 of Hotak.

The decision that Mr M was not in priority need was not one that a reasonable council could have reached without making further enquiries.

Comment

We will, of course, see how these matters play out in the court of appeal. However, reading Lord Neuberger and Lady Hale’s judgments together does strongly suggest that a definition of ‘significant’ as ‘more than minor or trivial’ would be right. And the ‘ordinary person’ is healthy and robust – para 71 of Hotak.

 

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London.
You can find him on Linkedin and on
Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.

Posted in Homeless, Housing law - All and tagged .

6 Comments

  1. Sadly it seems that the court using the term ‘significantly’ will (possibly inadvertently) open up a whole new plethora of cases and establishing fresh degrees of vulnerability, which Hotak strived to prevent.

  2. It never ceases to amaze me the arrogance of some councils when it comes to decision making. It’s appalling that confronted with new evidence they chose to completely ignore it. Fair enough if they challenge it with evidence of their own, but don’t just pretend like it makes no difference.

  3. It is also worth noting at this point that here in Wales Section 17(1) of the Housing (Wales) Act 2014 provides a different test to the English legislation and basically codifies the test set out in Pereira.

    • Although the Welsh Code of Guidance tells authorities to apply Hotak ;-)

  4. Surely the definition of significant is more than minor or trivial which is in itself substantially significant but always vulnerable to re-definition !

    • There is no given definition per se. But the case law at least at county court level is tending towards the ‘more than de minimis’ view.

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