Case Comment: Hotak & Ors v London Borough of Southwark  UKSC 30
06 Tuesday Oct 2015
In May 2015, the Supreme Court handed down its decision in three joined appeals relating to decisions by the respondent councils that each appellant was not “vulnerable” within the meaning of the Housing Act 1996, s 189(1)(c), and therefore did not have a “priority need” for accommodation.
This important decision provides much-needed clarification on how “vulnerability” is to be determined both by housing officers and by courts.
Under Part VII of the Act, local authorities owe special duties to an individual who is homeless or threatened by homelessness if she has a “priority need for accommodation”. Those who have a “priority need” include, under s 189(1)(c) of the Act:
“a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside”.
To briefly summarise the background to each appeal:
- Mr Johnson’s application was rejected on the basis that he had not shown himself to be “less able to fend for [himself] than an ordinary homeless person”. The thrust of his appeal was that “an ordinary homeless person” was the wrong comparator;
- Mr Kanu again challenged the fact that in his determination, he was compared to an “ordinary street homeless person”. He also challenged the fact that the authority refused him because it was, in its words, not “required to make provisions for households who are comprised of or include adults in reasonable physical health” (in Mr Kanu’s case, his wife and son). Finally, Mr Kanu suffered from a disability and contended that the public sector equality duty (“PSED”) had not been complied with.
- Mr Hotak, who suffered from significant learning difficulties, received significant help from his brother with daily activities. His application was rejected on the basis that his brother would continue to look after him if they were street homeless. He contended that the council could not take support from his brother into account.
The Court’s decision
Before addressing the three “main” questions, the Court made several preliminary points about how to determine “vulnerability” under s 189(1)(c) (–). In particular, the Court cautioned housing officers against applying tests developed in case-law as if they were a substitute for the statutory test ().
The Court then turned to the three questions directly in issue in the appeal.
(i) Was “vulnerability” a “comparative” concept and, if so, to whom should the applicant be compared?
The Court unanimously found that “vulnerability” should be assessed comparatively. Anyone would in a sense be “vulnerable” when homeless but section 189 sought to identify people with a priority need for accommodation ([ and ). Lord Neuberger restated the test as “significantly more vulnerable than ordinarily vulnerable” ().
However, the correct comparator was not an ordinary homeless person but instead an ordinary person if made homeless (). As Lord Neuberger explained, the assessment of what is an “ordinary homeless person” was more likely to lead to “arbitrary and unpredictable outcomes” and to result in support being denied to very needy people ().
(ii) When assessing vulnerability, could local authorities take in support which would be provided by a third party (such as a family member)?
The majority decided that third party support could be taken into account. The assessment of vulnerability should consider a person’s situation if homeless: as such, it was a contextual and practical, rather than a clinical, assessment of a person’s situation ().It would be “unrealistic” to ignore the availability of support from pharmacists or doctors and there was no principled basis to distinguish this support from the support of family members ().
Nevertheless, the majority set out some caveats. First, the decision-maker would have to be satisfied that the third party support would be available on a “consistent and predictable basis” (). Second, an applicant may be vulnerable notwithstanding any available support (). Third, there should be no presumptions (or at least no “strong” presumptions) about what it was reasonable to expect a family member to do: the question is whether an applicant will in fact receive support, to be determined on the evidence ().
By contrast, Lady Hale felt that while it was proper to take into account public services which there was a statutory duty to supply (), family support was different. First, like charitable services, this kind of support could come and go depending on the circumstances (). Second and more importantly, in her view, Parliament could not have intended only to help those whose cohabitants refused to support them ().The protection for those residing with the vulnerable in section 189(1)(c) surely did not only extend to those who reside with a vulnerable person but do not help her.
The majority conceded that their interpretation might incentivise family members not to support their vulnerable relative, but thought that this “somewhat distasteful” consequence could not justify the tail wagging the dog (). It could be explained by the fact that section 189(1)(c) was meant “not to reward the virtuous, but to deal with a practical problem” ().
(iii) What was the effect of the PSED on determinations of priority need in line with section 189 of the Act in cases where the applicant has a disability?
Finally, the Court affirmed much of the established Court of Appeal jurisprudence on the PSED, in particular Baker, Bracking and Pieretti (which considered the interrelationship between Part VII of the Act and the Equality Act 2010). The PSED required a reviewing officer to “focus very sharply” on the disability, its extent, its effects and whether it rendered the applicant vulnerable (). However, the Court emphasised that in many cases, a reviewing officer who conscientiously assessed “vulnerability” could comply with the equality duty even without realising that it was engaged ([).
The Supreme Court unanimously allowed Mr Kanu’s appeal (though dismissing his claim based on the PSED); unanimously dismissed Mr Johnson’s appeal (notwithstanding the flaws in his assessment, he had not been found to be vulnerable on one of the grounds identified in section 189(1)(c)); and dismissed Mr Hotak’s appeal (with Lady Hale dissenting) (, ).
This decision provides much-needed clarity for those tasked with making assessments about vulnerability pursuant to section 189(1)(c). It is especially notable that the Court felt it necessary to clarify at  that judicial statements should not be confused for statutory tests. Housing officers, with only appellate case-law to flesh out the meaning of difficult and bald statutory tests, deserve some sympathy: statutory guidance or secondary legislation would undoubtedly have been useful in this area.
In many respects, the decision is “claimant-friendly”. It clears up the long-standing Court of Appeal jurisprudence (in particular Bowers  QB 238 and Pereira  31 HLR 317) in identifying the appropriate comparator as an ordinary person if made homeless. This aspect of the decision ought to expand the number of people determined to be “vulnerable” and overcomes the intractable issue of defining an “ordinary homeless person”. The Court also endorses a rigorous approach to the PSED in this context.
By contrast, the Court’s ruling on the relevance of third-party support comes with difficult consequences. At least the majority (unlike, for example, the unanimous Court of Appeal in Hotak) grappled with this difficulty. Its explanation based on Part VII’s purpose is theoretically attractive but, in practice, reviewing officers will have to make difficult predictive judgments. Invited by the Court to draw “appropriate inferences” from the evidence (), they may often end up “calling the bluff” of family members: whatever they say, what support will they in fact provide if accommodation is refused?